Authorising Undercover Agents Who Commit Crime

The principal point raised on an appeal from the Investigatory Powers Tribunal to the Court of Appeal, whose judgment was handed down today, was both important and difficult: Privacy International & Ors v Secretary of State for Commonwealth Affairs & Ors [2021] EWCA Civ 330 Davis, Haddon-Cave, Dingemans LJJ

That question was: Is a policy which the appellants say “authorises” officers of the Security Services (MI5) to run undercover agents who participate in the commission of criminal offences unlawful?

Two of the five members of the Tribunal whose decision was under appeal dissented from the majority view, which was an indication of the difficulty of the problem.

Holding that the policy was lawful, and dismissing the appeal, the Court observed that the minority judgments below themselves explicitly accepted that in operational terms it was not simply desirable but “necessary” (or “essential”) for the Security Service to have the power to run agents who participated in criminality.

Secondly, in the circumstances of the present case, it would be very surprising what  is styled the “rule of law” should require the Security Service to desist altogether from running agents who participated in criminal activities, notwithstanding that it was in fact designed to expose and prevent extreme criminal conduct intended entirely, on any view, to subvert the rule of law and (very often) took innocent human lives in the process.

Thirdly, the Court was well aware of the principles of interpretation which indicated that it was not legitimate for courts to form a view as to what the Parliamentary intention was and then torture the statutory language used  into conforming with the postulated intention.

Intention was to be ascertained from the words used in the statute under consideration.

Proposed legislation was, as it happened, now to be found in the Covert Human Intelligence Sources (Criminal Conduct) Bill, but that could not be used to determine the issue of statutory interpretation of the Security Services Act 1989.

The use of agents was not of itself in any way unlawful.  Further, even where ostensible criminality on the part of an agent was involved – whether in the form of membership of a proscribed organisation or in the form of participating in other  criminal activities undertaken by that organisation or both – it did not necessary follow that conduct of the agent, or instructing handler, actually was necessarily criminal.

That said, the reality was that there would be, and would have been, some situations where agents would commit (and would have committed) a crime.

There could be no doubt that such a situation existed before the 1989 Act. If lawful  before the 1989 Act, such a power would continue within the language of sections 1(1) and 2(1).

The availability of such a power was necessarily consistent with the “efficient” running of the Security Service for the purposes of section 2(2), for efficiency surely included effectiveness.

In R (Black) v Justice Secretary [2017] UKSC 81, [2018] AC 215, Lady Hale stated that the goal of all statutory interpretation was to discover the intention of the legislation.  She went on:

“That intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose.  In this context, it is clear that Lord Hobhouse of Woodborough’s dictum in R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563, that ‘A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context’ must be modified to include the purpose, as well as the context, of the legislation.”

The Court concluded that before 1989 the Security Service had the vires to run agents who participated in criminality in order to protect national security, in the sense described, and that power continued under the 1989 Act on its true interpretation.

Parliament did not intend, in enacting the 1989 Act, to bring an end to an essential part of the Security Service’s core activities.

The Court’s task was, within the permissible bounds of interpretation, to give effect to Parliament’s purpose: R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687.