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The expansion of intelligence agency mandates: British counter-terrorism in comparative perspective

Published online by Cambridge University Press:  28 October 2009

FRANK FOLEY
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Abstract

The UK's domestic intelligence agency, MI5, has become increasingly involved in the realm of law enforcement over the last decade. This article puts the British experience in perspective by comparing it with France's main domestic intelligence agency, which has pushed deep into the law enforcement arena in recent years. A similar perception of Islamist terrorism underpins these parallel developments in the two countries. However, differences relating to accountability, legal systems and conceptions of the state mean that the French intelligence agency has expanded its role considerably more than its British counterpart. The analysis indicates that MI5's move into law enforcement is likely to remain a relatively conservative one.

Information

Type
Research Article
Information
Review of International Studies , Volume 35 , Issue 4 , October 2009, pp. 983 - 995
Copyright
Copyright © British International Studies Association 2009

Introduction

The role of intelligence agencies in the UK and other countries has expanded considerably over the last decade. Alongside its traditional intelligence-gathering role, Britain's MI5 has been increasingly providing evidence for trials, thus becoming more closely involved in the law enforcement sphere. While this development began in the 1990s, it has been reinforced since 9/11 by the particular challenges of investigating Islamist terrorism. Similar moves have been made by other European intelligence agencies in the context of similar perceived threats from Islamist militancy. This article compares the British response with that of France, which has one of the most experienced and developed counter-terrorist regimes on the European continent.

French domestic intelligence has gone even further than its British counterpart into the law enforcement sphere over the last decade. What accounts for these different degrees of expansion into law enforcement? I argue firstly that British intelligence is subject to a higher level of political accountability and a stricter definition of mandates than the French security agencies. Secondly, the French civil law system and statist tradition have also provided a relatively permissive environment for the domestic intelligence agency to greatly expand its work in the law enforcement arena. The English adversarial legal system and certain anti-statist traditions in the UK have placed limits on any parallel developments in British counter-terrorism.

These differences have considerable implications. The analysis indicates that Britain's more restricted approach to intelligence agency involvement in law enforcement and judicial matters may undermine its ability to convict and imprison terrorist suspects. On the other hand, the French approach increases the likelihood of evidence being manipulated and tends to fuel counterproductive inter-agency rivalries – two problems that the UK has largely avoided.

To understand the significance of these developments, it is important to first consider a key distinction between the two modes of information-gathering discussed in this article. Intelligence work can take any source into account and it can be of varying degrees of reliability. Law enforcement investigations, on the other hand, are geared towards the gathering of evidence, which must meet certain standards of reliability in order to be admitted to a trial court. This article outlines the British and French domestic intelligence agencies' respective involvements in the law enforcement arena. It then examines why British intelligence takes a more conservative approach in this domain and discusses the implications for the UK's ability to combat terrorism.

The expansion of MI5's role

While MI5's move into the law enforcement realm began in the 1990s, it only really took hold in the current decade. The expansion of their role in this respect has been underpinned by what may be called a preventive logic of counter-terrorism. This section outlines how both Britain and France adhere to this logic and shows how it has influenced intelligence reform in the British case.

Traditionally focused on threats to national security posed by foreign states and terrorist groups, MI5's mandate was extended by the British government in 1996 to include the development of intelligence on serious crime. The first stimulus for MI5's move into the law enforcement arena, this led to the agency's officers testifying anonymously in court and providing intelligence material as evidence for trials.Footnote 1 Thus, MI5 began to gather some forms of intelligence in a way that enabled the information to be converted into court-admissible evidence.Footnote 2 This change in its procedures was reinforced and intensified after 2001 by the perceived rise of Islamist terrorism and, in particular, by the specific investigatory challenges posed by this threat. Facing a similar threat, the French DST intelligence agency also reformed its procedures and moved into the realm of law enforcement. To understand how the rise of Islamist terrorism underpinned these parallel developments in the two states' intelligence agencies, we first need to analyse their threat perceptions.

Counter-terrorist officials in Britain and France have a similar perception of the Islamist terrorist threats to their respective homelands. They both assess Islamist terrorists as having the capability to access or manufacture conventional explosives material, and they predict that the militants are likely to successfully deploy some form of unconventional weapon in the future.Footnote 3 Officials in both states perceive the intentions of the Islamist terrorists facing them as hostile and unrestrained. For example, Peter Clarke, the head of the London Metropolitan Police's terrorism investigations branch between 2002 and 2008, said: ‘Suicide has been a frequent feature of attack planning and delivery. There are no warnings given and the evidence suggests that on the contrary, the intention is frequently to kill as many people as possible’.Footnote 4 Similarly, France's national counter-terrorism doctrine indicates how French officials are concerned that the ‘trademark’ of Islamist terrorism is ‘the use of simultaneous explosions’ with its ‘top priority [being] to cause as many immediate casualties as possible’.Footnote 5

Britain and France both regard terrorism as a crime. Yet the conventional logic of criminal investigations is that a crime takes place and then the police investigate it after the fact. However, with a common perception of Islamist militancy as a form of terrorism that seeks to maximise casualties, the expectation on the police and intelligence services has not been to investigate terrorist crimes but to prevent them from happening in the first place. Officials from both the British and French counter-terrorist agencies say that this characteristic of Islamist terrorism has led them to change from a conventional crime-solving approach to what may be called a preventive logic.Footnote 6 In operational terms, this means arresting terrorist suspects earlier in a given inquiry. In terms of the law, the preventive logic means making it an offence to ‘prepare’ or ‘participate in’ terrorist activity, broadly defined. As the indications of such ‘preparation’ are less substantial than is the case after a fully implemented attack, the agencies need to make extra efforts to gather sufficient evidence to convict suspects in court. Thus, in terms of the planning of counter-terrorist investigations in both France and Britain, the preventive logic has implied that the gathering of court-admissible evidence starts earlier in the investigative process at the stage during which intelligence is still being gathered.

This can be seen in the British case in two related developments. Firstly, the need for earlier evidence-gathering has led MI5 to intensify its move towards collecting intelligence in ways that enable it to be converted into court-admissible evidence. Peter Clarke has spoken of a shift in the way that MI5 collects information on terrorism since the September 11 attacks on America.Footnote 7 This view was corroborated by another Metropolitan Police officer. ‘After 9/11’, he said, ‘of necessity, the Security Service [MI5] were beginning to have to conduct this stuff in an evidential way, having to keep logs etcetera. It was no good not recording what was happening. You'd have to evidentially bind that down’.Footnote 8 For example, recordings made by MI5 and the police with bugging devices in February 2004 were later heard in a prominent court case and were important for the conviction of five suspects.Footnote 9 MI5 agents also gave evidence in court in some terrorism cases, sitting behind screens in order to protect their identities. Usually, they attended in order to testify that they monitored a suspect at a certain time and place, or that they saw him meeting with another suspect.Footnote 10 Indeed, MI5' resources for seeking legal advice were increased in the context of its greater involvement in evidential issues.Footnote 11 Stepping up its activity in the law enforcement arena, MI5 is increasingly equipped for providing court-admissible evidence in terrorism trials.

The second development stimulated in the UK by the preventive logic of counter-terrorism was a change in the way that MI5 works with the police. Until 2006, two specialist units of the London Metropolitan Police shared responsibility for counter-terrorism. Special Branch gathered terrorism intelligence, while the Anti-Terrorist Branch carried out law enforcement investigations into terrorism and had a mandate that covered all of Great Britain.Footnote 12 During the years of the IRA terrorist campaign, intelligence gathering was usually done first, before later giving way to law enforcement and the assembly of a case of evidence. In many cases, the intelligence agencies only briefed the Anti-Terrorist Branch about a suspected terrorist plot at a late stage in the conspiracy.Footnote 13 This ‘wait-and-see’ approach gave the police the opportunity to gather the strongest possible evidence – to capture the terrorist with the bomb or the gun. However, many plots were not prevented, meaning that evidence-gathering often only begun after an attack had taken place. As one counter-terrorist police official put it, ‘An Anti-Terrorist Branch officer had no real expectation to be involved before the bomb went off’.Footnote 14 The wait-and-see approach was tenable, according to Peter Clarke, the former head of the Anti-Terrorist Branch, because the IRA ‘operated within a set of parameters’. IRA operatives ‘had no wish to die’ and they often issued warnings prior to bombs being exploded which, though ‘cynical’, did have the effect of ‘restricting casualties’, he said.

Clarke believed, however, that mass-casualty Islamist terrorism was ‘the reverse of many of these characteristics’. This change in the nature of the terrorist threat ‘has changed everything’ in how the security agencies work together to counter it, he said. Given that arrests and evidence-gathering needed to take place earlier in a given inquiry, MI5 began to work earlier and more intensively with the law enforcement officers of the Anti-Terrorist Branch (ATB). As Clarke put it, the ATB began to ‘work [with MI5] in every case from a much earlier stage than would ever have happened in the past’.Footnote 15 Another police officer added that ‘the senior [ATB] investigating officer would have access to the intelligence’ now to a greater extent than in the past.Footnote 16 ‘Operation Crevice’ in 2004 was a significant example of police ATB being involved at an earlier stage of an investigation as it worked with MI5 to gather intelligence and court-admissible evidence for at least two months before the suspects were arrested.Footnote 17

In the past, MI5 concerned itself less with converting intelligence into evidence, Metropolitan Police Special Branch effectively covered this area, while the police ATB usually only came in at the end of the intelligence inquiry. After 9/11, however, according to one police officer, as MI5 increasingly concerned itself with evidence questions and as the police ATB began to have greater and earlier access to intelligence, the question was asked, is there still a need for Special Branch to play its role as an intermediary between the two?Footnote 18 The answer was no and the Metropolitan Police decided in 2006 to merge Special Branch with Anti-Terrorist Branch into a reformed division called the Counter Terrorism Command. The new command is said to bring together in one agency the traditionally distinct métiers of the two old branches: intelligence work and law enforcement.Footnote 19 This development is consistent with other changes, introduced by the British Government, which have expanded MI5's role (particularly in counter-terrorism) at the expense of the police Special Branches, which still exist in the 51 provincial police forces around the UK. This trend began in 1992 when MI5 took over from Metropolitan Police Special Branch the lead role for intelligence gathering on Irish terrorist groups active in mainland Britain. Crucially, in 2004, the government gave MI5 funding to almost double its personnel from 1,900 to 3,500 over a four year period and to set up regional bases around the UK.Footnote 20 The additional funding given to the Special Branches was not of the same order. Indeed MI5's work in the regions sees it expand into an area which has traditionally been the preserve of the Special Branches. MI5 is growing and is increasingly involved in the law enforcement realm, providing evidence for trials. How much further could this expansion of the agency's mandate and activity go? A comparison with the French case sheds light on this question.

The case of the French DST

France has a number of security agencies with overlapping mandates in the areas of domestic counter-terrorist intelligence and law enforcement. However, it is a cadre of judicial actors, called investigating magistrates, which stand at the centre of French counter-terrorism, the most famous of whom has been Judge Jean-Louis Bruguière. Under the French civil law or inquisitorial legal system, these magistrates direct the police's investigations into terrorism.Footnote 21 In the UK, the police themselves have the lead on law enforcement and the English common law system has no direct equivalent of the French investigating magistrate. Apart from working closely with police agencies, the investigating magistrates also have the power to choose which agency does the law enforcement investigation on a particular case.

Contemporary Islamist terrorism manifested itself in France in the mid 1990s, when the Algerian Groupe Islamique Armé (GIA) and its sympathisers established cells and carried out a series of terrorist attacks in 1995. However, the catalyst for change in French counter-terrorism was actually an upsurge in Corsican militancy in 1998 which completely occupied the resources of the national police's terrorism investigations unit. In these circumstances, investigating magistrates decided to work directly with a domestic intelligence agency, the Direction de la Surveillance du Territoire (DST), and, crucially, to give law enforcement investigations into Islamist terrorism to that agency.Footnote 22 While the DST traditionally had both intelligence and law enforcement competences, the latter was rarely used in practice. After 1998, however, the DST was not only the main collector of intelligence on Islamist terrorism, but it also took over the responsibility of law enforcement in this area. The agency strengthened its hold over this new terrain that same year by creating a unit dedicated to law enforcement investigations – the Unité Enquete Judiciare.Footnote 23 Over the last decade, the DST intelligence agency has arrested Islamist terrorist suspects in large numbers and worked with investigating magistrate on the preparation of evidence for court in many cases.

While this expansion of the DST's mandate and activities owes much to the particular circumstances of 1998, it was also underpinned by French officials' threat perceptions. These perceptions were shaped by France's experience of a plane hijack by the Algerian GIA in 1994 and the repeated detonation of bombs without warning in the 1995 attacks. Since that time, French officials have perceived the intentions of the Islamist terrorists facing them as unrestrained and focused on maximising casualties.Footnote 24 This perception, which has been reinforced by 9/11 and the evolution of Islamist terrorism since then, has led French officials to adopt a preventive logic of investigations. That logic, which implies earlier arrests and evidence-gathering, can be seen in statements by counter-terrorist officials, who say that giving law enforcement tasks to an intelligence agency has enabled them to gather judicial or court-admissible evidence at an earlier stage of an inquiry. ‘We can pass fairly easily from intelligence to the judicial part,’ said an investigating magistrate. ‘It's a great advantage of efficiency […] because [it allows] an intelligence agency working under cover to take its judicial police “hat”, do a proces-verbal (report for a magistrate) and then [immediately] we can go to arrest the people very well’.Footnote 25 In this context, the investigating magistrates gave the DST almost all of the law enforcement investigations into Islamist terrorism after 1998 and they progressively excluded the police from cases in this area.Footnote 26

In France, as in the UK, an intelligence agency is providing evidence for trials. However, the French DST has gone further than its British counterpart in that it has taken over many core counter-terrorist law enforcement tasks that used to be done by the police. Could this also happen in the UK? John Alderson, a former Chief Constable of Devon and Cornwall and an author on policing issues, feared some such expansion of intelligence service activity when MI5 first moved into the area of criminal investigations in 1996. ‘It is fatal to let the secret service into the area of ordinary crime’, he warned, ‘[…] it is there for future governments to build on’.Footnote 27 Similar to the French DST, MI5's move into law enforcement is today underpinned by, and can be justified as, a necessary response to the particular investigatory challenges posed by Islamist terrorism. So, in this context, could MI5 go further into the realm of law enforcement like the French DST has?

Why the French go further than the British

Close attention to the different institutional characteristics of the two cases indicates that what has happened in France is unlikely to happen in Britain. In the French case, two factors have been crucial for the DST's deep advance into the realm of law enforcement; the first is a relatively low level of accountability and the French authorities' loose approach to mandates, while the second is related to the statist tradition of the French republic.Footnote 28 As we shall now see, the UK differs from France across these two dimensions and this has important implications for the future role of MI5.

With their proliferation of security agencies, the French authorities employ a relatively loose or informal approach to defining the mandates of these agencies. In the area of domestic counter-terrorist intelligence and law enforcement alone, three national agencies and two Paris units with overlapping mandates compete for work.Footnote 29 Until 2008, for example, two national domestic intelligence services, both responsible to the interior ministry – the DST and the Renseigements Généraux (RG) – had mandates which overlapped considerably in respect of counter-terrorism.Footnote 30 The DST's law enforcement mandate on terrorism cases also overlaps with the role of the national police. These loose mandates have been set in a context where the security agencies enjoy low levels of accountability to parliament and even government. For example, the mandates of the DST and RG were set out not in legislation, approved by Parliament, but instead by government decree.Footnote 31 The government itself has also offered a relatively low level of political oversight. In recent decades, it has tended to allow senior police and intelligence officials and – in the case described above – investigating magistrates to drive developments in counter-terrorist intelligence and law enforcement.Footnote 32 Indeed, the magistrates facilitated the DST's advance into law enforcement on terrorism cases against the wishes of the government.Footnote 33 While the election of Nicolas Sarkozy as President in 2007 did threaten to buck this trend, it remains to be seen if the French intelligence agencies will experience any substantial change from the relatively low levels of accountability which they have been accustomed to.Footnote 34

The informal French approach contrasts with the UK's formal and relatively strict policy on defining the mandates of its agencies. While the French DST does both intelligence work and law enforcement tasks such as arresting suspects, in Britain there is a clear demarcation – set out in legislation – between the roles of the police and intelligence agencies. In the UK, the police have a clear lead on counter-terrorist law enforcement. The police alone have powers of arrest and it is a senior police officer who makes the final decision on the timing and extent of arrest operations.Footnote 35 MI5, on the other hand, have had the lead on terrorism intelligence since 1992 when it was given responsibility for monitoring Irish terrorist groups active in mainland Britain. The British intelligence and police services are also subject to more parliamentary and political accountability than their French counterparts. The roles of the intelligence agencies are set out in legislation and parliamentary approval was required for the extension of MI5's mandate into serious crime intelligence in 1996, in which context the government made clear that the service would not be given any powers of arrest.Footnote 36 In terms of executive oversight, the British government's ‘Special Branch Guidelines’ have stated since 1992 that MI5 is the ‘lead agency’ on terrorism intelligence and that the Special Branches' role is to ‘assist’ MI5 in this area.Footnote 37 These guidelines also state that the Special Branches must provide all of their terrorism intelligence to MI5.Footnote 38 A senior counter-terrorist police officer said that this rule is generally respected in practice. ‘All intelligence’ on terrorism and national security goes to MI5, he said, ‘there is no point in one police force developing intelligence […] in isolation […] It has to go to the Security Service [MI5]’.Footnote 39 In sum, Britain's counter-terrorist intelligence and law enforcement agencies have distinct mandates, based on clear rules laid down by the government which specify their respective roles.

The second factor which permitted the DST's deep advance into the law enforcement sphere is France's legal system and statist tradition.Footnote 40 Building on the civil law custom of investigating magistrates directing the police, the ‘anti-terrorist judges’ (as they are known in France)Footnote 41 provide an important corridor of co-operation between the judicial and executive branches. Investigating magistrates are independent of government. However, the positive normative value attached to ‘the State’ and ‘the Republic’ in France has provided conditions in which these magistrates have voluntarily allied themselves closely with the government and its security agencies in the fight against terrorism.Footnote 42 There is considerable trust between intelligence officials and investigating magistrates.Footnote 43 They see each other as being on the same side – part of a team whose goal it is to counter terrorism. As a former magistrate emphasised, people with rather different functions in the counter-terrorist system ‘got to know and have trust in each other. I mean, on a Sunday morning, we did jogging: there were the guys of the DST, of the DGSE (the foreign intelligence service), prosecutors, an investigating magistrate, officials of the Police Judiciaire […] [there] together […]’Footnote 44 In this context, magistrates have been content to facilitate the work of an intelligence agency in the law enforcement sphere. Intelligence officials – rather than fearing contact with the judicial system – have had few qualms about sharing information with investigating magistrates. For example, intercept (material from telephone-tapping) is used as evidence in French courts.Footnote 45 French statism has thus enabled a unity of effort between different branches of the state against terrorism. However, by building trust between intelligence and judicial actors, it has also removed a barrier against the advancement of intelligence agencies deep into the field of law enforcement.

This barrier remains very much in place in Britain. In contrast to French statism, one finds certain anti-statist elements in the British concept of judicial independence.Footnote 46 The government and the judiciary have repeatedly clashed on terrorism and human rights issues in recent years, prompting this memorable statement by Lord Steyn, a member of the Law Lords until 2005: ‘We swear an oath to the Queen as head of state, our duty lies to the public, not the Government. I think in all these complaints about how the judges are not being helpful enough, they must remember we are emphatically not on the same side’.Footnote 47 Under the English common law/adversarial system, no category of judge participates in police investigations or collaborates with security agencies that report to the government. The role of English judges is, rather, to adjudicate on issues at trial and to provide an independent check on the work of police agencies in certain specific instances.Footnote 48 Whereas officials of the French DST have relatively few fears about sharing intelligence with investigating magistrates whom they have got to know personally, the British intelligence agencies see their judicial system in a rather different light. They and the government claim that the adversarial legal system gives English defence lawyers greater rights to probe evidence and seek further information than their counterparts who work in the inquisitorial legal systems of many other European countries.Footnote 49 In this context, British intelligence officials have had more qualms than their French counterparts about releasing certain forms of intelligence material to be used as evidence in court. The most celebrated example of this judicial-intelligence divide has been MI5's reluctance to allow intercept material to be used in court because of fears that this could ‘lead to the exposure […] of their techniques and capabilities’.Footnote 50

In France, the DST has carved out a radically new role for itself in counter-terrorist law enforcement in co-operation with investigating magistrates and without the approval of government. One cannot see how MI5 could do this given the higher level of political oversight which it faces and Britain's traditional preference for a clear distinction between intelligence and police mandates. Moreover, any further advancement by the intelligence agency into the law enforcement realm would entail independent judicial checks (as opposed to the co-operation offered by a French investigating magistrate) and greater exposure to the perceived risks of the adversarial legal system. MI5's interest in such an expansion of its mandate is likely to be diminished by these factors. In sum, the judicial-intelligence divide in the UK, along with political oversight and a preference for distinct mandates, constitute a formidable barrier against any further expansion of MI5's role in the field of law enforcement.

Consequences for British counter-terrorism

We have seen how the French DST has provided evidence for trials and advanced deep into the law enforcement realm over the last decade. While Britain's MI5 has also expanded its role in this area, it has taken a more conservative approach than its French counterpart. This has both negative and positive implications for Britain's ability to combat terrorism. Let us consider three of these in turn.

The negative consequence of the British approach is that, compared to France, it involves relatively limited co-operation between the intelligence sphere and the world of prosecution and justice.Footnote 51 Between 2001 and 2008, the British authorities had a 60 per cent conviction rate in terrorism-related prosecutions.Footnote 52 While they achieved a number of significant convictions, particularly in 2007, they have also suffered high profile reversals, notably in the ricin trial of 2005 and in the liquid explosives case in 2008. Success or failure in such cases partly depends on the authorities' ability to provide compelling evidence of guilt, which will satisfy both juries and the English courts' relatively exacting rules of evidence.Footnote 53 To the extent that the UK fails to make the link between intelligence and justice, it may prove to be a constraint on the authorities' ability to introduce sufficient evidence in court to convict and imprison terrorist suspects.Footnote 54

There are, however, two positive consequences of the British approach to counter-terrorist intelligence and law enforcement, which come into clearer view when compared with France. Firstly, the French – by allowing the DST to do both intelligence gathering and the provision of evidence for trial – open up a greater possibility that evidence will be withheld or manipulated by the intelligence agency. Even investigating magistrates, who are charged with overseeing the DST's treatment of evidence, admit this point.Footnote 55 The British – by allocating these two tasks to two different agencies – have reduced the likelihood of such manipulation occurring. This is not only a fairer procedure, but by helping to maintain public confidence in the legitimacy of convictions and the criminal justice system, it may also contribute to the long term effort to reduce support for Islamist terrorism.Footnote 56

A second negative consequence of the French approach is that it has fuelled rivalries between the intelligence and police agencies in the field of counter-terrorism. After 1998, the DST intelligence agency progressively took over the law enforcement role of the national police's counter-terrorist unit in cases of Islamist terrorism. Not surprisingly, this move was resented by police officials with the result that there is currently little co-operation on counter-terrorism between the DST and national police's counter-terrorist unit.Footnote 57 The British authorities, by contrast, have maintained a clear distinction between the counter-terrorist mandates of their key agencies. While MI5 has had the lead on terrorism intelligence since 1992, the Metropolitan Police on the other hand have retained control of the law enforcement part of terrorism investigations. Both sides have largely maintained their prerogatives and both have an important role to play in Britain's fight against Islamist terrorism. This has been an important condition for the high level of co-operation on counter-terrorism which has developed between MI5 and the Metropolitan Police in the post-9/11 context.Footnote 58

Conclusion

The rise of Islamist terrorism to prominence over the last decade has prompted many Western states to place great emphasis on a preventive logic of counter-terrorism. Most public attention has focused on the implications of this logic for the law (broader terrorist offences) and for counter-terrorist operations (earlier arrests). Less noted but also significant are the implications for counter-terrorist investigations and intelligence agency mandates. With a perceived need to gather court-admissible evidence at an earlier stage of inquiries than was previously the case, the door has been pushed open for intelligence agencies to play a greater role in the law enforcement arena. In Britain and France, there is increasingly close co-ordination between the gathering of intelligence and evidence. Going beyond their traditional competences, intelligence agencies in both countries are now providing evidence for terrorism trials.

Yet the differences between the cases are also revealing. In France, intelligence agencies enjoy loose mandates and a relatively low level of accountability to government and parliament. With an inquisitorial legal system and a positive normative value attached to the state in France, key judicial and intelligence officials work closely together, reducing many of the qualms which the latter may have about sharing sensitive information with the courts system. In these conditions, the DST intelligence agency has made a remarkable advance into the law enforcement field, taking over many of the terrorism cases that used to be handled by the police.

The British intelligence agencies, on the other hand, have more strictly defined and distinct mandates, approved by parliamentary vote, and they have been subject to closer government control than their French counterparts. Indeed, studies of British intelligence accountability could usefully expand their focus beyond the customary comparisons with other Anglophone states, such as the US, Canada and Australia, to include a greater focus on continental European countries.Footnote 59 When compared to the French case at least, the political accountability of the British intelligence agencies appears relatively high. Secondly, the adversarial legal system and certain anti-statist elements in the British concept of judicial independence mean that MI5 sees considerable risk in getting too closely involved in law enforcement. In this context, the intelligence agency has been content to provide evidence for trials without making the kind of deep advance into areas of police responsibility that its French counterpart has. For as long as this judicial-intelligence divide remains and the preference for distinct mandates is maintained, Britain's more conservative approach to intelligence agency involvement in police matters will endure.

References

1 MI5, ‘Evidence and Disclosure’, {http://www.mi5.gov.uk/output/evidence-and-disclosure.html}.

2 M. Jacobson, The West at War: US and European Counterterrorism Efforts, Post September 11 (Washington DC: Washington Institute for Near East Policy, 2006), pp. 44, 45.

3 Interview with a French police counter-terrorist official [FR-E], Paris, 4 July 2006; French Government, France facing Terrorism: White Paper of the Government on internal security in the face of terrorism (Paris: Documentation Francais, 2006), pp. 35–7; Interview with a Metropolitan Police counter-terrorist officer [UK-I], London, 21 November 2005. See also the comments of the then head of MI5, quoted in: ‘MI5 tracking “30 UK Terror Plots”’, BBC News Online (10 November 2006), {http://news.bbc.co.uk/1/hi/uk/6134516.stm}.

4 Peter Clarke, ‘Learning from Experience – Counter Terrorism in the UK since 9/11’, Speech to the Policy Exchange, 24 April 2007, {http://www.policyexchange.org.uk/publications/publication.cgi?id=15}.

5 French Government, France facing Terrorism, pp. 31–2.

6 While prevention has been a key element of British and French counter-terrorist operations and legislation since the 1970s, the perception of mass casualty terrorism has intensified its importance. This is discussed further in Frank Foley, Similar Threat, Different Responses: France and the UK facing Islamist Terrorism, (unpublished dissertation, European University Institute, 2008).

7 Jacobson, The West at War, p. 44.

8 Interview with a Metropolitan Police counter-terrorist officer [UK-E], 17 July 2006.

9 MI5 may admit the results of bugging devices (placed in cars or homes, for example) to court cases. This must be distinguished from telephone taps or intercept, which it does not as yet admit to court. See ‘Fertiliser bomb trial: Bugged Talk’, BBC News Online (30 April 2007), {http://news.bbc.co.uk/1/hi/uk/6466817.stm}.

10 Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. For an example, see, ‘Terror cell bugged, court hears’, BBC News Online (16 May 2006), {http://news.bbc.co.uk/1/hi/uk/4988002.stm}. It should be noted that all of the former officials interviewed for this article were in post until at least 2004 (with one exception: FR-N).

11 Jacobson, The West at War, pp. 43–4.

12 Bradley W. C. Bamford, ‘The United Kingdom's “War Against Terrorism”’, Terrorism and Political Violence, 16: 4 (2004), pp. 741–42; Clarke, ‘Learning from Experience’.

13 Clarke, ‘Learning from Experience’.

14 Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

15 Clarke, ‘Learning from Experience’.

16 Interview with a Metropolitan Police counter-terrorist officer [UK-E], 17 July 2006. See also, Jacobson, The West at War, p. 43.

17 Clarke, ‘Learning from Experience’. See also, ‘Timeline: Operation Crevice’, BBC News Online (30 April 2007), {http://news.bbc.co.uk/1/hi/uk_politics/6207348.stm}.

18 Interview with a Metropolitan Police counter-terrorist officer [UK-E], 17 July 2006.

19 Metropolitan Police Service, ‘New Counter-terrorism Command launched’, MPS Bulletin 514, (2006), {http://cms.met.police.uk/news/major_operational_announcements/new_counter_terrorism_command_launched}.

20 ‘MI5 expands to meet terror threat’, BBC News Online (22 February 2004), {http://news.bbc.co.uk/1/hi/uk/3510611.stm}; Frank Gardner, ‘One year on – Is the UK any safer?’, BBC News Online (3 July 2006), {http://news.bbc.co.uk/1/hi/uk/5140958.stm}.

21 Under the French system, an investigating magistrate carries out an ‘impartial’ investigation and prepares a file on the case, which he eventually passes to the public prosecutor and the defence, who then argue the case at a trial which is presided over by independent trial judges. See Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Oxford: Hart, 2005); and J. Shapiro and B. Suzan, ‘The French Experience of Counter-terrorism’, Survival, 45:1 (2003), pp. 77–8.

22 Shapiro and Suzan, ‘The French Experience of Counter-terrorism,’ p. 82; Interview with a senior counter-terrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; Interview with a French police counter-terrorist official [FR-E], Paris, 4 July 2006.

23 Interview with a former DNAT and DST counter-terrorist investigator [FR-H], Paris, 16 February 2007; Interview with a former senior DST counter-terrorist intelligence official [FR-F], Paris, 30 January 2007.

24 For example, French officials believed that the hijackers intended to crash the plane in central Paris (this did not happen because French Special Forces seized the plane while it was on the ground in Marseille). See Shaun Gregory, ‘France and the War on Terrorism’, Terrorism and Political Violence, 15:1 (2003), p. 131.

25 Interview with an Investigating Magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

26 It was not until 2006 that the national police's anti-terrorist unit began to be given some Islamist terrorism cases once again. See P. Smolar, ‘La création d'un service unique pour renseignement intérieur se precise’, Le Monde (17 May 2006); Interview with a senior counter-terrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; and Interview with Gilbert Thiel, an Investigating Magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

27 J. Alderson, ‘A Fair Cop’, Red Pepper, 24 (1 May 1996), pp. 11–13.

28 For a more theoretically-informed account of these factors, see Frank Foley, ‘Reforming Counterterrorism: Institutions and Organizational Routines in Britain and France’, Security Studies, 18:3 (2009), pp. 435–478.

29 These include the national Police Judiciaire, the Gendarmerie Nationale (a military body with domestic policing duties) and the Direction centrale du renseignement intérieur (DCRI), which was formed in 2008 as a result of the fusion of two domestic intelligence services – the DST and the Renseigements Généraux (RG). See below, n. 34. The Paris police division houses its own section of the RG – the Renseigements Généraux de la Préfecture du Police (RGPP) – and the Section Anti-Terrorist (SAT) of the Paris Brigade Criminelle does law enforcement investigations into terrorism in the capital.

30 See the Decree of 22 December 1982 (DST) and Police Nationale memorandum no.643 of 19 March 1976 (RG), quoted in Nathalie Cettina, ‘The French Approach: Vigour and Vigilance’, in Marianne van Leeuwen (ed.), Confronting Terrorism: European experiences, threat perceptions and policies (The Hague: Kluwer Law International, 2003), pp. 79–80.

31 Brodeur and Dupeyron, ‘Democracy and Secrecy: The French Intelligence Community’, in J. P. Brodeur, P. Gill and D. Tollborg, (eds), Democracy, Law and Security: Internal security services in contemporary Europe (Aldershot: Ashgate, 2003), p. 14.

32 Shapiro and Suzan, ‘The French Experience of Counter-terrorism’, pp. 78–9. Foley, ‘Reforming Counterterrorism’.

33 Interview with a former Investigating Magistrate and Prosecutor and current Member of the French National Assembly [FR-N], Paris, 5 July 2006; Interview with an Investigating Magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

34 Mr Sarkozy pushed through his long-stated policy of merging the RG and DST in 2008, but he was unable to tackle other overlapping mandates, such as the DST's sharing of counter-terrorist law enforcement with the national police.

35 Interview with a former senior counter-terrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005; Second Interview with a former senior UK government official [UK-A], London, 25 January 2007.

36 The main statutes governing the intelligence agencies are the Security Service Act 1989 and the Intelligence Service Act 1994. See Cabinet Office, National Intelligence Machinery (London, TSO, 2006), pp. 3–4. For the Act of Parliament which authorised the extension of MI5's mandate into serious crime intelligence, see the Security Services Act 1996, {http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960035_en_1}.

37 See, for example, ‘UK Special Branch Guidelines’, Statewatch, 4:6 (November 1994), {http://www.statewatch.org/news/2004/mar/special-branch-1995.htm}.

38 Home Office, Scottish Executive and Northern Ireland Office, Guidelines on Special Branch Work in the United Kingdom (March 2004), p. 8.

39 Interview with a former senior counter-terrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005.

40 On French statism and its ‘state-centred conception of justice’, see Robert Elgie, Political Institutions in Contemporary France (Oxford: Oxford University Press, 2003), pp. 71–4.

41 Fédération Internationale de Ligues des Droits de l'homme (FIDH), France: Paving the way for arbitrary justice, Report No. 271–2, March 1999, p.4, {www.fidh.org}.

42 For a profile of a leading magistrate who embodies this phenomenon, see Piotr Smolar, ‘Jean-Louis Bruguière, un juge d'exception’, Le Monde (6 January 2005).

43 Shapiro and Suzan, ‘The French Experience of Counter-terrorism’, p. 83; Foley, ‘Reforming Counterterrorism’.

44 Interview with a former Investigating Magistrate and Prosecutor and current Member of the French National Assembly [FR-N], Paris, 5 July 2006 (emphasis added).

45 Shapiro and Suzan, ‘The French Experience of Counter-terrorism’, p. 83; Interview with Gilbert Thiel, an Investigating Magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

46 On judicial independence in Britain, see David Judge, Political Institutions in the United Kingdom (Oxford: Oxford University Press, 2005), pp. 223–6.

47 R. Verkaik, ‘Judges are not the servants of the government … our duty is to the public’, Independent (10 October 2005). (Emphasis added).

48 This includes search warrants and certain forms of detention. See Lord Carlisle, Report on the operation in 2005 of the Terrorism Act 2000, May 2006, p. 20.

49 Home Office, ‘Frequently asked questions regarding terrorism legislation’, {http://www.homeoffice.gov.uk} last accessed on 14 April 2005, but since removed – print copy in author's possession). See also David Omand, ‘Security Dilemmas’, Prospect, 129 (December 2006), pp. 12–3.

50 This was according to a statement made in 2005 by the Home Office, the government department which oversees and most closely reflects the views of MI5. See Home Office, ‘Frequently asked questions regarding terrorism legislation’. Following a review in 2007–2008, the government decided to allow a minimal admittance of intercept material as evidence to court.

51 While British police and prosecutors have developed closer co-operation on terrorism cases in recent years, the intelligence agency, MI5, is not as closely involved in the prosecutorial-judicial sphere as its French counterparts. For details, see Foley ‘Reforming Counterterrorism’.

52 Home Office, Statistics on Terrorism Arrests and Outcomes, 13 May 2009, p. 5, {http://www.homeoffice.gov.uk/rds}.

53 Jacobson, The West at War, pp. 104–5; S. O'Neill, ‘Trial by jury no longer guarantees justice’, The Times (15 September 2008).

54 The British government implicitly recognised this weak link between intelligence and justice when it considered creating a group of ‘security-cleared’ judges as an attempt to enable more sensitive intelligence material to be admitted to court. The proposal was ultimately not pursued, however. See Joint Committee on Human Rights, Counterterrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HC 1576 (London: TSO, August 2006), pp. 20, 23–4.

55 Interview with an Investigating Magistrate specialised in terrorism [FR-M], Paris, 22 February 2007; Interview with Gilbert Thiel, an Investigating Magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

56 A senior British official said that maintaining public confidence in the impartiality of the justice system was part of the government's CONTEST strategy to undermine support for Islamist terrorism over the long term: Interview with a former senior UK government official [UK-A], London, 4 November 2005. For an argument in support of this position, see Michael Clarke, ‘Haste and Leisure in the War on Terror’, The Guardian (9 September 2008), {http://www.guardian.co.uk/commentisfree/2008/sep/09/uksecurity.terrorism}.

57 French counter-terrorist police officers said that there is little co-operation between them and the DST and they questioned the appropriateness of an intelligence agency doing law enforcement investigations. Interview with a senior counter-terrorist official of the Police Judiciare [FR-O], Paris, 9 February 2007; Interview with a counter-terrorist investigator of the Police Judiciare [FR-G], Paris, 9 February 2007.

58 See Foley, ‘Reforming Counterterrorism’.

59 The richest comparative discussions have tended to focus on Britain and other Anglophone countries. While edited volumes have increased our knowledge of non-Anglophone cases, they are more concerned with drawing general conclusions than comparing the UK to continental European countries.