Covert operations, commonly known as ‘sting’ operations, are sometimes used by police and other law enforcement agencies to obtain evidence of criminal activity.
The words ‘covert operation’ may conjure up images of police going undercover and posing as civilians in the hopes of catching murderers and drug king-pins.
But did you know that police also recruit members of the public to assist with sting operations – even with large-scale, international drug importation cases?
This might sound surprising given the obvious dangers involved – and, indeed, cases over the years illustrate the potential consequences of enlisting the help of civilians in stings.
So when can police recruit civilians for stings, and what are the risks?
Australian Federal Police (AFP) Drug Sting Goes Wrong
Back in 2002, an innocent furniture importer found himself embroiled in an AFP drug sting which went dangerously wrong.
The man, who uses the pseudonym ‘John Mansfield,’ was based in the Northern Territory in 2002 when he was approached by drug smugglers wanting to use his shipping containers to import the drug precursor ‘ephedrine’ from Indonesia into Australia.
Mansfield decided to report the matter to Northern Territory Police, who then referred it to the AFP.
Shortly thereafter, Mansfield was approached by the AFP who asked whether he would comply with the drug smugglers’ request in order to help them to dismantle an international drug-trafficking ring.
The operation required Mansfield to attend secret meetings with AFP officers in the dead of the night, get ‘wired up,’ and eventually travel to Indonesia with a million dollars worth of illegal drugs in his possession and liaise with drug traffickers.
Despite the obvious risks involved, he initially trusted the AFP to keep him safe in the same way that they would protect their own ranks.
After he arrived in Indonesia, Mr ‘Mansfield’ took up residence in an apartment, where the drugs were arranged to be delivered to him by an ‘erratic criminal figure,’ who was high on drugs and paranoid. The drugs were due to be shipped back to Australia under the supervision of an AFP officer, but that officer ended up bailing at the last minute, leaving Mansfield alone in a foreign country with copious amounts of illegal drugs and at the mercy of extremely dangerous individuals.
Mansfield says that the AFP treated him ‘like a throw-away.’
While he eventually managed to return to Australia, Mansfield suffered immensely as a result of his involvement in the operation. His identity was revealed in court proceedings – a case which ended up with the accused being found ‘not guilty’. Following the trial, Mansfield found himself ‘publically outed’ as a police informant and received threats from criminal figures. Fearing retribution, he was forced to move interstate.
Despite Mansfield’s life-changing ordeal, and the fact that he did not receive any training or debriefing, the AFP claimed that the risk to him was ‘assessed and considered to be low.’
Mansfield maintains that he was never offered an apology or any thanks for his efforts in the operation.
NSW Police Accused of Using Kids in Stings
While using an adult in a dangerous sting operation is questionable enough, using young kids in stings would be unthinkable – right?
Just last year, former NSW Premier Barry O’Farrell suggested that kids may be used by police in undercover operations to catch shop owners alleged to have sold alcohol to minors.
In the midst of the state government’s crackdown on alcohol-fuelled violence, the ex-Premier revealed a 16-point plan which included granting police powers to conduct covert operations ‘involving minors or young-looking adults.’
The NSW Police Force refused to deny whether they used children in covert police operations after a media organisation made a request under freedom of information laws to access documents relating to controlled operations.
Police refused the request on ‘public policy’ grounds, claiming that ‘confirming or denying the existence of any such documents would be against the public interest’ as it could identify informants. The decision was heavily criticised by Greens NSW Spokesperson for Police David Shoebridge, who argued that there was a ‘strong public interest’ in revealing whether police are using kids in sting operations.
The obvious risk is that children will be exposed to dangerous situations by reckless police intent on securing an arrest at all costs.
What Does the Law Say About Using Civilians in Sting Operations?
Given the serious dangers involved, one may wonder what protections are granted to civilians who are used by police in sting operations.
In New South Wales, the use of civilians in such operations is covered by the Law Enforcement (Controlled Operations) Act 1997.
Under section 7 of that Act, civilians must not be authorised to participate in controlled operations unless the CEO of the Police Force or relevant body is satisfied that it is ‘wholly impractical’ for a law enforcement officer to participate in the operation, and that it is ‘wholly impracticable’ for the civilian participant to participate in the controlled operation without engaging in that activity.
Incredibly, if a civilian sting operation goes wrong, law enforcement officers such as police are immune from criminal and civil prosecution under the Act. This means that members of the public who suffer injury in the course of the sting are unable to sue authorities – nor can the authorities be criminally prosecuted.
The laws are largely the same in relation to stings authorised by Federal law enforcement agencies.
National guidelines on Commonwealth controlled operations state that civilians may only be used in stings where their role ‘could not adequately be performed by a law enforcement officer’ – for instance, where the civilian is known to the suspect, or where they have a unique skill or knowledge.
The Problems With Sting Operations
The Wood Royal Commission into the NSW Police Service in the 1990’s identified several areas of concern surrounding sting operations.
In particular, the Commission raised concerns about the extent to which law enforcement agencies escape liability after they have clearly committed criminal offences in the context of a sting.
As detailed in the Commission’s Final Report:
‘it is undesirable for the courts to be placed in a position where an expectation arises that they will… turn a blind eye to this form of conduct or… be given a delegated responsibility to ‘excuse’ criminal conduct.’
But far from recommending that these agencies be held accountable under criminal or civil law, the Commission simply recommended the enactment of legislation which would ‘introduce a greater degree of regularity and certainty into undercover operations.’
A number of administrative measures were adopted following this recommendation, including the requirement that sting operations must be documented and that approval must be sought before they are commenced. As long as these guidelines are followed, the Commission legitimised the immunity of law enforcement officers from both civil and criminal liability.
But despite the basic nature of the requirements, there are concerns that they are being breached without consequences. A report released in 2012 by the NSW Police Force suggests that there are ‘significant delays’ with police officers providing reports on undercover operations to the Police Commissioner and NSW Ombudsman; which indicates that they are being prepared after the operation has occurred, rather than before as required. This supports the contention that there is a ‘complete absence of oversight’ when it comes to police sting operations.