Harmes & Anor, R. v

A breach of authorisation requirements for an undercover operation under the Regulation of Investigatory Powers Act 2000 and its Code of Practice is important, particularly where it prevents scrutiny of necessity and proportionality. It does not, however, itself require a stay of criminal proceedings.

The decisive question is whether the officers’ conduct, viewed as a whole, was so seriously improper that allowing the prosecution would bring the administration of justice into disrepute. Undercover officers investigating drug crime may show willingness to deal and a degree of persistence to maintain their cover. Conduct which exposes suspects’ voluntary offer to provide major drug-importation services, rather than generating that crime, will not ordinarily justify a stay.

The appellants were convicted of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979, arising from an undercover operation into suspected large-scale cocaine importation.

Before trial, HHJ Mowat at Reading Crown Court stayed three substantive cocaine-supply counts. Those supplies had followed officers’ request to be paid in cocaine for heavily discounted soft drinks. The judge refused to stay the separate conspiracy count, holding that the appellants had willingly offered their Heathrow importation service for substantial profit.

On appeal, the appellants argued that serious failures to authorise the officers’ tactics under the Regulation of Investigatory Powers Act 2000 and the Code of Practice tainted the entire operation. The central issue was whether the conspiracy prosecution should therefore have been stayed as an abuse of process.

1. Appeals dismissed. The court agreed that there had been serious defects in the authorisation process. The plan to sell cheap soft drinks, present them as a cover for drug importation, and exchange high-value drinks for low-value cocaine had not been properly authorised or recorded. Those tactics should have been authorised in advance, or properly recorded and reviewed if unforeseen.

2. The judge also erred in treating the officers’ proposal to receive cocaine for the drinks as not involving crime because it was pretended. The proposal was criminal conduct and was not authorised. Proper compliance with the Regulation of Investigatory Powers Act 2000 and the Covert Human Intelligence Sources Code of Practice is essential because it enables a court to assess whether an undercover operation was necessary and proportionate.

3. Those breaches did not themselves determine whether the proceedings should be stayed. Applying the approach in R v Looseley, [2002] 1 Cr. App. R. 360, the question was whether the officers’ conduct was so seriously improper that a prosecution for conspiracy would bring the administration of justice into disrepute.

4. The officers’ request for a small quantity of cocaine, although unauthorised and criminal, did not induce the appellants to join a major importation conspiracy. It revealed their willingness and ability to import substantial quantities for profit. Their discussions of smuggling methods were evidence of an offer of services, not inadmissible evidence of predisposition. Nor was the suggested importation of 200 kilograms an impermissible inducement: the amount followed from the appellants’ offer to import drugs belonging to others.

5. Undercover officers may display enthusiasm and persistence consistent with criminal dealing in order to preserve their cover. Here their conduct did not exceed what was permissible to investigate and prosecute the crime. The court exercised its own judgment, rather than merely reviewing the trial judge’s discretion, but upheld her refusal to stay the conspiracy count.

• Court of Appeal (Criminal Division): dismissed the appellants’ convictions appeals and upheld the refusal to stay the conspiracy prosecution.
• Crown Court at Reading: on 17 June 2005, HHJ Mowat stayed three cocaine-supply counts but refused to stay the conspiracy count under section 170 of the Customs and Excise Management Act 1979.