The use of informers has been criticised by the Garda Síochána Ombudsman Commission (GSOC) recently. The GSOC is investigating claims that some members of the Gardai permitted the continuation of serious criminality in exchange for information on other criminal actors. As I’ve written before, the use of undercover police officers and informers is fraught with problems, in terms of the scope of their permitted behaviour and the possible incitement of further offences.
Covert policing and the use of informers allow for the penetration of criminal groups and enterprises, and the communication of information about their structure and actions to the authorities. Much organised crime may not involve a victim as such, or victims may be reluctant to testify, or the evidence gathered may be incomplete or unconvincing. So, the infiltration of criminal enterprises is regarded as crucial for effective policing and investigation of organised crime, whether for intelligence purposes, or to gather evidence for criminal proceedings, or both.
In Ireland there is no legislation governing the use of covert human information sources (CHIS) or informers; instead, guidelines are in place. In contrast, in the UK the use of CHIS has become more regulated and strictly scrutinised. Although there CHIS need not be authorised under the Regulation of Investigatory Powers Act 2000 and its Scottish equivalent, so doing ensures that the operation has lawful approval. In addition, Codes of Practice have been issued, and each police force has its own policy and operating procedure.
The Covert Human Intelligence Source System and Code of Practice become organisational policy for the Garda Síochána in 2006 following judicial criticism of the handling of informers in the Morris tribunal report. The Code of Practice covers authorisation, registration, risk assessment and record keeping; for example, the recruitment, handling and management of CHIS may be given by the Assistant Commissioner at the Crime and Security Branch of An Garda Síochána only. This is more limited than the scheme in the UK where authorisation of CHIS may come from various officers such as a superintendent in a police force, HM Revenue & Customs or a Senior Manager in the Serious Organised Crime Agency (SOCA). In neither jurisdiction is judicial approval of the use of CHIS or informers required.
In addition, the Code of Practice in Ireland states that CHIS Handlers and Controllers will be trained to ‘approved standards’, and the use of CHIS will be subject to ‘appropriate reviews’. These opaque terms are not defined in publicly available documents.
While the Code of Practice is claimed to be ‘in line with best international practice’ the lack of legislation is worrying from a due process perspective and is unlikely to be compliant with the ECHR. McDermott has noted that this non-statutory, executive action is not ‘dissimilar’ to the regime which operated in the UK prior to Malone v UK where the European Court of Human Rights found that phone tapping was not in accordance with law and that it breached Art 8 due to the fact that the relevant domestic law was obscure and could be interpreted in different ways. Therefore, procedures in Ireland appear to contravene Art 8 given that the expression ‘in accordance with the law’ in Art 8(2) requires that the measure has ‘some basis in domestic law’ and ‘refers to the quality of this law, demanding that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and compatible with the rule of law’ Malone v UK .
The very nature of covert policing entails police officers skirting close to the limits of legality, and may, as in the case currently under investigation, involve reliance on parties with dubious records and motivations. Moreover, oversight of sources is difficult, and this is not necessarily remedied by a legal framework: as I’ve commented on before, in the UK a number of legal actions and inquiries are underway regarding inappropriate behaviour and relationships cultivated by undercover agents. Having said that, this does not excuse the absence of legislation in this respect.
Regardless of the findings of the GSOC’s investigation, it is critical that legislation is drawn up to guide and limit the powers of the Gardai in this respect. This will ensure the legitimacy of Garda operations, and will bring practice in line with the ECHR. Ultimately, both a precise legal framework and an ethical culture of policing is required to ensure that due process norms and liberties remain safeguarded in the use of this crime control technique.