All authorisations are granted by an experienced and highly trained authorising officer who will ensure that the authorisation has strict parameters and that this is communicated to the ‘agent’ or CHIS. Authorising Officers receive robust training to ensure they understand necessity, proportionality and risk considerations.

Public authorities each have in place their own training processes for their authorising officers to reflect the specialist remit in which they operate.

The authorisation of CHIS participation in criminal conduct is, and will continue to be, subject to robust and independent oversight by the Investigatory Powers Commissioner.

The Commissioner has wide-ranging statutory responsibilities for the oversight of investigatory powers, including this power, which are set out in Part 8 of the Investigatory Powers Act 2016. The Bill sets out particular requirements in relation to participation in criminal conduct. It amends the Investigatory Powers Act to provide a requirement for the Investigatory Powers Commissioner to pay particular attention to public authorities’ use of the power to grant criminal conduct authorisations under new section 29B.It also requires the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in his annual report. This will include information such as statistics on relevant public authorities’ of the power, the operation of safeguards in relation to authorisations, and errors.

As part of this, we anticipate that the IPC and his office will identify if any public body is failing to train and assess their officers to a sufficiently high standard.

A covert human intelligence source (CHIS) will never be given authority to commit any and all crime. All authorisations must be necessary and proportionate to the criminality they are seeking to prevent and the Authorising Officer must ensure that the level of criminality authorised must be at the lowest level of intrusion possible to achieve the aims of the operation.

There are limits to the activity that can be authorised under this Bill and these are contained in the Human Rights Act. This includes the right to life, and prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment.

The Bill does not list specific crimes which may be authorised, or prohibited, as to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against. This would threaten the future of the CHIS capability, and result in an increased threat to the public.

With regards to international comparisons, different countries have different legal systems, threat pictures and operational practices which means that simply comparing respective legislation gives only a very partial picture. In the course of developing this Bill, officials have engaged with a variety of stakeholders, including US counterparts.

The Regulation of Investigatory Powers Act lists a range of public authorities who use Covert Human Intelligence Sources (CHIS) for general investigative purposes. The CHIS (Criminal Conduct) Bill restricts the number of public authorities able to authorise participation in criminal conduct to only those public authorities who have demonstrated a clear operational need for the tactic. Authorisations will be subject to a robust set of safeguards and an authorisation can only be granted where it is necessary and proportionate to the criminality it is seeking to prevent.

The Food Standards Agency is tasked with protecting consumers and the food industry from crime within food supply chains. Examples of such criminality include the use of stolen food in the supply chain, unlawful slaughter, diversion of unsafe food, adulteration, substitution or misrepresentation of food and document fraud.

An example of where they might need to authorise participation in criminal conduct is where an individual working within a food business, contacts handlers to pass on intelligence. This relates to the ongoing misrepresentation of meat as being of premium quality and the extension of meat durability dates, leading to out of date meat being consumed.

The continuing presence of the individual within the workplace necessitates them actively participating in presenting, packaging and re-labelling produce in order to misrepresent its quality and fitness for consumption, which are criminal offences. This provides opportunities for the evidential seizure of unfit produce and to identify those complicit in, and responsible for, directing fraudulent activity. As a result, evidence is available to support a successful prosecution.