The Legal Aspects of Undercover Police Operations in England and Wales

This paper analyses the judicial contribution to the English law relating to undercover police operations. The analysis is undertaken from the perspective of an academic lawyer specialising in criminal evidence and procedure. It is demonstrated that judicial attention has largely been focused on two issues: First, the extent to which the use of undercover police operations may lead to the exclusion of prosecution evidence, or even to a complete stay of the proceedings; and, secondly, the extent to which sensitive information about undercover operations may justifiably be withheld from the defence. In examining these issues, the paper endeavours to show that there has been a tendency on the part of the English courts to advocate the use of ‘balancing tests' to resolve issues, without articulating clearly the considerations to be taken into account in performing these tests. An examination is also undertaken of the legal position in the USA and Canada and of the significance of the Human Rights Act 1998. A number of proposals for reform of the law are made.

The paper was originally presented at a conference on ‘Developments in Contemporary Policing: Intelligence-led Operations and Inter-agency Co-operation’, University of Kent at Canterbury, 18th April, 1997.