IPCO Annual Report 2017
a foreign state to seek information from a detainee in the custody of that country; iii) passes
information to a security or intelligence service of a foreign state in relation to a detainee
held by that country; iv) receives unsolicited information from a foreign state which relates to
a detainee; or v) solicits the detention of an individual by a foreign state.
12.11
Sir John Goldring, accompanied by two inspectors, leads this area of oversight. In early
2017, we inspected the application of the Consolidated Guidance at each agency and the
MOD as part of our wider inspection schedule. In December 2017, we conducted a one-day
inspection at each agency focusing only on this issue.
12.12
During our inspections, we test whether officers were fully aware of the requirements of
the Guidance and the limits of any authorisations under which the intelligence agencies
are working. We review the logs completed by officers of their assessments, along with the
overarching assessments by senior officers which cover routine sharing of intelligence by
staff, and the mechanisms which ensure that these assessments are continually reviewed in
case the risk changes.
Findings
Inappropriate application of guidance
12.13
During our December inspections we identified three cases where we were concerned that
SIS, MI5, GCHQ or the Foreign and Commonwealth Office had not applied the Guidance
appropriately, in situations where there was a serious risk of torture and/or CIDT. We
reviewed the casework and internal records (including emails about each case); we
interviewed the officers involved; and we held a series of discussions with legal advisors
from each agency and the FCO. After this scrutiny, we were satisfied that in each case the
Guidance had been properly applied.
12.14
These three cases were the exceptions that prove the rule that in nearly every case there
is a clear and adequate written record of the approach that has been taken by the relevant
officer. This assessment is based on a review of the paperwork and interviews with
individuals involved in a range of cases, including senior officers, caseworkers and legal
advisors. The documents considered include the official record kept by the officer, the
submissions to Ministers, and a range of other internal documentation including emails,
operational logs, and the communications sent to other agencies or bodies. We are satisfied
that the intelligence agencies and MOD are applying the Guidance with considerable care.
Ministerial oversight by the Foreign and Defence Secretaries is strong and officials at the
Foreign and Commonwealth Office closely scrutinise every case and provide them with
clear advice on the level of risk.
Records
12.15
The records kept by MI5 and SIS particularly demonstrate a clear consideration by their
officers of the principles of the guidance, in a range of difficult circumstances. GCHQ
maintains a log of Consolidated Guidance casework, but we have queried whether the
record of each case is clearly and sufficiently recorded.
12.16
There is clear room for improving the records relating to the lawfulness of detention and due
process by the MOD, and to a lesser extent the other agencies. We will expect this to have
improved by the next inspection.
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