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IPT rules by a majority in favour of MI5 in a case raising “one of the most profound issues which can face a democratic society governed by the rule of law”

Related Member(s):
Jonathan Glasson QC, Sarah Hannett

The Investigatory Powers Tribunal (the IPT) has today, by a 3:2 majority, ruled that MI5’s policy authorising the participation of its agents in criminality is lawful. The Tribunal said that the case raised “one of the most profound issues which can face a democratic society governed by the rule of law.” Jonathan Glasson QC and Sarah Hannett acted as Counsel to the Tribunal in the case.

Privacy International, Reprieve, the Committee on the Administration of Justice, and the Pat Finucane Centre has asked the IPT to declare the policy unlawful and grant an injunction “restraining further unlawful conduct”. In the majority ruling, Lord Justice Singh said MI5 has “an implied power” under the Security Service Act 1989 “to engage in the activities which are the subject of the policy under challenge”. But he added: “It is important to appreciate that this does not mean that it has any power to confer immunity from liability under either the criminal law or the civil law … on either its own officers or on agents handled by them.”

The case has been referred to as “the Third Direction case” because it arose from the third secret direction by the Prime Minister to the Intelligence Services Commissioner

The Investigatory Powers Tribunal is a special tribunal established by the Regulation of Investigatory Powers Tribunal and is presided over by a Court of Appeal Judge, Singh LJ. The panel that heard the case was Singh LJ, Lord Boyd of Duncansby, Sir Richard McLaughlin, Charles Flint QC and Professor Graham Zellick QC.

The judgment can be found here.

A summary of the judgment can be found here.

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