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

Whilst acknowledging the seriousness of what happened, Sir James submitted that the false evidence given in this case was not determinative of or directly relevant to the question whether the injunction should be granted or continued. This is correct, as far as it goes. The BBC does not suggest that the injunction preventing disclosure of X’s identity should be discharged. Sir James’s submission, however, overlooks three interlocking aspects of the legal context of the proceedings brought by the Attorney General, which, taken together, make the provision of false information by MI5 in this case particularly serious.

First, in all legal proceedings the general rule is that hearings take place in public: see CPR 39.2(1). Any derogation from this general rule must be strictly justified for one or more of the reasons set out in CPR 39.2(3). If there were ever a case in which the open justice principle had heightened importance, it was this one, where the Attorney General was applying, in what she considered to be the public interest, for an order to prevent a publicly-funded broadcaster from disclosing information the publication of which was considered to be in the public interest. This point was made by Chamberlain J in the first judgment in these proceedings: [2022] EWHC 380 (QB), at [18].

The question whether MI5 had adopted a NCND stance in relation to X’s CHIS status was critical to the decision about which parts of the hearing could be held in public.

Secondly, the 2013 Act provides for a “closed material procedure”. This enables the court to consider evidence and submissions in CLOSED, i.e. not only in the absence of the public but also in the absence of one or more of the parties. This derogates both from the open justice principle and, even more significantly, from the principle that every party is entitled to see everything that the court sees and to be present for the whole of the hearing (a fundamental element of natural justice). In the 2013 Act, Parliament allowed departures from these principles in strictly limited circumstances, namely, where it can be shown that there is sensitive material, the open disclosure of which would damage national security. Where a declaration under s. 6 of the 2013 Act is sought, special advocates are appointed to represent the interests of the excluded party. Their presence attenuates, but does not remove, the unfairness inherent in closed material proceedings.

The 2013 Act and the procedural rules which accompany it in CPR Part 82 make clear that declarations under s. 6 are not to be made automatically. Where such an application is made, the court must scrutinise the evidence supporting it with care and keep the declaration under review as the proceedings progress. The same is true of applications to withhold sensitive evidence under s. 8 of the 2013 Act.

The question whether MI5 had adopted a NCND stance in relation to X’s CHIS status was central to the question whether to make a s. 6 declaration and central to the decision about which parts of the evidence could be deployed only in CLOSED.

Thirdly, courts accord special status and respect to national security assessments by the executive branch of government: see e.g. R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7, [2021] AC 765, [70] (Lord Reed); U3 v Secretary of State for the Home Department [2025] UKHL 19, [66] (Lord Reed). The implications and limits of this special status and respect were considered by Chamberlain J in his main judgment in these proceedings: [2022] EWHC 826 (QB), [2022] 4 WLR 74, [28]-[33]. For present purposes, however, the key point is that national security assessments often originate from the security and intelligence agencies. The justification for the respect owed to such assessments is in significant part based on institutional matters including the expertise and experience of the personnel involved and the wide range of sources of information available to them. However, this respect is warranted only if, and to the extent that, the courts can have confidence without reservation in the processes by which such assessments are prepared and presented.