QB-2022-000174 - [2025] EWHC 1669 (KB)

This judgment addresses serious issues which have arisen in two sets of High Court proceedings. Both proceedings relate to the activities of a man, “X”, who—it can now be confirmed—was a covert human intelligence source (a “CHIS” or “agent”) for the Security Service (“MI5”).

In late 2021, following an investigation led by the journalist Daniel De Simone, the BBC proposed to broadcast a programme which included the allegations that X was a dangerous extremist and misogynist who physically and psychologically abused two female partners; that he was also an MI5 CHIS; that he had told one of these women (“Beth”) that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS. The BBC intended to name X.

In early 2022, the then Attorney General (the Rt Hon. Suella Braverman MP) filed a claim in what was then the Queen’s Bench Division of the High Court seeking an injunction to prevent the BBC from broadcasting or publishing a story about X. The case was managed and heard by Chamberlain J. Special advocates were appointed to represent the BBC’s interests. After an interlocutory hearing on 16 February 2022, a declaration under s. 6 of the Justice and Security Act 2013 (“the 2013 Act”) was made and directions given for a public hearing: [2022] EWHC 380 (QB). After a hearing on 1 and 2 March 2022, an interim injunction was granted preventing the BBC from identifying X but allowing it to report on other aspects of the story, including the fact that X abused his CHIS status and that MI5 was at fault for using him as a CHIS: [2022] EWHC 826 (QB), [2022] 4 WLR 74.

In a further judgment on 18 May 2022, outstanding issues as to what could and what could not be broadcast were resolved: [2022] EWHC 1189 (QB). Shortly after that, between 19 and 22 May 2022, the BBC broadcast programmes and published stories on its website about X, without naming or identifying him. On 30 September 2022, the court made a consent order granting a final injunction in the same terms as the interim order made on 7 April 2022, but giving the parties permission to apply to vary it if there was a material change of circumstances.

In support of the claim for an injunction in January 2022, evidence was given by a senior MI5 officer (“Witness A”) that, throughout its dealings with Mr De Simone, MI5 had adopted its usual “neither confirm nor deny” (“NCND”) stance as to whether X was a CHIS. MI5 affirmed this evidence, and added further detail, in response to enquiries from the special advocates. This had important implications for the way in which the proceedings were conducted. Each of Chamberlain J’s public judgments and orders was drafted so as not to reveal whether X was, in fact, a CHIS.

The Attorney General (now, the Rt Hon. Lord Hermer KC) admits that Witness A’s evidence was false and that the court and the special advocates were misled. In fact, another individual (“Officer 2”), who at the material time was head of communications at MI5, had been authorised to tell Mr De Simone that X was a CHIS and had done so in a series of conversations in June 2020. This came to the court’s attention only because Mr De Simone later produced notes and recordings of the relevant conversations. By that time, however, Witness A’s false evidence had also been relied upon by MI5 in proceedings brought by Beth in the Investigatory Powers Tribunal (“IPT”) and in a judicial review claim in the High Court challenging an interlocutory ruling by the IPT in June 2024: [2024] UKIPTrib 3. So, Witness A’s false evidence misled both the High Court (in two separate sets of proceedings) and the IPT.

In January 2025, the Attorney General and MI5 accepted that false evidence had been given, apologised to the court and set out the steps being taken to investigate how this had occurred. In February 2025, the injunction was varied by consent to allow the BBC to report on the fact that, and the circumstances in which, false evidence had been given. At the same time, directions were given for the parties to file evidence and submissions and a hearing was fixed before this divisional court to consider two issues:

Very shortly before the hearing before us, the Attorney General indicated in a written submission that, in the exceptional circumstances of this case, he no longer seeks to maintain NCND as to X’s CHIS status. The use of NCND in these proceedings, and its maintenance until the very last minute, raises wider concerns and in any event forms an essential part of the backdrop to issue 1. We therefore invited the parties to file submissions and refer us to the relevant authorities.

Issue 1 remains live, because giving false evidence in a witness statement can in some circumstances amount to a contempt of court. Where the court considers that a contempt “may have been committed”, CPR 81.6 requires the court to consider of its own initiative (i.e. even where no party has made an application) whether to proceed against the person concerned in contempt proceedings.

MI5 has apologised to the court in statements from Witness A and Witness B, its Director General Strategy. It has also commissioned two investigations into the circumstances. One is an internal investigation which has involved many hours of interviews and which has reported to an internal panel, which may decide to take disciplinary action against individuals. The second is an external investigation by Sir Jonathan Jones KC (hon). We have seen the OPEN and CLOSED versions of Sir Jonathan’s investigation and the documents from the internal investigation. The essential conclusion reached is that false evidence was given because of a series of mistakes, some systemic and some personal, but that there was no deliberate attempt by any MI5 staff member to mislead the court.

The apologies were repeated in submissions made on the Attorney General’s behalf by Sir James Eadie KC, who also made clear that if the court considered further action necessary, such action would be taken and that if the court required further information, that would be provided.

Our conclusions may be summarised as follows: