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

On 10 January 2025, the Attorney General filed a further witness statement from Witness A, indicating that there was no objection to the variation of the injunction, as sought by the BBC. The statement also contained a “correction”. At paragraph 7, Witness A said that paragraph 11 of his statement of January 2022 “reflected my understanding of the position regarding the discussions in June 2020, based on the information available to me and I genuinely and honestly believed it to be true”. At paragraph 9, Witness A said that he had “no reason to doubt the accuracy of the account set out in paragraph 11 of my witness statement until I was recently made aware of Mr De Simone’s Third Witness Statement and the exhibits thereto”. At paragraph 10, he said that it was “now apparent to me that MI5 did, in fact, depart from NCND during the discussions”. At paragraph 14, Witness A apologised to the court for giving inaccurate information, which resulted in inaccurate responses being provided to the special advocates and the court. At paragraph 16, he said that the circumstances leading to his being given false information were currently subject to investigation and review and that MI5 was commissioning an external review to identify improvements to systems and processes to ensure that in the future correct information is always given to the court.

The application to vary the injunction was listed for hearing before Chamberlain J on 12 February 2025. In written submissions prepared for that hearing, the Attorney General indicated that the Home Secretary and the Director General of MI5 had agreed to appoint an independent external reviewer “to establish the facts of how incorrect information came to be included in paragraph 11 of Witness A’s January 2022 statement (and subsequently relied upon) with the further objective of identifying lessons and making recommendations to avoid any repetition”. The submissions explained that Sir Jonathan Jones had been appointed to undertake this external review and that he had already begun work. The “prescribed scope” of the review “requires consideration of the period 2020 to 2024 in order to establish the facts of what happened”. Sir Jonathan was to report his findings to the Home Secretary and the Director General of MI5. In parallel, MI5 was conducting an internal investigation in accordance with its disciplinary casework procedures.

Following the hearing on 12 February 2025, Chamberlain J made an order varying the injunction and gave directions for submissions on the maintenance of NCND and for the Attorney General to update the court on the outcome of Sir Jonathan’s investigation. There was to be a hearing to deal with any outstanding matters of dispute.

The update required by this order was provided in a witness statement from Witness B, MI5’s Director General Strategy, dated 26 April 2025. He explained that the external review was now complete and Sir Jonathan had produced CLOSED and OPEN reports. The OPEN report was an “unclassified version of the CLOSED Report” and was, in both Sir Jonathan’s view and Witness B’s, “a fair and accurate account of his findings and recommendations” (paragraph 53). Witness B summarised Sir Jonathan’s conclusions in this way (paragraph 56):

“The OPEN Report concludes that there was no deliberate attempt on the part of MI5 to mislead, or lie, about what transpired in the course of the Officer 2 Conversations. The inaccuracy in Witness A’s evidence (and the subsequent responses to the Special Advocates) arose from the fact that no contemporaneous record was made of telephone discussions which resulted in Officer 2 having to do their best to remember, many months later, what was said based on an imperfect recollection and inference from the surrounding circumstances.”

The OPEN report concludes:

Sir Jonathan went on to make recommendations covering review of policy and guidance on NCND, production of corporate witness statements and media engagement.

Separately, the internal investigation concluded that there was no evidence that any officer had deliberately misled MI5 and no evidence of any conspiracy to provide false information. However, Officers 2 and 3 had failed to act with reasonable care and competence. In Officer 2’s case, this was by failing to ensure that there was a formal record of his conversations with Mr De Simone.

At paragraph 71, Witness B said that he agreed with the findings and conclusions in Sir Jonathan’s report. At paragraph 72, he added: “Like Sir Jonathan, I am unable to identify any advantage that would have accrued to MI5 by giving incorrect evidence concerning the Officer 2 Conversations. On the contrary, the events leading up to the conversations, including the authorisation to depart from NCND if necessary, only served to emphasise the seriousness with which MI5 was treating this issue and the extent of the risk we had identified should X be identified as a CHIS.”

After receiving Witness B’s witness statement, the special advocates sought disclosure, to them, of Sir Jonathan’s CLOSED report. The Attorney General filed detailed written submissions opposing disclosure. These relied on the assurances of Sir Jonathan and Witness B that the OPEN version of the report was “a fair and accurate account of the material in the CLOSED report”.

There was a hearing on 2 May 2025, at which Chamberlain J made clear his provisional view that the CLOSED report should be disclosed. In the light of this indication, MI5 agreed to disclose it. Chamberlain J set a further hearing to consider any further requests for disclosure.

At that hearing, on 12 May 2025, Chamberlain J, having read the CLOSED report, reached the provisional view that it contained significant material that was not in the OPEN version and that the latter could not, therefore, be said to be a full and accurate account of the former. He ordered disclosure of further documents and expressed the hope that the Attorney General and the special advocates would seek to agree any further CLOSED material which could be made OPEN.

On 14 May 2025, Mr De Simone filed and served a fourth witness statement in response to that of Witness B. He stated that Sir Jonathan had not contacted him as part of the investigation and that he had further significant evidence which undermined Sir Jonathan’s conclusions. This concerned the extent of the communications between him and Officer 2. It can now be seen that there were nine calls between Mr De Simone and Officer 2 and that one of the calls involved another MI5 officer. Some of these calls were long (for example, 40 minutes on 9 June, 20 minutes on 10 June, 12 minutes for the first call on 11 June, 45 minutes for the second call on 11 June). There were also text messages between Mr De Simone and Officer 2. It is not necessary to set out excerpts here. Mr De Simone accurately summarises what these calls show at paragraph 11 of his fourth witness statement as follows:

“The multiple calls that took place between me and Person B were a sustained departure from NCND. Person B departed from NCND in every substantial telephone conversation we had, some of which lasted as long as 40-45 minutes. The departure from NCND was not a small detail in a limited conversation during which Person B quickly achieved his aim of persuading me not to refer to X in my reporting; on the contrary it was a series of lengthy conversations in which a significant amount of detailed information about X was discussed and shared. [Officer 2] called me specifically to depart from NCND: telling me that X was a CHIS was the method that [Officer 2] used to try to convince me not to include X in the upcoming broadcast.”

As we have said, the calls also involved another MI5 officer, at Officer 2’s suggestion. What this other officer said led Mr De Simone to conclude that the other officer was aware of the content of the earlier conversations. In the calls, Officer 2 refers to the fact that he had been authorised to tell Mr De Simone that X was a CHIS and that there were points he would have to discuss with others at MI5, including X’s case handler (mentioned in calls on 8 and 9 June 2022), lawyers and “the team” (mentioned on 10 June). Perhaps most strikingly of all, there were departures from NCND in relation to five other individuals whom Mr De Simone was investigating at the time. There were also texts between Mr De Simone and Officer 2, in October 2021, concerning later reporting by the BBC, which Mr De Simone considered made it clear that—at that later stage—Officer 2 had a clear recollection of the previous conversations.

In a fifth witness statement filed on 20 May 2025, Mr De Simone produced further records of interactions with Officer 2 in June 2020 and October 2021.

As noted above, neither those conducting the internal disciplinary investigation nor Sir Jonathan had ever asked Mr De Simone for his account of his conversations with Officer 2, or for the records of these conversations. The result was that the conclusions reported by Witness B in his witness statement on 26 April 2025 (that there was no evidence of any deliberate attempt to mislead) were reached without the benefit of the contents of Mr De Simone’s fourth and fifth witness statements, or the notes and recordings exhibited to them. Once these became available, they were considered and the results of that consideration put before the court in the form of a supplementary witness statement from Witness B on 27 May 2025.

In this supplementary statement, Witness B explained that both the internal investigation and Sir Jonathan had proceeded on the basis that “if the BBC held any further relevant information concerning this issue it would have been dealt with in [Mr De Simone’s third witness statement]. With the benefit of hindsight, it would have been preferable had steps been taken to request from the BBC any further information in their possession before completing the Internal Investigation and External Review”. Nonetheless, the internal investigators conducted further witness interviews, including with Officer 2, as a result of which they maintained their conclusion that Officer 2 gave credible evidence and had not deliberately sought to mislead.

In a third witness statement on 29 May 2025, Witness B exhibited Sir Jonathan’s supplemental report. At paragraph 12 of that supplemental report, he said this:

“I have considered whether the new BBC material suggests an additional motivation for Officer 2 to lie or obfuscate about his calls with the BBC – because they provide evidence of wider disclosures. My terms of reference state that it is not for me ‘to make findings about why specific individuals did or did not do certain things’. Serious though Officer 2’s failings no doubt were, I note the finding of the internal investigation that he has been open and honest with them throughout the process. In any event, even if (contrary to the findings of the internal investigation) Officer 2 had deliberately lied about the content of his calls with DDS when it came to the production of evidence for the High Court, as mentioned above there is no evidence that others within MI5 connived in any such lie or set out deliberately to mislead the court.”