Intelligence, security and the law

Published date: 03 Nov 1994

James Smart Lecture by the Director General of the Security Service, Dame Stella Rimington.

Introduction

I am extremely honoured to have been invited to give this year's James Smart memorial lecture; and grateful to the Council of the James Smart Lecture fund, and the City of London Police, for their hospitality.

Over the years the Security Service has maintained the closest links with James Smart's successors, as it has done with the other police forces throughout the United Kingdom. Indeed, one of his successors, Sir Percy Sillitoe, Chief Constable of Glasgow from 1931-43, later became Director General of the Security Service. I make no prophesies about the future course of Mr Sharp's career!

I have given this lecture the title "Intelligence, Security and the Law". This is a broad subject which covers many fundamental concepts for the Security Service, in particular, civil liberties, accountability and the judicial process. I obviously do not have the time to address all these issues in depth here, but I want to look at some aspects of them in the context of the relationship between the Security Service and the Police. I want to touch on how this relationship has developed, how the numerous changes of the post Cold War era have affected both our Services and the links between us.

---

The role of the Security Service

To begin, let me summarise what the Security Service is, and what it is for. The principal function of the Service - set out in the Security Service Act - is the protection of national security. It is the national security intelligence agency. Our job is to identify, investigate and counter threats to national security, as well as threats to the economic well-being of the United Kingdom which arise from overseas.

The threats we deal with are, for the most part, substantial, purposeful and organised covertly. What makes our role distinctive is the way in which we use secret sources and techniques to find out what those whom we investigate are at pains to conceal. Often working closely with others, we gather, assess and develop intelligence to the point where direct action to counter the threat is appropriate.

But, the Service has no executive powers. At the point where executive action is needed other agencies or departments take over. The Home Office may seek to exclude or deport terrorist suspects, or the Foreign Office may refuse entry visas to members of hostile intelligence services. But it is the Police and Crown Prosecution Service which are responsible for the arrest and prosecution of anyone who has broken the criminal law.

---

The Security Service and the Police

Although this distinction between the basic roles of the Security Service and the Police is important, it should not be pressed too far. For example, some of the Security Service's counterparts in Europe, and further afield, operate very successfully from within the framework of the Police Service.

In some respects, the methods of the Security Service in protecting national security are similar to those of the Police in the preservation of law and order. The approaches we employ are often much the same. For example, investigation, collation, assessment, disruption and prevention all feature as core elements of the work of both the Security Service and the Police. For both our services the protection of sensitive sources and techniques is central to the success of any operation.

The Police Service works extremely closely with us on many operations and investigations. And, of course, this close co-operation does not just begin at the point when executive action is needed. Over the years, a unique and close relationship has therefore developed between the Security Service and Police Special Branches. More recently, this relationship has expanded significantly and now includes other parts of the Police Service.

The links between us go back to the earliest days of the Security Service. When MI5 was founded in 1909 the main task of Vernon Kell, the first Director General, was to investigate German espionage. In doing so he drew heavily on the experience of William Melville, a former head of the Metropolitan Police Special Branch. Kell began his term in office with a nationwide tour of all police forces - no mean feat in those days, when every borough had its own!

The work of the Security Service, and the relationship with Special Branch, remained largely unknown to the wider public for much of the next half century. So it was something of a landmark when the contacts between us were first described by Lord Denning in his 1963 report on the so-called 'Profumo affair'.

Denning, of course, focused on the Metropolitan Police Special Branch in London. It was not until the 1960s that police forces outside the capital began to develop their own Special Branches. This was in response to the increasing threats from espionage and subversion which formed the main focus of the work of the Security Service during this period, the height of the Cold War.

In 1984 the relationship between the Service and Police Special Branches was codified in the form of a set of Home Office guidelines for Chief Constables. The main objective of the guidelines was to suggest the way in which the Security Service and Special Branches should work together, and what their respective roles should be. The guidelines focused on the position of Special Branches as the main interface between the Security Service and the Police Service as a whole.

In addition to their responsibilities for policing the local force area and for preserving public order, Special Branches were to provide direct assistance to the Security Service by collecting information in support of our national security intelligence work. The guidelines emphasised the important role played by Special Branches in ensuring that the separate interests of both the Police and the Security Service were properly preserved.

---

Changing priorities

Much has happened since 1984. Compared with the traditional certainties of the Cold War era, with its frame of reference apparently fixed for all time, the nature of the threat, the Service's responsibilities, and the environment in which we operate, are today all in a state of flux.

The collapse of Soviet Communism brought with it a reduction in the threat of espionage from hostile intelligence services. But other threats have emerged, not least from terrorism and the proliferation of weapons of mass destruction.

By 1994 the proportion of effort devoted to counter terrorism had doubled compared with four years previously. Over the same period resources devoted to counter espionage had halved. Work on countering subversion has been reducing steadily since the early 1980s, and now it represents only a tiny fraction of what it was ten years ago.

This process has required rapid re-orientation. The changing threats have had a major impact on the Security Service itself, but also on all those others who work closely with us, not least the Police and their Special Branches.

We have, together, had to develop new and different methodologies to counter the threats. Many traditional defences are no longer appropriate and have therefore gone; and working practices have also been changed out of all recognition. For example, in a number of areas we now adopt the approach of managing risks, which means that we are more selective in the investigations we mount.

One result is that measures to reduce vulnerability became more important, and so the Security Service has extended its role in providing protective security advice and training, particularly in counter terrorism. And it is counter terrorism that has brought some of the biggest changes in the work of the Service.

---

The threat from terrorism

When the phenomenon of what is usually termed "international terrorism" became a serious threat in the late 1960s the Security Service devoted an increasing proportion of its resources to investigating those involved, primarily from the Middle East, but also from many other parts of the world.

Many of these international terrorist groups draw support from within the United Kingdom, not only in London. Over the years Special Branches throughout the country have played an important role working closely with the Security Service - they have made a major contribution to the complex process of penetrating and investigating those groups and their supporters. As a result, many planned acts of terrorism have been disrupted.

This co-operation, and experience gained over many years, provided the ideal framework when the Security Service took on its new role in 1992 in intelligence work against Irish Republican terrorism on the mainland.

Over the past two years a series of complex and long running intelligence operations mounted jointly by the Security Service, the Police and others, has produced very significant dividends, not all of them visible to the general public.

I hope, of course, that, following the IRA and "Loyalist" ceasefires, operations against terrorists of this sort will never again be needed. But, although these developments are very welcome, after so many years of violence we must remain cautious.

---

Special Branches

The relationship between the Security Service and the Police Service, and Special Branches in particular, will remain of the greatest importance. This is despite the rapid changes of recent times, and whatever the longer term developments in Northern Ireland.

The new "Guidelines on Special Branch Work in Great Britain" which were published yesterday, re-emphasise that - and I quote: "Special Branches make a crucial contribution to the protection of national security, including in particular, counter-terrorist work, through their close co-operation with the Security Service".

The new guidelines highlight the changes in the balance of the threats to national security, and also in the environment in which the Security Service and Special Branches are now working. They set out in detail the central areas in which we are working today:

• espionage;
• proliferation;
• subversion; and
• terrorism.

The most effective means of disrupting terrorists is to arrest and then prosecute them. The guidelines clarify that, in an investigation into a terrorist crime, the Special Branch will act as liaison between the Police, who are responsible for co-ordinating the intelligence operations.

Each Special Branch will, of course, have its own profile and function within its individual force area to reflect local conditions and priorities. But, while the integration of Special Branch officers into their own forces is crucially important, there must be arrangements which allow them to respond flexibly and effectively to the demands of their national security role.

That flexibility is absolutely dependent on the highly developed skills which Special Branch officers have built up over many years. These skills are a national resource gained through hard-won experience, particularly in counter terrorism. In a climate which - rightly - focuses on cost effectiveness and performance, it is an area of work which is difficult to measure. But we should recognise the huge contribution which those police officers have made to the protection of national security.

---

Counter terrorist arrangements

The revised arrangements for countering Republican terrorism on the mainland have proved effective. Relations between the Security Service and police forces, including the Metropolitan Police, are closer than ever.

But, all those of us who are professionally involved know only too well that we are never going to be able to achieve absolute success. The mortar bombing of Heathrow, and the attacks on Jewish and Israeli targets in London earlier this year were stark examples of incidents which we were not able to prevent.

But, even in cases such as these, co-operation between the police and the Security Service, and the combination of our respective skills, can often lead eventually to the identification of those responsible.

Recent experience has shown that a large number of agencies and organisations can co-operate effectively. But, despite this evidence of success, there have been suggestions that what is needed in the UK is a single, unified and dedicated counter-terrorist structure. I do not agree.

In the United Kingdom the arrangements for counter terrorism have been reviewed and adjusted on a number of occasions in response to the changing focus of the threat, whether it originates at home or from overseas. The range of measures which is now in place is based on the premise that terrorism is not only a criminal and legal problem, but also a political one.

It is a problem which, in a democratic society, cannot be dealt with by "security" measures alone. The cease-fires in Northern Ireland have been brought about by political progress which has been achieved in the context of a wider counter terrorist strategy.

The Government's approach to terrorism is constructed from a number of stands, none of which can be viewed in isolation. They include:

• a clear legal framework;
• a skilled and appropriately researched police force to enforce the law;
• protective security measures to reduce the vulnerability of targets; and
• initiatives which aim to isolate terrorists by addressing the underlying political or constitutional issues and thereby promoting stability.

Each of the elements in this counter terrorist strategy is, to a greater or lesser extent, underpinned by intelligence.

In practice, most of the models for a so-called "national" counter terrorist unit focus narrowly on domestic law enforcement issues. These models either ignore the other relevant elements, or they have the effect of trying to merge them in ways which would dilute their impact significantly.

The counter terrorist arrangements in this country draw together the work of four or more Government departments and the Police, Customs and Excise and the Crown Prosecution Service, the armed services and the intelligence agencies, among others. Each of these groups makes an important and different contribution to the overall effort based on its distinctive role and expertise. The balance of each contribution will vary as the situation changes.

Our system for countering terrorism may be complex but this does not mean that it is either ineffective or inefficient. The real question is, does it work? I believe it does. In theory, a national counter-terrorist structure offers the seductive prospect of greater coordination, improved strategic direction and control, and simplified lines of authority.

But, the coordination and focusing of the necessary expertise - whatever the context - is not necessarily improved by centralisation. We need - and, I submit that we have - a structure which permits each agency and department to "add value" to the whole without the risk of eroding specialist skills, or losing flexibility where those skills need to be turned to other work.

The Police and the Security Service have shown clearly over recent years that they can provide one another with mutual assistance and support. Criminal investigations can be a valuable focus for intelligence work and, equally, intelligence can be converted into evidence. The two organisations complement one another both in their objectives and in their separate operations.

Some people have suggested that the sole priorities for the Police should be to gather information, make arrests, produce evidence in court, and obtain convictions. They also see the Security Service as being concerned only with obtaining secret intelligence, built up covertly over the longer term, in order to provide an analysis of the target.

It is wrong - and misleading - to attempt to manufacture too sharp a distinction between information and intelligence. Along with its aim of countering threats to national security, the Security Service is fully committed to supporting the Police in detecting and preventing crime, and preserving law and order. And, as part of our work to counter such threats, we will, where appropriate, use our intelligence resources to collect evidence in support of a prosecution.

---

The Security Service and the criminal justice process

It is principally in relation to its counter terrorist work that the Security Service has become increasingly engaged in proceedings before the courts. In the past, members of our staff did, occasionally, give evidence in court, mostly in cases of espionage. But, over recent years, the Service's position in relation to the law has evolved, and, at the same time, become more complex.

Three main factors have contributed to this change:

• the impact of changes in the law, particularly relating to disclosure;
• direct exposure to the judicial process as the result of a higher profile role in Irish counter-terrorist work; and
• increased accountability, principally through the Security Service Act.

This involvement in the process of criminal justice has meant that the Service has had to address three major issues:

• First, to what extent is it desirable to reveal in public detailed information about the operations of the Service which has never previously been released?
• Second, how is the Service to ensure that sensitive sources of intelligence, the techniques used to acquire it, and the security of the staff involved, are properly protected while, at the same time, preserving the interests of justice?
• And third, how are Security Service operations to be conducted so as to ensure that intelligence can, if necessary, be admitted as evidence in criminal proceedings?

We have dealt with this last question, the admissibility of intelligence as evidence, by tightening even further the rigorous controls and procedures which the Service has in place for gathering, recording and collating intelligence.

We have also enlarged and strengthened links between the Service and the various law enforcement agencies. In preparing evidence, of course, we draw heavily on advice from the Police, the Crown Prosecution Service and Crown Counsel.

But the other problems - openness and the protection of sources - relate to the question of disclosure. This have never been a straightforward matter, as I hardly need to say to an audience of this kind. But in recent years it has become even more complex.

---

Disclosure

The Court of Appeal has clearly defined the Crown's duty to make relevant material available to the defence in criminal proceedings (Notes 1,2). However, the courts have long recognised that the duty of disclosure must also be balanced against the need to protect sensitive information, disclosure of which could damage important aspects of the public interest, such as national security.

The vehicle for striking this balance has traditionally been the doctrine of Public Interest Immunity. Public Interest Immunity has been the subject of a lot of debate recently, and it is, of course, one of the matters being addressed by the Scott Inquiry.

But, under the current system, following a decision by the Court of Appeal in 1993 (Note 3), the Crown shows sensitive material ex parte to the judge, that is without the defence being present. The judge then conducts a balancing exercise (Note 4), weighing the public interests as asserted by the Crown against the interest of the administration of justice.

This system allows Public Interest Immunity to be claimed for sensitive Security Service material relating to national security. This is to protect vulnerable sources and techniques used by the Service, which may include agents, surveillance, or eavesdropping operations and clandestine searches carried out under Home Office warrant authorised under the Security Service Act.

In each case, the decision on disclosure rests with the judge. The aim is to ensure that the defence may obtain as much material information as possible within the constraints of the requirements of national security. For example, the Crown may be prepared, subject to the judge's view, to edit documents to provide a precis of them so that the defence can be made aware of their general content.

Rulings by the judge in favour of non-disclosure are only provisional, since each is subject to developments during the trial, and the possibility of subsequent appeal. In some cases an unfavourable ruling by the judge may cause the prosecution to be discontinued because the material information is so sensitive that it is not possible to disclose it in any form.

So, when the Security Service plans and carries out intelligence investigations which may lead to prosecution, we must bear constantly in mind the issues of relevance, evidence and disclosure. Sometimes this acts as a constraint on our investigations. There is an inherent uncertainty in judging in advance how the courts may view individual operations and methods which we regard as sensitive. Many such sensitive techniques have to be protected at all costs because they cannot be replaced.

This sometimes means that we are unable to use the most effective investigative methods in cases which may result in prosecution. Nevertheless, the Security Service fully accepts the new requirements of the criminal justice system in this area.

In an investigation what this means in practice is that a team consisting of security service operational officers, evidence officers, security officers and legal advisers must work closely together with members of the law enforcement agencies.

Eavesdropping operations under warrant are carried out with the intention of disclosing the contents of the conversations which have been overheard but not the details of the equipment used to obtain them.

Agents within target organisations are run according to strict internal Service guidelines to counter the defence that they have been deployed as "agents provocateurs", or that they have "planted" incriminating material.

To help sustain our arguments in ex parte hearings, and for proper internal control, the Service keeps detailed records of all its operations, including all meetings with agents, eavesdropping, search and surveillance operations.

In court proceedings these records may have to be supported by oral evidence which is subject to cross-examination. The judiciary must be confident that the Service will respect fully the obligation to disclose all relevant material.

Disclosure is a complicated matter. The Security Service is still learning. But the strategy of producing evidence for the prosecution, and material to assist the defence, while simultaneously protecting sensitive sources and techniques, has so far borne fruit in a number of trails; but there are no guarantees of success.

It is a strategy which has been developed through experience over recent years. The main objective is to bridge the gap between secret intelligence which may be available in advance about offences which are being planned, and the investigation of offences after they have been committed. The strategy brings together the complementary skills and distinctive qualities of a number of agencies.

In the UK the immediacy of the terrorist threat in recent years has focused attention on the potential for integrating secret intelligence into the judicial process. The question now arises - should a Security Service, which operates in secret, play any part in the prosecution of those responsible for such crimes? That, is a question of oversight and accountability.

It is almost inevitable that national security intelligence work which is based on the use of covert sources and techniques will involve some infringement of the civil liberties of those who are under investigation. In a democratic society external controls and oversight must guarantee that the Security Service acts proportionately and within the law.

---

Accountability

In the United Kingdom, the Security Service Act of 1989 provided for the first time a statutory framework for the Service. That legislation meant that, with greater confidence than before, the Service was able to reveal more in public about its role and responsibilities.

The Act sets out a framework for accountability through Ministers. This includes a system of warrants to authorise operations which may require interference with property.

On the issue of civil rights the Security Service Commissioner and Tribunal, established under the Act, determine where the balance lies. These bodies can scrutinise the work of the Service in detail if there should be a complaint.

As Director General I have a statutory responsibility for the efficiency and for the proper operations of the Service. We have in place arrangements which dictate that everything we do falls fully within our functions, and that the balance of civil rights is respected.

Three basic principles guide our work:

• the rule of law is paramount;
• methods of investigation must be proportionate to the threat, and respect individual liberties; and
• the more intrusive the means of investigation, the higher should be the level of authorisation for its use.

The Security Service adheres strictly to those principles, and it goes without saying that we wholeheartedly support the mechanisms for independent oversight. The procedures in place ensure that the Service has to account fully for everything it does.

---

Conclusion

As the Security Service undertakes new roles, the relationships between the Service and the Police, and with Special Branches in particular, have also developed to reflect changing threats and new circumstances.

We are different organisations, with clearly defined roles and functions, and of course, with distinct views. Nevertheless, both organisations regularly demonstrate that they complement one another in their approach to common problems. We have, together, achieved considerable success.

When Vernon Kell, the first Director General of the Service, set out on his initial tour of police forces in 1910 to investigate foreign espionage, he carried with him a letter of introduction addressed to chief police officers and signed on behalf of the Home Secretary of the day, Mr Winston Churchill.

That letter concluded: "Mr Churchill desires me to say that he will be obliged if you will give Captain Kell the necessary facilities for his work".

I am glad to say that, over the years, we have received every such "facility". We have drawn heavily on police experience and knowledge and have derived great benefit from it. The future will undoubtedly bring further pressures on our collective resources. I feel sure that, working together, our response to those pressures will be successful.

Notes

(1) R v Ward (1993) 2 All ER 577.
(2) R v Kean (1994) 2 All ER 478 CA.
(3) R v Johnson; Same v Davis; Same v Rowe, (1993) 2 All ER 643.
(4) R V Governor of Pentonville Prison and others, Ex parte Osman (No 4), The Times, 29 November 1990.