Investigatory Powers Commissioner’s Annual Report 2019
In this particular case, SIS’s internal records suggest that SIS did have specific knowledge or
belief that the detainee would have been denied due process. As such, per the terms of the
2016 policy, Ministers should have been notified, even though SIS was not seeking to feed
in questions to be put to the detainee.
Non-compliance with the Consolidated Guidance
9.52
We reviewed one case in which SIS did not fully comply with the Consolidated Guidance,
and a second where we concluded SIS had not complied with the spirit of the Guidance.
In one case, which SIS brought to our attention, SIS officers working in Country A failed
properly to consider the conditions to which a detainee may have been subject following
his detention in Country B. They also did not consider the lawfulness of the detainee’s
transfer from Country B to Country A. We were satisfied that, following this failure,
SIS has taken appropriate steps to prevent similar non-compliance occurring in future,
including a reminder to relevant staff of the applicable SIS policies. In the event, following
an investigation by SIS, there were no concerns about the way in which the detainee in
question had been treated. We concluded that part of the root cause of the problem was
an understandable confusion amongst operational staff about what is, in fact, permitted
by the patchwork of applicable submissions and authorisations. We have therefore
recommended that SIS ensures that all relevant staff overseas fully understand exactly what
is authorised by the relevant permissions.
9.53
In a separate case, SIS covertly obtained intelligence sourced from the debriefing of a
detainee. The material obtained by SIS included clear indications that the detainee had
been mistreated by a foreign liaison service. Whilst the Consolidated Guidance does not
explicitly govern the covert acquisition of intelligence sourced from detainees, the spirit of
the Guidance was, in our assessment, certainly engaged and SIS should have had regard to
it. SIS did not do so because they did not believe that the Consolidated Guidance (either by
its letter or its spirit) applies in this sort of scenario. In our view, had SIS had regard to the
spirit of the Consolidated Guidance, then they should have concluded that whilst in practice
there was nothing SIS could have done to prevent any future mistreatment or to raise
concerns with the detaining authority before seeking to obtain the debrief material, SIS
should have submitted to Ministers before seeking to obtain the material given the serious
risk the detainee may have been subject to mistreatment (as, in the event, the debrief
material made clear once this was obtained).
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