Documents from proceedings at the Investigatory Powers Tribunal (IPT) which led to the disclosure of a secret government policy allowing MI5 officials to authorise their agents to commit criminal acts in the United Kingdom.
The so-called ‘Third Direction Challenge’ was issued at the IPT by Privacy International and Reprieve in June 2017. During the proceedings it became clear that MI5 has had guidelines in place since at least the early 1990s to regulate the authorisation of criminality, and that the Intelligence Commissioners had been asked to oversee such activity since 2012. This entire area of intelligence practice and oversight was kept secret until the challenge at the IPT, with the Prime Minister determining at a number of separate points that to reveal even the fact of its existence would harm national security.
Key documents in this collection
The documents in this collection have been collated alongside the team at Privacy International. They include submissions to the IPT between 2017-2020, as well as the final judgment of the Tribunal in December 2019. They also include a number of key documents disclosed by the Government during proceedings, including:
- A series of historic MI5 policy guidelines for those running agents who may engage in criminal activity, from 1995, 1997 and 2003.
- MI5’s current (as of 2019) guidelines, dated March 2011, ‘intended to provide guidance to agent-running sections on the use of agents who participate in criminality.’
- A series of protocols and communications between MI5 and prosecuting authorities – including the Crown Prosecution Service, the Public Prosecution Service (Northern Ireland) and the Crown Office and Procurator Fiscal Service (Scotland) – designed to ensure coordination in relation to information that agents have committed criminal acts.
- Letters between the Prime Minister and the Intelligence Services Commissioner, in 2012 and 2014, requesting oversight of MI5’s policy in this regard.
- Extracts from confidential annexes to the IS Commissioner’s annual reports for each year 2012-16, and extracts from inspection reports for 2013, 2015 and 2017.
- Extracts from the IP Commissioner’s inspection reports for 2017 and 2018.
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.
While the claimants moved to appeal this judgment in the Court of Appeal, the government introduced legislation to put the authorisation of criminality by the Security Services on a statutory footing. The resulting Covert Human Intelligence Sources (Criminal Conduct) Act 2021 entered the statute book in March 2021, in order to ‘make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.’
