MI5 moles are authorised to potentially commit murder, kidnap, torture or carry out other serious and violent crimes otherwise it would be ‘impossible’ for them to maintain their cover, a landmark tribunal ruled today.
Four human rights groups including one set up by the relatives of Pat Finucane, who was shot dead for representing IRA members including Bobby Sands, lost the case in London this morning.
Today the Investigatory Powers Tribunal (IPT) ruled by a 3-2 majority that MI5 does have the lawful power to authorise the commission of criminal offences by informants.
Sir James Eadie QC, representing the Government, had said it would be ‘impossible’ for MI5 to operate without covert sources going about their business normally in terrorist groups or extreme protest groups.
The legal cover policy is said to be the equivalent of MI6’s powers under Section 7 of the Intelligence Services Act 1994 – known as the ‘James Bond clause’.
The British Army’s key IRA agent Stakeknife, Freddie Scappaticci, circled following Gerry Adams at a Republican funeral,
But Sir James insisted that their policy does not give them immunity from prosecution.
Freddie Scappaticci, the head of the IRA’s murderous ‘nutting squad’ in the 1970s and 1980s, has repeatedly been named as MI5’s top agent inside the IRA called ‘Stakeknife’ – although he denies it.
Scappaticci, who has fled Britain, is alleged to have murdered and tortured men and women during The Troubles while passing secrets to the British state who were able to foil plots and shoot dead terrorists.
Pat Finucane was a solicitor shot dead in 1989 for representing IRA members
In the majority ruling, IPT president Lord Justice Singh said MI5 has ‘an implied power’ under the Security Service Act 1989 ‘to engage in the activities which are the subject of the policy under challenge’.
But he added: ‘It is important to appreciate that this does not mean that it has any power to confer immunity from liability under either the criminal law or the civil law … on either its own officers or on agents handled by them.
‘It does not purport to confer any such immunity and has no power to do so.’
Announcing the decision, Lord Justice Singh said: ‘This case raises one of the most profound issues which can face a democratic society governed by the rule of law.’
Four human rights organisations took legal action against the Government over a policy they claimed ‘purports to permit (MI5) agents to participate in crime’ and effectively ‘immunises criminal conduct from prosecution’.
Privacy International, Reprieve, the Committee on the Administration of Justice, and the Pat Finucane Centre asked the IPT to declare the policy unlawful and grant an injunction ‘restraining further unlawful conduct’.
Mr Finucane was shot for representing IRA members including Bobby Sands (pictured)
The complainants argued the Government’s policy ‘permits (MI5) agents to participate in crime’ and effectively ‘immunises criminal conduct from prosecution’.
But the Investigatory Powers Tribunal (IPT) agreed at the ruling, published today, said: ‘This does not mean that (MI5) has any power to confer immunity from liability under either the criminal law or the civil law’.
What is the law on security service agents’ right to kill?
M15 gives its informants legal protection to participate in serious criminal activities which could potentially include murder, kidnap and torture.
The once-secret policy has been in operation at least since the early 1990s, but judicial oversight of the practice was not brought in until 2012.
The protection only came to light when former prime minister Theresa May acknowledged its existence in 2018.
Details of the policy are in a three-page MI5 document called ‘Guidelines on the use of agents who participate in criminality (official guidance)’.
This guidance states: ‘The service has established its own procedure for authorising the use of agents participating in crime.’
It adds that authorisation to commit crimes ‘has no legal effect and does not confer on either agent or those involved in the authorisation process any immunity from prosecution’.
The policy is said to be the equivalent of MI6’s powers under Section 7 of the Intelligence Services Act 1994 – known as the ‘James Bond clause’ – which gives spies a legal amnesty for spies to commit crimes abroad.
Lord Justice Singh said that preventing MI5 from embedding an informant in a proscribed terrorist organisation because they would be committing a criminal offence ‘would strike at the core activities of the Security Service’.
The judge said it was ‘essential to run an agent in a proscribed organisation … for the gathering of intelligence, but also for disrupting the activities of such organisations’.
He added: ‘The events of recent years, for example in Manchester and London in 2017, serve vividly to underline the need for such intelligence gathering and other activities in order to protect the public from serious terrorist threats.’
However – in what were described as ‘unprecedented published dissenting opinions’, which Repreive said marked the first time the tribunal has ever published a dissenting opinion – two members of the IPT found that the policy was in fact unlawful.
Professor Graham Zellick QC said in his dissenting judgment that accepting the Government’s arguments ‘would open the door to the lawful exercise of other powers of which we have no notice or notion, creating uncertainty and a potential for abuse’.
He said an authorisation to participate in criminality was ‘in itself intrinsically unlawful: it will impact on the legal rights of others, it may involve the commission of tortious and criminal acts and – in the absence of clear legal authority – is subversive of the rule of law’.
Prof Zellick added: ‘The power may well be sensible and desirable, even essential, but Parliament would, I fancy, be astonished to be told that it had conferred this power in 1989.’
Charles Flint QC said: ‘I entirely accept the operational necessity for the (Security) Service to run agents who may need to participate in serious criminal activity.’
But he added: ‘I am unable to find that the (Security Service Act 1989) provides any legal basis for the policy under challenge.’
The MI5 headquarters at Thames House on Millbank in London, adjacent to Lambeth Bridge
At a hearing in November, Ben Jaffey QC said the issues raised by the case were ‘not hypothetical’, submitting that ‘in the past, authorisation of agent participation in criminality appears to have led to grave breaches of fundamental rights’.
He pointed to the 1989 murder of Belfast solicitor Mr Finucane, an attack later found to have involved collusion with the state, and the case of Mr Scappaticci, ‘who is alleged to have been a senior member of the IRA and a security service agent working under the codename ‘Stakeknife”.
Mr Jaffey told the tribunal at an earlier hearing: ‘It appears that the Security Service thinks it could, if it thinks it would be in the public interest, authorise participation in murder, torture, sexual assault or other grave criminality in the UK.’
Maya Foa, director of Reprieve, said: ‘The IPT’s knife-edge judgment, with unprecedented published dissenting opinions, shows just how dubious the Government’s secret policy is.
‘Our security services play a vital role in keeping this country safe, but history has shown us time and again the need for proper oversight and common-sense limits on what agents can do in the public’s name.’
Ilia Siatitsa, a legal officer at Privacy International, said: ‘Today, the Investigatory Powers Tribunal decided that MI5 can secretly give informants permission to commit grave crimes in the UK, including violence.
‘But two of its five members produced powerful dissenting opinions, seeking to uphold basic rule-of-law standards.’
She added: ‘We think the bare majority of the IPT got it seriously wrong. We will seek permission to appeal to protect the public from this abusive secretive power.’
Daniel Holder, deputy director of the Committee on the Administration of Justice, said: ‘The practice of paramilitary informant involvement in serious crime was a pattern of human rights violations that prolonged and exacerbated the Northern Ireland conflict.
‘Archival documents show that the unlawful nature of informant conduct here was known at the time and it appears policy since has been even more formalised. This close ruling is far from the end of the matter’.
A Home Office spokesman said: ‘The use of covert agents is an essential tool for MI5 as it carries out its job of keeping the country safe.
‘We are pleased that the Tribunal found in the Government’s favour on all counts and recognised that participating in crime can be a necessary feature of this vital work.
‘We are committed to ensuring that the intelligence and security agencies are supported by Government and have the appropriate tools to keep us safe.’