Provision of information held by Northumbria Police made under the Freedom of Information Act 2000 (the 'Act')
As you may be aware the purpose of the Act is to allow a general right of access to information held at the time of a request, by a Public Authority (including the Police), subject to certain limitations and exemptions.
Under the Freedom of Information Act 2000, please can you provide me with responses to the following questions concerning juvenile or CHIS i.e. covert human intelligence sources (this request considered juvenile to be those under the age of 18), commonly referred to as child spies:
- For each of the last five financial years (2014/15, 2015/16, 2016/17, 2017/18, 2018/19) on how many occasions have you used juvenile CHIS? Please also provide the total.
- How many individual juveniles have been authorised for use as a juvenile CHIS over this timeframe (the last five years)?
- What’s the longest period a juvenile CHIS has been used during this timeframe (the last five years) in months?
- What is the youngest age a juvenile CHIS has been authorised during this timeframe (the last five years)?
- Please confirm if you have used a juvenile CHIS for each of the following types of investigations during this timeframe (the last five years)? a. gang violence, b. drug offences / county lines, c. child sexual exploitation, d. terrorism
Section 1 of the Freedom of Information Act 2000 (FOIA) places two duties on public authorities. Unless exemptions apply, the first duty at s1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at s1(1)(b) is to disclose information that has been confirmed as being held. Where exemptions are relied upon Section 17 of the FOIA requires that we provide the applicant with a notice which: a) states that fact; b) specifies the exemptions in question and c) state (if that would not otherwise be apparent) why the exemption(s) applies.
Northumbria Police neither confirms nor denies that it holds information relevant to this request by virtue of the following exemptions:
Section 23(5) Information supplied by, or concerning, certain Security Bodies;
Section 24(2) National Security
Section 30(3) Investigations by virtue of Section 30(2)
Section 31(3) Law Enforcement
Section 38(2) Health and Safety
Section 40(5) Personal Information
Sections 23 and 40 are class based absolute exemptions and there is no requirement to evidence the harm or consider the public interest. With regard to Section 40 please bear in mind that the changes brought about by GDPR apply when considering whether the use of NCND is appropriate inasmuch as determining that confirmation or denial would be lawful and fair.
Section 30 is a class based qualified exemption and consideration of the public interest must be given as to whether neither confirming nor denying information exists is the appropriate response.With Sections 31, 24 and 38 being prejudice based and qualified there is a requirement to articulate the harm that would be caused in confirming or not whether information is held as well as carrying out a public interest test.
Evidence of Harm in complying with Section 1(1)(a) – to confirm or not whether information is or isn’t held
The public expect police forces and other law enforcement agencies to use all powers and tactics available to prevent and detect crime or disorder and maintain public safety. There are a number of covert tactics available and the use of informants (covert human intelligence sources (CHIS)) is one of them. Used correctly, in line with the Regulation of Investigatory Powers Act legislation, it is a proportionate, lawful and ethical tactic which provides an effective means of obtaining evidence and intelligence.
There is considerable harm attributed to the confirmation or denial of any information in relation to police receiving information from confidential sources, regardless of their age. Such information would not exist had CHIS not been required to participate in the effective investigation of criminal matters. The information would only be held if it were obtained and recorded by the force for the purpose of its functions in relation to criminal investigations.
In this case, and irrespective of whether any information relating to this request is or isn’t held, confirmation or denial that individuals under the age of 18 are used as CHIS is likely to reduce the flow of information to the Police Service and intelligence agencies and would have a substantial prejudicial impact on the ability of such authorities to collect reliable and accurate intelligence. Furthermore, law enforcement bodies would become dependent on more costly and time consuming methods of collecting intelligence.
CHIS (regardless of their motivation) provide information at particular personal risk to themselves and their families. As previous cases have shown, where a CHIS is identified it can result in substantial physical harm, or mental trauma resulting from the threat of physical harm. This problem is particularly acute in cases relating to serious crime and terrorism where the threat against individuals is substantial. To confirm or deny whether or not individuals under the age of 18 years are used as CHIS by Northumbria Police would place those individual(s), if any, at an increased risk from danger as detailed above.
The use of CHIS is regulated by the Regulation of Investigatory Powers Act 2000, Part 2, and this current version of the code reflects changes to the oversight of investigatory powers made under the Investigatory Powers Act 2016, which includes oversight by the Investigatory Powers Commissioner, which requires authorities to take into account the provisions of the Human Rights Act when using CHIS (and other covert techniques). Police forces are reminded of their obligation under Article 2 of the Human Rights Act which requires them to protect human life. This is further supported by a High Court hearing Van Colle v Chief Constable Hertfordshire Police. In this case the force concerned failed to provide adequate protection to an individual whose life was at risk because of the criminal acts of a third party. The witness was murdered by a person whom he was about to give evidence against in a criminal trial.
It may be viewed by those not involved in the management of informants that a statistical number in itself is unlikely to cause any such adverse effects. However, the subject has to be viewed more holistically.
Those determined to identify informants have the ability to use small pieces of information in order to build a more complete picture and it is the cumulative effect of information disclosures that the Police Service feel will lead to this prejudice being realised.
Irrespective of what information is or isn’t held, numbers may be extremely low and not all forces will have recruited children as CHIS. To state ‘no information held’ or cite a substantive exemption would confirm which forces have individuals under the age of 18 recruited as CHIS. This in itself would be harm inasmuch as it would potentially reveal CHIS activity and locations.
Public Interest Considerations
Section 24(2) National Security
Factors favouring complying with Section 1(1)(a) confirmation or denying that any other information is held
The public are entitled to know how funds are spent and resources distributed within an area of policing, particularly with regard to how the police investigate terrorist atrocities. To confirm whether information exists would enable the general public to hold Northumbria Police to account in relation to how all CHIS are recruited to ensure it is done so in line with RIPA legislation and local force policies and procedures.
Factors against complying with Section 1(1)(a)
Taking into account the current security climate within the United Kingdom, there should be no confirmation or denial that information is or is not held where confirmation or denial may aid a terrorist and their activities. To what extent confirmation or denial may aid a terrorist is unknown, but it is clear that it will have an impact on a force’s ability to monitor terrorist activity.
The public entrust the Police Service to make appropriate decisions with regard to their safety and protection. The only way of reducing risk is to be cautious with what is placed into the public domain and in some circumstances such as these, confirmation or denial that information is held.
The cumulative effect of terrorists gathering information from various sources would build a picture of vulnerabilities within certain scenarios, such as the use of individuals under the age of 18 being recruited as CHIS. The more information placed in the public domain over time, even by confirming or denying, will provide a more detailed account of the tactical infrastructure of not only a force area but also the country as a whole.
Any incident which results from such a disclosure would by default affect National Security.
Section 30(3) Investigations
Factors favouring complying with Section 1(1)(a) confirming that information is held
Confirming or denying that any information exists would lead to a better informed public, improving their knowledge and understanding of how the Police Service utilise the use of CHIS as part of their investigative policing.
The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. Confirming or denying that information exists could promote public trust in providing transparency and demonstrating openness and accountability into how the investigation took place. It could also provide reassurance to the public that the Police Service tasks all reports of a crime seriously and conducts investigations appropriately. To confirm information is held could allow the public to have a better understanding of the effectiveness of the Police Service.
Factors against complying with Section 1(1)(a) confirming or denying that information is held
However, by its very nature information held relating to informants is sensitive in nature. Under FOI there is a requirement to comply with Section 1(1)(a) and confirm what information is held. In some cases it is that confirmation, or not, which could disclose facts harmful to informants. In some cases their mere existence can place individuals in grave danger. The only methodology which will provide the required degree of protection to those individuals is if the force takes advantage of its ability under FOI legislation to, when appropriate, not confirm or deny that the information requested is, or is not held. The Police Service will never confirm or deny information is held if in doing so could identify investigative activity and therefore undermine their investigations. To do so would hinder the prevention or detection of crime.
Section 31 Law Enforcement
Factors favouring complying with Section 1(1)(a) confirming information is held
There is information within the public domain, such as Lord Trefgarne’s Scrutiny Committee report into the use of juvenile CHIS by the Police Service, see below link, and that in itself favours confirmation information is held:
Factors against complying with Section 1(1)(a) neither confirming nor denying that information is held
All forces have a duty of care to the community at large and public safety is of paramount importance. If an FOI disclosure reveals information to the world by not adopting an NCND position, would not only compromise and undermine the security of the national infrastructure, the effective delivery of operational law enforcement would also be undermined as offenders, including terrorist organisations, could use this knowledge to their advantage which would compromise public safety and more worryingly encourage offenders to carry our further crimes.
All forces rely on information being supplied by the public. Irrespective of what information is or is not held, by applying substantive exemptions would indicate that information is held. Such action would act as a deterrent to the public to provide intelligence to the force which would further undermine public safety, with repercussions that could hinder the prevention or detection of crime.
Section 38 Health and Safety
Factors favouring complying with Section 1(1)(a) confirming information is held
Confirming whether information is or is not held would provide reassurance to the general public that Northumbria Police uses tactical options with regard to the use of Covert Human Intelligence Sources as a means of acquiring intelligence. This awareness could be used to improve any public consultations; debates in relation to this subject and also allow the public to take steps to protect themselves.
Factors against complying with Section 1(1)(a) confirming or denying that information is held.
Confirming or denying that information exists could lead to the loss of public confidence in our ability to protect the wellbeing of individuals recruited as CHIS as well as members of the community at large.
We as a force has a duty of care towards any individual who has been recruited as a CHIS. To reveal information via an FOI request which would place the safety of individuals in grave danger, is not in the public interest.
The points above highlight the merits of confirming, or denying, whether any information pertinent to this request exists. The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. As part of that policing purpose, various tactical options, including the use of juvenile CHIS, may or may not be utilised. The Police Service will never divulge whether or not information pertinent to this request does or does not exist, if to do so would place the safety of an individual(s) at risk, compromise an ongoing investigation or undermine the policing purpose in the effective delivery of operational law enforcement.
Whilst there is a public interest in the transparency of policing operations and investigations, providing reassurance that the Police Service is appropriately and effectively engaging with the threat from criminals, there is a very strong public interest in safeguarding the health and safety of individuals. As much as there is a public interest in knowing that policing activity is appropriate and balanced it will only be overridden in exceptional circumstances.
Therefore, at this moment in time, it is our opinion that for these issues the balance test for confirming, nor denying that information is held is appropriate.
No inference can be taken from this refusal that information does or does not exist.