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Investigatory Powers Commissioner’s Annual Report 2019
Authorising Officers (AOs), and legal and security advisors to be especially high when
dealing with the most challenging CHIS cases.
8.7
MI5 have responded positively to recommendations made at previous inspections and
we observed a marked improvement in the way that CHIS records are now maintained.
However, there is still room for greater consistency in relation to the carrying out and
recording of reviews and the setting out of considerations in relation to necessity,
proportionality and collateral intrusion by AOs.
Definition: collateral intrusion
Collateral intrusion is the interference with the privacy of individuals who are neither the
targets of the operation, nor of intelligence interest, for example background conversation of
passers-by recorded with the speech of the target. We expect public authorities to proactively
assess the possible extent of collateral intrusion in any proposed activity and, where possible,
take reasonable steps to mitigate this.
8.8
MI5 have implemented changes to their processes following our detailed examination of
their online CHIS activity in 2018. We expect that full implementation of these changes
will ensure that each officer engaged in such activities is separately authorised under RIPA,
rather than one online persona or profile which may be being used by several individuals.
This change will also include a clear description of the proposed use and conduct in each
case. Likewise, we recommended that a separate risk assessment must be completed for
each officer addressing the risks specific to that individual. We will continue to closely
monitor the implementation of these recommendations during 2020.
8.9
As in all areas, we carefully balance the requirement to properly test compliance against
the need for access to records and operational personnel and the sensitivity of the
information we are reviewing. We do not believe it would be proportionate to review all
CHIS paperwork, which would inform our Inspectors of the true identities of all current
and former agents. We are also content that there is no requirement to review all records
and internal notes made by those involved in tasking and safeguarding CHIS given the high
level of compliance and professionalism that we see in these departments. However, we
are working with the agencies to review the type of access that we have to CHIS records.
The UK Intelligence Community (UKIC) uses a variety of formats and systems to handle
and safeguard CHIS material, which can make it more difficult to conduct a comprehensive
review of a single casefile, if required. We have therefore asked the agencies to look again
at the most effective method of presenting all relevant documents at inspection.
CHIS Participation in Criminality (PIC)
8.10
MI5 has an internal policy governing PIC by CHIS which relates to both recruited agents
and MI5 officers operating under cover in both the real world and online. The Investigatory
Powers Commissioner (IPC) is required by the Prime Minister to oversee MI5 compliance
with this policy by virtue of a direction that was first made public in 2018. An earlier
iteration of this requirement has become known as “The Third Direction” and was the
subject of litigation in the Investigatory Powers Tribunal (IPT) in 2019. The IPT gave its
judgment in late December 2019 and found MI5’s policy to be lawful, although permission
to appeal this decision has been granted.
8.11
As in recent years, we examined a high proportion of PIC cases to ensure that MI5
was acting in line with its PIC policies. Inspectors have observed the comprehensive