R (Just for Kids Law) v Home Secretary [2019] EWHC 1772 (Admin)

R (Just for Kids Law) v Secretary of State for the Home Department [2019] EWHC 1772 (Admin) concerned a challenge by a children’s rights organisation to the lawfulness of the scheme governing the use and authorisation of juvenile covert human intelligence sources (“JCHIS”) – that is, children under 18 acting as informants for the police and other agencies – in the context of the criminal justice system. Mr Justice Supperstone dismissed the claim, holding that the scheme was lawful and provided sufficient safeguards.

The framework for the use of CHIS is set out in Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”), which is silent on the use of juveniles. Specific requirements relating to JCHIS are contained in the Regulation of Investigatory Powers (Juveniles) Order 2000, as amended by the 2018 Order. Under section 26 of RIPA, a CHIS is defined as a person who establishes or maintains a relationship for the covert purpose of obtaining or disclosing information. Section 29 requires that any authorisation must be both necessary (for example, for preventing or detecting crime) and proportionate. An authorisation may not be granted unless arrangements exist to ensure the source’s security and welfare, including the appointment of persons responsible for day-to-day handling, general oversight, and record-keeping.

The 2000 Order imposes additional safeguards specific to juveniles. No authorisation may be granted for a source under 16 if the relationship to which the authorisation relates is with the source’s parent or any person having parental responsibility. Where the source is under 16, an appropriate adult must be present at meetings. Originally, an appropriate adult was defined as the parent or guardian, or any other person who has assumed responsibility for the juvenile’s welfare, or failing that, any responsible person aged 18 or over who is neither a member of nor employed by any investigating authority. For all sources under 18, Article 5 of the 2000 Order requires an enhanced risk assessment identifying and evaluating the nature and magnitude of any risk of physical injury or psychological distress, and requires the authorising officer to be satisfied that the risks are justified and have been properly explained to and understood by the source. The authorisation lasts only four months (rather than the 12 months applicable to adult CHIS) and is subject to at least monthly review.

The 2018 Order made two changes. First, it amended the definition of appropriate adult in relation to under-16s to “the parent or guardian of the source; or any other person who has for the time being assumed responsibility for his welfare or is otherwise qualified to represent the interests of the source”. Second, it extended the duration of authorisations from one month to four months, whilst maintaining the requirement of monthly reviews. The statutory scheme is supplemented by a Code of Practice issued by the Secretary of State under section 71 of RIPA, which states that vulnerable individuals (including by reason of age) should only be authorised to act as a CHIS in the most exceptional circumstances, and that juveniles under 16 must have an appropriate adult present at all meetings. The Code is supplemented by guidance published by the National Policing Improvement Agency, internal guidance within individual police forces, and the general police guidance on dealing with young persons.

Section 11 of the Children Act 2004 requires public bodies, including the police, to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The Investigatory Powers Act 2016 provides for oversight by the Investigatory Powers Commissioner, whose remit includes keeping under review the use of CHIS, including JCHIS. The Commissioner’s first annual report for 2017 stated that every instance of the use of a juvenile CHIS was examined at inspection, and that such use was notable for its infrequency. Between January 2015 and March 2019, only 17 JCHIS authorisations had been approved across 11 public authorities, of which one individual was 15 years old and all others were 16 or 17. The Commissioner emphasised that JCHIS were typically already engaged in the relevant criminality or were members of criminal gangs, and were not asked to participate in activity they were not already undertaking.

Just for Kids Law challenged the adequacy of the safeguards on two grounds. Ground 1, permitted by Lavender J, was that the scheme breached Article 8 of the European Convention on Human Rights because it contained insufficient safeguards to ensure that the use of a JCHIS was necessary and proportionate, consistent with the obligation to treat the interests of the child as a primary consideration, and accompanied by sufficient procedural protections. The Claimant identified eight specific inadequacies. Ground 2 was that it was irrational to distinguish between persons aged 15 or under (who must have an appropriate adult at all meetings) and those aged 16 or 17 (who need not).

It was common ground that the use of a JCHIS was capable of engaging Article 8, and that this was a systemic challenge requiring the court to consider whether there was an unacceptable risk of breach of Article 8 rights inherent in the system itself, rather than focusing on individual cases. The Claimant relied on Article 3.1 of the UN Convention on the Rights of the Child, which requires that in all actions concerning children the best interests of the child shall be a primary consideration, and submitted that the identified inadequacies, taken cumulatively, created an unacceptable risk of illegality, particularly given the gravity of the potential interference with Article 8 rights.

The court rejected each of the specific challenges in turn. As to the absence of a general statement that any child should be treated as vulnerable or that use should be limited to exceptional circumstances, Mr Justice Supperstone held that the Code expressly recognised that age is or may be a specific cause of vulnerability, and that the whole scheme recognised that children were inherently more vulnerable than adults and made special provision for them. The enhanced risk assessment required a detailed evaluation of the risks particular to each juvenile, and the practical effect was that JCHIS were only used in extreme circumstances when other sources of information had been exhausted. As to the failure expressly to refer to the best interests of the child as a primary consideration, the judge held that the critical question was whether the scheme substantively complied with the need to safeguard and protect the welfare of children. The risk assessment procedure in Article 5 ensured that appropriate weight was given to a child’s best interests, requiring the authorising officer to consider the risks of physical injury and psychological distress at the outset. The NPIA guidance expressly referred to section 11 of the Children Act 2004 and the statutory obligation to safeguard and promote the welfare of a child, and the internal MPS guidance stated that the welfare of the child was paramount.

As to the absence of an express requirement that an appropriate adult for an under-16 must be independent of the investigating authority, the court held that the amendments made by the 2018 Order strengthened rather than weakened safeguarding. The starting point remained that the juvenile’s parent or guardian would act as their appropriate adult, but another person might be better qualified where, for example, the parent was involved in the matters being reported upon or supported the ideology of those against whom the juvenile was deployed. The Code made clear that the impact on the JCHIS of the parent not being informed would be considered as part of the enhanced risk assessment. It was plain that an employee of the investigating authority could not act as the appropriate adult because they would have a clear conflict of interest and could not be qualified to represent the interests of the source.

As to the absence of any requirement for an appropriate adult for 16 and 17-year-olds, the court held that the distinction reflected the fact that a child becomes increasingly independent as they grow older and that parental authority reduces accordingly. The general principle that children demonstrated increased maturity and independence as they grew older was a relevant consideration when determining whether an appropriate adult was necessary. The reference in the NPIA guidance to the Gillick decision was not inapposite. The absence of a mandatory requirement enabled law enforcement agencies to make decisions on the basis of the facts of individual cases, and appropriate adults could still be used where appropriate. Article 5 required that the authorising officer be satisfied that any risks had been properly explained to and understood by the source. Officers assessed a child’s maturity and intelligence to ascertain whether they understood the nature and implications of the role and whether they wanted their parent or guardian to be informed.

As to the absence of any requirement to draw on expertise in child welfare, the court held that police officers received training in child welfare, and the officer undertaking the enhanced risk assessment would consider any previous involvement with social care or mental health services. A mandatory requirement to consult a person in mental health or social care would create an additional risk by increasing the number of persons who knew about the possible use of a juvenile and would result in delay. As to the extension of the authorisation period from one month to four months, the court held that the amendment did not weaken protection because reviews by the authorising officer must take place at least monthly and as frequently as necessary and proportionate, considering the mental and physical impact on the young person and whether the authorisation remained necessary and proportionate.

As to the absence of any limit on the number of times an authorisation can be renewed, the court rejected the submission that an absolute limit was necessary, noting that monthly reviews, four-monthly renewals and an ongoing obligation to consider proportionality should have the effect that the time during which juveniles were used as JCHIS was kept to a minimum. As to the absence of any prohibition on 16 or 17-year-olds giving evidence against their own parents, the court held that any proposal that a JCHIS give intelligence against their parents would have to be carefully considered as part of the enhanced risk assessment, and Article 5(c) required the authorising officer to give particular consideration to whether the authorisation was justified in light of that fact.

Mr Justice Supperstone held that there was no unacceptable risk of breach of the Article 8 rights of a JCHIS inherent in the scheme. Children were inherently more vulnerable than adults and the scheme recognised this by imposing special rules applicable to them. The enhanced risk assessment required detailed evaluation of the risk pertaining to each juvenile’s deployment, the result being that the number of juveniles used was low. Authorisations were for a short duration, kept under monthly review, and subject to an ongoing obligation to consider whether they remained appropriate. There was also a statutory system of oversight. Ground 2 added nothing to the Article 8 challenge and was also rejected; there was no irrationality in requiring an appropriate adult for those aged 15 or under whilst not imposing an equivalent requirement for those aged 16 or 17. In short, the scheme operated by the Secretary of State governing the use and authorisation of juvenile covert human intelligence sources was lawful and both grounds of challenge failed.

R (SG and others) v Secretary of State for Work and Pensions [2016] 1 WLR 1449
McMichael v United Kingdom [1995] 20 EHRR 205
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
R (C) v Secretary of State for the Home Department [2014] 1 WLR 1234
ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, [2011] UKSC 4
Re: application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27