IPCO Annual Report 2017
to consider whether the detainee or individual may have been or may be subjected
to unacceptable standards of detention or treatment before interviewing or seeking
intelligence from detainees in the custody of a liaison service, or before soliciting an
individual’s detention by a liaison service.
14.81
We identified occasional instances when intelligence was shared without full adherence
to the Guidance, albeit this never involved a serious risk of torture or CIDT. Whenever
there is a material failure to follow the Guidance, the agency should fully investigate
whether intelligence was shared or requested without either a proper assessment of the
risks or a failure to secure effective mitigation. In the event that an intelligence exchange
has taken place in these circumstances, it will usually be appropriate for the agency to
follow up the matter with the foreign liaison service, unless there is reason to suspect
that this would make the situation worse for the detainee. The internal investigation into
the cause of the breach should reveal whether additional training or other safeguards are
necessary. We have recommended that the agencies adopt a consistent policy on breaches,
which should include an obligation to report any breach to IPCO. We have also recommended
to the Cabinet Office that this requirement should be reflected in the Guidance.
14.82
The Agencies’ current lack of a policy for breaches has meant that oversight in this area has
been incomplete. Nonetheless, Ml5 identified three minor breaches during the December
inspection, none of which involved a serious risk of torture or CIDT. In each instance, the
breach was appropriately addressed.
14.83
At GCHQ, we identified eight cases in which intelligence had been passed without complete
adherence to the Guidance. Each case was minor and in none was there reason to believe
harm had resulted. For example, in one case intelligence was passed to an ECHR signatory
without consulting the central team. This is contrary to GCHQ policy but there was no risk
of harm.
105