10 December 2013

Covert Policing

The 115 page 'CAJ Policing Report (The Policing You Don't See)' (Transitional Justice Institute Research Paper No. 13-07) by Brian Gormally argues that
Covert policing - the practices of communication interception, surveillance, the use of informants and undercover operations - was used extensively during the Troubles in Northern Ireland. Covert policing is argued to have prolonged the conflict and did lasting and immense damage to the rule of law. After the signing of the peace agreement, the Northern Ireland police service undertook large-scale reforms which were designed to prevent the recurrence of such abuses. Yet the secret Security Service – implicated in past abuses – has not yet undertaken such reformation but has been put in charge of a highly important area of mainstream policing. MI5 maintains primacy in covert ‘national security’ policing and gives ‘strategic direction’ to the PSNI in this area. Despite its large role in policing and its lack of reform, governmental oversight of MI5 is limited and ineffective. Limited additional accountably measures were promised in the St Andrews Agreement but some of the most significant commitments, such as those to publish policy frameworks, have not been honoured. Instead, MI5 has been given control of one of the most sensitive areas of policing in Northern Ireland, operating undercover, without having been reformed, and without an accountability structure. This report develops a human rights based framework from international standards and the Patten Report and uses it to analyse past and present covert policing practice.
This report reflects on evidence of the involvement of police informants in serious criminality, which led to recommendations to improve legality and accountability of covert policing. However, since primacy in ‘national security’ policing was given to MI5 five years ago (2007), the research finds that there is a growing “accountability gap” over a large part of policing. This report explains that the UK level oversight of MI5 is plainly inadequate and that the local mechanisms that hold the PSNI to account are evaded by the Security Service. It argues that this situation falls woefully short of international standards and has the capacity to undermine confidence in policing as a whole.
The report states that -
The question this report explores is the extent to which a gap has emerged in the accountability framework in relation to the most controversial, risk-laden area of policing: covert policing – ‘the policing you don’t see.’ In relation to defining covert policing the Patten Report indicates it includes: “interception, surveillance, informants and undercover operations.” The Regulation of Investigatory Powers Act 2000 (RIPA) covers matters including the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, and the use of agents and informants. In the past and current context of Northern Ireland, a great deal of covert policing is focused on what St Andrews described as ‘national security’ policing. This is the area of policing and security policy which gave rise to many of the most serious human rights concerns during the conflict relating to ‘collusion’, the State otherwise acting outside of the rule of law and impunity for unlawful State actions. This, in particular, included the controversial role of agents and informants. In this context policy, oversight and accountability arrangements for covert policing have profound implications for the administration of justice and human rights. Such reflections are particularly judicious given pending legislation to establish the ‘National Crime Agency’ and introduce it into Northern Ireland, a move that will further widen the emerging policing accountability gap.
This report contends that in contradiction to the Patten vision of a police service unfettered by direct political control and able to ensure accountability, since the St Andrews Agreement what has emerged is a parallel police force answerable to ‘direct rule’ Ministers and concentrated on perhaps the most sensitive area of policing. The transfer of policing and justice powers has made it even more obvious that a raft of ‘national security’ powers are in fact retained and exercised by the Northern Ireland Office (NIO). The St Andrews Agreement did promise additional ‘safeguards’ in relation to the MI5 transfer. However, as this report will show, at best it is not possible to tell if such safeguards are actually effective in practice. Even worse it will document how other promised safeguards have already been reneged on and others actually appear to have been used as a mechanism to further rollback accountability measures.
The first chapter of this report will draw on international standards and the recommendations of Patten to elaborate a human rights framework for covert policing. By this we mean the principles, methods of operation, and accountability mechanisms which can ensure that covert policing is human rights compliant.
The second chapter examines the evidence of past human rights abuses in covert policing in Northern Ireland. This does not pretend to be a comprehensive review of the subject. The chapter refers almost exclusively to official independent investigations by Stevens, the Police Ombudsman, Justice Cory and public inquiries. These investigations demonstrate both the need for a radical break with the past and the continuing importance of applying a human rights framework to covert policing for the present and future. The focus of these reports, and hence of chapter two and much of what follows in this report, is the element of covert policing which involves the running of what are called ‘agents’, ‘informers,’ ‘informants’ or, in some official documents ‘CHIS’ (Covert Human Intelligence Sources). These terms will be used interchangeably throughout the report.
The third chapter examines the specific role of MI5 during the conflict, as far as it is known from official reports and other sources, and what little we know of its operations since the St Andrews Agreement. This includes the impact of MI5 on the ‘counter-insurgency’ model of policing adopted in Northern Ireland, particularly following the 1981 Walker report, as well as the Security Service’s relationship with Government and other agencies. In relation to the current role of MI5 the limited information emerging from court cases and media reports is analysed.
The fourth chapter outlines and analyses the mechanisms that exist to officially provide accountability in respect of MI5. This includes the general UK-wide mechanisms such as the Intelligence Service Commissioner and Investigatory Powers Tribunal. It also includes analysis of the arrangements and safeguards envisaged in the St Andrews Agreement in relation to the transfer of primacy to MI5.
The final chapter provides a critique of the application and impact in practice of the St Andrews safeguards. It also benchmarks the arrangements following the transfer of primacy over ‘national security’ policing to MI5 against the human rights and Patten frameworks for covert policing outlined in the first chapter. This chapter examines the breadth of the accountability gap which has emerged since the transfer and concludes by exploring the question of who is running the most sensitive area of policing in Northern Ireland.