In June 2017, Privacy International and Reprieve began a legal challenge on the basis that the conduct overseen under the third direction was unlawful, not least because it was entirely secret. Faced with the prospect of defending these proceedings, the Government published the third direction on 1 March 2018. The third direction instructed the Commissioner to keep under review the application of the Security Service guidelines on the use of agents who participate in criminality and the authorisations issued in accordance with them. This is the first time that the UK Government has acknowledged that guidance exists to regulate criminal activity within the United Kingdom by MI5 agents.
In April 2018, the Committee on the Administration of Justice and the Pat Finucane Centre joined the case.
Through the Third Direction the Security Service purports to “authorise” its agents to carry out crimes. No meaningful limits to it have been disclosed. It appears that the Security Service thinks it could, if it believes it would be in the public interest, authorise participation in murder, torture, sexual assault or other grave criminality in the UK. Neither the victim of the crime, the police or the Crown Prosecution Service are notified of authorisations. In practice, this will mean that criminal conduct will not be investigated or prosecuted. Oversight to date has been extremely limited and so narrow as to be ineffective.
Together with the other claimants, we are concerned that the activities overseen under the secret Third Direction may breach the UK’s domestic and international human rights obligations.
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