Tribunal judges divided on MI5 secret approvals for serious crime

Statement on behalf of the Pat Finucane Centre, Reprieve and Privacy International and CAJ.

Five judges of the UK’s Investigatory Powers Tribunal have given a divided ruling over a secret MI5 policy allowing security service agents to commit serious crimes on UK soil. The judges decided 3-2 that MI5’s policy was lawful. The claimants in the case confirmed they would immediately seek permission to challenge the ruling at the Court of Appeal.  

In its 20 year history, the IPT has made almost two thousand decisions, but this is the first case in which it has ever published a dissenting opinion, with one judge warning that the Government’s claimed basis for the policy amounts to a “dangerous precedent”, and another noting the court had been asked to accept ‘fanciful’ and ‘extraordinary’ propositions.

The judgement was handed down today in the so-called ”Third Direction” case – brought against the Government by four NGOs: Reprieve, the Pat Finucane Centre, Privacy International and the Centre for the Administration of Justice, who argued that the policy had no legal basis and risked Government involvement in severe rights abuses.

The dissenting judgements found that there is no basis in law for MI5’s authorisation of participation in crime, and that therefore the policy is unlawful.  One of the dissenting judges’ opinions stated: “Can [the Government’s claims] possibly be correct? Where does it end? What other powers does MI5 have as a result of the section [of the 1989 Act in question]?”

Paul O'Connor, PFC said "The fact that two QCs had dissented was “deeply significant. The overall co-ordination of all security and intelligence matters in the north of Ireland lay with MI5 and, as we have seen in the case of British agent Brian Nelson and in the murder of Pat Finucane, state agents were involved in murder in this jurisdiction,” a spokesman said. “This is the first time there has ever been dissenting opinions in a judgement from the IPT.”

Maya Foa, Reprieve’s Director, said: The IPT’s knife-edge judgement, with unprecedented published dissenting opinions, shows just how dubious the Government’s secret policy is. Our security services play a vital role in keeping this country safe, but history has shown us time and again the need for proper oversight and common sense limits on what agents can do in the public’s name.”

Ilia Siatitsa, Legal Officer, Privacy International, said: "Today, the Investigatory Powers Tribunal decided that MI5 can secretly give informants permission to commit grave crimes in the UK, including violence. But two of its five members produced powerful dissenting opinions, seeking to uphold basic rule of law standards. As one of them put it, it is wrong to "open the door to... powers of which we have no notice or notion, creating uncertainty and a potential for abuse". We think the bare majority of the IPT got it seriously wrong. We will seek permission to appeal to protect the public from this abusive secretive power.”

Daniel Holder, Deputy Director of CAJ, said: “The practice of paramilitary informant involvement in serious crime was a pattern of human rights violations that prolonged and exacerbated the Northern Ireland conflict. Archival documents show that the unlawful nature of informant conduct here was known at the time and it appears policy since has been even more formalised. This close ruling is far from the end of the matter.

Background to the case

It was revealed as part of another hearing at the IPT, in 2018, that the secret policy governing MI5 involvement in criminality has been in place since the early 1990s.

The policy operated without any oversight until 2012, when Prime Minister David Cameron asked the Intelligence Services Commissioner to monitor the policy. However, David Cameron made clear in his instructions to the Commissioner that “such oversight would not provide endorsement of the legality of the policy”, strongly implying the lawful basis for the policy remained open to potential challenge.

Cameron wrote the letter in 2012, barely a fortnight before publishing a long-awaited review into the murder of Belfast lawyer Pat Finucane. The human rights lawyer was murdered in 1989 by loyalist paramilitaries, while eating dinner with his family at his Belfast home. On publishing the review of Finucane’s death, Cameron told Parliament that there had been “shocking” levels of Government collusion in his murder.

Police have recently recommended that more than 20 people, including senior officials, should be prosecuted for murder, kidnap, torture and perverting the course of justice following an investigation by Operation Kenova into the handling of agents inside the IRA during Northern Ireland’s Troubles.

During a legal hearing in November of this year, the Government appeared to admit that MI5’s guidance on crimes allows it ‘outsource’ to agents unlawful actions it could not undertake itself. As it repeated in court, the Government claimed that actions that would amount to a serious rights violation if done by an MI5 officer, may not amount to a breach when done by an agent.

In an interview in advance of that hearing, on BBC Radio 4’s Today programme, Lord Evans, a former director general of MI5, was asked by BBC interviewer Mishal Husain to confirm whether the guidance might allow agents to participate in ‘punishment beatings’, for example, he stated, “It’s not possible for that happen without…there are no specific rules on exactly which crimes”. The intelligence agency had not previously revealed that fact, which appears to admit not only that MI5 agents may become involved in serious rights abuses but that the policy itself may contain no limits on what they may do.