Abstract

Recorded crimes involving and impacting upon children continues to be a significant problem in the UK. The use of juvenile covert human intelligence sources (JCHIS) has become controversial, attracting considerable adverse commentary in from media, Parliamentarian and activist sources. In examining the potential of JCHIS in the contemporary crime settings of child sexual exploitation, drugs networks, and radicalization, this research concludes that those who have been most critical of JCHIS authorisations have successfully shaped both the public understanding and public narrative of the issue. Conversely law enforcement agencies have pursued sub-optimal messaging strategies and have been constrained by secrecy, sub judice rules, protection of both sources and methodology. The result has been a risk averse approach to policing and a consequence diminution of policing effectiveness against these crime areas.

Recorded crimes involving and impacting upon children continues to be a significant problem in the UK, with some 60,000 juveniles being arrested in England and Wales in the last recorded period (Ministry of Justice, 2020). The use of juvenile informants - known as juvenile covert human intelligence sources or JCHIS, covering those under 18years of age - is controversial and has attracted considerable adverse commentary in the media, and by activists and Parliamentarians. This article seeks to examine the potential of JCHIS in contemporary crime settings, including those identified by the Government in their updated 2018 regulations of child sexual exploitation, the ‘county lines’ drugs networks, knife crime, and in networks of radicalisation (UK Parliament, 2018).

This research suggests that those who have been most critical of the regulated use of JCHIS have been successful in shaping both the public understanding and public narrative around covert juvenile informants by (re)producing and disseminating core narratives in an array of media akin to the hybrid media system observed by Andrew Chadwick (Chadwick, 2017). In parallel, law enforcement and intelligence agencies have pursued sub-optimal messaging strategies and have been constrained by secrecy, sub judice rules, protection of both sources and methodology, and the lack of academic research in this area. Consequently, there is a partial public and political understanding of the regulated role of juvenile informants in law enforcement and national security intelligence operations brought into sharp relief by the government’s June 2018 proposal to extend the length of permitted authorisations from one to four months. The dominant narrative is driven by arguments that emphasise harms, is based upon normative considerations, is premised upon incidents that are difficult to evidence and is framed by an overly ’precautionary culture’ (Furedi, 2002) (Bullock & Johnson, 2012, p. 630).

The dominant narrative includes an absolute prohibition of the use of Juvenile Informants and is framed in moral and ethical terms focusing on the rights of the child, duty of care, the protection of innocence, and structural power imbalance between state agencies and vulnerable individuals. A 2020 debate in the House of Lords, with contributions from eminent lawyers, former Commons ministers and human rights advocates strongly echoed the narratives from the activists that had briefed them, and the publicly reported arguments from a judicial review (House of Lords, 2020). This discourse focuses on a utilitarian equation between ways and ends in balancing the rights of the individual against the mitigation of harm to a wider community of people, without due regard to the exacting legislative regime and regulatory code.

Even in respected academic texts by senior scholars the discussion of human intelligence ethics has tended towards the most difficult cases. Sir David Omand and Mark Phythian cite the British army’s use of CHIS in Northern Ireland and alleged complicity in killings, and the Metropolitan Police Service’s alleged use of CHIS against political groups to pivot their discussion (Phythian & Omand, 2019). In December 2020, and perhaps in response to sustained criticism, the government published a series of information documents outlining the circumstances under which JCHIS would be authorised, by whom, and high level operational case studies, but these examples have not been picked up in media commentary (UK Government, 2020).

This article critically evaluates the legislative underpinning, regulatory codes, operational use and academic and activist critiques of the use of JCHIS. In doing so, we argue that the numbers of authorised JCHIS being used across England and Wales are significantly smaller than is commonly stated, and activist opposition to authorisation is an over-response to a problem that does not currently exist. Authorisations of JCHIS are incredibly rare – a sign, perhaps, that the original provisions have worked well. From our own research and the obiter dicta from the Just for Kids judicial review case, it is clear that public authorities, including law enforcement and national security agencies only authorise small numbers of JCHIS (Just for Kids Law v Home Secretary, 2019, p. 3.55). MI6’s position is that it actively avoids JCHIS (3.56), whilst GCHQ and the Ministry of Defence referred to avoiding juveniles online, and breaking off contact if it becomes clear they are doing so (–.58). This is interesting evidence because of the self-limitations it might place upon online investigations into child sexual exploitation, county-lines movements, radicalisation and money-laundering. These self-denying ordnances are particularly stark as we move into the era of Web3.0 and VR social media realms.

These choices are operationally limiting in the context of the number of juveniles currently involved in terrorist activity. The draft CHIS Codes of Practice (2021), whilst being framed with a positive narrative around authorisation and utility, places further practical restrictions on use thus diminishing the pool of institutional memory: something we suggest will likely further weaken organisational operational confidence (because of an absence of usable data showing utility), will further lower risk thresholds, and will hinder further authorisations (Home Office, 2020).

Despite the weight of adverse commentary, we argue that the outcomes for authorised informants is significantly better than for those who remain unauthorised or who remain engaged in criminality: something that is more likely if the use of authorised JCHIS is further diminished. Our research suggests there is a hidden issue of a large number of unauthorised informants being utilised by organisations who – prima facie - are covered by the Regulation of Investigatory Powers Act (2000), and have anecdotal evidence that knowledge of the responsibilities outlined by the Act are poorly understood. Our assessment of the proposed CHIS (Criminal Conduct) Bill 2020 and its accompanying codes of practice is that it effectively diminishes the ability of a large number of public authorities to authorise ‘participating informants’, whilst still listing a large number of public authorities as possible authorising bodies (Home Office, 2020b).1 If limited conditions for authorised criminal conduct are imposed, the consequence of this is to make it nearly impossible for undercover officers or informants, including JCHIS, to effectively infiltrate proscribed organisations without breaking the new law, something that will give an advantage to radicalised and violent organisations: an argument advanced by the Advocate General in the Lords and provided with additional credence with recent enforcement action against juvenile terrorists (House of Lords, 2020, p. 1046) (DeSimone, 2020).

As the explanatory memorandum to the RIPA Juveniles Amendment Order 2018 notes ‘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” (UK Parliament, 2018). Consequently, our focus has been on the public policy crises of child sex exploitation, radicalisation and illegal drugs which disproportionately impacts children (Colley, 2019). The consequence of a voluntarily absention from this form of intelligence will result in juveniles becoming more entrenched in serious criminality, thus presenting an enhanced threat to vulnerable juveniles as well as to their potential victims and wider society.

Juvenile involvement in criminality and terrorism.

The operational imperative for public authorities to consider using juvenile informants to collect intelligence against high-risk threat individuals and groups can be understood in the context of the challenges associated with tackling specific crime types where Juveniles are either willing or coerced offenders and victims. For example, the UK Government’s CHANNEL Project, a key part of its counter-radicalisation PREVENT strategy provides an indicator of the extent of juvenile potential involvement in terrorism or violent extremism. In 2015, of the 973 people referred to CHANNEL, 224 were aged between 12 and 16 years of age. In 2020, the CHANNEL Project stated that 58% of its cases were under the age of 20 and 54% (3,423) of all referrals were under 20 (Home Office, 2020). Similarly, in 2016, it was reported that the number of under 18’s detained under Schedule 7 the Terrorism Act 2000 when entering or leaving the UK had more than tripled over a 2-year period (46 detained in 2015 compared to 13 in 2013). The youngest detained was 13 years old. A further 190 juveniles were examined but not detained between July 2015 and March 2016 (Talwar, 2016). More recently, Assistant Commissioner Basu noted that COVID-19 has produced a conducive environment for the rapid growth of extreme right-wing radicalization of juveniles (Dearden, 2020). The threat from the involvement of juveniles in terrorism is notable, but relatively contained. Recent reported cases have included a 14-year-old boy based in the United Kingdom convicted of a plot against police officers at the Melbourne Anzac Day Parade, subsequently sentenced to life imprisonment (Gadher, 2018). His co-conspirator was a Melbourne based 18-year-old male with whom he exchanged 3,000 encrypted online messages over a 10-day period. Talha Aasma, aged 17 is believed to be Britain's youngest suicide bomber after Islamic State declared he had blown himself up in Baiji in Iraq in 2015. In another case, a 15-year-old male from Bradford, radicalised by an extreme right-wing group, was charged with building an explosive (carbon dioxide cannisters drilled and clipped together) and possessing an electronic document (the Anarchist’s Corner magazine) that provided instructions on how to prepare an act of terrorism (Sky News, 2018). The youngest recorded convicted terrorist was 16-year-old Safaa Boular who was jailed for life for her participation in an Islamic State terrorist plot, having been radicalized both in person and online by an ISIS fighter (Casciani, 2018).

In addition to cases where juveniles have been radicalised there is also a sub-set of cases where vulnerable children have been exploited with the intention of making them an attack vector in a terrorist plot: thus making the juveniles simultaneously victim and perpetrator. One of the keyways for law enforcement and security officials to identify, contain and roll back this kind of radicalization is through human intelligence. Whilst there is evidence of some online communication and grooming of vulnerable juveniles, the radicalisation leading to threats to life occurs in analogue settings, for which human intelligence is best suited.

Away from terrorism, juvenile involvement in other aspects of serious organised crime is well evidenced. Considerable public concern has been expressed over the involvement of juveniles in the illicit drugs trade, commonly referred to as county lines. The term is used to describe offending conducted by organised crime groups, often based in large cities, expanding their criminal activity to smaller towns and in drawing in a cross section of juveniles into this criminality through persuasion, addiction, and coercion, providing an unwelcome surprise to some middle-class parents who assumed they would safely avoid such trouble. In one county lines law enforcement operation, 586 people were arrested across force areas between 13^th and 20^th May 2018. Police investigators provided support to 519 vulnerable adults and 364 children who were caught up in this criminality (BBC News, 2019). The National Crime Urgency (NCA) have highlighted the deliberate use by organised crimes gangs of children to support these supply activities (National Crime Agency, 2017). Academic research subsequently reinforced this view with Grace Robinson concluding that children as young as 12 are routinely involved in the illicit drugs industry whilst older juveniles also move money and firearms (Robinson, 2017) Organised crime groups use children to reduce the chances of discovery and intervention in the movement and storage of their drugs and other illicit commodities. The working assumption here is that children are less likely to suspected of involvement in criminality and that law enforcement agencies are more reluctant to intervene with children. Other additional ‘operational benefits’ to OCGs are the smaller payments required to children undertaking the same criminal acts as adults and the likelihood, if caught, of court penalties for juveniles compared to those likely to be handed-down to an adult for the same activity.

Away from juvenile criminality the public, including both adult and juveniles, have historically been prepared to provide information to law enforcement agencies (some 152,000 calls or online contacts in 2018), either directly or through other collection platforms (Marshall, 2018). A smaller number of people have been willing to act in a more formal and proactive role, on behalf of public authorities, to collect and pass on information. It is also clear that the public’s cooperation in identifying threats is critical. Nunan et al (2020) reviewed the literature around the contribution informants make to reducing crime and found the value to be widespread across a range of criminality (Stanier, Nunan, Milne, Shawyer, & Walsh, 2020); robbery (Matthews, 2012), burglary (IPCO, 2019) drug supply (Billingsley, Nemitz, & Bean, 2001) (Dorn, Murji, & South, 1992), human trafficking (IPCO, 2019), firearms (Duquet & Goris, 2018) homicide (Association of Chief Police Officers, 2006), fraud and tax evasion (HMIC, 2007), intelligence-led policing (James, 2013) (Barton & Evans, 1999), youth crime including gang offending (Chappell, 2015), child sexual exploitation (BBC, 2017) (Investigatory Powers Commissioner, 2019), informing diplomatic negotiation, prison security (Useem & Clayton, 2009); lone actor terrorism, and increasingly, in terrorism (Brodeur, 2007) (Urban, 1992) (Matchett, 2016).

Motivation and Review Periods

The motivation for people to accept a more formal informant role varies and changes (Nunan & Stanier, 2021). Nor does there appear to be little difference in the types of motivations between UK juvenile and adult CHIS. The shared motivations include securing status amongst peers, opportunity for protection from prosecution, continued drug use, or the excitement of being involved in a covert operation (Dodge, 2006). An examination of post-RIPA2000 juvenile Informants in the UK identified four broad categories of motivation. In the majority of these cases more than one motivational factor was evidenced for the same JCHIS with the research positing that their main motivational factors were financial rewards (57%), moral or public-spirited reasons (29%), revenge (7%) and fear (7%) (Chappell, 2015).It has been held that the JCHIS may ‘be less steadfast in motivation’ (IACP, 2008, p. 4), although this appears to be an assumption rather than based on a systematic analysis of JCHIS.

There is a clear trigger point for the development of the dominant oppositional discourse around authorisations of JCHIS that persists to the current day beginning in June 2018. The trigger appears to have been the government’s decision to seek to extend the period of authorisations from one month to four months in the 2018 codes of practice (UK Home Office, 2018). There is very little evidence of campaigning on this issue during the debate that preceded RIPA in 2000 or before it in the pre-RIPA era, and it seems particularly unfortunate that this was the trigger point given that the reform seems to have been generated by a desire to reduce the bureaucratic burden around authorisations rather than for clear operational reasons (McKay, 2019).

The government’s 2018 reforms generated scrutiny from the House of Lords’ Secondary Legislation Scrutiny Committee (House of Lords, 2018), the Home Affairs Select Committee (and accompanying report), and questions in the House of Lords. These Parliamentary exposures, which were critical of the reforms, generated some initial online commentary in July 2018, which in turn led to remarkably unified news media coverage of the issue in June 2019. It is interesting to note that the various critiques of the authorisations regime are mutually reinforcing, that is they borrow and develop strands from each other, often extending – in a small way – the narrative each time, referencing co-produced narratives to reinforce the (re)production of the new narrative. Such mechanisms have their intellectual echoes in works by Robin Truth Goodman’s work on how narratives around policing and the public sphere are formed (Goodman, 2009), in the work of Don Kurtz and Lindsey Upton around the (re)production of gender narratives and law enforcement (Kurtz & Upton, 2018) and Jeffrey Monaghan’s work on the importance of these constructed narratives to the operation or limitation on policing work (Monaghan, 2020).

In July 2018, Michelle Jones and Dustin Johnson utilised evidence from developmental psychologists to argue that juveniles are less able to process risk than adults, and are likely to provide evidence to echo the desires of the recruiting officers. They further argue that a juvenile’s inability to understand nuance means that they are more likely to be revealed by crime gangs, increasing their risk of harm (Jones & Johnson, 2018). Lottie Dearden, in The Independent described the authorisation procedures as vague, noting that the Home Office had not disclosed the numbers involved (Dearden L. , 2018); echoing the commentary of the secondary legislation scrutiny committee about the regulatory framework (House of Lords, 2018). Russia Today’s ‘Going Underground’ series used an interview with a former undercover police officer – Neil Woods – to criticise the British government for their reforms in this area, with Woods arguing, from his experience, but which contradicts with CHIS handlers we spoke with, that the power imbalance between JCHIS and handler was such that the juvenile would inevitably feel trapped, whilst the ‘extreme brutality’ of organised crime gangs was such that the risk to the juvenile is disproportionate (RT, 2018). This was then re-reported by The Guardian (Gayle & Cobain, 2018), and Woods discusses his underpinning experiences in his two books on law enforcement, informants and drugs groups, with his influence stretching into 2020 when he provided a briefing alongside Just for Kids to members of the House of Lords (Woods, 2017) (Woods & Rafaeli, 2019) (House of Lords, 2020, p. 1061). In parallel, the New York Times also reported these developments but used an interview with another former police handler David Videcette, who made the point that authorisation is difficult to achieve and only when the benefits are clearly drawn (Yeginsu, 2018, p. 5). PoliticsHome followed these articles with a similarly critical piece pivoted around the former Cabinet Minister and noted libertarian, David Davis, and his view that the authorisation of JCHIS is ‘morally repugnant’, which sets some of the tone for the coverage that followed the year later (Coulter, 2018).

As 2019 approached, a petition to Parliament was established calling for the end to all authorisations which attracted a modest 239 signatures. More successful was the crowdfunding for the Just for Kids judicial review hosted on the Crowdjustice.com website which raised £5774 (Just for Kids, 2019). In March 2019, Baroness Jones asked whether it was true that Forces were setting targets for JCHIS recruitment, which she had heard from a whistleblower. This was rejected by the Home Office Minister Baroness Williams in an exchange that is emblematic of the tone of this debate (Baroness Jones, 2019). By the time of the judicial review case itself, there was a remarkable homogeneity to the coverage, save for The Daily Telegraph which was alone in arguing for a greater number of authorisations (The Daily Telegraph, 2019). The Times cited the Hamwee example, and interviews with Neil Woods (The Times, 2019), Emily Dixon of the CNN cited the ‘severe physical and emotional harm’ suffered by JCHIS as the rationale behind why the government was being taken to court (Dixon, 2019) and The Daily Mirror, in turn, ran a very similar interview with Woods to RT in 2018, just after the Just for Kids case was reported in 2019 (Selby, 2019). As Just for Kids applied for leave to appeal to the Court of Appeal in 2020 (something they subsequently abandoned) the left-leaning online outlet The Canary ran a story highlighting the Just for Kids view that ‘children continue to be put in [unreasonable] harm’s way’ (Purdy-Moore, 2020). It should also be noted that Peers also included discussion of JCHIS in their debate concerning the new measures authorising the criminal activity of CHIS during operations. Lord Rosser, for example, was a lone voice in raising questions about racial outcomes and profiles of JCHIS (House of Lords, 2020, p. 1050). Many of their Lordships re-emphasised the exceptional circumstances that would need to apply and the mitigations that should be in place (eg Lord Carlile). The overwhelming number of contributions were against the authorisation of JCHIS in any circumstances. Exemplifying this position (of Baroness Bull, Baroness Doocey, Lord Anderson, Lord Young, Baroness Chakrabarti amongst others) was the Bishop of Durham, who argued: “We should never lose sight of the fact this [authorisation] places and keeps children in situations of harm and of increased risk… We must guard against the temptation to undermine that essential principle in the pursuit of security. Regardless of the children’s age.. we must still treat them as legally children. They are not to be used and must be protected… Allowing these children to act illegally only worsens this” (House of Lords, 2020, p. 1055). We might pause and consider why it is that the case for the authorisation of older JCHIS has become so marginalised: we think it is – in part – a failure to adequately communicate operational practice both within and outside law enforcement, something that amounts to a perfect storm of reinforcing narratives across Parliament, activists and media outlets, even though the level of public salience appears low (Loader, 1997). Parliamentary opposition coalesced into the House of Lords voting to reject the use of JCHIS in January 2021, which will now see the measure returning to the House of Commons later in the year (Sabbagh, 2021). Worryingly, Peers were still referring to increases in the number of authorisations when the data demonstrates precisely the opposite.

The moral critiques are difficult to rebut in absolute terms, save for a utilitarian perspective, which is the government’s de facto position. Outside of utilitarian considerations, three other factors have been underplayed in this relatively niche intelligence collection capability. Critics have tended to mis-specify the role of juvenile informants, tacitly eliding informants with undercover officers or intelligence officers. They have overstated the number of officially authorised JCHIS, the age of those involved, the actions these informants have been asked to complete, and the additional risks that these juveniles face over and above their existing risk profiles. Influential academic research in this area has similarly suggested that the power imbalance between handler and informant is so pronounced that the relationship must be fundamentally flawed (Dodge, 2006). More recent scholarship has provided tentative support for the use of JCHIS but argued that the regulatory framework should be further tightened (Gillespie, 2020). The provision for ‘exceptional circumstances’ does allow for some interpretation, and this received strong push-back within Parliamentary scrutiny.

Campaigning groups have given the impression of juveniles moving from relatively risk-free to very high risk existences: the reality is that in the examples retired source handlers were willing to discuss with us, officers were able to reduce the risk to informants to below the levels they were exposed to prior to their informing. Moreover, authorised informant handling has been a successful mechanism by which to permanently remove juveniles from criminal enterprises, something noted by an earlier study by retired police officer Brian Chappell (Chappell, 2015). The enhanced statutory risk assessment around physical and psychological harm, in addition to extensive authorisation and higher level consent processes has provided robust layers of internal oversight. It has not answered near philosophical debates about the extent to which anyone can provide informed consent to the underlying risks carried by informing, and the balance there is between safeguarding an individual and securing a larger intelligence gain against dangerous adversaries. Pre-RIPA, research of handlers revealed that 82% had used juvenile informers, but mainly in unregulated way (Balsdon, 1996). A current commitment to high regulatory and internal policy thresholds and overly exacting risk controls imposed before authorities for use are considered, may encourage contravention of the RIPA 2000, with staff failing to seek or record the authority or use of JCHIS. There is an irony therefore that authorised JCHIS (the object of civil society ire) are better protected and have better outcomes, than the unacknowledged and unauthorised JCHIS, sometimes described as ‘community contacts’ or confidential sources, that are frequently utilised by a myriad of public authorities. The potential for the unintended harms civil society actors have feared are more likely to be realised with these community contacts, even if confidential soures are offered some protections when their intelligence is utilised or added to intelligence databases.

Judicial Review and Context to Legislative Changes

To ensure greater human rights compliance by public authorities when conducting covert techniques, the United Kingdom enacted RIPA 2000. Part II of the act addresses the use of different collection techniques utilised via human intelligence sources. Once authorised under the Act, public authorities are permitted to utilise Informants, Agents and Undercover Officers (known formally by the act as CHIS). While the term undercover officer has now been further defined by the term ‘relevant source’ (UK Government, 2013) the use of Informants and Agents includes both adult and juvenile informants, although the original framing did not expressly refer to juveniles and it required an amendment in the form of the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 to provide specific requirements. (UK Parliament, 2018).

Across the practice-based and academic literature there is a tendency to conflate different terms relating to sources. The status of ‘informant’ is a legal status that applies when a person has, in broad terms, established or maintained a personal relationship with another person for a covert purpose to obtain information, or provide access to information, or disclose information as a consequence of the use of this relationship, to a public authority (Part II Section 26 (8) (b) or (c) Regulation of Investigatory Powers Act 2000). This legal definition departed from previous public policy led determinations of what constitutes an Informant. It focuses not on issues of reward, motivation, organisationally ascribed classification or criminal background, but rather whether a covert relationship has been utilised with another person to secure necessary and proportionate intelligence. The original framing did not provide a legal definition around age. Rather than age being a determining factor, it is the issue of whether a covert relationship with another has been established or maintained that is critical. An informant is not someone who has downloaded their existing knowledge to officials in the absence of previous formal tasking to collect further information. This may include a situation where a juvenile provides information to an investigator as part of a criminal investigation as a suspect, victim or witness. It also excludes those reporting to tip-lines such as Crimestoppers, where they have disclosed information that is not a consequence of an established covert relationship. Such a covert relationship might be subsequently formed, of course.

As noted earlier, JCHIS are defined as under 18, which is consistent with the Children Acts and child-related legislative provisions. Secondary legislation also accompanies RIPA, specifically two Statutory Instruments, SI 2000/2793 and SI 2018/715. The extent and territorial application of the most recent instrument, 2018/715, is England, Wales and Northern Ireland but not Scotland. Secondary legislation for Juvenile use in Scotland is detailed under SSI 2002/206 The Regulation of Investigatory Powers (Juvenile) (Scotland) Order 2002. As it stands, there is a legislative anomaly, as the new provisions in the Statutory Instrument 2018/715 do not apply in Scotland. It should be noted that Police Scotland have confirmed that since their establishment in April 2013 until the date of a Freedom of Information request in November 2018, there have been no JCHIS authorisations in their jurisdiction (Police Scotland, 2018). This raises some potentially interesting questions about the disruption of criminal activity across the UK.

The powers for public authorities to authorise JCHIS was included in the original legislation enacted in 2000. It was a provision supported by police forces evidenced by results of a survey the 43 forces, only one of which was opposed to the use of JCHIS (The Times, 7^th October 1996). Even though caveated support was offered in the lead in to the adoption of RIPA, and provisions inserted in the legislation, the offending and safeguarding context of children was not as well evidenced then as it is now. The increasing role played by children, both as primary or coerced offenders or as victims in crime and terrorism was one of many CHIS related issues that spurred a review of investigatory powers in 2017. The 2017 Home Office RIPA Review Group, chaired by the then Secretary of State for Security, Ben Wallace, examined RIPA and its accompanying Codes of Practice on Covert Human Intelligence Sources, and the provisions enabling the use of JCHIS (UK Home Office, 2018). The group’s deliberations resulted in the revised CHIS Codes of Practice (August 2018) and the subsequent statutory instrument on JCHIS use (SI 2018/715). The challenges associated with the Third Direction case (IPT/17/86 & 87/CH) concerning the use by MI5 of agent participation was a catalyst for a further review of the legislation around CHIS Criminal Conduct, and produced updated CHIS Codes of Practice in September 2020 and January 2021.

The 2017 review considered the participation of juveniles in serious organised crime and terrorist activity including involvement with and travel to conflict zones. Proven cases involving juveniles revealed 4,500 cautioned or sentenced for knife and other offensive weapon offences (Youth Justice Board and Ministry of Justice , 2020). The review was mindful of need to address serious safeguarding issues stemming from emerging criminal and terrorism trends, as well as issues of enforcement. As the judgement in the Just for Kids case made clear the use of JCHIS was: “liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers of the child of acting as a CHIS in the context of serious crimes are self-evident” (Just for Kids Law v Home Secretary, 2019). In written evidence supplied to the House of Lords scrutiny of the Covert Human Intelligence Sources (Criminal Conduct) Bill an anonymised contribution suggested that ‘it is inconceivable that the Bill remains silent on the granting of Criminal Conduct Authority to children, which could place them in dangerous or abusive situations at the Government’s behest’ (House of Lords & House of Commons Joint Committee on Human Rights, 2020). The Committee also noted the State’s involvement in facilitating continued participation in criminal activity would breach the Human Rights Act and the UN’s Convention on the Rights of the Child and made it clear that they recommend the exclusion of JCHIS (House of Lords & House of Commons Joint Committee on Human Rights, 2020, p. 19). However, for a small class of crime groups, activities and individuals the committee recognised the use of JCHIS remains a necessary, proportionate and last resort intervention.

As noted above, the Kids Company judicial review aimed to question the legality of JCHIS authorisations, whilst the Covert Human Intelligence Sources (Criminal Conduct) Bill seeks to regulate the criminal activity conducted in the course of an operation using a covert human intelligence source, be they adult or juvenile. One of the key concerns expressed during the recently published parliamentary scrutiny is the lack of limiting factors on what authorised criminal conduct by a CHIS might be. Parliamentarians have noted that in theory such authorised criminal activity might include very serious crimes including rape and murder: something that seems outlandish but for which there is precedent (House of Lords & House of Commons Joint Committee on Human Rights, 2020).

While the legal definition for an adult and a juvenile Informant is the same the 2018 CHIS Codes note some important differences in how they are to be treated when undertaking their authorised role (UK Home Office, 2018). It highlights the application of special safeguards in relation to the use or conduct of juveniles including measures prohibiting a Juvenile, when under 16, reporting against ‘their parents or any person who has parental responsibility for them’(4.2). Another age-related distinction is made in relation to the meetings a law enforcement officer has with a Juvenile informant under the age of 16. This has been interpreted as solely relating to physical meetings. There appears to be scope for it to also include electronic contact between Handlers and JCHIS under the age of 16 years. The Codes require public authorities to ensure, “that an appropriate adult is present at any meetings with a CHIS under 16 years of age.” (4.3). This should normally be a parent, but can be a professional, such as a social worker.

The notion of an appropriate person is a potentially limiting factor in the authorisation of juveniles. We have not been able to uncover whether appropriate persons are provided with specialist training or are vetted beyond enhanced DBS processes, and it remains untested to what extent various professions which would be considered as suitable ‘appropriate adults (4.6). Given that the authorisation of juveniles engages their ECHR and UN protections, that appropriate accompanying adults are suitably qualified to play this role. Another difference in the authorisation process between an adult and a juvenile is that the duration of an authority for JCHIS is now four months from the time of grant or renewal, rather than the twelve months for adult informants. Furthermore, any such authorisation “should be subject to at least monthly review. The age test applied here is at the time of the grant or renewal of the authorisation”(4.3).

Other legislative provisions impact on the permissibility of authorisations. While there is no single consolidated legislative provision in the United Kingdom that covers ‘child protection’ or ‘safeguarding’ there are a number of laws in operation that are frequently amended, updated or revoked. The Children’s Act 1989 provides a comprehensive framework for the care and protection of children. It centres on the welfare of children up to their 18th birthday, but has allowed for interpretation when it comes to the age at which children can be determined to express informed views about their own life choices, known as the Gillick principle (Griffith, 2016). In the Just for Kids case the claimant argued that a juvenile was incapable of providing informed consent to be an informant and this was rejected by the judgement because the Metropolitan Police Service’s internal training materials emphasis the ‘every child matters’ principles’ (para.56). More recently, however, in Bell vs Tavistock, the subject of whether an under 16 can choose their gender assignment was subject the court’s ruling and it found they could not be Gillick competent (Bell v Tavistock, 2020). Whilst this case was not about consenting to be an informant, it may be used as supportive precedent (Courts and Tribunals Judiciary, 2020).

There is merit to the argument made by Just for Kids that the risk the juvenile – which would be the same for an adult CHIS – is underspecified. If the risk of harm is specified as, for the sake of argument, within a six-month timeframe it is possible for the authorising Assistant Chief Constable, the juvenile and their appropriate adult to envisage these risks. An informant who disrupts the business or helps to deprive the liberty of a significant member of an organised crime group might actually need to consider a ‘whole life’ timeframe of risk: such individuals might be keen for retribution at any point. This is a quantum of risk that would be difficult for a professional risk manager to quantify, let alone a juvenile under some time pressures. It is this fundamental ethical quandary that prompts Phythian to note that the relationship between handlers and CHIS is essentially coercive (Phythian & Omand, 2019, p. 117), but to conclude (just short of a utilitarian rationale) that such operations must be proportionate and necessary (Phythian & Omand, 2019, p. 122), whilst Ross Bellaby questions the fundamental ethical underpinning of it (Bellaby, 2017).

The 1989 Children Act similarly defines parental responsibility, and which individuals and single and multiple agencies can act to support the rights of the child in child proceedings. The Children Act 2004 supplemented the 1989 Act and reinforced the message that all organisations working with children have a duty in helping safeguard and promote the welfare of children. Consequently, the 2004 Act might allow for a wider pool of child-focused agencies to be utilised in supporting the management and protection of JCHIS, through advising on and even being part of the implementation of appropriate control measures falling out of risk assessments and evaluations of risk, even though Justice Supperstone in his Judicial Review judgment relied upon the Secretary of State’s assertion that police officers had sufficient child welfare training to mean they should not feel bound to involve outside child agencies (Just for Kids Law v Home Secretary, 2019, p. 82).

The judicial review also tested whether the distinction drawn between JCHIS under 16 and those aged 17 and 18 was rational (Just for Kids Law v Home Secretary, 2019, p. 6). The High Court found that JCHIS authorisations were both rare and lawful (Just for Kids Law v Home Secretary, 2019, p. 91). The Court also found that the distinctive treatment of those above and under 16 was rational (Just for Kids Law v Home Secretary, 2019, p. 92). The judgment – in its obiter dicta – produces valuable insights and clarifications into this area of law enforcement practice, the scale of the authorisations of JCHIS and the challenges faced by participants.

One of the striking elements of the judgement is the multiple clarifications around the child safeguarding and who is and is not an appropriate adult. The judgement removes any sense of necessity for an appropriate adult for 16 and 17year olds (which did not appear in the legislation), clarifies that an appropriate adult cannot be connected to the authorizing agency, and reaffirms that the lawful parent or guardian will normally (but not always) be the most appropriate adult. The plaintiffs argued that the authorization of a JCHIS always placed the child in a detrimental position or one of unreasonable levels of risk: the court disagreed and instead concluded that the operational planning and mitigations provided for in the regulations were specifically designed to mitigate the risk to children (Just for Kids Law v Home Secretary, 2019, pp. 53-54).

The nature and scope of UK Juvenile CHIS Informant use

The use of JCHIS has fallen significantly since the enactment of the Regulation of Investigatory Powers Act 2000 (RIPA2000). Before RIPA 2000, juvenile informant use appeared more common place (Balsdon 1996). What we now see – in a situation of increased involvement of children in criminality - is that the use of JCHIS is very small. The perception of widespread use is due to the national reporting of a few cases that have become newsworthy. One such case, for which we could not find a court record, was highlighted in a House of Lords debate by Lady Hamwee and has been frequently cited by campaigners. Hansard records that Hamwee described this informant as being a victim of child sex exploitation who was being run against her pimp. In the course of being an informant this child is said to have found herself in the further unenviable position of potentially being an accessory to murder (Gayle, 2018). As noted above, we have been unable to evidence this claim, and other similar case-based claims made by those opposing this practice. It may be that this example may not even fall into the category of JCHIS, as per the legislation.

The Investigatory Powers Commissioner (IPC) reported in October 2018 (the most recent figures for 2019-2020 have not been published) that: “Twenty-eight returns covering a total of 43 forces in the period January 2015 to October 2018 show that 14 juveniles have been authorised as CHISs in the UK. The vast majority were aged 17 at the time of their authorisation and no juvenile has been authorised below the age of 15. … significant number of requests are refused” (Investigatory Powers Commissioner, 2019).

Whilst there are alternative intelligence collection techniques available, this low number is suggestive of sub-optimal policing practices. Even with the availability of powers, there appears to be wide-spread reluctance and organisational nervousness towards recruitment, authorisation and deployment of children between 16 and 18 years of age as a covert human intelligence source. This appears to even include operational situations where alternative intelligence gathering is not readily or easily applied or appropriate, something that escalate in the era of Web3.0.

Operational considerations

“The willingness to make decisions in conditions of uncertainty is a core professional requirement of all members of the police service” (College of Policing, 2018). However, Heaton noted that “recent decades have seen the sensitisation of UK society towards harm and policing ‘failure’ become increasingly significant” (Heaton, Bryant and Tong, 2019:150). As with many areas of enforcement and intelligence development, the identification and management of covert related risks is a central element of operational planning, which is disclosable to the Investigatory Power Commissioners, and potentially disclosable to judicial inquiry. Implicit in the accompanying Statutory Instruments and the Codes of Practice for CHIS is the assumption that the use and management of a JCHIS Informant brings with it a heightened issue of risk. Accordingly, the deployment of a JCHIS Informant is made subject of an enhanced risk assessment requiring both the “The nature and magnitude of any risk of physical injury” and “the nature and magnitude of any risk of psychological distress“ to be identified and evaluated (s.5(a)(i) and (ii)) (UK Parliament, 2000). The rationale for their use is required in writing and Authorising Officer must believe their use in both necessary and proportionate.

The identification of risk is not a reason to prohibit use however. It should allow an organisation to assess how best to remove, avoid or reduce the risk. Where these measures are applied any residual risk needs to be either accepted or the operational activity not proceeded with. The decision to authorise the use of a JCHIS, is based on the same decision-making processes that underpin an adult informant. Firstly, the Authorising Officer must believe that the use or conduct is necessary in the circumstances, for example, to support an ongoing investigation. RIPA lays down an array of statutory grounds, specifically in section 29(3) (UK Government, 2000). These grounds include where the use of CHIS is believed necessary in the interest of national security, the purpose of preventing or detecting crime or preventing disorder. As noted before, even in these circumstances the numbers used by national intelligence agencies has not reached double figures (Investigatory Powers Commissioner, 2019).

Central to any authorisation decision is operational necessity. Is it necessary to use a juvenile when another adult informant is available to collect similar information? Is an alternative collection tactic available that could secure the same intelligence, such as technical surveillance, without the need to deploy a JCHIS? So, even if it is operationally necessary tactic, is it proportionate, in all the circumstance, to deploy a JCHIS to secure the required intelligence? Any decision to authorise and deploy a JCHIS is based also on wider operation considerations. Are staff currently in employed in Dedicated Source Units (DSU) sufficiently trained to recruit, deploy and manage JCHIS? How is ‘sufficiency’ defined in this context? What is the extent of DSU’s networks with other professionals bodies in the context of securing assistance to act as appropriate adults? Are the DSU’s diverse enough to offer operationally flexibility to maximise safeguards, for example, offering appropriate Handler gender profiles in the management of a JCHIS? Are DSU’s cognisant of the ethical dilemmas which may pose questions of whether the juvenile is best served by being treated as a victim rather than a JCHIS?

Conclusion

Investigations involving and impacting upon children remain at a high level. This reflects the modified modus operandi from organised crime gangs, and the effect of mobile telephony, the internet and improved transport links. Accordingly, it is appropriate that operational attention remains focused on this demographic. The use of JCHIS is likely to have always been controversial, but it has become particularly so since June 2018 and the government’s attempt to extend the authorisation period from one to four months. It is easy to overstate the impact of a relatively homogenised set of media reports, the public discussion of several retired police officers’ experiences, the connection to the mostly unrelated issue of undercover policing, the campaigning of a single pressure group, and the views of a number of Parliamentarians. But it is remarkable how this very small community of actors has managed to undermine a regime of (a small number of) lawful authorisations, which has a considerable impact upon law enforcement’s ability to disrupt the criminal activities. The impact is large because the law enforcement community has avoided public discussion, and because even within the law enforcement community it is a niche part of operational art, and thus there is scant institutional memory or practice to be shared. To our knowledge, no recent systematic analysis of the UK’s JCHIS, past or present, has been undertaken beyond the pure authorisation numbers.

The lack of awareness of this limited practice, combined with the resultant newspaper coverage created the context for the Kids Company judicial review. This case brought valuable insights from counsel’s arguments and from the judgement itself, even within practitioner circles where it is known but not thoroughly debated. The academic treatment of covert sources is better formed when it relates to national security communities, whilst it has been underdeveloped in law enforcement intelligence literatures, save for a small number of noble exceptions. Consequently, one of our contributions in this piece has been to offer an evaluation of this practice from the perspective of a former practitioner and a researcher in national security intelligence practices. Our contribution challenges the contemporary orthodoxy opposing authorisation of JCHIS in any circumstances.

The studies and public positioning pieces critical of authorisation have arrived at a particularly conducive moment for prevailing societal norms and narratives. This perfect storm is composed of: the number of authorisations being continually overstated, the number of authorisations of those under 16 being vastly overstated (it currently sits at one), traction being gained for alleged cases of malfeasance, and being erroneously conflated with the similar ‘hot-button’ issue of undercover policing and the authorisation of illegal acts by informants. This background context has placed considerable pressure on a practice that we have established is little used, despite the rationale for increasing the authorisation of JCHIS.

In discussing JCHIS in relation to the contemporary settings of child sexual exploitation, ‘county lines’ drugs networks, knife crime, and networks of radicalisation we conclude that the use of JCHIS, when ethically and appropriately managed, offers a unique opportunity to collect valuable intelligence in an all-source mix to inform tactical policing decisions. Moreover, the failure to make use of all of the legally available investigatory tools allows organised criminality to flourish in the void created by this choice. The narrative that seeks to prohibit the use of juvenile informants has tailored much of the prevailing debate: the crime types we can observe – however- suggest that a more pertinent question is what needs to be done to see a reversal in the decline of JCHIS authorisations?

The processes being JCHIS authorizations do places considerable administrative and risk assessment requirements on public authorities, so whilst the attempt to extend authorisations from one to four months has attracted negative attention, there was a genus of sense to it. The current political sensitivities around undercover policing and JCHIS have heightened the reputational risk from operational difficulties, which presents an additional headwind against authorisations. Some of the institutional anxiety and defensive policing around authorization could be mitigated through additional support and training. There is precedent for this: undercover operative (UCO) training recognises that different operating environments and crime types benefit from additional specialist training to support Advanced, Foundation and Online UCO's. While JCHIS issues are briefly introduced during national Informant training, there would be benefits from developing the breadth and depth of bespoke accredited courses or additional content for the national course to further support those charged with JCHIS recruitment and management responsibilities. For JCHIS under 16, there is a statutory requirement for an appropriate adult to be present at meetings, and in most cases, this may be a parent or other guardian. In the case of 16-17-year-old JCHIS the appropriate presence should be considered on a case by case basis, recognising that this definitional imprecision creates further anxiety amongst those already suspicious of the practice. It may also be the case that risk assessments would be better informed in consultation with external experts who hold relevant professional qualifications, such as social workers, and probation workers. To that end, public authorities should consider developing collaborative links with organisations access a wider pool of appropriate adults. This relationship would be further enhanced through reciprocal training arrangements or thorough the sponsorship of a cadre officers on appropriate professional safeguarding courses.

We would further advocate the development of tools to deepen and sustain organisational knowledge while building and sharing the practical experiences associated with the increasingly rare use of JCHIS. A concrete step here would be to establish a regional cadre of selected and appropriately trained Handlers. Where a suitable JCHIS recruitment opportunity arises (one that may support operational and intelligence requirements), a member of a regional cadre of JCHIS specialists could be drawn upon to enhance an existing Handler pairing or lead on the JCHIS relationship. The cadre would act as specialist tactical and strategic advisors (not dissimilar to those found in firearms and public order planning), in this case though, it would be to inform and support the recruitment and management of JCHIS, something that we think is supported by the evidence of harm and threat from growing criminal activities impacting upon and involving juveniles. 

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