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Government scheme for use of children as ‘spies’ is lawful, High Court judge rules

The Government’s scheme governing the use and authorisation of juvenile covert human intelligence sources (“JCHIS”) – or ‘child spies’ – in particular by police in the context of criminal justice is lawful, a High Court judge has ruled.

The challenge was brought by charity Just for Kids Law, which argued that the Home Office’s guidance on the use of children as spies lacked appropriate safeguards from physical and emotional harm.

Specifically the claim raised two issues:

  1. Whether the scheme breached Article 8 ECHR. Just for Kids Law contended that the scheme contained insufficient safeguards to ensure that the use of a JCHIS was (a) necessary and proportionate, (b) consistent with the obligation to treat the interests of the child as a primary consideration, and (c) accompanied by sufficient procedural safeguards.
  2. Whether it was irrational for the scheme to draw a distinction between persons aged 15 or under, who must always have the safeguard of an appropriate adult at meetings with JCHIS, but not a person aged 16 or 17.

In R (Just for Kids Law) v SSHD Mr Justice Supperstone rejected the claim. He said: “Plainly, as the Secretary of State recognises, children are inherently more vulnerable than adults. The very significant risk of physical and psychological harm to juveniles from being a CHIS in the context of serious crimes is self-evident.

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“It is for this reason that there are special rules applicable to them. The enhanced risk assessment requires a detailed evaluation of the risk pertaining to a particular juvenile’s deployment as a JCHIS prior to authorisation. The result is that the number of juveniles used as JCHIS is low. The authorisation is for a short duration of four months, they are kept under monthly review and the authorising officer is under an ongoing obligation to consider whether the authorisation continues to be appropriate. Further, there is a statutory system of oversight of the use of JCHIS.”

He added: “In my judgment:

  1. there is no unacceptable risk of breach of the Article 8 rights of a JCHIS inherent in the scheme. I reject the Claimant’s contention that the scheme is inadequate in its safeguarding of the interests and welfare of JCHIS (Ground 1), and
  2. it is not irrational for the scheme to draw a distinction between persons aged 15 or under, who must always have an appropriate adult, and persons aged 16 or 17 who are not subject to the same requirement (Ground 2).

“I am satisfied that the scheme operated by the Secretary of State is lawful.”

Enver Solomon, Chief Executive Officer at Just for Kids Law, said: “We are disappointed that the Court has ruled against us. We are considering our options for how to proceed with the case, and in the meantime are continuing with our crowdfunding campaign.

“The judgment acknowledges the ‘very significant risk of physical and psychological harm to children’ and a variety of dangers that arise from their use as covert informants in the context of serious crime.”

Solomon added: “We remain convinced that new protections are needed to keep these children safe. 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.”

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