By Jennifer Twite, Head of Strategic Litigation, Just for Kids Law
With the scale of the county lines phenomenon having only recently started to emerge, the acknowledgment that vulnerable children are involved in covert intelligence operations, by both law enforcement and the government, is both surprising and shocking.
The legal basis for the use of child spies can be found in the Regulation of Investigatory Powers Act (RIPA) 2000, which allows authorised bodies including the police, the secret services and local authorities 1 to gather information from individuals who act as a Covert Human Intelligence Sources (CHIS).
The definition of a CHIS is someone who is maintaining a relationship with a person for a covert purpose to provide information.2 It therefore does not apply to someone who already has information that they wish to provide to the police, but it covers scenarios where an authority asks an individual to maintain contact with a criminal individual or group in order to pass on information. There is no minimum age set for someone to be recruited for this purpose.
In June 2018, new secondary legislation and a new draft of the code of practice were laid before parliament and came to the attention of the Secondary Legislation Scrutiny Committee (SLSC).
In correspondence to the SLSC, Ben Wallace MP stated:
‘Given that young people are increasingly involved, both as perpetrators and victims, in serious crimes including terrorism, gang violence, county lines drugs offences and child sexual exploitation, there is increasing scope for juvenile CHIS to assist in both preventing and prosecuting such offences. They may have unique access to information about other young people who are involved in or victims of such offences. For example, it can be difficult to gather intelligence on gangs without penetrating their membership through the use of juvenile CHIS. As well as provide intelligence dividend in relation to a specific gang, juvenile CHIS can give investigators a broader insight into, for example, how young people in gangs are communicating with each other.’3
The new statutory instrument extends the period of time a child can be authorised to act in this capacity from one month to four months. The code of practice fails to define all children as vulnerable. Vulnerable CHIS are only used in ‘the most exceptional circumstances’, a protection not automatically afforded children. Only CHIS under 16 are guaranteed the presence of an appropriate adult in interviews and are protected from providing evidence against their parents.
Concerns have been raised about the incompatibility of the Code of Practice with both domestic and international law. In particular, the use of CHIS by local authorities is not in line with section 11 of the Children’s Act 2004, which requires authorities to safeguard and promote the welfare of children. The extension of the authorisation period for a child CHIS has been criticised by the SLSC to be one of administrative convenience over the welfare and safety of children. The SLSC also raised other concerns and criticised the Home Office for not actively seeking to consult with groups that might offer views on the mental and physical welfare of child CHIS.
Article 3 of the United Nations Convention on the Rights of Child (UNCRC) requires its signatories to make the best interests of children a primary consideration in all actions concerning children. The Joint Committee of Human Rights (JCHR) have asked the Home Office to explain how this code of practice is complies with the UNCRC, read the JCHR letter to the Home Office.
Just for Kids Law have issued proceedings against the Home Office to challenge their guidance on the use of children in covert operations, read about the ‘Use of Children as Spies campaign’. Just for Kids Law have launched a crowdjustice campaign to highlight the issue and raise funds for the case. If you wish to donate you can access the campaign page here: www.crowdjustice.com/case/children-as-spies.
The campaign has also been reported in the Guardian.