The content of an operational experiment: Basic elements and performance qualities

The purpose of an operational experiment, as set out in Section 15(3) of the Operational Activities Law (hereinafter – OAL), is to record the conduct of persons (OAL, 1993) about whom the institution has information that they are committing or planning to commit criminal acts in a situation eliciting a criminal or other illegal act.

The manifestation of an operational experiment in the field can be described as follows: the person performing the operational experiment approaches the person of interest to the institution (the subject), establishes contact with him and, in order to ascertain his/her legal or unlawful conduct, expresses in a conversation his/her willingness to purchase certain prohibited substances, items or services, or otherwise ascertains his/her attitude towards the commission of a criminal offence.

The method of obtaining information of interest by the institution through a person acting in the environment of interest is called the agency method in Latvian criminal investigation terminology and practice. The Explanatory Dictionary of Forensic and Operational Terminology explains the term “agency method” as “the conspiratorial acquisition of operationally relevant information through contact(s) between the person using the method (an official of the subject of the operational activity (author's note: i.e. the institution) or a person involved in a secret cooperation) and the person(s) in possession of the information” (Kavalieris et al., 2007, p. 8).

The performance of an operational experiment has all the characteristics of an agency method, since it also involves obtaining information on criminal offences through a person cooperating with the authority. That is to say, the information is obtained via the person who has agreed to perform the operational experiment.

It follows from the above description of an operational experiment and the explanation of the agency method that two parties are involved in the performance of the measure: on the one hand, there is the institution performing the operational experiment (the official organising the measure and the person performing the measure) and, on the other hand, there is the individual in society who commits or intends to commit criminal acts. The above-mentioned elements of an operational experiment constitute the basic structure of the measure.

Abstracting from the performance of the measure, it can be concluded that its performance is based on communication (“contact; transmission of information” (Tēzaurs, 2022) between a person chosen by the institution (the performer of the measure) and the person of interest to the institution (the subject). As part of the communication, the performer of the measure makes contact with the subject, learns the issues of interest to the institution, engages in the criminal activity and records it.

Figure 1.

As the graph shows, an operational experiment is structured around three basic elements: the institution, the subject and communication. All of these elements are indispensable for the performance of an operational experiment, because the absence of any of them means that the performance of the measure does not take place as such. They are closely interlinked.

The communication element is different because it is not a material object. It does not exist per se, but arises when the other two elements, the institution (the performer) and the subject, interact. Communication is a result of the interaction between the performer and the subject and therefore, unlike the performer and the subject, has no influence on the performance of the measure. On the other hand, the subject and the perpetrator of an operational experiment, being material objects, directly influence the performance of the operational experiment and the course of events as a whole. This happens through communication.

The existence of the communication element (its feasibility as such and its productivity) depends on the changing qualities of the agent and the subject (psychological qualities, differences of opinion, ability to communicate, actual behaviour, etc.). The performer must be able to establish and maintain contact. The performer of an operational experiment must also possess certain qualities for the performance, which are defined and described later in the article.

When assessing these two elements – the institution and the subject – from the point of view of the performance of an operational experiment, the institution (the performer) plays a central role in the performance of the measure, as it creates the conditions (situation) necessary for the successful investigation of a criminal offence in the performance of the measure. The institution (in the form of the performer of the measure) can be said to adapt to the rules set by the subject – his/her behaviour, how he/she commits the offence and the environment surrounding him/her. The role of communication, on the other hand, is self-evident: it is the exchange of information or the channel through which the institution influences the course of events, obtains the necessary information, and ascertains the subject's criminal intentions.

When performing an operational experiment, the performer must establish a certain type of relationship with the subject. It goes without saying that human relationships are formed during communication, so the initiation of communication with the subject is the initial objective of the performance of an operational experiment.

The relationship between the parties involved is an essential element of the agency method, which is based on trust. Without trust, relationships and cooperation cannot be built. The state of trust between the subject and the performer of the measure is obtained through communication, where the human qualities (character traits) of the parties come into contact and the reactions arise from what the parties say and what they apparently do.

Regarding the role of trust between individuals and in society as a whole, Karen S. Cook, Professor of Sociology at Stanford University, in the description of the book Trust in Society stated that it plays a pervasive role in social affairs, even sustaining acts of cooperation among strangers who have no control over each others' actions (Cook, 2001). Ken J. Rotenberg, Professor of Psychology at Keele University in the UK, in this matter in the introduction to his book The Psychology of Interpersonal Trust stated that trust is a crucial facet of social functioning that feeds into our relationships with individuals, groups and organisations (Rotenberg, 2020). In another book – Psychology of Trust: New Research – the conclusion is stated as trust is a central part of human decision making whether it applies to another person, social group, organisation, unknown market players or even technology artefacts; trust can be built (Gefen, 2013). Trust can be said to be a key element of social relations and the basis for cooperation.

In the context of an operational experiment, it should be noted that the subject's trust in the performer of the operational experiment is relative, since in most cases the subject has little or no acquaintance with the performer before the performance of the measure. Moreover, the communication between the subject and the performer of the measure refers to criminal acts for the commission of which criminal liability is imposed, which makes the subject in particular cautious (critical). The subject does not trust the performer of the measure in the direct sense of the word “trust”, that is, being convinced of (someone's) favourable, honest attitude, actions towards oneself; believing (someone), relying (on someone), disclosing (to him/her), for example, a secret (Tēzaurs, 2022). However, the set of circumstances created by the measure must be sufficient for the subject to assume in his consciousness that in a given case a real criminal offender communicates with him and that he/she will not betray him. The trust between the subject and the performer of the measure must exist to such an extent that the subject decides to carry out his/her criminal intent.

To initiate communication, contact (acquaintance) must be established between the parties of the operational experiment. When considering this moment of performing the operational experiment, the point of reference is the moment when the prosecutor accepts the performance of the measure, since legally this is the time when its performance is allowed (to begin). At the time of acceptance, two initial states of the operational experiment are possible: (a) contact between the parties has already been established and (b) contact is to be established during the performance of the measure.

Figure 2.

The necessity and legal justification for performing an operational experiment may arise from several sources. First, it may arise from the materials of the investigation of criminal offences (the results of operational activities and the materials of criminal proceedings); second, it may arise from the findings of the undercover assistant of the institution (categorised into informants, agents and residents; Kavalieris et al., 2007, p. 108, 251); and third, it may result from information provided by a person in the community who does not fall into any of the above categories of undercover assistants (“occasional contacts”

Persons who provide information to the institution on a specific occasion and only once because at the time they felt it was their duty to assist. After providing the information, the person may not wish to continue cooperating with the institution.

One approach to establishing contact, which does not involve the actions (combinations) characteristic of infiltration

Infiltrate – to secretly become engaged in a particular environment. Source: https://tezaurs.lv/iefiltrēties

Taking into account the aspect of establishing contact, it can be concluded that the circumstances to be created in the performance of an operational experiment can be divided into two categories: circumstances for establishing contact with the subject and circumstances for recording the criminal intentions of the subject, which is done by creating a situation eliciting a criminal act (OAL, 1993 (Article 15(1) and (2))).

Taking into account the factor of establishing contact, it is possible to identify the differences (qualities) in the initial part of the performance of an operational experiment resulting from the two mentioned initial states of the performance of the measure – see Table 1.

Establishing contact, initiating productive communication and gaining the trust of the subject are only possible if the performance of the operational experiment has two interrelated qualities: secrecy and naturalness. They must be present throughout the entire performance of the measure.

The quality of “secrecy” means that the fact of performing the operational experiment must be secret. If secrecy is not ensured, the likelihood that the subject will also become aware of the performance of the operational experiment increases. Persons, including officials, not involved in the performance of the measure may not know about it.

It goes without saying that if the subject knows that an operational experiment is planned or being performed against him, he will not disclose the necessary information (his criminal intentions) to the institution and will not engage in criminal activities when communicating with the performer of the measure. If the subject is aware of the fact that the measure is being performed, he/she is likely to stop communicating with the performer of the measure, but if he/she does continue, it will only be to misinform the institution and/or to clarify the intentions of the institution.

The secrecy of the performance of the measure is ensured by the laws and regulations – the Law on Official Secret (hereinafter – LOS), Cabinet Regulation No. 21 of 6 January 2004, and Cabinet Regulation No. 887 of 26 October 2004 – according to which the organisation (planning and performance) of an operational experiment, the tactics of its performance and the information obtained during its performance are state secrets (LOS, 1996; Cabinet Regulation No. 21, 2004; Cabinet Regulation No. 887, 2004). The identity and the very fact of cooperation of the undercover assistants in Latvia, who are among those who can perform an operational experiment, are also protected by the aforementioned laws and regulations [Cabinet Regulation No. 887, 2004]. Information on the planning and performance of an operational experiment is known to a very narrow circle of persons.

However, if the subject does not know directly that an operational experiment is being performed against him, but it is performed unnaturally, that is, the development of the situation created by the performance of the measure does not correspond to the way in which the specific criminal offence being investigated is committed in the field or the person performing the measure does not control the situation and him-/herself, this may cause the subject to have second thoughts and lead to the realisation that the person with whom he/she is speaking is concealing his/her true intentions. The risk of such an outcome is high if it is not the first time that the subject has conducted criminal activities, and if the performer of the operational experiment has a cover story of having conducted such activities, for example, the purchase of drugs, in the past and on more than one occasion.

A correct and sufficiently exhaustive description of the circumstances to be established is given in Article 225 of the Criminal Procedure Law, which provides for a special investigative action analogous to an operational experiment – a special investigative experiment. The regulation states that “in a special investigative experiment, a situation or circumstances characteristic of a person's everyday activities shall be created which contribute to the detection of criminal intent [...]”. (Criminal Procedure Law, 2005). It can be concluded that the terms “situation or circumstances characteristic of a person's everyday activities” imply that the circumstances created must correspond to the way a person naturally commits criminal activities. In other words, by creating a situation or circumstances which correspond to the natural commission of the particular criminal offence under investigation (this follows from the nature of the person's criminal activities).

It follows that in order for the performer of the measure to gain the trust of the subject, it is important to perform the measure naturally, that is, in the sense of the term “naturally” – in such a way that it corresponds to the nature of things and phenomena, corresponds to the usual, normal course of events; lawfully, normally (Tēzaurs, 2022). The subject must not suspect that an institutional activity is taking place, therefore the tactical steps of the operational experiment, the script of the mock scenario and the behaviour (actions) of the performer during the performance of the measure are of key importance. The performance of an operational experiment is influenced by a variety of circumstances and may also be affected by the conditions laid down in the legal regulation.

When thinking of an example where creation of an unnatural situation is visible in the performance of an operational experiment and its cause is to some extent attributable to the legal regulation for operational experiments (its shortcomings), the practice of performing operational experiments as it was before the amendments to the OAL, which entered into force on 4 January 2022, comes to mind. The mentioned amendments removed from Article 15 of the OAL the condition that an operational experiment shall be performed only against persons who are the subject of an operational investigation [OAL, 1993 (older revision; Article 15, first and third paragraphs)]. In practice, this condition meant that the prosecutor's office did not accept operational experiments in cases where the identification data of the subject – name, surname and personal identification number – were not known.

The problem of identification of persons that institutions have faced and continue to face is largely linked to the increasing availability of technology for interpersonal communication. Various mobile messenger applications (WhatsApp, Viber, Signal, Telegram, etc.) and other communication and technological options have enabled members of the public, including perpetrators of crime, to communicate quickly and in an encrypted way, that is, remaining anonymous. The use of communication technologies has been particularly prominent in the distribution of narcotic substances: drug distributors and their customers agree on the type, quantity, payment and transfer of narcotic substances via correspondence (the transaction takes place without the persons meeting).

The use of technology has also been a significant feature of organised crime, as confirmed by the European Union law enforcement agency Europol in its European Union Serious and Organised Crime Threat Assessment Report 2021 (). The results of the criminal environment research show that members of the criminal environment create and use local, encrypted communication networks to communicate with each other, while news about offers of illegal goods is spread via social portals and instant messaging services, thus quickly reaching a wide audience of potential buyers [Europol, 2021 (p. 11, 33)].

The Internet is a convenient and, thanks to the possibility to remain anonymous, relatively safe environment for carrying out criminal intentions. Technology is making some crime invisible to the institutions.

Before the amendments to the OAL came into force, the institutions were faced with situations where they had obtained information about a person dealing in narcotic drugs via the Internet, but the institution was not authorised to carry out a control purchase as part of an operational experiment, because the person was unidentified – his/her identification data were unknown. It is impossible or difficult (and time-consuming) to find them out, as the communication platform provides the person with the said anonymity.

Modelling an operational experiment in the described situation, it can be concluded that at the moment when, during the performance of the operational experiment, the person performing the measure would meet the unidentified person (establish contact), conditions would be created which, during the performance of other operational measures, would allow to identify that person. However, during the meeting, the person performing the measure may not purchase prohibited items, substances or services, as such action – initiating and carrying out the purchase of prohibited items – required the approval of the public prosecutor.

In the example described above, two points of the performance of the measure are evident: the establishment of contact (communication) and the criminal act itself. Although the reason for the meeting in the correspondence is based on the subject's criminal acts, these two points of the performance of the measure, when assessed according to the characteristics of the acts – the act of acquaintance and the act of criminal conduct – are separable.

In the scope of the earlier research, it was ascertained that the establishment of contact (meeting) can be carried out within the performance of another type of operational experiment, that is, the performance of the type of operational experiment defined in Article 15(2)(3) of the OAL. [Grinciuns, 2018 (pp. 71–72)] In the OAL, it is formulated as follows: “An operational experiment shall be performed [...] in order to [...]: create a favourable situation for the subject of the operational measure to perform operational tasks” (OAL, 1993 (Article 15(2)(3))). The wording for this type of operational experiment is general; the facts it contains may create any circumstances (situations) that create the necessary favourable situation for the specific case. The objectives of the measure as set out in Article 15(1) of the OAL – “to identify persons of interest” and “to clarify matters of interest” [OAL, 1993 (Article 15(1))) – (in theory) allow the use of an operational experiment to address the situation described, that is, to initiate communication with unidentified persons in the field.

At the same time, it should be noted that the establishment of contact and the initial communication, which takes place in the form of correspondence or a call on the messenger application, to a certain extent merge with the initiation of the criminal act itself. This is because the initial communication will deal with issues related to the subject's criminal act. The content of the initial conversation may be relevant for assessing whether there has been an incitement to a criminal act (provocation or instigation) on the part of the institution. But such activity, based on Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“right to a fair trial”) and judgements of the cases of the European Court of Human Rights, is an illegal act [Convention 1950]. For example ECHR case of Teixeira de Castro v. Portugal, paragraph 39 [Teixeira de Castro v. Portugal, 1998]. Therefore the performance of the operational measure provided for in Article 15(2)(3) of the OAL in dealing with the situation under investigation is questionable. To be able to construct an example illustrating the issue of natural performance of an operational experiment, which is the subject of this study, the author abstracted from this (debatable) aspect.

It should be noted that practitioners have also considered this model of performing two types of operational experiments as one of the solutions when thinking about dealing with cases of offences committed via the Internet. One – by creating a situation conducive to the operational tasks, the other – by creating a situation eliciting a criminal act.

In the modelled case, the type of operational experiment as defined in Article 15(2)(3) of the OAL would be used to establish contact with an unidentified person on the Internet and initiate the need for a meeting. The meeting would have created a favourable situation for the person to be identified. However, at the time of the meeting, the person performing the measure must not initiate a situation giving rise to a criminal act, that is, the purchase of prohibited substances, items or services. As a result, the performer of the measure has to make some excuse for the transaction not to take place and at the same time postpone it to another day. It goes without saying that such behaviour on the part of the person performing the measure may give rise to second thoughts on the part of the subject, as it is unconventional. It does not follow the natural pattern of the commission of a crime, since, in the field, the person who agrees to purchase the narcotic substances does so at the time of the meeting.

These circumstances may lead to suspicion (mistrust) in the subject, which in turn may result in a breach of contact. As a result, the objective of the operational measure will not be achieved. In cases of drug enforcement, it is not uncommon for the subject, for unknown reasons, to fail to appear at the agreed place of the transaction after the agreement has been reached without explaining the reasons (fear, premonition, etc.).

The above example illustrates how, in the performance of an operational experiment, the actions of the person performing the experiment are (relatively) illogical, that is, they do not correspond to the pattern of commission of the offence in question as it occurs in the field. In the modelled example, this is due to the (former) limitation of the legal regulation, which, in order to continue to combat offences committed through the Internet environment, forces to find ways to deal with such situations. One option is the modelled execution of two types of operational experiments, in which the circumstances created may be the reason why the established contact breaks down.

The fact that the amendments to the Operational Activities Act adopted on 8 December 2021 excluded this condition clearly indicates that there was a loophole in the legal regulation or, as an earlier study found, the problem was caused by the interpretation of the legal regulation [Grinciuns, 2018 (p. 66)]. Considering the “naturalness” of the performance of an operational experiment from another point of view – from the point of view of the conduct of the performer of the operational experiment, in general one can mention such undesirable conduct in the performance of the measure as the use of legal terms or the use of expressions and jargon typical for law enforcement officials. For example, when looking at illegal weapons offered by a member of the criminal environment – the subject – the performer of the measure should not refer to them as “firearms”. Or, in operational experiments performed in cases of investigations into illegal drug trafficking, to refer to drugs as “narcotic substances”. The use of legal terms or law enforcement expressions is not characteristic of the members of the criminal environment whose role the performer is playing in the performance of the measure; it does not correspond to the behaviour of a criminal. Making this mistake can lead to suspicion and loss of trust on the part of the subject, and the contact may break down. Professionals in the field do not make such mistakes in practice (this is a given), but the article mentions them to illustrate the aspect of naturalness that it explores.

The creation of the necessary state for a successful performance of an operational experiment depends on the actions of both the official planning the operational experiment and the person performing the measure. In order to be successful, the organisers and performers of the measure must have a good understanding of both the environment in which the person (subject) of interest operates (criminal environment (organised crime), business environment, public administration environment, etc.) and the model of the criminal act to be committed by the person in question.

The person performing the measure must be able to carry on a conversation, behave naturally and take appropriate decisions specific to the offence, including avoiding activities that are provocative or inflammatory in nature. The behaviour (conduct) of the performer of the measure must be that of a real co-perpetrator of the crime. In other words, the subject, when experiencing the conditions (situation) created by the operational experiment, must believe (rely on) that he is experiencing a naturally occurring situation and not a carefully constructed play of the situation. It must be achieved that the subject, while remaining free to choose, chooses to reveal his/her criminal intentions, if any, to the performer of the measure, and this can only be achieved if there is a certain level of trust between the parties involved in the operational experiment.

It follows from the analysis that the basic element “institution” can be divided into at least two elements: the official who organises the operational experiment and the performer who actually performs the measure. The element “the performer of the measure”, on the other hand, can be further subdivided according to its type, that is, the operational experiment can be performed by: (1) an official acting under a cover story; (2) an undercover assistant of the institution; (3) a person who has made an appeal to the institution (the appealer); or (4) an occasional contact person who provides information (anonymously) to the institution on a specific occasion and only once because at that time he/she considered it his/her duty to assist. Each of the performers of the measure has its own qualities which may influence the performance of the operational experiment.

For example, as the performer of an operational experiment, an official of the institution acting within the scope of the legend, will be more experienced because he/she has been trained and has performed the measure several times. Similarly, the official has an understanding of the development of the measure's prohibitive manifestations – provocation and incitement – and will therefore know how to avoid them. Operational activities performed within the scope of the agency method are carried out by officials who have been specially selected and tested; they have been chosen because their psychological characteristics are suited to performing such tasks. Some of the qualities needed to be a performer of the measure are resourcefulness, critical thinking, self-confidence, creativity, acting skills, adaptability, good memory and good listening skills (Kinnee, 1994, p. 83).

An appealer or an occasional contact person, on the other hand, is likely to be performing an operational experiment for the first time. Therefore, this type of measure may lead to deviations from the measure plan and mistakes, including inciting the subject to a criminal act. The undercover assistants of the institution usually come from the environment in which the subject operates, so they are familiar with the issues of that environment and know the type of people in it (know how to communicate with them). However, they may have different understandings of provocation and incitement.

Comparing the qualities of the elements “official” and “performer of the measure” from a regulatory perspective, it can be concluded that there are important differences. In order to be able to hold a post in an institution, a person must fulfil a number of conditions (criteria) laid down by law: education, qualifications, physical and mental abilities, the ability to maintain official secrets, and so on. In addition, the performance of officials is regularly evaluated through performance appraisals and they receive regular training. This ensures that the professionalism of officials is at the level necessary to be able to carry out their work as required, including the planning and performance of operational activities. However, the evaluation criteria for performing operational experiments by non-officials of the institution are not laid down in the legal regulations. The findings highlight one of the differences between the types of the “performer of the measure” element of an operational experiment.

Figure 3.

In this connection, it should be noted at the same time that it follows from paragraph 55 of the ECHR judgement in Ramanauskas v. Lithuania, where the Court described the form of the inducement, that the inducement factor is assessed equally strictly, that is, irrespective of whether the person performing the measures was an official of the institution or a person acting on behalf of an official [Ramanauskas v. Lithuania, 2008 (paragraph 55)] (secret assistant, appealer, occasional contact person).

Despite the fact that persons from the public are less prepared and may not possess the necessary psychological qualities, the ECHR assesses cases equally, thus ensuring respect for the principle of the rule of law. An error in the assessment of evidence by a non-official performer of the measure is no excuse for not assessing the case according to the guidelines for the performance of the measure established in case-law.