The Committee on the Administration of Justice and Pat Finucane Centre have vowed to appeal against a “knife-edge” ruling.
Four human rights organisations took legal action over a policy they claimed “purports to permit (MI5) agents to participate in crime” and effectively “immunises criminal conduct from prosecution”.
Privacy International, Reprieve, the Committee on the Administration of Justice and the Pat Finucane Centre asked the Investigatory Powers Tribunal (IPT) to declare the policy unlawful and grant an injunction “restraining further unlawful conduct”.
But the tribunal held by a 3-2 majority that MI5, also known as the Security Service, does have the power to authorise the commission of criminal offences by informants.
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Announcing the decision yesterday, IPT president Lord Justice Singh said: “This case raises one of the most profound issues which can face a democratic society governed by the rule of law.”
But he added that “this does not mean that (MI5) has any power to confer immunity from liability”.
At a hearing in November, Ben Jaffey QC said the issues raised by the case were “not hypothetical”. He pointed to the case of Freddie Scappaticci, “who is alleged to have been a senior member of the IRA and a security agent working under the name ‘Stakeknife’”.