Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Stewart of Dirleton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

As drafted, the Bill refers to criminal conduct as conduct

“in the course of, or otherwise in connection with”

the conduct of a covert human intelligence source, and as

“conduct by or in relation to the person”

who is specified as the covert human intelligence source. As has been said, the amendments would establish that criminal conduct is conduct by the covert human intelligence source in the absence of any explanation as to why the additional words to which I have referred are needed, and what the consequences would be, and for whom, if they were not in the Bill. A further amendment in this group also puts on the face of the Bill that a criminal conduct authorisation cannot retrospectively give clearance for behaviour that has already happened before the date the authorisation is given.

The Joint Committee on Human Rights also raised these issues in its report on the Bill when it said that the definition of what amounts to “criminal conduct” for the purpose of an authorisation is wider than simply criminal activity by a covert human intelligence source, and referred to the wording which the amendments in this group would delete. The only explanation for this which the Joint Committee on Human Rights could find was in the draft code of practice, which states that

“a criminal conduct authorisation may authorise conduct by someone else ‘in relation to’ a

covert human intelligence source,

“namely those within a public authority that are involved in or affected by the authorisation.”

No doubt the Government will wish to respond in some detail setting out why the words “in connection with” and “in relation to” are essential, what exactly they mean and, giving examples, explaining why it is considered necessary to enable a public authority to authorise criminal conduct by someone other than the covert human intelligence source, which some might feel is rather at odds with the title of the Bill.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, having made my maiden remarks at Second Reading, it is a pleasure now to assist the House in scrutinising the detail of this legislation. I hope to reassure noble Lords with regard to the scope, safeguards and limits to conduct that can be authorised under a criminal conduct authorisation. I recognise the feeling of the House on the last appearance of the Bill as a recognition of the complexities and difficulties which attach to this field of criminal investigation.

With regard to the remarks by my noble friend Lord Cormack, he will perhaps recollect that when I spoke at Second Reading I recognised the inelegance of the expression “CHIS”, and I fully share his concerns about it. However, until such time as we have evolved a suitable replacement, if that is possible, I trust I will not trespass on his patience if I continue to use the expression.

The Bill is drafted to allow things to be authorised which are certainly connected to the conduct of the CHIS but not the same thing as it: actions which are connected to the activities of the CHIS but which are not the CHIS activities themselves. This is deliberate and it is to allow for activity which facilitates and supports the core conduct of the CHIS, most obviously to allow the CHIS to avoid detection in order to remain in place and to provide the intelligence needed. The purpose of the expressions “in connection with” and “in relation to” is to ensure that such activity may be authorised. This language also serves the function of ensuring that the scope of a criminal conduct authorisation is properly limited. It helps to make it clear that it is not the case that any and all criminality by a CHIS may be authorised. It cannot be some private venture that the CHIS has involved himself or herself in. The criminal conduct to be authorised must be connected to the conduct of a CHIS and to the criminal conduct authority.

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Secondly, what is the position in relation to criminal injuries compensation schemes? If it is rendered lawful, does the victim of such a crime have the right to make a claim under the scheme? Thirdly, if it is rendered lawful, that brings to an end the right to civil liability. Why is that not a breach of the obligation on the state to protect victims of crime under the Human Rights Act? Surely, the right course is not to deprive the victims of any remedy but, if necessary and appropriate, to ensure that the CHIS, acting in accordance with a due authority, is indemnified in respect of any liability he or she may have to a victim.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 3 and 5 from the noble Baroness, Lady Chakrabarti, seek, as she said, to maintain the status quo but on a statutory footing. They would maintain the existing legal position whereby an undercover operative, a CHIS— I demur from the noble Baroness’s use of the phrase “police spy”, which, in addition to pejorative overtones, carries an undercurrent of the 19th-century Russian novel—could still be prosecuted for the activity that the state had tasked them to do.

In answer, first, to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, it has been a deliberate decision to draft the legislation in a way which renders correctly authorised conduct lawful in order to provide greater certainty and protection to undercover operatives—CHIS—where they are carrying out activity that they may have been authorised to undertake. To expand that in answer to the matters raised by the noble Baroness, Lady Chakrabarti, this approach is in keeping with other powers in relation to the investigation of crime, such as interference with equipment, interference with property, and the Regulation of Investigatory Powers Act, including an underlying Section 29 covert human intelligence source use and conduct authorisation.

As noble Lords have accepted—and they have not needed to be persuaded—our position is that it is grossly unfair and unreasonable for the state to ask an individual to engage in difficult and dangerous work to frustrate serious crimes while leaving open the possibility of the state prosecuting them for that very same conduct. That answers a point raised by the noble Lord, Lord Hendy, in his contribution to the debate.

The noble Baroness, Lady Chakrabarti, has framed her argument in terms of an illustration: a passer-by breaking into a house to save a neighbour. The analogy is that, in that position, the passer-by would have had available to them legal defences, and that the undercover operative—the CHIS—should simply rely upon the discretion of prosecutors rather than enjoy at the outset the full protection of the law for activities carried out within the narrow and tightly constrained boundaries of the criminal conduct authorisation.

We consider the analogy drawn by the noble Baronesses inapposite. The CHIS is not a mere passer-by stumbling across wrong-doing, but rather is placed deliberately in the company of wrong-doers by the state to help the state, or is someone who may have come into contact with wrong-doers and gone on to offer assistance to the police or investigating authorities. In so doing, such a person will often be asked to go along with the criminal activity of those people to earn their trust, so that their criminal activity may be frustrated. They do so in the public interest and often at risk of harm. Our position is that if the state thinks that it is right to ask them to act in this way and can consider the matter in advance, it is not comparable to the situation of a member of the public acting as a good citizen, responding to an unexpected event and going to the assistance of a fellow citizen in danger.

It is a credit to the skill of the handlers, and to the commitment and trust of covert human intelligence sources, that they have been prepared to continue with the prospect of prosecution always alive. However, as we understand the situation, we must accept that we have lost intelligence and failed to recruit undercover operatives because we have not been able hitherto to give them confidence that the state will not prosecute them for the things that the state has asked them to do. This tension has existed for many years and it is right that we use the Bill to resolve it. In fact, making this legal position clear is likely to help with the recruitment and retention of human intelligence sources.

It would also be undesirable from a legal perspective to create an express power for public authorities to authorise activity which remained criminal. However, I reassure the noble Baroness that where a CHIS, or an undercover operative, commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can of course consider it in the normal way. The Bill does not prevent those impacted by an authorisation seeking redress. I include in that the matter raised by noble Lords in relation to civil redress. The Investigatory Powers Tribunal has the same powers to grant remedy as other courts.

The noble Baroness, Lady Warsi, and the noble Lord, Lord Hendy, were concerned that the Bill may be seen as something which allows a CHIS carte blanche to commit criminal activities. That is not the case. Criminal conduct authorisations are tightly drawn. Persons acting undercover will be working within a relationship with their handler, who is trained and experienced in conducting such work, and subject to a powerful oversight regime. A CHIS will never be granted carte blanche to commit any or all crimes. This is communicated clearly to people finding themselves in that situation, appointed to that position or recruited to that position. Where a covert human intelligence source commits criminality outside the tight provisions of the authorisation, the prosecuting authorities will consider the matter in the usual way.

In response to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Blower, and the noble Lord, Lord Paddick, it is the case—as I think the noble Lord acknowledged, albeit with substantial caveat—that covert human intelligence sources acting outside authorised conduct have been prosecuted in the past. The Bill ensures that that can happen in future if the boundaries of the authority under which they work are transgressed. It is precisely to combat the sort of outrages identified by the noble Baroness, Lady Jones of Moulsecoomb, that the Bill is framed. That is why it seeks to build on the oversight of the commissioner and the Investigatory Powers Tribunal.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about the visibility of authorisation forms and the effectiveness of the regime. I assure him and others in the Committee that there will be oversight of the new regime. That is the role the Investigatory Powers Commissioner’s Office plays in overseeing all authorisations. That body will provide public commentary on the effectiveness of the regime as part of the reports which it prepares. It has access to all documents and all information bearing upon the CCAs about which we were speaking.

The noble Baroness, Lady Blower, spoke about the situation applying according to the law of Canada. We have looked carefully at the provisions applying in countries with legal systems similar to ours. However, similar though the legal system of Canada is, none the less there is a different regime of control, as the security imperatives in Canada are different from ours.

Finally, I shall comment on the observations by the noble Lord, Lord Paddick. We consider that the status quo is not desirable in the current situation. We acknowledge the decisions in the Third Direction case. We look to place the activities of people fulfilling these necessary functions on a statutory basis. I think—if I have gauged correctly the views of the Committee—that placing these powers on a statutory footing is more or less universally considered desirable. Clearly where we will potentially be at odds is in the framing of the terms of the statute. However, my respectful conclusion is to say that the continuation of the status quo is not desirable.

For the reasons that I have identified, we consider it desirable—in spite of the qualifications and concerns raised by the noble Lord, Lord Hendy, and others—to render the situation whereby criminal conduct, tightly defined in individual circumstances, will be identified in advance rather than excused retrospectively.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received one request, so far, to speak after the Minister. I call the noble Lord, Lord Paddick.

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Finally, can the Minister address what my noble friend Lord Thomas of Gresford described as the brown envelope issue, where, for example, a member of an armed gang who is an informant appears in the dock alongside the fellow criminals and, out of sight, the judge is tipped off that the informant helped the police and so should be treated more leniently? What happens when that member of the gang does not appear in the dock with all the others, clearly giving away the fact that he is a police informant and placing his life at risk?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord clearly heard what I said about the view that we have lost intelligence and failed to recruit CHIS, and that failing to introduce a power in these terms is likely to impair the recruitment and retention of CHIS. I do not have to hand the figures that he seeks, but I undertake to write to him.

On the “brown envelope” scenario, when it is drawn to the attention of a presiding judge passing sentence that a member of a criminal organisation—a gang, a conspiracy or whatever—has actively assisted the police and the investigating authorities in bringing the prosecution, it is important that we maintain a proper boundary. A person becoming aware that the police are aware of criminal activity, who elects to go to the police in their own interests in order to assist them, and by so doing earns a degree of mitigation, is very different from a person becoming a CHIS in the course of criminal activity, or one who is associated with criminal organisations for that direct and specific purpose. The noble Lord shakes his head, but I insist that we must maintain boundaries. A person who, during or prior to a prosecution, assists the prosecution and the police, is different from a person inserted into an organisation with the purpose of deriving intelligence about its activities.

The noble Lord, Lord Thomas of Gresford, spoke about the appointment of a committee to look into these matters; as he said himself, this was a matter which occurred to him shortly before this debate. I will look into the implications and communicate further with him.

[Baroness Chakrabarti (Lab) [V]]

This Committee has made it a privilege to be a Member of your Lordships’ House, which today I have heard at its best, expressing with great care and detail the sheer strength, depth and wisdom of noble Lords’ concerns about the Bill in its current form. Many other noble Lords have similar concerns, but for various reasons were unable to participate. The noble Baroness, Lady Ritchie, rightly pointed up the Northern Ireland experience, and with all matters of human rights and the rule of law, we ignore that voice and that particular experience at our peril.

The noble Baroness, Lady Warsi, rightly pointed out that supporters of these amendments come from all sides of the House. That should give the Minister pause for thought. So much has been said in these polarised times in our nations about extremism versus moderation. Sometimes I do not even know what these words mean any more, save that the ultimate moderation that holds our nations together is the rule of law. My friend—if not my noble friend—the noble Baroness, Lady Warsi, rightly describes this as a very conservative principle and tradition. However, equally for liberals and progressives, there can be no human rights or even democracy without the preservation of the rule of law.

The noble Lord, Lord Thomas of Gresford, pointed to our legal traditions, but also made a particular point about successful work of his own at the Bar deconstructing the mens rea of someone who had no criminal intent because they were acting in the public interest; that ties in with my amendment very well indeed. The noble Baroness, Lady Jones of Moulsecoomb, may have used colourful language which offended the Minister, but it is how many members of the public will feel about what is being provided for here without the safeguard of the amendments that I have put forward.

My noble friend Lady Bryan was right to point up the excellent briefing from Justice. I neglected to declare an interest as a member of Justice, but I hope that noble Lords will forgive me, because I suspect that many of them, particularly noble and learned Lords, are members of that wonderful law reform organisation. My noble friend Lady Bryan made the crucial point: where are the hard cases of undercover operatives who are just doing their work and doing no more than necessary being prosecuted by rogue prosecutors against the public interest and common sense, because we have not seen them?

Of course, there is only one thing better than one Lord Thomas, and that is two Lords Thomas contributing so eloquently to a debate, particularly when one of them is the former Lord Chief Justice of England and Wales. I will let that hang in the air for a moment, because I know that the Minister will not have ignored that very powerful intervention from the noble and learned Lord, Lord Thomas of Cwmgiedd. What is wrong with the current law? Where is the evidence? How can we do our duty without the ability to examine the case for moving from the status quo that has served our nations so well in this difficult and grey area and held the ring for so long?

My noble friend Lord Hendy was absolutely right to bring up the ongoing Mitting inquiry, in which he represents some of those who have been subject to abuse of power. There have been abuses under the current law; how much greater will the possibility of abuse be if we cross this Rubicon into granting blanket advance immunities to so many agents of the state, including from the criminal fraternity?

What of the victims, as my noble friend Lady Blower so rightly pointed out? She reminded us of perhaps the greatest jurist of my lifetime: Lord Bingham, who articulated equality before the law as a vital rule of law principle. She also reminded us that Article 13 of the ECHR requires an “effective remedy” for victims of crime. I know that the Minister attempted to address this, but how can “lawful for all purposes” possibly square with giving an appropriate remedy to a victim of a crime that is suddenly rendered no longer a crime?

The noble Lord, Lord Paddick, has been a police officer for 30 years, and, as my noble and learned friend Lord Falconer suggested, that gives his practical experience in the field particular weight. I imagine that noble Lords listening and those who will read his intervention tomorrow will be very careful to consider his wholesale dismantling of the argument against maintaining the so-called tension, which operates as a safeguard against the abuse of power. It is good for operating on the mind and ethical framework of any CHIS or undercover operative, particularly one who is not even an officer of the state but is a mere agent and, I repeat, quite possibly from the criminal fraternity.

My noble and learned friend Lord Falconer also rightly took us to the very powerful report from the Joint Committee on Human Rights, which expresses so many concerns about the Bill in its current form. There is so much potential for violations of human rights and abuse if the Bill is unamended. I have tried to engage constructively by way of this amendment, which does minimal violation to the scheme of the Bill and addresses the problem posed by the ongoing litigation but, none the less, preserves the status quo that has served us so well and is about preserving the rule of law.

It is said to be a breach of the rules of theatre to break the fourth wall, but, for all its beauty and glory, your Lordships’ House is not a theatre; it is a legislature. I want to be fair to the Minister, who is new to your Lordships’ House and to this Bill and who cannot possibly have been involved in the earlier stages of the policy formulation that led to its precise drafting. It is very difficult to be in the Chamber for one of these Committees, to listen to all the arguments—particularly when they are so powerful and come from all sides—and to respond on the spot, on your feet and immediately, as he has had to do. None the less, I hope that he will listen to the sheer breadth and depth of concern, which might well be addressed by way of my amendments or something like them.

The noble and learned Lord takes issue with my analogy about other citizens and passers-by. He says that these agents of the state are not mere passers-by, but that argument cuts both ways. The mere passer-by is mostly not from the criminal fraternity and normally does not have a vested interest, of whatever kind, in getting a particular outcome, quite possibly, even as an agent provocateur, as we have seen in the past. Why should an undercover operative, a CHIS, quite possibly a civilian or even someone from the criminal fraternity, have a protection in law that even a uniformed police officer does not have when he or she puts themselves in harm’s way on a daily basis? The so-called tension is a healthy one, and it should not be resolved by way of the absolute immunity that is the ultimate evil in this Bill.

Finally, I am beginning to suspect that the “lawful for all purposes” formulation was not adopted with a great deal of deliberation. I am beginning to suspect that it was used because it was used before and is in the framework of RIPA, where it is, pretty much, appropriate because that is about surveillance. As the Minister has said, it has been used in certain narrow confines before, but this Bill authorises unlimited criminal conduct and, potentially, very serious crimes, as the Joint Committee on Human Rights has pointed out. Therefore, a “lawful for all purposes” advance immunity that is appropriate for bugging, surveillance and minor criminal damage is simply not acceptable or conscionable in this case.

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[Lord Falconer of Thoroton (Lab)]

I am delighted to follow my noble friend Lady Chakrabarti, who has made a real contribution to the quality of the debate in this Committee and will make a real contribution to the changes necessary to the Bill. I shall speak particularly to Amendment 71, in the name of my noble friends Lord Rosser and Lord Kennedy. As the noble Lord, Lord Anderson of Ipswich, previewed, it seeks to make it clear that there is a jurisdiction in the Investigatory Powers Tribunal to give compensation to people.

This group concerns compensation for innocent victims. It seems to me that innocent victims can take two forms. One is somebody who is completely innocent and, pursuant to a crime authorised by a CHIS, gets beaten up, for example, by the CHIS. What remedy does that person have? Secondly and separately, there is the person who is a target of CHIS activity; for example, somebody who, it is thought, might be about to commit a crime and their premises might be burgled, pursuant to an authorisation under the Bill. What remedy does that person have? Let us assume, particularly, that the whole authorisation was wrongheaded from the start because, as everybody accepts in this process, errors get made. So, there is the innocent victim of crime on one hand and, on the other, the target of CHISery who is the wrong target and a judicial review would be allowed in relation to that.

On the face of the Bill, if it is all lawful, then there is no remedy at all. Will the Minister please explain what remedy there is? The noble Lord, Lord Anderson of Ipswich, made it clear that he thinks activities under Part II of the Regulation of Investigatory Powers Act 2000, which this is amending, already provide a remedy. Indeed, in the Commons in answer to this amendment, the Security Minister replied:

“Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.”—[Official Report, Commons, 15/10/20; col. 613.]


It would be helpful to have, first, a repetition of the assurance that the IPT covers judicial review-type relief—on the basis, presumably, that the original authorisation is unlawful—and therefore the reference to the fact that whatever is done under the authority is lawful does not apply to the original grant of the authority.

Secondly, will the noble and learned Lord deal with the issue of the innocent victim of the crime when there is a lawfully authorised criminal conduct authorisation, and the consequence of that is that somebody is, for example, severely beaten up? What remedy does that totally innocent victim have in such circumstances? The effect of the Bill is to say that the conduct is rendered “lawful for all purposes”. It cannot mean that. It cannot mean that the totally innocent victim, who has other remedies, is deprived of all those remedies because it is authorised under a criminal conduct authorisation: it cannot have intended that.

As the noble Lord, Lord Anderson of Ipswich, said, it may be key that we focus on the public authority which provided the authorisation and do not lose sight of the person giving the authority by focusing on the liability of the CHIS themselves. This point was clearly considered by the Joint Committee on Human Rights in suggesting its amendment to try to deal with this.

People are very concerned about the innocent victims. I strongly invite the noble and learned Lord to deal also with the practical issues referred to by the noble Lord, Lord Anderson of Ipswich. For all the remedies in the world you create, if you can never tell the victim what has happened, how does that person get a remedy? That is an important point.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 6 and 8 seek to remove the exemption from civil liability for CHIS criminal conduct. While I understand the intent behind these amendments, which is to allow those impacted by a criminal conduct authorisation to be able to seek civil redress, there are good reasons why the Bill has been drafted in this way.

I explained in response to amendments tabled by the noble Baroness, Lady Chakrabarti, why the Bill has been drafted to render correctly authorised conduct lawful for all purposes. Those reasons apply equally to criminal and civil liability. An authorisation will have been granted because it was deemed necessary and proportionate to tackle crime, terrorism or hostile state activity. Where that authorisation has been validly and lawfully granted, it is right that criminals or terrorists cannot then sue the undercover operative—the CHIS—or the state for that same activity.

I appreciate that the spirit of these amendments is to ensure that any innocent persons impacted by an authorisation can seek redress where appropriate. I reassure noble Lords that all authorisations are, in the first place, very tightly bound and, as part of the necessity and proportionality test, the authorising officer will consider any other risks of the deployment. An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation.

The Bill does not create an exemption for all and any civil liability. For example, the conduct that is the subject of the Undercover Policing Inquiry would not be exempt from civil liability under the Bill’s regime.

I also seek to offer reassurance that routes of redress will be available to those who have been impacted by a criminal conduct authorisation where that authorisation has been unlawfully granted, following the observations from the noble and learned Lord, Lord Falconer, on the situation where the wrong stems from the authorisation granted being improper or too broad. The Bill does not prevent affected persons from seeking a judicial review of a public authority’s decision to authorise criminal conduct. If a judge concluded that the decision had not been lawfully made, the affected person could seek a remedy through the courts. The noble and learned Lord referred to the statement made in the other place on this. Equally, as with other investigatory powers, any affected person or organisation can make a complaint to the Investigatory Powers Tribunal which will then be independently considered by the tribunal.

A further important safeguard is the obligation on the Investigatory Powers Commissioner to inform a person of a serious error that relates to them, where it is in the public interest. This includes situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned. The commissioner must also inform the person of any rights they have to apply to the Investigatory Powers Tribunal. That is an example of the commissioner actively seeking out persons who have been wronged as part of their remit to consider all documentation, facts and circumstances surrounding the granting of a CCA.

Amendment 71, tabled by the noble Lord, Lord Rosser, is unnecessary. Any person or organisation can already make a complaint to the Investigatory Powers Tribunal with regard to conduct under Part II of RIPA; that complaint will be considered independently by the tribunal. The IPT operates one of the most open and transparent systems in the world for investigating allegations that agencies have breached human rights. It hears cases in open where possible and publishes detailed reports on its work and rulings. This will remain unchanged under the Bill.

These criminal conduct authorisations are very tightly bound so that they meet the necessity and proportionality test. A number of routes of redress will be available to persons wronged to challenge the validity or lawfulness of the authorisation and then seek the appropriate remedy, whether through judicial review or a complaint to the independent tribunal.

The matter of applications to the Criminal Injuries Compensation Authority was raised by the noble Lord, Lord Anderson, and others. I regret to advise the House that I do not have information specific to the CICA in front of me, but I will write to him and others who have expressed an interest on that point.

On a point raised by the noble and learned Lord, Lord Falconer, it is important to bear in mind that RIPA already excludes civil liability for authorised CHIS conduct, so what is introduced in the Bill is not new.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received a request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.

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[Lord Stewart of Dirleton (Con)]

The remedy lies in the approach to the tribunal and the obligation on the commissioner to notify a person who is wronged of their right.

[Lord Falconer of Thoroton (Lab)]

Can the Minister confirm that the totally innocent victim can go to the Investigatory Powers Tribunal and make a claim for damages for assault and battery?

[Lord Stewart of Dirleton (Con)]

I am happy to confirm that.

[Lord Paddick (LD) [V]]

My Lords, I am grateful to all noble Lords who have spoken in this debate. In speaking to the comments of the noble Lord, Lord Anderson of Ipswich, I do not want to get into an argument over who has more respect for whom, but I have the utmost respect for him and his experience as a former Independent Reviewer of Terrorism Legislation. There is a fundamental disagreement he has surfaced with the noble Baroness, Lady Chakrabarti, and me over what was described in a previous group as the tension in the fact that a CHIS committing a crime is potentially subject to criminal prosecution and being sued for civil damages. I note that the noble Lord does not believe that is right, whereas the noble Baroness and I think it is.