Necessity-Based Disclosure Framework for CHIS Status in Criminal Proceedings

Introduction

This commentary examines the Court of Appeal’s decision in AXR v R ([2025] EWCA Crim 454), which defines when and how a covert human intelligence source (“CHIS”) may have his status disclosed during criminal proceedings and clarifies the limits of staying a prosecution for abuse of process. The appellant, anonymised as AXR, was a former registered informer charged with serious offences. He applied to stay proceedings on the grounds that disclosure of his CHIS status had been mishandled, exposing him and his family to risk and rendering a fair trial impossible. The Crown resisted, relying on the statutory framework under the Regulation of Investigatory Powers Act 2000 (“RIPA”), the CHIS Code of Practice and the abuse-of-process jurisprudence.

Summary of the Judgment

The Court of Appeal refused leave to appeal against the trial judge’s rejection of AXR’s application to stay the prosecution. The key holdings were:

Disclosure of CHIS status is governed by a “need-to-know” and “authorised purpose” principle under RIPA s29 and the CHIS Code of Practice.
A CHIS’s status need not be disclosed to prosecutors at the point of charge unless and until it becomes relevant — typically when the defendant elects to rely on that status in his defence.
The absence of an automatic disclosure system does not breach Article 2 or Article 6 of the European Convention on Human Rights.
No structural defect or prosecutorial misconduct justified a stay under either limb of the abuse of process jurisdiction.

Analysis

Precedents Cited

R v BKR [2023] EWCA Crim 903: Established that limb 2 abuse of process requires something “out of the ordinary” beyond mere risk to the defendant.
R v BKJ [2024] EWCA Crim 1354: Confirmed that category 2 abuse often involves prosecutorial or executive misconduct of such gravity that trial offends the court’s sense of justice.
R v BHQ [2023] EWCA Crim 1018: Affirmed the Court of Appeal’s jurisdiction to hear interlocutory appeals on abuse of process and limited re-assessment of findings absent legal error.
Kolyadenko and others v Russia [2012] ECHR 338: Held Article 2 covers situations where life was at real risk, even if no death occurred.

These authorities framed the court’s approach to abuse of process: a stay under limb 1 requires impossibility of a fair trial; limb 2 demands exceptional circumstances or serious misconduct.

Legal Reasoning

The court’s analysis proceeded in three stages:

Article 2 and Article 6 Compliance: The Court accepted that a CHIS’s ECHR rights are engaged when under suspicion or charge but held that RIPA s29 and the CHIS Code establish a protective scheme. Disclosure is limited to authorised purposes and to those who need to know, thereby safeguarding life and fair-trial rights until the informer elects to rely on his status.
Abuse of Process – Limb 1 (Fair Trial): AXR argued disclosure delays and lack of contact with handlers made a fair trial impossible. The court held that fairness includes the defendant’s choice whether to invoke CHIS status; until then, confidentiality is lawful and risk-managed. When AXR chose to rely on his informer role in his defence, disclosure became necessary and was properly handled with risk assessments and protective measures.
Abuse of Process – Limb 2 (Integrity of the System): The court found no prosecutorial or systemic misconduct. The absence of automatic pre-charge disclosure complied with RIPA’s “need-to-know” principle. A stay under limb 2 was unjustified where AXR voluntarily engaged the CHIS issue and the public interest in prosecuting serious crime prevailed.

Impact

This decision cements a framework for handling CHIS status in criminal litigation:

It endorses a discretionary, necessity-based disclosure regime consistent with RIPA and the CHIS Code, rather than an automatic pre-charge obligation on prosecutors.
It clarifies that the moment for disclosure arises when the CHIS status becomes relevant to the defence or the prosecution’s case, preserving operational confidentiality beforehand.
It reaffirms that abuse of process stays are exceptional, requiring either irretrievable unfairness or systemic breakdown; mere risk to an informer, absent demonstrable administrative failure or misconduct, will not suffice.

Future cases will rely on AXR v R to balance informer confidentiality, state duty under Article 2, and fair-trial guarantees under Article 6.

Complex Concepts Simplified

Covert Human Intelligence Source (CHIS): A person who is knowingly tasked by police to gather information through covert contact with subjects of investigation.
RIPA s29: Statutory provision authorising the use of CHIS on necessity and proportionality grounds, imposing strict confidentiality and “need-to-know” limits on disclosure.
CHIS Code of Practice: Government guidance under RIPA s71–72 detailing how public authorities must handle, record, and disseminate CHIS-related material.
Abuse of Process – Limbs 1 & 2:
- Limb 1: Stay where a fair trial is impossible.
- Limb 2: Stay to protect the justice system’s integrity, typically for extreme misconduct or systemic failure.
Articles 2 & 6 ECHR: Article 2 protects the right to life; Article 6 guarantees a fair and public hearing by an independent tribunal.

Conclusion

AXR v R establishes that CHIS confidentiality must be maintained until a defendant elects to rely on informer status, at which point disclosure becomes necessary and must be managed under RIPA’s necessity and proportionality tests. The decision reaffirms the exceptional nature of abuse of process stays and underscores the state’s duty to balance informer protection (Article 2) with the right to a fair trial (Article 6) and the public interest in prosecuting serious crime. This precedent will guide law enforcement, prosecutors, defence practitioners and courts in handling sensitive intelligence sources while safeguarding fundamental rights.