IPCO Annual Report 2017
Breaches
12.22
The Guidance does not define, or require reporting of, a breach of the policy. MI5 and GCHQ
have chosen to inform IPCO of perceived failures in applying the Guidance. The cases they
highlighted involved inadvertent departures from internal policy rather than a failure to apply
the core principles of the Guidance, and these errors did not result in any substantive harm.
There does, however, need to be a consistent approach by all four organisations in this area.
Due process
12.23
The Consolidated Guidance indicates some of the factors that personnel should bear in mind
when considering the adequacy of the standards of arrest and detention, including whether
(i) the arrest was lawful under local law, (ii) the individual has been given the reason for
the arrest, and (iii) the opportunities to challenge the lawfulness of the detention. Officers
should consider whether the detainee would be denied access to his or her family or to legal
representation, and whether he or she was informed as to whether, and when, there will be
an appearance before a judge, and whether he or she will receive a fair trial. The lawfulness
of the circumstances of detention is to be measured against local and international law.
It is of note that the MOD forms fail to refer expressly to the lawfulness of the detention
and access to due process, and as a consequence this has been addressed somewhat
inconsistently within the agency. However, when questioned, the officers involved in these
cases demonstrated an appropriate level of understanding of the legal and judicial systems
in the relevant country. In consequence, we do not apprehend there has been a risk of due
process, but it remains important that these matters are properly recorded.
Consistency
12.24
SIS has implemented changes to the way in which it deals with assurances when working
with foreign countries. It has requested all of its overseas stations to complete and update
its risk assessments, and SIS plans to make these available to the other intelligence
agencies and to use them to inform assessments of risk at a local level.
12.25
In 2017, MI5 and SIS conducted a trial of a new system that is intended to improve
consistency and efficiency. Hitherto, if MI5 planned to pass intelligence to a foreign liaison
service via an SIS station, the agencies would complete separate risk assessments. Given
SIS has the better knowledge of the other country, under this new approach MI5 pass
intelligence to the station, having assessed that it was necessary and proportionate to do so,
and SIS then makes the final assessment of the risks involved. We inspected the results of the
trial in December 2017 and it has been successful to date. We will continue to review this
practice in 2018.
The MOD and Afghanistan
12.26
The MOD has also streamlined its process for briefing the risk of CIDT to Ministers in relation
to Afghanistan. The MOD has a high level of knowledge of the relevant circumstances in
Afghanistan and this gives justified confidence when judging if there are mitigations on
which reliance can properly be placed. The MOD utilises a single submission to the Minister,
supplemented by monthly updates, addressing the circumstances in each case.
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