Defining intelligence

Simon McKay, of McKay Law Solicitors & Advocates of Leeds, looks at the importance of defining ‘intelligence’ to police officers.

References to intelligence are now a daily occurrence, perhaps somewhat strange considering its often secret nature. Trials involving the prosecution of terrorists, organised crime groups and drug dealers involve extensive use of the resource and following conviction, the press often refer to it. It seems that every television company, newspaper and radio station has access to ‘intelligence insiders’ who provide access to the inner sanctum of police, national law enforcement and intelligence agencies. Of course, police now operate in the era of the national intelligence model.
What is interesting is that there is no real definition of what intelligence is. This is extraordinary in any view. None of the legislation defines it (not even the Intelligence Services Act 1994) and while there are countless references to intelligence in the cases, none grapple with the elusive concept of what it may actually be.
There is an obvious reason why a definition is important. Developments in the law, such as in cases like R v Dawson [2007], state clearly that intelligence is not evidence and may not need to be disclosed. Arguably without knowing what it is, law enforcement and prosecuting bodies may be unable to take full advantage of these potentially liberating and very pragmatic pronouncements.
Cases like Dawson and legislation like the Regulation of Investigatory Powers Act 2000 (RIPA) offer the best opportunity to evolve some kind of parameters to what intelligence may actually be. Section 26 of RIPA creates for the first time in English law a statutory basis for the use and conduct of what was formally known as an informer. The inelegantly named (as the former chief surveillance commissioner described it) covert human intelligence source is a complex, and at times difficult statute. The definition runs to a number of sub-sections and paragraphs. In addition there is warranted intercept – that taboo intelligence source, which can never be disclosed or relied on in evidence other than the most exceptional circumstances. Part I of RIPA is dedicated to setting out in detail what an intercept is, who can obtain it and what it can be used for. Within these sources, a number of definitional pointers can be indentified:
•Intelligence is not necessarily proof; but
•It can be incriminating;
•Is unlikely to include genuinely exculpatory material; and
•It is not necessarily covert, but is likely to be acquired without knowledge of target investigation; consequently
•It is likely to require regulatory authorisation to satisfy lawfulness (see C v Police and Secretary of State [2006]);
•Its existence as intelligence (as opposed to evidence) may be time specific; and
•May not need to be disclosed to the defence.
From these pointers it is possible to at least propose a definition: “Intelligence is information that relates to the commission of a crime or the commission of some future crime which is very likely to be collected without the knowledge of those suspected of being involved. Where the information is being deliberately collected by the authorities it is likely to be the subject of internal or execute authorisation. Intelligence may become evidence (unless it’s a warranted intercept: NB section 17 of RIPA which effectively excludes its widespread use in court proceedings) at a point during a long-term investigation where it changes from a general intelligence gathering exercise, to where specific offences may be capable of being identified.”
This is no more than a first attempt to codify what it emerges is a broad product. The discussion the issue gives rise to is extremely thought provoking. One police manual, for example, describes intelligence as anything that law enforcement is able to use in the course of an investigation. This, with respect, is a little weak. The question of DNA profiles is an interesting one. Obtained overtly and wi