Privacy International & Ors v Secretary of State for Foreign And Commonwealth Affairs & Ors

The statutory functions of the Security Service carry, by necessary implication, the powers essential to their effective performance. Those powers include instructing and running undercover agents who may participate in criminality to protect national security.

A power to instruct such participation is distinct from immunity. Neither the Security Service Act 1989 nor internal guidance makes otherwise unlawful conduct lawful or prevents the prosecution or civil liability of an agent or handler.

Human rights proceedings require the claimant to be, or potentially to be, a victim. Non-governmental organisations cannot challenge possible Convention violations in the abstract merely because they represent viewpoints which an actual victim might advance.

Four non-governmental organisations challenged Security Service guidance governing the use of undercover agents who participate in criminality. The Investigatory Powers Tribunal, by a majority of three to two, held that the necessary power arose under the Security Service Act 1989. The Tribunal unanimously rejected the remaining challenges.

The appellants appealed on the grounds that the Security Service lacked the relevant power, that the guidance created de facto immunity from prosecution, that its operation lacked adequate oversight, and that it was incompatible with Convention rights.

The principal issue was whether the statutory functions of the Security Service carried an implied power to run agents who participate in possible or actual criminality, despite the absence of express statutory words conferring that power.

1. Appeal dismissed. The Security Service had power before 1989, under the Royal Prerogative, to run agents who participated in possible or actual criminality to protect national security. The Security Service Act 1989 continued that operationally necessary power. Its stated functions could not be achieved without the powers necessary for their effective performance. Context, statutory purpose and operational necessity therefore supported the implication.

2. The power to run and instruct an agent was distinct from immunity for unlawful conduct. An officer acting under the guidance was empowered, as part of the officer's duties, to run an agent in that way. The resulting instruction did not confer legal legitimacy upon criminal conduct. The guidance expressly stated that authorisation had no legal effect and gave neither the agent nor the handler immunity from criminal or civil liability. The scheme therefore neither placed the Security Service above the law nor dispensed with the law.

3. The guidance covered possible as well as actual criminality. Apparent criminal conduct might lack the necessary mental element or fall within a defence. Any instruction was also constrained by necessity, public interest and proportionality. The anticipated public benefit had to outweigh the potential harm caused by the agent's activity. Exposure to prosecution imposed an additional practical constraint.

4. The guidance created no de facto immunity. It respected the constitutional independence of police and prosecuting authorities and merely enabled the Security Service to make representations on the public interest if prosecution were considered. No general legal duty requiring advance notification of potential criminal participation was established. Prosecutors could not grant immunity prospectively without knowing all the facts.

5. Adequate judicial oversight was available. The legality of the guidance could be reviewed by the Investigatory Powers Tribunal, as a superior court of record, and by the appellate courts. Individual prosecutorial decisions were also capable, in an appropriate case, of judicial review.

6. The Convention grounds failed because none of the appellants was, or would be, a victim for the purposes of section 7 of the Human Rights Act 1998. The limited approach applicable to individuals personally at risk from secret surveillance did not permit non-governmental organisations to seek generalised rulings divorced from an identified factual situation. It was unnecessary to decide the substance of the Convention complaints.

1. Court of Appeal (Civil Division): By [2021] EWCA Civ 330, the court dismissed the appeal on every ground and made no order as to costs.

2. Investigatory Powers Tribunal: By [2019] UKIPTrib IPT 17 186 CH, the Tribunal held by a three-to-two majority that the Security Service possessed the power to run agents who participate in criminality. It unanimously rejected the remaining domestic-law and Convention challenges.