Key Cases on Undercover Policing

Undercover policing in England and Wales is governed by the Regulation of Investigatory Powers Act 2000 (RIPA), which provides a statutory framework for the authorisation and oversight of covert operations. The use of undercover officers and covert human intelligence sources (CHIS) has been the subject of significant legal and public scrutiny.

R v Looseley [2001] UKHL 53 (House of Lords) is the leading case on entrapment. The court held that where a police officer has done no more than present the defendant with an opportunity to commit a crime, and the defendant freely takes that opportunity, the prosecution is not an abuse of process. However, where the officer's conduct has gone beyond providing an opportunity and has actively instigated the offence, the proceedings may be stayed as an abuse of process. The test is whether the officer acted as a participant in an existing course of criminal conduct or whether the officer caused the defendant to commit an offence they would not otherwise have committed.

R v Barkshire [2011] EWCA Crim 1885 concerned the use of a covert officer infiltrating a group of activists. The court held that evidence obtained by an undercover officer is admissible provided the officer was properly authorised under RIPA and did not cross the line into entrapment. The case highlighted the importance of proper authorisation records.

The Undercover Policing Inquiry (UCPI), established in 2015 under the chairmanship of Sir John Mitting, is examining the deployment of undercover officers by English and Welsh police forces since 1968. The inquiry has revealed that officers infiltrated political, environmental, and social justice groups, often forming intimate relationships with activists under their assumed identities. The Metropolitan Police has issued public apologies to women deceived into relationships with undercover officers, and settlements have been reached in civil claims. The inquiry is ongoing and is expected to make recommendations for reform of undercover policing practices.

The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 placed on a statutory footing the power to authorise CHIS to participate in criminal conduct in the course of their deployment. The Act has been criticised for the breadth of criminal conduct that may be authorised and for the absence of prior judicial authorisation.