Lord Justice Davis, Lord Justice Haddon-Cave and Lord Justice Dingemans have unanimously held that MI5’s “Guidelines on the use of agents who participate in criminality” are lawful. The claim – commonly referred to as “the Third Direction” – was brought by four NGOs, who alleged that the policy was ultra vires, conferred de facto immunity and breached the ECHR.
The Court of Appeal dismissed all the grounds of challenge. In particular, it held that the Security Service Act 1989 contained implied vires for the policy (and that this was a continuation of the power which existed, under the prerogative, before the 1989 Act). This is because it is essential, in order for MI5 to perform its core functions, for it to be able to run agents who are embedded in criminal or terrorist organisations, and therefore necessary for such agents to be able to participate in criminal activity. This is not to be equated with the conferral of an immunity. The Court of Appeal further held that the NGOs lacked standing to bring the ECHR claims.
The judgment is here.
Victoria Wakefield QC, instructed by the Government Legal Department, appeared for MI5.