Tasked witnesses

Tasked witnesses: to authorise or not to authorise? Simon McKay, solicitor advocate, of McKay Law Solicitors & Advocates of Leeds, tackles the controversial issue of whether the provisions of Part II of the Regulation of Investigatory Powers Act 2000 apply.

The ever controversial Regulation of Investigatory Powers Act (RIPA) 2000 has been in the press again in the past week. In has been reported that local authorities are likely to have their powers to carry out surveillance on the public significantly restricted under proposed
amendments to the Act and the Conservative Party is promising to bring to an end the ‘surveillance society’ should it win next year’s general election. Behind the
public wrangling about the politics of RIPA 2000, an equally and arguably much more important issue is
evolving surrounding the sensitive subject of what has become known as the ‘tasked witness’.
The tasked witness is someone who provides a witness statement to law enforcement officers about the commission or proposed commission of an offence and who may then be invited by investigators to seek out additional information or evidence from the suspect who, in general, will be known to them. The central question in such circumstances is should the witness be authorised as a covert human intelligence source under Part II of the 2000 Act. As with every such operational dilemma, the answer will to a large extent be dependent on the particular facts of the case. In the context of covert policing, authorising officers have a broad ambit in which their decision making will find approval. The critical thing will be for that officer to demonstrate some methodological approach to resolving the issue.
Since RIPA 2000 was brought in to, among other things, comply with article 8 of the European Convention on Human Rights (the right to respect to private life), a reasonable starting point is to consider whether the activity in question interferes with an individual’s right to privacy. However, officers need to be cautious in the context of use and conduct authorisations relating to covert human intelligence sources since, unlike directed and intrusive surveillance, there is no requirement within section 26(8) for the information they acquire to in fact be private. A determination as to whether Article 8 is engaged will often assist officers in resolving the issue, but before a final decision is made it is essential that the legislation itself is consulted and the appropriate code of practice considered.
The starting point is the definition of a covert human intelligence source. This is set out in section 26 (8) of the Act, but it is essentially a tripartite relationship. There is the authorising officer within the public authority concerned, the covert human intelligence source and the target or suspect in the investigation. The source must be using his or her relationship with the suspect for the purposes of acquiring information and then passing this to the public authority without the suspect’s knowledge. Limited assistance can be derived from case law, but in Allan v UK, a 2002 case, the European Court of Human Rights placed considerable emphasis on the nature of the relationship, in particular between the source and the suspect. If this relationship is familiar, or very proximate, or the source occupies a dominant position over the suspect, then there may be a greater need to authorise in the circumstances of the case where otherwise no authority may be required. The importance of the relationship between the parties has been, and remains, important from the point of view of the Office of Surveillance Commissioners too.
A practical question that can often be asked at this juncture in order to resolve whether an authorisation is appropriate or not is: “Would the source be able to obtain the information requested if he or she advised the suspect that they were assisting the public authority concerned in the way that they were?” More often than not the answer, understandably,