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IPCO Annual Report 2018
6.5
Nonetheless, there is clear room for improvement in the way that MI5 manage and record
the CHIS review process. We recommended that the process of conducting a review of
CHIS authorisations should itself be examined to determine if the current arrangements are
compliant with the CoP. At our most recent inspection, MI5 outlined the work that they are
doing to provide a remedy, part of which included issuing new guidance and updating their
policy in this area.
CHIS Participation in Criminality (PIC)
6.6
MI5 has an internal policy governing participation in criminal activity (PIC) by its agents.
IPCO has been directed by the Prime Minister to oversee MI5 compliance with this policy
and we examine a high proportion of these cases to ensure that this activity meets a high
necessity threshold.
6.7
Typically, we examine the PIC authorisations alongside the RIPA paperwork relating to the
agent or undercover operative. In every case that we examined, we noted good articulation
of the matters taken into consideration and we concluded that the activity authorised was
proportionate to the anticipated operational benefits.
6.8
However, we are concerned that MI5 lack reliable central records around PIC activity and
that there is no consistent review process. We recommended that MI5 should implement
a system to capture accurately the extent of participation in criminality by CHIS across
the organisation. This should record the number of PIC authorisations, the nature of the
activity authorised and the number of times each authorisation has been relied upon.
6.9
This area of activity is relevant to an ongoing Investigatory Powers Tribunal (IPT) case (also
known as The Third Direction case).
Surveillance and Property Interference
6.10
MI5 make considerable use of a wide variety of surveillance capabilities that are authorised
internally under Directed Surveillance Authorisations (DSAs). We examined several
authorisations during two inspections and were satisfied that each case we examined was
necessary and proportionate. As with CHIS, however, we were concerned that MI5 did
not have an adequate review process in place. MI5 explained that their review process
for ongoing surveillance operations was informal, relying on conversations between
the authorising officer, investigator and surveillance operators. The content of these
discussions is often not documented. We noted that this falls short of the requirements in
the CoP and therefore recommended that MI5 should establish an appropriate mechanism
for conducting and recording reviews, including accurately recording formal review dates.
6.11
We were pleased that MI5 responded to this recommendation ahead of our second
inspection in 2018. MI5 have overhauled their procedures and are developing a number of
mitigations which will include changes to their electronic workflow process. We endorse
this approach. We note that such changes, especially to IT systems, will take time to deliver
but we are confident that progress is being made.
6.12
In 2017, we noted that MI5’s DSAs covered a range of techniques but that, as the
authorisations were renewed, there was often insufficient consideration of the ongoing
necessity for including all of the previously-authorised techniques. We have seen a gradual
improvement in this area but will continue to keep it under review.