Police use of children as 'spies' is lawful
The High Court has ruled that the Government's scheme concerning the use of child spies (Juvenile Covert Human Intelligence Sources "JCHIS") by police and other investigative agencies is lawful, and that the scheme is adequate in its safeguarding of the interests and welfare of JCHIS.
The legal action was brought by the children's charity, Just for Kids Law, following steps taken by the Government to increase the amount of time that JCHIS can operate undercover before reauthorisation from one month to four months. This was due to the concern that one month can put too much pressure on JCHIS to obtain results too quickly.
In July 2018 the Home Office security minister informed the House of Lords that there was "increasing scope" for children to be used to counter crimes such as terrorism, gang violence, drug dealing and child sexual exploitation.
At the time, a Government spokesperson confirmed that JCHIS are used very rarely and only ever used when it is very necessary and proportionate. It was confirmed that the use of JCHIS is governed by a very strict legal framework.
It was noted by the Investigatory Powers Commissioner’s Office that just 14 children had been authorised as CHIS by police forces between January 2015 and October 2018. None of the UK’s 43 police forces had authorised a juvenile CHIS who was younger than 15.
A study by former police officer, Dr Chappell of the University of Portsmouth, published research illustrating "positive life course outcomes for individuals following their role as authorised juvenile CHIS".
The framework for the use of CHIS generally is set out in Part II of the Regulation of Investigatory Powers Act 2000 ("RIPA"). RIPA says nothing expressly about the use of JCHIS. Specific requirements relating to the use of JCHIS are contained in the Regulation of Investigatory Powers (Juveniles) Order 2000 as amended by the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018. There is also Home Office guidance available.
High Court findings
Two issues were raised at the judicial review: (1) whether the scheme breached Article 8 ECHR due to it lacking sufficient safeguards to protect JCHIS from physical and emotional harm, and (2) whether it was irrational for the scheme to draw a distinction between persons aged 15 or under (who must always have an appropriate adult at meetings with JCHIS), and persons aged 16 or 17.
Supperstone J rejected both arguments, concluding that the scheme is lawful. He found that the required enhanced risk assessment provides "a detailed evaluation of the risk" and the authorisation is for a short period and kept under close review. He ruled that there was no unacceptable risk of a breach of ECHR Article 8.
Security minister Ben Wallace has commented on the importance of the judgment. He says there is “increasing scope” to recruit JCHIS agents because of the growing numbers of children involved in serious crime both as perpetrators and victims. He says that it is important to recognise that young people potentially have "unique access to information that is important in preventing and prosecuting gang violence and terrorism. They will only be used where necessary and proportionate in extreme cases where all other ways to gain information have been exhausted."
This judgment is good news for police and other government investigative agencies because it has been made clear that the Government scheme in place is lawful. JCHIS can continue to be used when necessary, and the safeguards in place are sufficient to protect them.
Many people believe that the use of JCHIS at all is wrong, but it has been recognised that they can play a very important part in tackling serious crime. It has also been recognised that being a JCHIS can help lead to positive life outcomes for children involved in criminal behaviour, who had limited opportunities previously.
It was recognised by the Court that children are inherently more vulnerable as adults, but that the protections written into law ensure the best interests, safety and welfare of the child are the overriding concern. The best advice would be to follow the regulations strictly and ensure that ongoing support is available for all JCHIS.