Confidential informants, undercover activity, negligence and lawsuits

Oh dear… the lawyers are coming…

For a senior police officer it is the stuff of nightmares. There has been an incident of some sort and now the lawyers want to paw through all your records pertaining some sort of undercover activity which your agency has been involved in. The incident may have involved the deployment of an undercover officer, or it may have been a surveillance operation or have involved the use of a human source (confidential informant). While in many cases the lawyer may be seeking only to get an acquittal for their client, unfortunately, and all too often nowadays, it is more likely to be that the lawyer is pressing a lawsuit against the law enforcement agency because some form of harm has come to their client. 

For the Chief of the agency it is not always obvious what the lawyer will look for and how the agency will be left vulnerable. Fortunately, no matter where you are in the world, the things that will cause the agency problems are very similar. At HSM Training we are regularly asked to carry out audits to find out what could go wrong or what has gone wrong.  We are telling you now, so that you can fix them BEFORE something bad happens (and before a lawyer raises them in court).

There are three things that will always lead to problems if they are not well established within any agency. A failure to have these in place will lead to negative events and are most likely to result in the agency being the wrong end of a successful lawsuit. They fall under three headings:

1.       Legislation, Policy and Procedures

2.       Training

3.       Records

It goes without saying that if you are not adhering to legislation as a law enforcement agency you are going to be in trouble. However, law enforcement agencies look at legislation in a very narrow way, for example they do not even consider that workplace safety legislation will apply to their covert operation and therefore they breach that legislation. Agencies fail to have policies relevant to the work they carry out. Policy is a public statement of what the agency intends to do and an explanation in general terms as to how they will do it. This informs the general public that the agency is undertaking the named activities and gives them an idea of the controls that will be in place. If you don’t have a public policy, then it looks like you are hiding something. Where there is national policy that should be adhered to. Procedures are different from policy. Because of the secret nature of covert activities these documents should not be made available to the public. They should be exempt under freedom of information as they expose law enforcement methods. Procedures are a standardised series of actions taken to achieve a task so that everyone who undertakes the task does in an agreed and consistent way to achieve a safe, effective outcome. Procedures have a lot of detail. They say exactly who will do the work and they detail the processes for how that work will be carried out. Generally speaking, where agencies fall down is lack of comprehensive, well written procedures that are reviewed on an annual basis and where compliance with them is intrusively and rigorously enforced by managers.

Whatever role an officer is undertaking they need to be selected and properly trained for that role and certified as being competent for that role. Details of how the officer was selected, and the training they have received, need to be recorded including both the content and duration of the training and the results of any form of assessment. Officers need to receive regular updates in their training and should be signed off one an annual basis as being competent for the task in question.  All officers regardless of rank, involved in the relevant task, must be trained.    The level of training required will come down to the risks involved with the nature of task being carried out. If someone might die, you are going to need a lot of training. If an officer is not trained properly, it is negligence to have them doing the task. There is no excuse such as not having the money to train them.

There need to be comprehensive records of all aspects of the activity being undertaken and these should be kept in one centralised location. Ideally they should be on a computerised secure system. [For covert activities if the computer system is not of sufficiently high security, stick with paper. Do NOT use your standard records management system that you use for patrol.] If the agency has not identified all the records that should be kept and if they are not all completed properly it is going a long way to suggesting either wrongdoing or negligence.

Having examined any agencies policy and procedures, their training and their record keeping it takes an expert minutes to identify if the agency could have done things more effectively. The expert then presents their opinion to the court. It is then up to the court to decide whether that amounted to negligence and whether or not that negligence resulted in harm to a person.

It is perhaps worth noting that in some jurisdictions the mere existence of the risk of harm to a person constitutes a criminal offence under health and workplace safety legislation! If you want advice, ask us or wait for the lawyers to ask.