MI5 undercover agent policy held lawful
26 March 2021
In Privacy International & Ors v Secretary of State for Foreign And Commonwealth Affairs & Ors  EWCA Civ 330, the Court of Appeal held that the policy which authorises officers of the Security Service (MI5) to run undercover agents who participate in the commission of criminal offences is lawful.
Background and Legal Framework
The appellants’ challenge focused on the alleged participation of undercover MI5 agents in criminality. Particular emphasis was placed upon the infamous killing in 1989 of Northern Irish solicitor, Pat Finucane, who was involved in representing those accused of terrorist activities. Of note, in 2012, the Prime Minister, David Cameron, stated that there was “state collusion” in the murder . This led to a report prepared by Desmond de Silva QC in December 2012, who expressed “significant doubt” that the murder would have occurred without the involvement of “elements of the State”; and suggested that there were “positive actions by employees of the State” to further and facilitate the murder .
In this case, the focus of challenge was a policy document issued by the Security Service in March 2011 entitled, “Guidelines on the Use of Agents who participate in Criminality – Official Guidance” (“the Guidance”). This document delineates the Security Service’s procedure for “authorising” the participation in criminal conduct by Covert Human Intelligence Sources. Ultimately, the Court had to determine the legitimacy of this policy by reference to the provisions of the Security Service Act 1989, which was the first piece of legislation to put the activities of the Security Service on a statutory footing. The Service had previously been governed by the Royal Prerogative.
The Investigatory Powers Tribunal (“the Tribunal”) found by a majority for the respondents, but the minority disagreed on the issue of whether the relevant policy amounted to an unlawful de facto power to “dispense” with the criminal law (and therefore also whether it was compliant with the ECHR).
Discussion and Disposal
Ground 1: does the Security Service have the legal power (vires) to run agents who participate in criminality?
The Court upheld the decision of the Tribunal that the Security Service does have the legal power to run agents who participate in criminality.
Importantly, the minority in the Tribunal themselves agreed with the majority that in operational terms that it was not simply desirable but “necessary” (or “essential”) for the Security Service to have the power to run agents who participate in criminality (which was also consistent with the de Silva Report). Nevertheless, the minority held such a power was neither available under the Royal Prerogative nor could it be implied into the 1989 Act as a matter of necessary implication. Instead, because the Act says nothing expressly about these powers, they construed s.1(2) to be a provision which merely defines or limits the scope of the Security Service’s activities.
Professor Zellick QC, who was in the minority, had sought to address this apparent inconsistency by suggesting that if MI5 were to turn a “blind eye” to offences in relation to proscribed organisations, then that would not be “subversive” to the rule of law. The Court of Appeal described this “middle position” as “unprincipled”. The Guidance could only possibly be lawful or unlawful.
The fact is that before the 1989 Act, there would have been some situations where agents committed crimes in the course of their operations. The Court of Appeal agreed with the Tribunal majority that such a power, if lawful before the 1989 Act, would “continue” to be lawful in the language of s.1(1) and s.2(1). The Court further agreed with the majority that the availability of such a power is consistent – and necessarily consistent – with the “efficient” running of the Security Service for the purposes of s.2(2). 
It followed by way of “necessary implication” that the “1989 Act [confirms] the continuance of powers which the Security Service previously had, in order to fulfil the functions now specified in s.1(2) and (3).”  The Court buttressed this conclusion by reference to authority. In R(A) v Director of Establishments of the Security Service  EWCA Civ 24, Laws LJ stated at para 28 of his judgment that “All the functions of the Security Service are and have been since the coming into force of the Security Service Act 1989, statutory functions”. Therefore, despite the Act’s lack of express words, it is “not at all fanciful” to reason that Parliament intended the Security Service to retain its “operationally necessary” powers after the passage of the Act. 
The “key question”, said the Court, would be whether that power could be necessarily implied if the instruction to participate in criminality could not be lawfully given (as was contended by the minority in the Tribunal). To address this issue, the Court explored the distinction between a power and an immunity . Importantly, the Guidance is specific that the “authorisation” to participate in criminality has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution . This meant that it “cannot properly be said that the 1989 Act or the Guidance seek to place the Security Service and its officers and agents above the criminal (or other) law.” 
It was held that the functions of the Security Service and Director-General (as stated in s. 1 and s. 2 of the 1989 Act) are “all essentially geared to maintaining peace and stability within the realm” and it was noted that there was a lack of express statutory prohibition against the operational necessity of running criminally participating agents :
All this, in our opinion, further points strongly to the Security Service having, and always having had, the power, by its officers, to run agents who participate in criminality, whether possible or actual, in order to fulfil its function to protect the public: provided that there is no immunity from criminal sanction. 
The Court deemed it further salient that paragraph 8 of the Guidance “stipulates that authorisation may only be given where the authorising officer is satisfied that the potential harm to the public interest from the criminal activity is outweighed by the benefit to the public interest derived from the anticipated information the agent may provide and that the benefit is proportionate to the activity in question.” 
The Court’s conclusion was reinforced by three other matters.
First, the case of Buckoke v Greater London Council  1 Ch 655 provides a “powerful analogy” to the present case. That case concerned the lawfulness of “Brigade Orders”, which permitted the drivers of fire brigade vehicles to cross through red traffic lights in emergency circumstances. The judges accepted that in these circumstances, a breach of law would have occurred and that prosecution could result (though emphasising than an exercise of discretion ordinarily not to prosecute should be expected). Lord Denning MR said (at p.699E) that “if a driver had made clear that he was not going to pass through a red light except when there was no risk of collision and after taking due precautions, then an order to crewmen to travel with such a driver was a lawful order.” 
As for the Brigade Order itself, Buckley LJ said (at p. 679B): “The Order does not confer any discretion on drivers to break the law: it limits that discretion which they individually exercise.” In a similar way, the Guidance “acknowledges the obligations of individuals to comply with the law and acknowledges the risk of prosecution if that is not done; but, amongst other things, it gives guidance as to the public interest and proportionality considerations which must be taken into account before any instruction is given by an individual officer.” 
Second, the Court quoted at length the comments of the dissenting judge in the Spycatcher litigation, Sir John Donaldson MR, who pondered the extent of “wrongdoing” by the Security Service that would be considered excusable. Whilst he put his limit at physical violence, he opined that it would be “absurd to contend that any breach of law, whatever its character, will constitute such “wrongdoing” as to deprive the service of the secrecy without which it cannot possibly operate.” [p.189-190 quoted at 91]
Third, the Court considered the principle of legality articulated in Lord Hoffman’s dicta in R v SSHD, ex parte Simms  2 AC 115 that courts must “presume that even the most general words were intended to be subject to the basic rights of the individual” [p.131 E-G]. Indeed, the Court ruled that it would be “paradoxical” for the appellants to rely on this argument, “given that the activities of the agents are being “authorised” precisely with a view to preventing the taking of innocent life and to inhibiting the activities of those having no regard whatsoever to any principle of legality.”  In any event, it is “very difficult” to see how “fundamental rights” will necessarily be “overridden” if the 1989 Act is interpreted as permitting the continuation of the “authorisation” of undercover agents to participate in criminality, without immunity from criminal or civil sanction .
Ground 2: does the Guidance create a de facto immunity from prosecution?
The Court of Appeal was brief in its dismissal of this argument, stating that they found it “very difficult” to ascertain the basis for “the very generalised assertions of de facto immunity.”  The Court agreed with the Tribunal’s disposal of this issue. Overall, “this argument presupposes what the outcome would be after the event in a criminal court on the individual facts of a particular case.” [para 79 quoted at 110].
The Court was similarly unpersuaded by the appellants’ suggestion that the Security Service by its Guidance is undermining the independence of prosecution (or police) authorities. Rather, the Guidance “respects” that independence, merely indicating what representations it might make to argue a prosecution would not be in the public interest.
Ground 3: is the Guidance in accordance with the domestic law?
Following the Court’s dismissal of the first ground of appeal, this argument was deemed to be “devoid of any real substance” . The 1989 Act is subject to judicial oversight via the Investigatory Powers Commissioner.
Grounds 4, 5 and 6: is the Guidance in accordance with the ECHR?
The Court held the appellants lacked the standing to advance claims under Articles 2,3, 5 and 6 ECHR as they themselves were not victims of any unlawful act.
Significantly, at the time this case was being decided by the Court of Appeal, the Covert Human Intelligence Sources (Criminal Conduct) Bill 2020 was proceeding through Parliament. The Court emphasised that this proposed legislation could not “legitimately be used to cast light on the meaning and effect of the 1989 Act.”  Nonetheless, it speculated the Bill may “to a very considerable extent resolve on a statutory basis some of the issues and uncertainties thrown up by these proceedings.”  Future litigation is certain to examine whether the 2021 Act confers full civil and criminal immunity for those undercover operatives who act within the terms of the authorisation given by their handlers.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini