Security Service can authorise agents to participate in criminal acts The Security Service had the legal power to run undercover agents who participated in criminality. Its policy authorising the use of agents who participated in criminality was not therefore unlawful. The Court of Appeal so held in dismissing the appeal of the claimants, Privacy International, Reprieve, the Committee on the Administration of Justice, and the Pat Finucane Centre, from the dismissal by the Investigatory Powers Tribunal (Lord Justice Singh, President, Lord Boyd of Duncansby, Vice President and Sir Richard McLaughlin; Charles Flint QC and Professor Graham Zellick QC dissenting) ([2019] UKIPTrib IPT 17 186 CH) of their claim against the defendants, the Secretary of State for Foreign and Commonwealth Affairs, the Secretary of State for the Home Department, Government Communications Headquarters (GCHQ), the Security Service (MI5) and the Secret Intelligence Service (MI6), that the policy was unlawful. Ben Jaffey QC and Celia Rooney for the claimants; Sir James Eadie QC, David Perry QC, Victoria Wakefield QC, Natasha Banes and Will Hays for the defendants. Special advocates made written submissions only. The Court said that the principal question raised on the appeal was both important and difficult: was a policy by which the defendants “authorised” officers of the Security Service to run undercover agents who participated in commission of criminal offences unlawful? That question ultimately had to be decided by reference to the provisions of the Security Service Act 1989, on its correct interpretation. The proceedings were primarily directed at 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 policy). Although the policy was an important feature of the proceedings, it was subordinate to the even more central point as to whether there was any power on the part of the Security Service to “authorise” agents’ participation in criminality. There had been a Security Service for many years. Its creation and, until the 1989 Act, its functions and operations had been governed by the Royal Prerogative. In order to fulfil its task, the Security Service had run undercover agents. Such agents, who would usually not themselves be members of the Security Service, might need to participate in conduct which might or would be criminal or tortious in order to maintain their cover and in order better to ascertain the activities and intentions of the organisations in which they operated. Such agents were indispensable to the work of the Security Service. They played a vital role in gathering intelligence with a view to protecting the state and the public from serious harm. The policy stated that the Regulation of Investigatory Powers Act 2000 created a regime for authorising the conduct and use of agents but did not provide any immunity from prosecution for agents or others who participated in crime, and that an authorising officer might in appropriate cases authorise the use of an agent participating in crime but that such authorisation had no legal effect and did not confer on either the agent or those involved in the authorisation process any immunity from prosecution. The provisions of the 1989 Act were central to the appeal. The long title provided that it was an Act to place the Security Service on a statutory basis. Section 1 provided that there would continue to be a Security Service and that its function would be the protection of national security. There could be no doubt that before the 1989 Act the Security Service had the power, by its officers, to run agents who participated in criminality, whether potential or actual, in order to protect national security. Having regard to the context and purpose of the 1989 Act and to the operational necessity for agents to participate in criminality, and the functions of the service being similar to those before the 1989 Act, it followed by necessary implication that the 1989 Act confirmed the continuance of the powers which the service had previously had, in order to fulfil the functions now specified in the 1989 Act. It was critical to distinguish carefully between a power and an immunity. It was also critical to bear in mind that the policy in effect connoted a two-stage process. The first was directed at what the handler was empowered to do. If a handler acted entirely in accordance with the policy then, in his or her capacity as an officer of the Security Service, he or she was empowered, as part of his or her duties, to run an agent in that way. The second stage was then directed at what the handler might instruct the agent to do. At that particular stage the word “authorise” had to be treated with caution. The word “authorise” could frequently be taken as connoting the conferring of legitimacy on conduct which otherwise would not be legitimate. But that was not so in the present context, because the policy was specific that such “authorisation” had no legal effect and conferred no immunity from prosecution. It was evident that the 1989 Act did not itself purport in any way to grant general immunity in respect of participation in criminality. Since the policy itself expressly stated that an authorisation of an agent participating in criminality had no legal effect and did not confer, either on the agent or on those involved in the authorisation process, any immunity from prosecution, it could not properly be said that the 1989 Act or the policy sought to place the service and its officers and agents above the criminal (or other) law. It could not be said that they involved a suspension of or dispensation with the rule of law. Rather, they were an endorsement of it. Therefore, before 1989 the Security Service had the vires to run agents who participated in criminality in order to protect national security, and that power continued under the 1989 Act, on its true interpretation. Given that there had been and was no immunity from prosecution, such a conclusion did not place the Security Service above the law. Accordingly, since parliament had not intended in enacting the 1989 Act to bring to an end an essential part of the Security Service’s core activities, the policy was not unlawful. Moreover, the policy did not create a de facto immunity from prosecution.