Police (Agents Provocateurs) (Hansard, 10 April 1987)

Mr. J. Enoch-Powell (South Down)
I wish to use the opportunity that has fallen to my lot to place on record on the Floor of the House—which I consider to be the only proper manner in which to do so — a matter of great public interest and importance, which is of considerable relevance to the rule of law, and to ascertain the public position on the matter that is taken up by the Home Secretary on behalf of the Government. I am grateful for the presence of the Under-Secretary of State for the Home Department.
I can put the matter on the record by rehearsing a number of communications that have passed between myself and the Home Secretary in recent months. The issue goes back to 6 November last year when, in a written question, I asked the Home Secretary if he will call for a report from the chief constable of the West Midlands as to the circumstances in which on or before October 1985 two detective constables represented themselves as having murdered the late Airey Neave. The Minister replied : The right hon. Member's question relates to criminal proceedings now before the courts. It would not be right to comment."—[Official Report, 6 November 1986; Vol. 103, c. 532.] Therefore, it was not until 21 January that I sought that comment again. I asked whether, the case having been concluded, the Home Secretary would answer my question. I was told : I understand that, as part of an operation which led to the conviction of two men for conspiracy to murder, two detectives represented themselves as members of a terrorist organisation. I am informed that the Police made an apology in court for any distress caused to the family of the late Mr. Airey Neave." —[Official Report, 21 January 1987; Vol. 108, c. 559.] That seemed to me to disclose such a strange situation that I wrote to the Home Secretary on 23 January, thanking him for his answer to my written question about the story concocted by police agents provocateurs. I continued : What I fail to understand and what seems to me to be worthy of investigation is the reason why they chose to claim that particular murder by way of self-advertisement. It may possibly have been because no one has yet been made amenable for that murder : but as you will know the possible political links of it have aroused interest. The substantive part of the Home Secretary's reply on 10 March was : You ask why the two police officers chose to claim responsibility for that particular murder while representing themselves as members of a terrorist organisation. I understand from the Chief Constable of Leicestershire that this choice was not the result of a considered decision by either the officers themselves or their superiors directing the investigation. Rather, at a meeting between the detectives and one of the men later convicted of conspiracy to murder Mr. Rajiv Gandhi, one of the officers spontaneously claimed to have been involved in the murder of Airey Neave, as part of his attempt to portray himself as an IRA assassin. That this was a role-acting response, rather than a planned statement, by the officer, explains why he attributed Airey Neave's death to the IRA, when in fact it was the INLA who claim responsibility for it. Two matters appear to arise out of those exchanges between myself and the Home Secretary. The first is the use of police agents provocateurs and whether, in the Government's view, it is an appropriate procedure that police officers should present themselves to a member of the public as belonging to a terrorist organisation and 591 offer to undertake a murder on his or her behalf. That seems to overstep the line that divides the function of an agent provocateur from other investigative activities. It seems to me that for a police officer to act in a way that a member of the public might act and thus place himself in the way of detecting criminal actions or intentions is one thing, but for a police officer to offer to carry out a crime and to advertise himself as a specialist in that type of crime oversteps the line between innocent investigation and the function of agent provocateur, which I have always supposed, perhaps innocently, lay outside the scope of the British police.
I understand that the Home Office is not directly responsible, in the full sense, for provincial police forces; but its advice and opinion have a deep influence, and we should be told the view of the Home Office on the use of police officers as agents provocateurs.
The second question follows from the first. If the use of agents provocateurs is regarded as an appropriate resource of police forces— I hope that that will not be the Minister's reply—at what level should responsibility for that activity be taken? The Home Secretary has told me that in this case the superior officers under whose instructions the operation was carried out had not specified the details and maintained no control over the manner in which it was carried out by the detectives.
If the use of agents provocateurs is to be authorised, the authorisation should be given only at a high level of responsibility in police forces, and full control over so alarming an operation should be maintained by those who cover it with their orders and their responsibilities.
There are two questions. The first is the general question of the use of agents provocateurs by the police, which needs to be cleared up by a comprehensive statement. The second question, which falls within the first, is whether, supposing such operations are countenanced, the responsibility for them and for the detailed way in which they are carried out should be visibly lodged at a high level in the police force concerned.
I hope that, as I drew the attention of the Under-Secretary to my correspondence with the Home Secretary, he was able to be adequately briefed on the two questions that I have put to him. There is no point in my detaining the House further. I hope that the Under-Secretary will be able to deal with both points.

§ Mr. Ivan Lawrence (Burton)
I have no wish to rain on the parade of the right hon. Member for South Down (Mr. Powell), so I shall be brief.
If the police were not allowed to fulfil a function as agents provocateurs, few of the recent cases of substantial drugs offences and widespread counterfeiting of international currency could have been brought before the courts.
As the law is, there is nothing improper about police being used as agents provocateurs in the English jurisdiction, although there is something improper about their being used as agents provocateurs in the American jurisdiction. It is no defence for an accused person to say that he would not have committed the offence but for the use of an agent provocateur. The only point at which the fact that an agent provocateur was employed can be used in favour of the defendant is in mitigation of the gravity of an offence if he is convicted.
However, in favour of the right hon. Gentleman's argument, I should say that the use of an agent 592 provocateur causes grave concern to juries, lawyers and, I suspect, to the police themselves. There is something un-British about using that device. In my experience, juries rarely convict on the evidence of agents provocateurs unless that evidence is substantiated by strong corroborative evidence. The right hon. Member for South Down is right to say that such evidence should never be used except with the authority of senior police officers who are capable of making precisely the right assessment as to its need. In my recent experience, that requirement has been fulfilled in the British courts and has resulted in a substantial gain to the public, in as much as dangerous criminals and others who have committed serious crimes have been brought to book by its use.

§ Sir John Biggs-Davison (Epping Forest)
I wish only to ask a question, and I hope that my hon. Friend the Under-Secretary of State will include a reply to it when he answers the right hon. Member for South Down (Mr. Powell). As a friend, and as the deputy of Airey Neave when he was the Opposition Front Bench spokesman on Northern Ireland, I wish to ask what progress has been made in apprehending his murderers. Will my hon. Friend , speaking for the Home Office, give me an assurance that the police forces of the United Kingdom will make it a matter of honour to continue with, and not relax, their investigations until those murderers have been brought to justice?

§ Mr. Peter Bruinvels (Leicester, East)
I apologise for coming in slightly late. I congratulate the right hon.. Member for South Down (Mr. Powell) on making a most important point. I have been involved in two cases in the past, both of which concerned agents provocateurs, and in which charges might not have been laid if the police had not acted in that capacity.
The first involved one of our own hon. Members some time ago, and had to do with homosexual activity. I believe that if an agent provocateur had not been involved in that incident there would have been no charge, investigation or inquiry. If that person had not been approached by the police in the first place, I am not sure whether any offence would have been committed. That concerns me greatly.
The police have a good record of high detection rates, but to create the circumstances in which an offence could be committed and then to charge one of our own Members seems a strange way to behave.
The second case concerned one of my constituents—a Sikh who was recently involved in a Sikh trial in the Birmingham crown court in connection with the Rajiv Gandhi attempted assassination plot. In that case, which has been right through the courts, a young informer approached a couple of people in the case and suggested—

§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. I understand that the case to which the hon. Gentleman is referring is subject to appeal, and may therefore be subject to the sub judice rule of the House.

§ Mr. Bruinvels
I am not aware of any appeal—

Mr. J. Enoch Powell
If the hon. Gentleman is referring to the case—I see that the Under-Secretary of State is nodding his assent—it would appear, with great respect, 593 from the reply that was given to me by the Home Secretary, that that matter is now outside the sub judice rule. I apologise for making that point.

§ Mr. Deputy Speaker
I do not know whether the advice that has been tendered to me on the latest state of play in the case can be confirmed.

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg)
On a point of order, Mr. Deputy Speaker. My information is that the matter is subject to appeal. That is my understanding, and if I am wrong, I apologise.

§ Mr. Deputy Speaker
Can the Minister advise me whether an appeal has been lodged?

§ Mr. Hogg
I cannot give the date of the notice of appeal, but I understand that an appeal has been lodged.

§ Mr. Deputy Speaker
It has been confirmed that an appeal has been lodged, so the case is subject to the sub judice rule of the House.

§ Mr. Bruinvels
I was not aware of that. What I am trying to say is that, if someone approaches a person and asks him to take part in an activity, he is creating an atmosphere in which an offence can take place at a later date. My concern is that, if that person had not been so approached, no offence would have been committed. I appreciate that all the police want to do is catch as many criminals as they can. I salute the Leicestershire police force—or any other—for its rigour in bringing cases before the courts. I am concerned only that in certain circumstances the police seem to be creating trouble for people in cases such as those that I have described. The police should return to the business of detection, rather than seeking potential villains by becoming villains themselves— albeit temporarily—in the hope that they can bring charges against people in the future.
Of course I acknowledge what was said by my best hon. Friend the hon. and learned Member for Burton (Mr. Lawrence), in view of his experience as a leading Queen's counsel; but I am fearful about the role of the agent provocateur. The police should continue with their normal commitments, such as the detection of crime, and not seek ways of catching potential villains. The law is there to be obeyed. A number of Conservative Back Benchers rebelled over the clause concerning agents provocateurs during the debate on the Police and Criminal Evidence Bill. The police should be allowed to get on with their normal, honourable job, without going into muddy waters.

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg)
I congratulate and thank the right hon. Member for South Down (Mr. Powell) for having raised a matter of considerable importance. I shall try to clarify the distinctions between the obtaining of evidence and the action of an agent provocateur. A number of the speeches that have been made — although not the speech of the right hon. Gentleman — have elided the difference. There is a distinction between the role of agent provocateur and the obtaining of evidence. I shall deal with that matter when I comment on the speech of my hon. Friend the Member for Leicester, East (Mr. Bruinvels).
594 It might be helpful if I begin by defining the rules that govern police conduct in this area before I turn to the particular case and the questions that were raised by the right hon. Member for South Down. It is important that the House knows what an agent provocateur is. It is perhaps most authoritatively defined by the Royal Commission on police powers in 1928, which stated that an agent provocateur is a person who entices another to commit an express breach of the law which he would not otherwise have committed, and then proceeds or informs against him in respect of such an offence.
The critical element is that of enticement or incitement. Merely to report on the criminal activities of another is not to act as an agent provocateur. I see that the right hon. Member for South Down agrees with me. The essential element is the act of enticement or inducement.
The use of agents provocateurs is unlawful. That was stated most authoritatively by the then Lord Chief Justice in the case of Brannan v. Peek in 1948. Because it is important, it might be helpful to state that authoritative definition of the law : He said: It cannot be too strongly emphasised that unless an Act of Parliament provides that for the purpose of detecting offences police officers or others may be sent into premises to commit offences therein—and I do not think any Act does so provide—it is wholly wrong to allow a practice of that sort to take place…If the police authorities have reason to believe that offences are being committed in public houses"— that was the issue at the time— it is right that they should cause watch to be kept by detective officers, but it is not right that they should instruct, allow, or permit a detective officer or constable in plain clothes to commit an offence so that they can say that another person in that house committed an offence. That case involved illegal betting in a public house, which police officers kept under surveillance. They suspected what was going on and one of them went into the premises and laid a bet. The state of the common law is that which was laid down by the Lord Chief Justice in 1948, and it has received a powerful echo and reinforcement by Home Office guidelines, which have always made it clear that behaving as agents provocateurs is not permitted for members of police forces. Indeed, it is not permitted for their informants either. The relevant guidance is to be found in the Home Office circular to the police on crime and kindred matters, a copy of which is to be found in the Library. The relevant paragraph states: No member of a police force and no public informant should counsel or procure the commission of a crime. As I have already stressed, that prohibition applies to police officers and to informants who provide police officers with information. The guidance continues: The informant should always be instructed that he must on no account act as agent provocateur, whether by suggesting to others that they should commit offences or encouraging them to do so, and that if he is found to have done so he will himself be liable to prosecution. That is about as comprehensive a statement of the legal position as could be given. I suspect that it is a statement of the law that would satisfy the right hon. Member for South Down and be supported by my hon. Friends who are sitting below the gangway.

§ Mr. Eric S. Heffer (Liverpool, Walton)
It is the first time that I have heard the definition to which the hon. Gentleman has referred, and I find it fascinating. It would seem that a police office is allowed to join an organisation that might be provocative, be it on the Right or the Left, 595 and be accepted as a member of it. Apparently that is perfectly all right, but it is not allowed for him to say, for example, "Next week we shall throw some petrol bombs". If the officer did that he would be acting wrongfully. What is his role if he joins an organisation and becomes involved in informing on people who belong to it? Is that allowable under the law?

§ Mr. Hogg
The hon. Gentleman has raised an important issue and I am not sidetracking when I say that I shall respond to his intervention later. There is a distinction which I shall try to set out in practice.
It is proper for police officers to infiltrate criminal or terrorist organisations. In the ordinary course of that infiltration they must show some enthusiasm for what is going on in the organisation otherwise the infiltration would prove impossible. However, they must not incite or encourage the commission of offences by others. I accept at once that the distinction is sometimes a narrow one and that it is not always easy to adhere to it. On the whole, however, I believe that the police are adhering to it. This is a matter which I should like to return to in the course of my remarks. The hon. Gentleman is right to focus on the practical difficulties that arise in instances where the police have to infiltrate criminal or terrorist organisations.
If the police or their informants are to penetrate organisations, they must get inside them. It would not be possible for police officers to obtain the information that we would wish them to secure if they did not, in the course of making acquaintance with the members of the organisation, show some enthusiasm for the terrorist or criminal conspiracy, or the purpose which its members might have in mind. That is a practical difficulty.
Anyone who acts as an agent provocateur must be alert to the distinction which is reflected in the guidelines and in the judgment to which I have drawn the attention of the House, which I have tried to amplify in my remarks.
To what extent are agents provocateurs used? It is difficult to give a categorical and certain reply to that question, but I can say that since 1969–70 few allegations have been made of the use of agents provocateurs as I determine the term. I have taken the liberty of asking Home Office officials whether they know of such complaints. This is not an authoritative statement, but no one has any recollection of such a complaint. I have made inquiries of the Police Complaints Authority—again, I do not pretend that this is an authoritative answer—and it has no recollection of a complaint being made about the use of an agent provocateur in the sense that I use that term, which is that there must be incitement or encouragement by a police officer or an informant for others to commit a crime. On the whole, the police are adhering strictly to the requirements of the law and the guidance to which I have drawn attention. I cannot be more authoritative than that because there is no material to justify a positive assertion. The approach that I have outlined was accepted in 1969 by the central conference of chief constables and is widely acknowledged and understood.

§ Mr. Heffer
Were not some complaints made about agents provocateurs during the miners' dispute? I understand that claims were made that certain people who were throwing stones were not miners and were not known to anyone else. These people seemed to disappear into the crowd and then to disappear altogether. Some miners' 596 officials have said that they were known later to be people connected with the police or associated with them in some way.

§ Mr. Hogg
The hon. Gentleman refreshes my memory. I accept that those allegations were made during the miners' strike. I am speaking generally — I have not researched this issue—and I believe that I am right in saying that there was no convincing evidence that the persons against whom the complaints were made were police officers. I am dealing now with a rather different situation, which is whether there are complaints about individuals who are certainly police officers in cases that can be identified. The hon. Gentleman is referring to accusations which probably can never be pinned on persons who can be identified conclusively as police officers. However, he has refreshed my memory of the complaints which were made during the miners' strike and I am grateful to him for doing that.
In the case referred to the right hon. Member for South Down and touched on by my hon. Friend the Member for Leicester, East the police force concerned was the Leicestershire constabulary. The instructions that are contained in the Home Office guidelines are reflected in the general orders of that constabulary, as they are in the majority of forces of which I am aware. The case arose from the events which surrounded the visit of the Indian Prime Minister in October 1985. I think that all hon. Members will be aware that the events led to the trial of three Sikhs at Birmingham Crown court. Two of the defendants have been convicted and, as I have indicated, I understand that they have appealed to the Court of Appeal, which means that I must be rather guarded in what I say. I hope that the House will forgive me for taking that approach.
A number of complaints arose, some of which were fully investigated at the time by the trial judge and a number of which have been touched on by right hon. and hon. Members. It has been suggested that the trial of the three sikhs was politically inspired. My information, I must admit, is derived primarily from the chief constable of Leicestershire who was the officer ultimately responsible for the operations. I am assured that there is no truth in the suggestion that this trial or the inquiries that preceded it were in any way politically inspired.
I shall deal with the point made by my hon. Friend the Member for Leicester, East. The information which came to the police officers concerning what the Sikhs had in mind came via an informant who was approached by the gentlemen concerned. Once the information had been received by the police, they had to put a full inquiry in hand. The fact that it might in some way have been stimulated by the police officers was given considerable consideration by the trial judge, Mr. Justice McCullough, who commented that the information received by the police was of a kind that clearly justified and, indeed, required full investigation. If my hon. Friend the Member for Leicester, East is trying to suggest that the police were in some way creating an offence, I must say to him as positively and emphatically as I can that there is no truth whatsoever in such an allegation. The police were responding to information. They then put in police officers who then heard evidence. But there is no truth in the suggestion that they were creating an offence that would otherwise not have been created.

§ Mr. Peter Bruinvels
I was trying to make the point that the Leicestershire constabulary used a petty convicted criminal as a sort of informant. He was the person who was put in at the beginning to meet the Sikhs and to record comments such as, "How would you like to dispose of Mr. Gandhi?" That apparently is how it was done. It is all on file. Those people met in a pub in my constituency. From that point, as my hon. Friend the Minister correctly said, the police were then put in. A full meeting took place at the Post House hotel in Leicestershire. My concern is with what happened then. I am saying that, if those police had not become involved at that point, I suspect that no offences would have occurred.

§ Mr. Hogg
I entirely disagree with my hon. Friend. A serious conspiracy, which could have had tragic results, was going on. Because the police intervened when they did, no tragedy ensued, and those defendants have been convicted and sent to prison. The idea that the police were in some way manufacturing an offence which would not otherwise have occurred is an illusion. It is wrong. It is a mistake. It is an error. I am trying to persuade my hon. Friend that that is the case. He can intervene as often as he likes, but I must say—

§ Mr. Deputy Speaker
Order. The Minister will not act as an agent provocateur. The hon. Member for Leicester, East (Mr. Bruinvels) may not intervene as often as he wishes.

§ Mr. Hogg
I am trying to express emphatically that I do not accept my hon. Friend's suggestion, and I think that I have done that. I would perhaps strain the patience of the House if I continued along that line.
The right hon. Member for South Down asked who controls the operation of the agents provocateurs.

Mr. J. Enoch Powell
Before the Minister comes to that, I should like to put one point to him. If one individual says to another, "I am a very talented professional murderer. I have carried out a number of successful murders" is that not prima facie an enticement to the other person to employ him on that job? What is the meaning, otherwise, of such a conversation?

§ Mr. Hogg
The right hon. Gentleman is focusing on the real problem that arises. In trying to identify whether a person is an agent provocateur, the question is whether that person is inciting or inducing the commission of a crime. One must judge each case on its facts. For example, if I represented myself as a member of the IRA and sought out custom to kill, clearly I would be acting as an agent provocateur. On the other hand, if I were aware that some people wanted to kill and were putting in hand a conspiracy to kill and I went to them and represented my skills as a killer, there would be no inducement or incitement. I am not trying to dodge the issue or to be over-dogmatic. But there is a very narrow line. We must judge each case on its facts. We must look at the facts of each case bearing in mind the broad policy distinction.

§ Mr. Lawrence
If I may say so with the greatest respect, there is a danger of being confused about the law concerning the use of agents provocateurs. My hon. Friend began by saying that the concept of agent provocateur was contrary to the law. He cited Lord Chief Justice Goddard in Brannan v. Peek, a case in 1948. But, as I understand the law, that is not so. A number of judgments disapprove of agents provocateurs, but if the 598 activity of an agent provocateur were contrary to the law, it would be a defence to say, "I would not have committed this offence but for being induced to do so by an agent provocateur", which it is not. Furthermore, it might be within the discretion of the judge to exclude such evidence, which he is unable to do, according to the law. Is this not the position? Agents provocateurs are not contrary to the law.

§ Mr. Deputy Speaker
Order. Briefly.

§ Mr. Lawrence
Although it is an activity that is disapproved of, it is perfectly lawful for an agent provocateur to act in a way that induces someone to commit a crime that he would not otherwise have committed and, in due course, that person may be properly convicted if that was evidence given against him. The only way in which it may help the defence is, after conviction and to mitigate the extent of the crime, to say, "I was induced to do that by the activity of an agent provocateur". But is it not sometimes difficult for that defence in mitigation to be effectively advanced? A professional criminal must often be taken to know that he might be tricked into—

§ Mr. Deputy Speaker
Order. The hon. and learned Member knows that he can speak only once on the motion before the House.

§ Mr. Hogg
I do not agree with my hon. and learned Friend. Much depends on the definition we give to the expression "agent provocateur". I agree that, if we over-refine it, we get ourselves into difficulty. But I remind my hon. and learned Friend of the Home Office guidance which points to the true position. It states : The informant should always be instructed that he must on no account act as agent provocateur, whether by suggesting to others that they should commit offences or encouraging them to do so, and that if he is found to have done so he will himself be liable to prosecution. A necessary element in being an agent provocateur is that the person should himself commit a substantive offence which is part of the conspiracy. If one accepts that definition of the agent provocateur, which is the one I am putting to the House, the activity is unlawful. However, if one accepts a wider definition of the meaning of the phrase "agent provocateur" then one may come to a different conclusion. I am inviting the House to take the narrow definition that I have placed before it. It is for that reason that I cannot agree with the proposition put to me by my hon. and learned Friend the Member for Burton (Mr. Lawrence).
The right hon. Member for South Down raised the particular issue of control, but he premised that by the assumption that we were using agents provocateurs as part of police procedure. I have explained to him, and I hope that I have satisfied him, that that is not part of police practice. Therefore, the second part of his question does not arise in that we are not using agents provocateurs nor did we use them in the case to which he referred. Therefore, the question of control does not arise.
I shall turn to a matter of great distress to a number of people, particularly Lady Airey of Abingdon and that is what was said by one of the officers, Constable Tom B —that is how he was described in the trial—to the effect that he had been part of the murder gang that killed the former hon. Member, Airey Neave. The police, the chief constable and everybody involved are deeply sorry for the 599 distress that may have been caused to Lady Airey of Abingdon. What was said was in no sense preplanned. It was said by an officer at the time in order to try to cloak himself with credibility in the context of what he was trying to discover. It was not a planned statement and it was not in any way part of the operation. It was a statement that he made on the spur of the moment and he very much regrets the distress that he caused. However, I hope that the House will not be too critical of the officer, bearing in mind his dangerous and exposed position. Perhaps it is right that I should mention to the House that the learned Judge Mr. Justice McCullough at the end of the trial went on to say : I wish to commend Dectective Constable Tom B and Detective Constable Ian S, both of whom did an extremely good and difficult job and they deserve and get the commendation of the court. I feel that that is a point that the House would like to take into account when considering what the officers said at the time.
My hon. Friend the Member for Epping Forest (Sir J. Biggs-Davison) raised an important point regarding the inquiries into the murder of our former colleague, Airey Neave. The facts are known to the House. On 30 March 1979 a small explosive device attached to the car detonated and he was killed. The Irish National Liberation Army claimed responsibility for the murder and its claim has been accepted as valid. That claim was reiterated in a television interview in July 1979 by a masked person who was claiming to speak on behalf of the INLA. I very much regret to say that nobody has been charged in connection with the murder and it would be misleading for me to say that I have any information to suggest that a charge is likely to be made in the immediate or near future. However, like my hon. Friend the Member for Epping Forest, I very much hope that the police will devote all their efforts to arresting those people. I would very much like to see them before a British court and I hope that one day that happens.
Other questions have been raised. However, all I can do is reiterate to the right hon. Member for South Down that it is not part of police practice to use agents provocateurs. I do not believe that it happened in this case. What was done was the gathering of information and I think, taking a broad view of what happened, that it was a good thing that the police did receive the information that they did and, as a result, it may well be that a serious crime was averted.