8Immunity from criminal prosecution and civil liability
Immunity rather than prosecutorial discretion
101.Under the Bill the consequence of authorising criminal conduct is that it is rendered “lawful for all purposes” - creating an immunity from criminal prosecution and from civil liability for the person carrying out the authorised crime. The Explanatory Notes state that the Bill puts “on a […] statutory footing” pre-existing policy. However, the pre-existing policy considered in the Third Direction challenge did not create an immunity from prosecution or civil liability. It merely provided that the fact criminal conduct had been officially authorised would be taken into account when assessing whether prosecution would be in the public interest.96 The Minister for Security has suggested that the practical difference is limited, but there is a substantial constitutional difference between legislating for criminal conduct to be “lawful for all purposes” and inviting an independent prosecution to assess whether prosecution is in the public interest. Thus, the Bill goes significantly further than the one publicly available policy it replaces.
102.It is highly exceptional for the law to provide an explicit immunity from prosecution, as this Bill purports to do, and thereby to trespass on prosecutorial independence. In their submission to the Committee, Reprieve et al raise concerns about the potential impact of removing prosecutorial discretion in this area. They note that “the independence of decision making by the Director of Public Prosecutions (DPP) has in particular been a cornerstone of the justice reforms of the Northern Ireland peace process” and suggest that the Bill “threatens to reverse reforms of the peace process in one of the most controversial areas of policing and prosecutorial policy.” It is not clear that the Government have taken into account the particular sensitivities for Northern Ireland of providing pre-emptive criminal immunity to undercover agents.
103.This is not the first time that legislation has provided criminal and civil immunity to intelligence agents. Section 7 of the Intelligence Services Act 1994 provides that agents operating outside the UK will not be liable under UK criminal or civil law if their conduct has been authorised by the Secretary of State.97 However, the power in the Covert Human Intelligence Sources (Criminal Conduct) Bill is far more wide ranging in its coverage and effects. It goes much further than the 1994 Act in respect of who can be authorised to commit crimes , who can authorise crime and notably where those crimes may be committed (both inside and outside the UK).98 It is of particular significance that, in contrast with crimes authorised under the 1994 Act, authorised crimes committed within the UK will inevitably fall within the territorial jurisdiction of the UK for ECHR purposes.99
Victims’ rights
104.Article 1 ECHR requires the UK to secure the rights of all those within its jurisdiction, including the rights of victims of crime. Where a crime also amounts to a human rights violation, the victim has a right to an effective remedy under Article 13 ECHR. A victim also has an Article 6 right “to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.”100
105.The rights of victims of crime are typically respected by an effective criminal justice system, coupled with the ability to bring civil litigation against those that have harmed them. Under the Bill, the rights of a victim of authorised crime would not be vindicated through the criminal justice system because the perpetrator would not have committed an offence.
106.In respect of serious offences, this would not be consistent with the requirements of the ECHR. The State is under a positive obligation to carry out effective investigations into allegations of treatment that violates Article 3 or Article 2. Such investigations must be capable of leading to the identification and punishment of those responsible.101 The European Court of Human Rights has specifically held that “national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished.”102 Looking beyond the ECHR, Article 7 of the UN Convention Against Torture (CAT) requires that allegations of torture must be submitted to the prosecuting authorities who must decide whether to prosecute “in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.”
107.The Bill might also frustrate a victim’s ability to recover compensation for injury or loss. The Criminal Injuries Compensation Scheme provides victims of a “crime of violence” with access to compensation.103 Since the Bill would render authorised criminal conduct “lawful for all purposes”, were it known to those considering an application under the scheme that the crime in issue had been authorised, a victim of that conduct would not be eligible to be compensated.
108.The victim would also be unable to secure an effective remedy by bringing a civil claim against the person who caused them harm. Again, authorised criminal conduct would be ‘lawful for all purposes’ and therefore not tortious. The Government has placed considerable reliance on the HRA as providing a limit on the criminal conduct that could be authorised under the Bill, but once a CCA is in place a claim under the HRA against a CHIS or handler deemed to be carrying out a public function would also appear to be unavailable. In his letter to the Chair of the Committee, the Minister for Security stated that any authorisation found to have been made in breach of s.6 HRA (which requires public authorities to act compatibly with Convention rights) “would be invalid and the conduct of the CHIS would not be rendered lawful.” However, it is not plain on the face of the Bill that this would be the consequence of an authorisation that was inconsistent with human rights. Nor is it clear what would be the consequence of a CHIS carrying out a validly authorised offence in an excessive or disproportionate manner.104
109.A victim could still theoretically bring a claim under the HRA against the public authority who authorised the criminal conduct, as the immunity from civil liability applies only to the person who carried out the criminal conduct.105 However, a number of those who provided written evidence to the Committee have raised concerns that the Government does not accept that the HRA applies to all authorised criminal conduct.106
110.We note that the regime in place in Australia, under Part 1AB of the Crimes Act 1914, takes a different approach to a complete immunity from civil action. Section 15HB provides indemnification for any participant who incurs civil liability in the course of an undercover operation. The effect of this provision would be to ensure that the participant (i.e. the CHIS) would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.
Practical consequences for victims
111.Our attention has also been drawn to the uncertain practical consequences of secretly authorising criminal conduct by CHIS. Victims of crimes authorised under a CCA will not be aware that the perpetrator was acting under an authorisation. Indeed, it is not obvious how the police or prosecuting authorities will be made aware that a criminal offence reported to them by a victim was authorised. It is also unclear how the Government proposes that victims of authorised criminal conduct will be dealt with by the police, prosecution or judiciary. As Dr Paul F. Scott asked in his submission to the Committee:
“Will those who are the victims of criminal acts authorised under the powers contained in the Bill be told that this is the case? Or will they simply be told that a decision has been taken that it is not in the public interest to prosecute the offence in question?”107
112.By rendering criminal conduct lawful for all purposes, the Bill goes further than the existing MI5 policy by removing prosecutorial discretion. The reason for this change in policy has not been made clear. It has significant ramifications for the rights of victims. The Government has missed an opportunity to include within the Bill provision for victims of authorised criminal conduct, both legally and practically. This is another reason why the Bill requires additional safeguards to ensure there can be no authorisation of serious criminality.
113.The Government must explain why the existing policy on criminal responsibility, which retained prosecutorial discretion, has been altered in the Bill to a complete immunity. Victims’ rights must be protected by amending the Bill to ensure that serious criminal offences cannot be authorised. In respect of civil liability, the Government must confirm that authorising bodies will accept legal responsibility for human rights breaches by CHIS or alter the Bill to provide that CHIS will be indemnified rather than made immune from liability.
96 Security Service Guidelines at (9), as discussed in the IPT ‘Third Direction’ judgment, paras [15] and [67]
97 The extent to which the 1994 Act has been used to protect MI6 agents from prosecution or civil liability and the degree to which this regime has protected human rights falls outside the scope of this report. Nevertheless, we note the findings of the Intelligence and Security Committee of Parliament: Detainee Mistreatment and Rendition 2001–2010, HC 1113, 28 June 2018
98 RIPA section 27(3) would appear to confirm that CCAs would cover not only criminal conduct in the UK but also “conduct outside the United Kingdom.”
99 Authorised criminal conduct committed outside of the UK may fall within the extra-territorial jurisdiction of the ECHR - see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011
100 Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18
101 Assenov v Bulgaria, App.no. 24760/94, 28 October 1998 at para 102
102 Da Silva v UK, App.No. 5878/08, 30 March 2016
103 The HM Courts & Tribunals Service, Criminal Injuries Compensation Scheme, 27 November 2012, covers crimes that have taken place in England, Scotland or Wales. A separate Northern Ireland Criminal Injuries Compensation Scheme covers Northern Ireland.
104 Although a claim under the HRA could be brought in the Investigatory Powers Tribunal in respect of conduct that was not covered by a valid authorisation
105 A claim in tort could also be available on the basis of joint tortfeasance or common design
106 See paras 45–49 above
Published: 10 November 2020