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Recruiting informants and radicalisation: legal issues

February 2, 2016

Stories that young men have been radicalised following attempts by the Security Service (MI5) to recruit them as informants (technically known as Covert Human Intelligence Sources, or as the former Chief Surveillance Commissioner Sir Andrew Legatt observed, “inelegantly” CHIS) appear with increasing regularity. Last year there were reports that Mohammed Emwazi, “Jihadi John”, may have been turned towards Islamic extremism following a failed pitch by MI5 for him to work for them. Last month a broadly similar account appeared in relation to Siddhartha Dhar, Jihadi John’s apparent successor. Michael Adebowale, one of Lee Rigby’s killers, claimed that he too was the subject of a failed recruitment bid by the agency. In its evidence to the Intelligence and Security Committee MI5 neither confirmed nor denied (NCND is discussed here) whether this was true on the grounds that it would damage national security to do so. What MI5 was prepared to say was that it had not carried out an assessment of his mental health [see paragraphs 126 to 128 of the report].

The issue of radicalisation following a failed attempt to recruit is one deserving of proper research but this paper examines the legal issues arising. The Chief Surveillance Commissioner, who does not have responsibility for the security services, identified a similar issue in his latest report:

“…less common, but still encountered, the failure to authorise a CHIS promptly as soon as they have met the criteria; and in many cases (more typically within the non-law enforcement agencies) a failure to recognise or be alive to the possibility that someone may have met those criteria”

This encapsulates both the problem and the subject of this blog: defining CHIS and evaluating the considerations on attempting recruitment.

The definition is found in the Regulation of Investigatory Powers Act 2000. It is often presumed in s 26(8). This provides:

“(8)    For the purposes of this Part a person is a covert human intelligence source if—

(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or

(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship”

There is some elaboration of the terms in s 26(9):

“9…   

(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and

(c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question”

These provisions are explained in Covert Policing Law & Practice:

“Attempting to give the definition some clarity is not easy but the relationship is essentially tripartite—the ‘authority’ one part, the source the other and the ‘target’ the third. Subsection 9(a) requires the source to establish or maintain ‘a personal or other relationship with a person’ for the purposes of the two subsections that follow”.

However s 26(7), the subsection immediately prior to the substantive definition, expands this significantly. It provides:

“7.     In this Part—

(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and

(b)references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source”

So, it can be seen, that any act incidental or preparatory to the proposed recruitment of a CHIS falls within the definition and, to be compliant, requires authorisation.

The significance of authorisation is that s 29(5) creates an obligation to appoint someone with responsibility for the welfare and security of the source as well as a quite different person to oversee the use made of the source. The Covert Human Intelligence Sources Code of Practice on sets out the practicalities of this at paragraph 6.14:

“Before authorising the use or conduct of a CHIS, the authorising officer should ensure that a risk assessment is carried out to determine the risk to the CHIS of any tasking and the likely consequences should the role of the CHIS become known. The ongoing security and welfare of the CHIS, after the cancellation of the authorisation, should also be considered at the outset” (emphasis added).

There is no evidence the ISC considered the provisions of RIPA 2000 during its examination of the Lee Rigby killing. It is not known whether Adebowale was the subject of an attempted recruitment or not but carrying out an assessment of Adebowale’s mental health may have been a requirement of any risk assessment if he had been.

What, if any conclusions can be reached from this short analysis? There is no question, that recruitment of agents is an invaluable resource for the agencies and law enforcement. Sun-tzu’s in The Art of War, described informants as ‘the Lord’s Treasure’ and his five categories of ‘spies’ included local and double agents. Their importance in the fight against terrorism and crime is unassailable. However, an attempted recruitment carries with it the obligations of authorisation, which in turn, triggers the need for effective risk assessment and oversight. The OSC in the context of non-agency public authorities was concerned “about the huge variation in the standard of risk assessments” and that there is an effective “firewall” between those with responsibility for security and welfare and exploitation of the source. The Adebowale case may point towards similar problems within the intelligence community. One further conclusion may also be possible and that is that there was a fundamental failure by the ISC to examine what must have been one of the critical questions the murder of Lee Rigby gave rise to.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me, with a link to the original content. This is opinion, not legal advice.

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