Police and security services can legally use children as spies, High Court rules
Charity loses challenge that the practice causes ‘significant risk of physical and psychological harm’
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Your support makes all the difference.Children can legally be used as spies by police and security services despite the “self-evident” danger in which it places them, a court has ruled.
A charity argued that the rules governing the use of juvenile “covert human intelligence sources” (CHIS) violate human rights and put children at risk, but the case was dismissed at the High Court on Monday.
The legal action was taken after widespread condemnation of a case where a vulnerable 17-year-old girl was recruited to spy on her pimp, and later became an accessory to murder.
Mr Justice Supperstone found enhanced risk assessments and strengthened rules for under-18s meant there was no breach of child protection duties.
“The very significant risk of physical and psychological harm to juveniles from being a CHIS in the context of serious crimes is self-evident,” he added.
“It is for this reason that there are special rules applicable to them … I am satisfied that the scheme operated by the Secretary of State [Sajid Javid] is lawful.”
The judicial review was launched by charity Just For Kids Law, which crowdfunded more than £5,000 towards the cost of the case.
CEO Enver Solomon said the charity was “considering options” on how to appeal.
“We remain convinced that new protections are needed to keep these children safe,” he added.
“The reaction we have had shows that despite the ruling, there is widespread concern among the public about the government’s policy.
“The home secretary should act urgently to ensure that when the police find a child being exploited, their primary concern is to protect the child rather than allow that exploitation to continue.”
The High Court heard that “very few” juveniles have so far been used as spies, but a 2018 government memorandum 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.”
The Investigatory Powers Commissioner found that between January 2015 and August 2018, 17 juvenile CHIS authorisations were approved in 11 public authorities.
One of the sources was 15 and the rest were aged 16 and 17, the watchdog said, adding they were “only utilised in extreme circumstances and when other potential sources of information have been exhausted”.
The use of child spies is restricted by the Regulation of Investigatory Powers Act 2000 and related orders.
Operations must be authorised by senior police officers or officials, following an enhanced risk assessment looking at the potential for physical injury and psychological distress.
Authorisations last for four months and are subject to a monthly review to ensure they are proportionate, and under-16s cannot be employed to spy on parents and guardians.
Caoilfhionn Gallagher QC, representing Just For Kids Law, had argued it was “irrational” that 16- and 17-year-olds are not offered the assistance of an appropriate adult, while those aged 15 or under are.
Sir James Eadie QC, for the home secretary, said the use of juveniles “may be very important for reasons of national security, public safety and the prevention of disorder and crime”.
He said the use was “properly controlled and accompanied by appropriate decision-making”, adding: “To that end, the welfare of the child is placed at the forefront of decision-making as to the deployment of CHIS and the scheme provides adequate and appropriate safeguards.”
Mr Justice Supperstone ruled that there was no breach of the right to respect for private and family life, that the scheme was not “inadequate” in safeguarding and welfare, and did not irrationally draw a distinction between under-16s and older juveniles.
The judge said his conclusions were “reinforced” by confidential material he had seen.
Ben Wallace, the security minister, said: “The court recognised that the protections we have written into law ensure the best interests, safety and welfare of the child will always be paramount.
“Juvenile CHIS have been used fewer than 20 times since January 2015 but they remain an important tool to investigate the most serious of crimes.
“They will only be used where necessary and proportionate in extreme cases, where all other ways to gain information have been exhausted.”
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