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IPCO Annual Report 2017
12.17
Each organisation has a bespoke mechanism for assessing, escalating and recording risk,
which we accept are appropriate in the context of their work, command structures and
internal records. However, Sir Mark Waller suggested that the intelligence agencies should
co-ordinate their underlying assessments more closely, and centralise their review and
referral processes. In accordance with Sir Mark’s recommendations, the intelligence agencies
have worked to align assessments in relation to the risk of torture and CIDT to ensure that
officers in each organisation are working on the basis of the same approach. This process
will encourage officers to gain a more comprehensive understanding of the risks, based on
a combination of local knowledge, precedent and any reported concerns. SIS has taken the
lead in this area and we have suggested that the MOD should participate.
12.18
It is to be stressed that, in some cases, the agency will have established a number of
safeguards and mitigations with the foreign country, which can lead to confidence that the
risk is lower than serious even if the state has a poor human rights record. This enables
the UK to work abroad, in undoubtedly challenging circumstances, in order to meet
vital intelligence requirements. The record must set out the safeguards and mitigations
explicitly, together with an assessment of their credibility and an assessment of the risk
once they are in place. Frequently, the agency informs the Minister of the steps they plan
to take even though the Guidance does not strictly require them to do so. The standard
of these records has notably improved in the recent past, in particular for cases that fall
below the threshold for a Ministerial submission.
12.19
We have made several recommendations which are intended to encourage the agencies
to adopt a more thorough and consistent approach to record keeping than at present. The
record should be full and clear, and it should be a freestanding document. In complex cases,
a summary of the assessments should be included. Individual liaison services should be given
separate consideration. It should be explicit if the Guidance is relevant in more than one
way, for example if an agency is requesting historic intelligence relating to a former detainee,
and live intelligence relating to a current detainee. The record must explain (i) how historic
risk constitutes a relevant consideration; (ii) whether the individual in question is located in
a particular country; (iii) whether the individual can be traced on the basis of information
that has been shared; and (iv) what, if any, expectations there are for action by the foreign
liaison service. The descriptions of the safeguards, whenever they are entered, must reflect
substantive knowledge of the relevant circumstances, and the agencies must reflect carefully
as to how these details are provided.
12.20
The agency working directly with the foreign country, most commonly SIS, will keep a written
record of any assurances that have been given. This makes it easier for any officer acting
under the Guidance to make a clear judgement on the risk of mistreatment if intelligence
is passed, or if a request is made in relation to a detainee. The agencies understand the
importance of establishing confidence in any assurances, written or oral, on a case-by-case
basis before conducting any additional activity that engages the Guidance. In 2018, IPCO
will focus on whether the confidence placed in these assurances is appropriate.
12.21
We have otherwise made a number of recommendations to each agency which are intended
to improve the clarity and consistency of their records.