MI-5 informants can commit crimes, says one tribunal

A recent ruling from the Investigative Powers Tribunal in the UK could affect how previous crimes in Northern Ireland, including the death of lawyer Pat Finucane, are handled.

The Investigative Powers Tribunal (IPT) ruled recently in a 3-2 vote that the UK's domestic security service MI-5 has the legal authority to acquiesce in or approve the commission of crimes by its informants.

The IPT is a judicial body established in 2000 that operates independently of the government. On its website, the IPT describes its mission as providing redress to individuals who believe they have been a victim of unlawful conduct by public officials using covert investigative techniques.

Before the IPT, four human rights groups - including the Pat Finucane Center (PFC) and Committee on the Administration of Justice (CAJ) in Northern Ireland - challenged a once-secret United Kingdom policy in which informants engaged in criminal conduct with the assent of MI-5 officials. The petitioners argued the policy violates domestic law and the European Convention of Human Rights because the policy means MI-5 can have informants do things - such as commit acts of violence - that MI-5 officers cannot lawfully do, and because of the policy results in serious human rights abuses.

While acknowledging the case presented “one of the most profound issues which can face a democratic society governed by the rule of law,” a majority of the court rejected the petitioners' arguments and determined the policy was lawful.

The holding was based on an “implied power” found in the 1989 Security Service Act. This law sets forth the functions and operations of the Security Service. Explicit authorization for MI-5 officers to allow informants to commit crimes or to sanction their commission appears nowhere in the statute. The majority, however, said fighting terrorist organizations or individuals who pose a threat to national security sometimes requires MI-5 to permit informants to participate in criminality in order to disrupt threats, save lives or gather intelligence. To make this conduct lawful it was necessary to find an implicit power in the law.

The 2017 Manchester suicide bombing and London Bridge terror attack were cited as events that “underline the need” for this power.

The decision also “carefully distinguished” the “[t]he concept of a ‘power’ . . . from the concept of ‘immunity.’” The majority made clear that MI-5 does not have the legal authority to “confer any immunity” on informants for the crimes they commit. This aspect of the decision was repeated and relied upon to further justify holding the policy lawful.

The “power/immunity” distinction was of no moment to the dissenters. Nor were the dissenters persuaded by Security Service Guidelines on handling informants to provide oversight and accountability. Their problem with MI-5’s power in this regard was that it lacked any statutory basis. For the dissenters, the answer to the problem is to have Parliament pass a law specifically authorizing MI-5 to do this.

As one of the dissenters said - “The authorization is 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.”

Another interesting aspect of the majority opinion was a reference to the Patrick Finucane murder case. Pat Finucane was one of a small group of lawyers who defended individuals charged with terrorist crimes in Northern Ireland’s Diplock [non-jury] courts. He was targeted for assassination by the loyalist paramilitary Ulster Defense Association (UDA) after a member of the British Parliament placed a bulls-eye on solicitors who courageously represented members of the Irish Republican Army (IRA) in court. On the floor of the House of Commons, MP Douglas Hogg called those lawyers “unduly sympathetic to the cause of the IRA.”

A month later, two masked members of the UDA executed Finucane in his Belfast home in the presence of his wife and children. He was shot 14 times, and his wife was wounded, in the attack.

Former British Prime Minister David Cameron appointed Sir Desmond da Silva, QC to review the case. Da Silva issued a report in 2012. He found a “shocking” level of collusion. He said, that “employees of the State actively furthered and facilitated [Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.” The collusive behavior included members of the Royal Ulster Constabulary proposing Finucane as a target to the UDA, ignoring intelligence about “an imminent attack” that could have prevented his murder, providing “misleading and factually inaccurate” information about how they handled their covert agent Brian Nelson and withholding information from officers investigating the murder.

Da Silva noted that using informants within terrorist groups was not “an illegitimate or unnecessary activity.”

On the contrary, he said, the “proper use of agents goes to the very heart of tackling terrorism.” The majority relied on this part of da Silva’s report to bolster the holding on the legality of acquiescing in or approving informant participation in criminality.

But da Silva also noted that informants must be used in a way that ensures “adequate oversight and accountability.” Neither was present in the Finucane case. To date, no one has been held accountable for that heinous crime.

In Northern Ireland, the security service has an abominable track record on overseeing informants and holding them accountable. In addition to the Finucane case, justice remains elusive in the notorious Glenanne Gang cases involving more than 90 murders and the Loughinisland massacre case involving 6 murders. These matters also involve collusion between security forces and loyalist paramilitaries.

Hundreds of killings during The Troubles await investigation. The 2014 Stormont House Agreement (SHA) proposed the creation of new institutions to address legacy matters involving Troubles-related deaths in a balanced, proportionate, transparent, fair, and equitable manner. The new institutions are to provide truth and justice to victims and survivors and promote societal reconciliation. But the British government has dragged its feet on implementing the SHA. Why? It may be because of what investigations will show.

CAJ’s deputy director Daniel Holder criticized the IPT majority decision. He said the involvement of paramilitary informants in serious crimes resulted in “a pattern of human rights violations that prolonged and exacerbated” the Troubles.

The collusion between government officials and paramilitary terrorists that took place in the Finucane, Glenanne Gang, and Loughinisland cases present examples of heinous crimes and egregious human rights violations that may re-occur under the policy.

The PFC said it will seek permission to appeal the tribunal’s 3-2 decision upholding MI-5’s authority to allow informants to commit crimes. Let’s hope it is granted. At the very least, there should be a law that defines how MI-5 makes decisions about informants involved in criminality and controls the exercise of a power to use them.

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