Human rights groups challenge extent and legality of powers to commit crimes such as torture
MI5 operates a partially secret policy that allows agents to participate in serious crimes including torture and killing, a security tribunal has heard.
In a challenge to the intelligence service’s handling of agents, lawyers for a coalition of human rights groups have questioned the legality and extent of the powers.
Some elements of what is known as “the third direction” – guidelines permitting agents to become involved in criminal conduct – have been published. Crucial details specifying whether there are limits on such criminal activity, however, remain secret.
Ben Jaffey QC, representing Privacy International, Reprieve, the Belfast-based Committee on the Administration of Justice and the Pat Finucane Centre, said the policy in effect meant that MI5 was granting immunity to its agents.
Addressing the investigatory powers tribunal (IPT), which hears complaints about surveillance and the intelligence agencies, Jaffey said that if there were any limits on the type of criminal behaviour MI5 authorised they remained secret.
Because MI5 does not tell the victim of any crime, police or prosecutors about such incidents, Jaffey argued, they were in practice concealed and no public interest prosecution was considered.
The issues raised were not hypothetical, he stressed. Collusion between officials and agents inside terrorist organisations had led to grave abuses, he said.
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.
Jaffey told the IPT that “the practical effect of the policy is therefore for the executive to grant itself the power in secret to dispense with the criminal law enacted by parliament”.
He added: “The criminality is kept secret within MI5 so police and prosecutors do not find out about it. So for practical purposes MI5 are granting immunity, the strength of which depends on the ability of MI5 to keep a secret.”
The hearing is expected to last for the rest of the week. Some evidence will be heard behind closed doors without the media or lawyers for the claimants being present.
MI5’s policy was drawn up following the murder of the Belfast lawyer Pat Finucane in 1989 by loyalist paramilitaries who had been working as informants for RUC’s special branch.
In a skeleton argument submitted by Sir James Eadie QC, who represents the government and intelligence agencies, agents, also known as CHIS (covert human intelligence sources), are described as “indispensable” to the work of the security service.
His submission to the tribunal is heavily redacted with many key passages blacked out. Eadie argues that “the security service does not, and does not purport to, confer immunity from criminal liability” to its agents.
MI5 does not authorise breaches of the Human Rights Act, Eadie maintains. The agency’s “Participation in Criminality (PiC) forms”, he said, ensures that the law is not broken.
A number of PiC forms have been opened up to the IPT, Eadie’s submission reveals, although they have not been made public.
Eadie has told the tribunal: “The security service does not purport to, and could not, offer immunity from criminal liability … The ‘authorisation’ will be [MI5’s] explanation and justification of its decisions should the criminal activity of the agent come under scrutiny of [police or prosecutors].
“The authorisation process and associated records may form the basis of representations by the service to the prosecuting authorities that prosecution is not in the public interest.”
A similar public policy of discretion not to prosecute, Eadie added, appears in Crown Prosecution Service guidelines covering how to deal with relatives of the terminally ill who accompany them to Swiss-assisted suicide clinics such as Dignitas.
Eadie said the tribunal has been given “information about all crimes ‘authorised’ since 2000”. The IPT has selected a number of PiCs (Participation in Crime) forms. “This will allow for the case-specific complexities for each individual instance of authorisation to be considered.”
In none of them has MI5 breached any human rights, Eadie said. Indeed, under its obligation to uphold the right to life, under the European convention on human rights, MI5 has a duty to counter threats from espionage, terrorism and sabotage.
Commenting on the case, Maya Foa, the director at Reprieve, said: “Our intelligence agencies play a vital role in keeping this country safe – but this does not mean that there should be no limits on UK activity when MI5 agents become involved in crime. The government must make clear what limits – if any – they place on agents committing serious crimes like torture or murder.”
The hearing continues.
With many thanks to: The Guardian and Owen Bowcott Legal Affairs Correspondent for the original story@owenbowcott