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

The adequacy of the investigations

Jude Bunting KC for the BBC made a series of powerful points about the adequacy of the investigations undertaken by MI5. We have also considered submissions in CLOSED by the special advocates and oral and written submissions in response by Sir James on behalf of the Attorney General.

We are mindful that it is not our function to reach findings of fact. It would not be fair for us to do so without hearing from the individuals concerned. At this stage, we focus on the question whether we are satisfied with the investigations conducted to date and their conclusions. We are not. As we see it, those investigations suffered from three major deficiencies. Taken together, these deficiencies mean that we are unable to have the requisite degree of confidence in the conclusions reached.

First, an essential purpose of the investigations was to discover the circumstances in which false evidence had been given to the court. One possibility was that someone at MI5 had given deliberately false information. That possibility had to be properly investigated. The starting point for any inquiry was what had been said in the conversations between Mr De Simone and Officer 2. Since MI5 had no written or other record of those conversations, and Officer 2 said that he did not recall, the obvious starting point was to ask the other participant, Mr De Simone, whether he recalled what had been said and whether he had any relevant records in addition to those that had already been provided. Mr Bunting said in terms on 2 May 2025 that he expected that MI5 would wish to contact Mr De Simone to ask him to assist them in this regard. In fact, the internal investigators never contacted Mr De Simone. The consequence was that they reached what they intended to be their final conclusions without an accurate understanding of what had actually been said to Mr De Simone.

We have considered carefully the evidence now available of what passed between Officer 2 and Mr De Simone in the light of what the internal investigators discovered. The content of those conversations was aptly described by Mr De Simone in the passages of his fourth witness statement which we have summarised and set out in [64]-[65] above. This paints a significantly different picture from that which the investigators had available to them when they reached their initial conclusions, as presented to the court in April 2025.

Secondly, there was in our view a fundamental incoherence in Sir Jonathan’s terms of reference. He was asked to “establish the facts of what happened in relation to journalistic and legal disclosure in the X/Beth case” but subject to the important caveat that he was not to “make findings about why specific individuals did or did not do certain things”. We find it difficult to see how Sir Jonathan could “establish the facts of what happened” without making findings about “why specific individuals did or did not do certain things”. Even if the purpose of Sir Jonathan’s investigation was to make recommendations for systems changes, the recommendations that would flow from a finding of deliberate dishonesty would presumably be different from those which would flow from a finding that the false evidence was attributable to errors in record keeping. Be that as it may, Sir Jonathan did make findings in his report of 22 April 2025 to the effect that there was no deliberate attempt by anyone (including Officer 2) to mislead the court. He did so (initially at least) without himself ever having spoken to Officer 2 and without considering Mr De Simone’s extensive additional evidence about what Officer 2 had actually said to Mr De Simone.

Thirdly, we accept that both the internal investigators and Sir Jonathan later considered Mr De Simone’s new material and that they did so in good faith. But the fact remains that investigators who had already reached final conclusions that there had been no deliberate attempt to mislead the court would inevitably find it difficult to reappraise those conclusions fairly in the light of evidence which fundamentally affects the basis on which their earlier conclusions were reached. The passage which we have quoted at [69] above from Sir Jonathan’s supplemental report seems, in any event, to present a substantially less confident conclusion than appears in his initial report. That passage indicates that, on the critical question whether anyone at MI5 gave deliberately false evidence, his conclusion was dependent on the view reached by the internal investigators—who had already spent many hours with the relevant witnesses before receiving Mr De Simone’s material and reached firm conclusions that they were all telling the truth. Charlotte Kilroy KC for Beth also noted that the internal investigators appeared to be very close to the witnesses. For example, the investigator thanked those interviewed for their “time and honesty” in answering questions.

The three matters we have set out above are sufficient to enable us to say that the investigations were procedurally deficient and we cannot rely on their conclusions. There are other criticisms made by Mr Bunting in his written and oral submissions, which we also consider had force. To take one example, neither the internal investigation nor Sir Jonathan appear to have enquired into the discrepancies between the disclosure to the special advocates in February 2022 and the accounts given by Witness A and Officer 2.