Three Court of Appeal judges have ruled that the UK Security Service (MI5’s) secret policy of allowing agents to participate in serious crimes such as murder, in pursuit of intelligence, is essentially legal.
By way of background, at a hearing in the case in January, government lawyers told the appeal court that MI5 officers could in theory approve an informer to “murder” someone in case they were “an extremely hostile individual”.
But in the ruling on Tuesday (March 09), the Court of Appeal went even further than the government's own lawyers by concluding that according to MI5’s internal guidance, any authorization given by the spy agency’s officers to informants would have been acceptable.
The judges stated that the agency’s guidance “stipulates that authorization may only be given” where “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”.
As a result, the authorization could only apply proportionately and there was “a limit to what criminality may be authorized”.
While the Court of Appeal's decision was predictable - in so far as the UK judiciary is increasingly aligned with MI5 - nevertheless human rights groups have already indicated they plan to appeal the ruling in the Supreme Court.
Maya Foa, the director of the non-governmental human rights organization Reprieve, said “the idea that the government can authorize undercover agents to commit the most serious crimes, including torture and murder, is deeply troubling and must be challenged”.
By contrast, the Home Secretary, Priti Patel was pleased with the court’s ruling and said that undercover agents play a “vital role” in “preventing and safeguarding victims from serious crimes”.
Tuesday's ruling by the Court of Appeal comes in the wake of a concerted campaign by the government to place MI5 criminality on a legal footing.
Last September the government introduced legislation before the House of Commons intended to give MI5 - as well as other forces and agencies such the police and the National Crime Agency - legal permission to commit crimes by way of protecting the cover of undercover agents in pursuance of secret intelligence.
The legislation - entitled the Covert Human Intelligence Sources Bill - was duly passed into law on March 01.
But before the House of Commons ratified the bill, the Scottish Parliament (Holyrood) rejected the bill, thus necessitating intervention by the Court of Appeal.