Counter-terrorism overseas: Adebolajo report makes uncomfortable reading for MI6 – Marina Wheeler QC

14 November 2016 by

Image result for MI6Oversight of the Intelligence Services is a matter of enormous public importance, as counter-terrorism powers are enhanced to combat a pernicious and persistent threat.

A recent Report by the Intelligence Services Commissioner, Sir Mark Waller, assisted by Oliver Sanders of these Chambers, dispels some misconceptions about contact between the intelligence services and Michael Adebolajo, one of 2 men convicted of murdering Fusilier Lee Rigby[1]. It also shines a light on how HMG applies its policy on the treatment of detainees held overseas – in Adebolajo’s case, by a Kenyan partner counter-terrorism unit in 2010. Not all of the Report’s findings make comfortable reading for the Intelligence Services.

HMG’s policy was, and remains, never to assist, condone, encourage, solicit or participate in any form of mistreatment of detainees. The 2010 Consolidated Guidance to Intelligence Officers on the Detention and Interviewing of Detainees Overseas[2], is intended to guide UK personnel who work with overseas agencies where, by definition, they are unlikely to be in total control of the situation in which detainees are held.

The Guidance requires UK personnel to consider whether a detainee may be or may have been mistreated, or subject to unlawful detention, on each occasion they seek to pass or receive intelligence relating to the case, or where they solicit detention by a third party. It also sets out the process to be followed where officers assess there is a risk of torture or cruel and inhuman or degrading treatment (CIDT).

One of the Report’s key finding relates to Adebolajo’s claims, widely reported in the media, that he was tortured in Kenya, and the related claims of others that he was the victim of a conspiracy by MI6 and MI5 to engineer his arrest and mistreatment, then “rescue” him so as to recruit him as an agent. The torture claims are rejected, and the alleged conspiracy is dismissed as “fanciful, implausible nonsense”.

The Report also disavows the view, expressed by the ISC, that MI6’s response to Adebolajo’s arrest was “passive” and “deeply unsatisfactory”. On the contrary, the disruption of Adebolajo’s travel to Somalia and return to the UK is considered “an effective outcome which served the national security interests of the UK”. The Report observes that had Adebolajo travelled on to join and train with Al-Shabaab, as he was planning to, the outcome (meaning, one assumes, his Islamist-inspired act(s) of terrorism) might have been even worse[3].

However, the Report does identify serious procedural failings in the application of the Consolidated Guidance.

HMG did not solicit Adebolajo’s detention, but it received information from the Kenyan authorities, which brought the case within the scope of the Guidance. In any event, the Report finds, as joint arrest, detention and deportation operations were routine business, HMG should have considered the relevant risks and whether to obtain specific assurances relating to Adebolajo’s detention.

The failure to conduct a contemporaneous investigation into Adebolajo’s allegations of mistreatment was also serious, notwithstanding it would have concluded that they were neither credible nor reliable.

That said, the Report notes that this was an “atypical case which emerged in the middle of a very busy period ” and Sir Mark’s “more general experience”, is that the Guidance “is invariably taken very seriously and followed assiduously” and, indeed, is “embedded in the culture” of the relevant government bodies.

By way of conclusion, the Report recommends that HMG reviews the Consolidated Guidance, particularly its application to on-going partnerships and intelligence–sharing relationships, as opposed to individual cases. Clarification is also required as to its application where there is a risk of unlawful arrest or detention, or procedural unfairness.

The Report commends the work of the Intelligence Services and acknowledges tension between operations which are necessarily conducted in secret, and the requirement for effective oversight. However it singles out MI6’s approach to the inquiry as displaying a mind-set which was defensive, dismissive and focused on rebuttal rather than engagement:

 “I consider that the intelligence services have a duty to work with persons reporting on them such as myself and adopt a constructive and expansive approach to their investigations which answers the spirit, as well as the letter, of questions and which seeks to illuminate the surrounding landscape and other possible lines of inquiry. I believe [M16] takes such an approach when I carry out my inspections, but that it has failed to act in the same way when engaging with the ISC inquiry and with my review”.

Although it may not be universally welcomed, the Report is admirably clear and constructive. It finds no evidence of complicity in any mistreatment of Adebolajo, but recommends that MI6 improve its engagement with oversight investigations. As the Report notes, “demonstrably effective oversight mechanisms are essential to trust and confidence in the services themselves”. They also encourage improvement, and better performance of the difficult but vital functions with which the Intelligence Services are entrusted.

[1] In November 2014, a Report by the Intelligence and Security Committee of Parliament (“ISC”) concluded that the Intelligence Services could not have foreseen or prevented Lee Rigby’s murder, but expressed concerns about their response to Mr Adebolajo’s arrest and detention in Kenya and to his allegations of mistreatment.

[2] Its full title is Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas and on the Passing and Receipt of Intelligence Relating to Detainees (dated 6 July 2010).

[3] Recent attacks by Al-Shabaab include the atrocities at the Westgate Shopping Mall, Nairobi in September 2013.

1 comment;


  1. Violet says:

    Considering that is just a report we have to consider that there can be some manipulation in it!

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: