Documents revealing the long history of MI5 ‘authorising’ their informants to commit crime, with official guidance providing no meaningful limits on the types of crime authorised, or on the scale of involvement by MI5 officers and informants.
Documents disclosed as part of the Third Direction challenge, as well as those gathered by Desmond de Silva during his review of State collusion in the killing of the lawyer Patrick Finucane in February 1989, make clear that MI5 has long had internal procedures for ‘authorising’ its informants to participate in criminal activity. However, the existence of such procedures was kept secret for decades, as was the fact that a measure of external oversight was provided by the Intelligence Commissioners from 2012 onwards. Now in the public domain, and put on a statutory footing through the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, MI5’s involvement in criminality through this authorisation process remains largely unfettered.
Instructions to MI5 officers who have acted as agent handlers have been in place from at least 1969. Initial iterations were developed into a fuller set of guidelines from the 1990s onwards, largely as the result of continued public exposure of British state collusion in loyalist paramilitary kidnapping, torture and murder in Northern Ireland during the 1980s, including in the case of Patrick Finucane. However, these fuller guidelines, versions of which were in force up to at least November 2019, have remained remarkably loose. It is clear that MI5 officers have had few meaningful constraints on the sort of crimes they can ‘authorise’, which can in theory include kidnapping, torture and murder. There have also been little in the way of official constraints on the forms of agent involvement in those crimes, or on the role played by MI5 officers to support the criminal activity.
The passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 in March 2021, which came about as a direct result of the legal challenge which exposed the secret policy, put the authorisation of criminality by the Security Services on a statutory footing. However, the new law has done little to tighten the rules around how and when intelligence personnel can engage others to commit criminal acts.
The development of MI5’s guidelines
Even the earliest set of internal instructions in relation to ‘agent running’, in place from at least February 1969, made reference to the possibility that agents and their contacts within the Service might become involved in criminal activity. From these earliest days, however, such involvement was considered legitimate as long as the Director General was informed and as long as there was ‘a good case for continuing the contact.’ Concurrent Home Office guidelines, distributed to all police Chief Constables in May 1969 and providing a clearer set of constraints in relation to informants, were not issued to MI5. Indeed, the Director General himself noted in July 1989 that he did not consider the Service to be bound by these guidelines.
A more developed set of internal guidelines for MI5 officers, setting out a procedure for the ‘authorisation’ of criminal acts, has been in place since the early 1990s. According to the text of the guidelines themselves, disclosed as part of the Third Direction Challenge, they are required given that ‘the nature of the work of the Service is such that its agents [i.e., informants] are frequently tasked to report on sophisticated terrorist and other individuals and organisations whose activities pose a threat to national security and/or involve the commission of serious offences.’ As such, it is argued, ‘it may sometimes be necessary and proportionate for agents to participate in criminality in order to secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or to ensure the agent’s continued safety, security and ability to pass such intelligence.’
The guidelines
Through disclosure in the Third Direction Challenge, redacted versions of four separate iterations of MI5 guidelines in relation to criminality have now been published:
MI5 has confirmed that the 2011 version was extant as of November 2019.
Although key passages from the disclosed guidelines are redacted, the various iterations appear to be largely similar in structure and content. For the agent’s criminal acts to be ‘authorised’, an appropriate officer must sign them off. From the 2003 guidelines onwards, this officer is explicitly named as the ‘authorising officer’, a role specifically empowered under Part II of the Regulation of Investigatory Powers Act 2000 to authorise the conduct and use of Covert Human Intelligence Sources (CHIS). The guidelines acknowledge that RIPA itself (and the related CHIS Code of Practice) does not provide legislative authority for agents to participate in criminality. Indeed, the 2014 version of the CHIS Code explicitly notes that ‘neither Part II of the 2000 Act nor this code of practice is intended to effect the existing practices and procedures surrounding criminal participation of CHIS.’ Given this, MI5 has been clear that it has ‘established its own procedure for authorising the use of agents participating in crime, which it operates in parallel with the RIPA authorisation.’
Under the guidelines, this ‘authorising officer’ can authorise an agent’s criminal acts as long as ‘there is a real prospect that the agent will be able to provide information concerning serious crime [redacted]; the required information cannot readily be obtained by any other means; and the need for the information that may be obtained by the use of the agent justifies his use notwithstanding the criminal activity in which the agent is or will be participating.’ In particular, the authorising officer must be ‘satisfied that the potential harm to the public interest from the criminal activity of the agent is outweighed by the benefit to the public interest from the information it is anticipated that the agent may provide and that the benefit is proportionate to the criminal activity in question.’
Although MI5’s guidelines appear to have been modelled in part on the Home Office’s 1969 guidelines, as well as the ACPO guidelines from 1995 which ‘adopt and expand the Home Office guidelines,’ there have been markedly fewer restrictions on intelligence officers, as compared to their policing counterparts, when it comes to the State’s involvement in criminality.
Firstly, the Home Office guidelines allowed for a police informant to participate in criminality only where ‘he does not actively engage in planning and committing the crime; he is intended to play only a minor role; and his participation is essential to enable the police to frustrate the principal criminals and to arrest them… before injury is done to any person or serious damage to property.’ Informants are likewise forbidden from acting themselves as an agent provocateur.
In contrast, MI5 guidelines have provided no limits to the criminality which can be authorised, either in terms of the severity of the crime, the depth of involvement by the informant (which could be significant and ongoing), or the possible role played by the informant in encouraging that criminality. As long as the authorising officer is satisfied that the positive public interest in intelligence gathering through participation in crime outweighs the harm to the public interest from the crimes themselves, such participation could be authorised. In principle, therefore, this public interest test could be used to ‘authorise’ the informant to solicit, conspire in and commit the most serious crimes, up to and including kidnapping, torture, sexual violence and murder. There has also been no limitation on the age of the informant authorised to commit crime.
Secondly, the Home Office guidelines expressly forbade police officers from ‘counsel[ling], incit[ing] or procur[ing] the commission of a crime.’ MI5 officers, in contrast, were able to ‘counsel, incite or procure the commission of a criminal offence’ as long as that offence was covered by an authorisation. In other words, once a set of criminal activities had been authorised by MI5 officers, they could play an active role in inciting and encouraging informants to commit these. There also appears to have been no duty conferred upon MI5 officers to report unauthorised criminality to the police. In effect, this means that intelligence personnel could turn a blind eye to an agent’s criminal acts, even where they had full knowledge of this and where such crime was not considered by senior officers to be in the public interest.
In disclosing these documents, the government has been at pains to point out that the guidelines explicitly state that the authorisations do not provide immunity from prosecution for MI5 agents or officers. Instead, the process has been designed in order to provide ‘the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g., the police or prosecuting authorities.’ In particular, the process and the associated records would form the basis of ‘representations by the Service to the prosecuting authorities that prosecution is not in the public interest.’ Notwithstanding this wording, however, it has been argued that both the agents committing crimes and the officers who authorise this have been provided with de facto immunity, given that the guidelines have not required MI5 to proactively notify the police or prosecutors of any authorisation of criminal activity. Indeed, it appears that – in practice as well as in principle – the Crown Prosecution Service was not consulted on individual cases, and indeed was only provided with a copy of the guidelines in September 2012.
External oversight of MI5 policy and practice
Formal mechanisms for the external oversight of MI5’s participation in criminality were, for decades, non-existent. Indeed, the guidelines themselves make no provision for alerting anyone outside the Agency, either overall or on a case-by-case basis. Although all incoming Home Secretaries from the early 1990s onwards had been briefed on the existence of the guidelines, until 2011 it doesn’t appear that anyone outside of government was provided details of the Agency’s practice in this regard.
This changed in the summer of 2011, when the Intelligence Services Commissioner – Sir Mark Waller, a senior judge appointed to provide a measure of oversight of the Agency’s work – was briefed on the practice during a visit to MI5. At this point, MI5’s Deputy Director General was clear that the Guidelines ‘have, in our view, been highly effective in enabling us to reach sustainable, practical decisions, [redacted] in what can be very difficult cases… [They] give us the flexibility we need to run these agent cases to the best effect and, perhaps above all, a better alternative that is practicable and deliverable has yet to be identified.’
The Prime Minister, David Cameron, formally invited Waller to provide a level of oversight of the practice in November 2012. This move seems to have coincided with the imminent publication of the de Silva review into the murder of Patrick Finucane, which found that – in the context of agent-running in Northern Ireland – there was a ‘wilful and abject failure by successive Governments to provide the clear policy and legal framework necessary for agent-handling operations to take place effectively and within the law.’ In turn, de Silva concluded that this failure enabled significant levels of State collusion in loyalist paramilitary crimes, including in the 1989 murder of Finucane.
Cameron’s letter to Waller formally alerted the Commissioner, for the first time, to MI5’s ‘long-standing policy for their agent handlers to agree to agents participating in crime, in circumstances where it is considered such involvement is necessary and proportionate in providing or maintaining access to intelligence that would allow the disruption of more serious crime or threats to national security.’ The letter invited Waller to ‘keep the application of this policy under review with respect to the necessity and proportionality of authorisations’, through regular retrospective reviews of a sample of cases.
The external oversight proposed by Cameron was limited: he was clear that, for the avoidance of doubt, ‘such oversight would not provide endorsement of the legality of the policy; you would not be asked to provide a view on whether any particular case should be referred to the prosecuting authorities; and your oversight would not relate to any future consideration given by prosecuting authorities to authorisations, should that happen.’ Crucially, the request itself (and therefore the existence of the guidelines) would be kept secret, given that its publication ‘would be detrimental to national security and contrary to the public interest.’ Waller agreed to provide this form of oversight in December 2012, including these constraints, noting that ‘as part of my oversight I am not concerned if CHIS go ahead with criminal activity.’
This measure of oversight was placed on a statutory basis with the passage of the Justice and Security Act 2013, which amended RIPA 2000 through inserting section 59A (‘Additional Functions of the Intelligence Services Commissioner’). Through s59A, the Prime Minister could now formally direct the Commissioner to oversee any additional aspect of the intelligence agencies’ work, over and above the core oversight duties as laid down in RIPA. These prime ministerial ‘directions’ were to be made public, unless publication was determined to be contrary to the public interest, including where considered prejudicial to national security.
Cameron issued three such directions to the Commissioner during 2014-15. Two of these, relating to oversight of the Consolidated Guidance in relation to the interrogation of detainees held overseas, and relating to oversight of the agencies’ acquisition and use of bulk personal datasets, were made public. By contrast, the content – and the very existence – of the third direction, relating to ‘oversight of Security Service agent participation in criminality’, would be kept ‘secret (i.e., non-avowed) given the potential damage to national security were its existence to be made public.’
Updated versions of two of the directions – that in relation to oversight of the Consolidated Guidance, and that in relation to oversight of agent participation in criminality – were later issued by Prime Minister Theresa May in August 2017, as the Investigatory Powers Act 2016 replaced the Intelligence Services Commissioner with the Investigatory Powers Commissioner. In doing so, May used section 230 of the Act, which allows the Prime Minister to continue issuing directions for ‘Additional Directed Oversight Functions’. Oversight of bulk personal datasets, by contrast, is now a statutory duty of the Commissioner under section 229 of the IPA.
The Third Direction challenge
The very fact of the direction’s existence – and therefore an area of intelligence activity considered serious enough to require external oversight – was only disclosed inadvertently by the government, in July 2016, as part of an unrelated case at the Investigatory Powers Tribunal. During these proceedings, the government disclosed an extract from the confidential annex to the IS Commissioner’s 2014 report. This extract made clear that the Prime Minister ‘has now issued three such directions placing all of my oversight on a statutory footing,’ but redacted the text for the third direction.
This was the first time that the existence of a third direction was made public, and led Privacy International and Reprieve to launch new proceedings at the Tribunal in June 2017, seeking the content of this direction and a ruling that the conduct overseen by it was unlawful. The initial grounds for the Third Direction challenge rested on the fact that, as the Claimants argued, ‘the Prime Minister has by a secret legal instrument conferred on the IS Commissioner a secret statutory function to oversee secret activities of an unspecified Agency or Agencies. Those secret activities are serious enough to require oversight, but the nature of the activities and terms of the oversight remain undisclosed, even in the most general terms.’
After unsuccessfully arguing that the Tribunal should dismiss the case, the government publicly avowed the content of the ‘third direction’ in March 2018, by Prime Ministerial written statement to Parliament and the publication of the direction itself. It was now clear that the Investigatory Powers Commissioner was under direction to ‘keep under review the application of the Security Service guidelines on the use of agents who participate in criminality and the authorisations issued in accordance with them.’
With the existence of this policy now in the public domain, the claimants continued to challenge its legality. Now joined by the Committee on the Administration of Justice and the Pat Finucane Centre, Privacy International and Reprieve argued that there appeared to be no meaningful limits to the criminality which could be authorised under the policy, as long as the Security Services considered such acts to be in the public interest. The guidelines themselves were still secret, as were the scope, details and findings of the Commissioner’s oversight activities. To the extent that the policy could be used to authorise murder, torture, kidnapping, unlawful detention, and other serious crimes, it clearly would be incompatible with the UK’s domestic and international human rights obligations.
The substantive hearing in this challenge took place in November 2019, and the Tribunal judgment was handed down in December 2019, acknowledging that the case ‘raises one of the most profound issues which can face a democratic society governed by the rule of law.’ This judgment was the first in the IPT’s history to be based on a split view amongst the judges. The majority found largely in favour of the government, declaring that MI5 guidelines neither breach human rights law nor grant immunity to those committing or commissioning criminal acts. However, two judges published dissenting views, each arguing that there was no legal underpinning for the guidelines or policy, which were in effect outside of the law.
The Covert Human Intelligence Sources (Criminal Conduct) Act 2021
Passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which put criminal conduct authorisations on a statutory footing, came as a direct result of the fact that the Third Direction Challenge had forced the government to acknowledge the existence of the guidelines. The new law, however, has done little to change the parameters within which MI5 can participate in criminal activity.
In fact, the grounds according to which criminality can be authorised appear to have been phrased significantly wider than the original guidelines. Now, any form of criminality, and any form of involvement in that criminality, can now be authorised if the acts are considered ‘necessary in the interests of national security; for the purposes of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom.’
The Act still allows for children (including under-16s) and vulnerable adults to be authorised to commit an unlimited set of crimes, although with some additional safeguards in these cases. There also remains no requirement to notify the police or the prosecuting authorities of any authorisations or subsequent criminality, and the list of public authorities able to deploy such authorisations now includes a wide array of agencies – including all police forces, intelligence agencies, military forces, and a range of non-security bodies.
The Act does provide a new requirement on agencies to inform a Judicial Commissioner within seven days of authorising criminality, setting out the crimes thus authorised and the grounds for the authorisation. However, unlike in the case of some of the other powers provided to the intelligence agencies, there is no ‘double lock’ at play. The Judicial Commissioner does not need to ‘approve’ the authorisation for it to take effect, and MI5 continues to have sole discretion on where and when the public interest dictates the involvement in criminality. The 2021 Act also amends the oversight duties of the Investigatory Powers Commissioner, who is now required to ‘keep under review the exercise of the power to grant or renew authorisations,’ although the exact form of this ongoing review is still unclear.
