Security Service ~ agents who participate in criminality

In March 2011, the Security Service (MI5) issue a document entitled "Guidelines on the Use of Agents who participate in criminality - Official Guidance."  The document was reviewed but not changed in January 2014.  In March 2018, the Prime Minister (Theresa May MP) acknowledged the existence of the policy.

Privacy International and others challenged this policy in an action before the Investigatory Powers Tribunal (IPT).  The claimants submitted that the policy was unlawful, both as a matter of domestic public law and also as contrary to Convention Rights (set out in Schedule 1 to the Human Rights Act 1998). In December 2019 the Tribunal gave judgment dismissing the claim. 

The claimants appealed to the Court of Appeal (Civil Division) which gave judgment on 9 March 2021 - Privacy International and others v Foreign and Commonwealth Secretary and others [2021] EWCA Civ 330 (Davis, Haddon-Cave, Dingemans LJJ). Central to the appeal were the provisions of the Security Service Act 1989 ("the 1989 Act"). 

The appeal

was dismissed.

At para.8 of the judgment the court noted - "In order to fulfil its task, the Security Service necessarily has had to run undercover agents. Such agents, who will usually not themselves be members of the Security Service, may need to participate in conduct which may or would be criminal or tortious in order to maintain their cover and in order better to ascertain the activities and intentions of the organisations in which they operate. Failure to do so might render their intended role ineffective and indeed might expose them to suspicion and personal danger. In modern jargon, such agents are styled "Covert Human Intelligence Sources" (CHIS); we will continue to style them "agents" in this judgment. There can be no dispute (and the Tribunal found as a fact) that such agents are indispensable to the work of the Security Service. They play a vital role in gathering intelligence with a view to protecting the State and the public from serious harm."

The first 54 paragraphs of the judgment set out the background to the case (5-10) and examine the Guidance (11-22), the relevant legislation (23-33) and the Tribunal judgment (34-54). The court then turned to the grounds of the appeal:

1] Whether the Security Service has the legal power (vires) to run agents who participate in criminality. That, as we assess matters, is really the critical issue on this appeal. 

This ground is addressed at paras 55 to 101. The court concluded that - "before 1989 the Security Service had the vires to run agents who participate in criminality in order to protect national security, in the sense which we have described; and that power continued under the 1989 Act, on its true interpretation. Given that there was and is no immunity from prosecution, such a conclusion does not place the Security Service above the law" (para 99). Ground 1 therefore failed.

2] Did the Guidance creates a de facto immunity from prosecution. The court found that it did not do this.  The guidance did not undermine the independence of the prosecution (or police) authorities. 

"On the contrary, the Guidance respects it. What it does do is to indicate what the Security Service would intend to say by way of making representations to the prosecution authorities when those authorities are considering, where they are required to do so, whether a prosecution would be in the public interest" - para. 111

3] Whether the Guidance was "in accordance with" the domestic law. Given the court's findings on Issue 1 and 2 it followed that the guidance was in accordance with domestic law. 

Three further issues were raised regarding Convention rights. These are discussed at paras 122-129. The issues were dismissed on the basis that the claimants were not "victims" for the purposes of the Human Rights Act 1998 section 7 which provides -

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act. 

Consequently, the court expressed no views on the substance of the points sought to be raised on these grounds.

It remains to be seen whether this case is appealed to the Supreme Court. Permission to appeal will be required.

12 March 2021.