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

Section 2(2) of the Security Service Act 1989 imposes an obligation on the Director General of MI5 to ensure that there are “arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings”.

The policy in relation to CHIS is now set out in the Home Office’s Covert Human Intelligence Sources revised code of practice, published on 13 December 2022, at paragraph 9.26:

“People who take on the role of a CHIS may place themselves at considerable risk, while their continued co-operation is of great importance to the effectiveness of investigation and law enforcement work. All organisations have a responsibility to protect the identity of individuals working as CHIS, and others who may be affected by the disclosure of the CHIS’s identity. Organisations using CHIS should attempt to protect the identities of CHIS by all reasonable and lawful means possible and where appropriate by neither confirming nor denying the existence or identity of a CHIS.”

In general, the courts have accepted that there is powerful justification for the NCND policy. In In re Scappaticci’s Application [2003] NIQB 56, Carswell LCJ (sitting in the Queen’s Bench Division of the Northern Ireland High Court) explained the justification in this way at [15]:

“To state that a person is an agent would be likely to place him in immediate danger from terrorist organisations. To deny that he is an agent may in some cases endanger another person, who may be under suspicion from terrorists. Most significant, once the Government confirms in the case of one person that he is not an agent, a refusal to comment in the case of another person would then give rise to an immediate suspicion that the latter was in fact an agent, so possibly placing his life in grave danger… If the Government were to deny in all cases that persons named were agents, the denials would become meaningless and would carry no weight. Moreover, if agents became uneasy about the risk to themselves being increased through the effect of Government statements, their willingness to give information and the supply of intelligence vital to the war against terrorism could be gravely reduced. There is in my judgment substantial force in these propositions and they form powerful reasons for maintaining the strict NCND policy.”

In some quarters, however, a perception seems to have emerged that “the NCND principle” confers some kind of special immunity or exception to the ordinary obligations which apply in legal proceedings. This perception is erroneous. In Secretary of State for the Home Department v Mohamed [2014] EWCA Civ 559, [2014] 1 WLR 4240, at [20], Maurice Kay LJ (with whom Sullivan and Briggs LJJ agreed) said this at [20]:

“Lurking just below the surface of a case such as this is the governmental policy of ‘neither confirm nor deny’ (‘NCND’), to which reference is made. I do not doubt that there are circumstances in which the courts should respect it. However, it is not a legal principle. Indeed, it is a departure from legal norms relating to pleading and disclosure. It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset). It is not simply a matter of a governmental party hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so.”

Scappaticci, Mohamed and other authorities on the use of NCND were reviewed by Bean J in DIL v Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB), at [25]-[38]. At [39], he derived from this review the following material propositions that:

“(1)

There is a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (UCOs), and thus of permitting them and their superiors neither to confirm nor deny their status; but it is for the court to balance the public interest in the NCND policy against other competing public interests which may be applicable…

…

(3)

Even where an individual informant or UCO has self-disclosed, the police (or the Secretary of State) may nevertheless be permitted to rely on NCND in respect of allegations in the case where to admit or deny them might endanger other people, hamper investigations, assist criminals, or reveal police operational methods.” (Emphasis added)

In a statutory closed material procedure, such as is available under the 2013 Act, the statute supplies the framework under which the court has to consider whether to allow a party to adopt a NCND stance. Even here, however, it is for the government party to establish that the disclosure of a particular individual’s CHIS status would damage national security. Sometimes, this may be relatively easy to do, but all will depend on the circumstances. In this case, the key question was whether it would damage national security to disclose openly that X was a CHIS without identifying X.

In that regard, it was obviously highly material to understand whether MI5 had already departed from NCND by confirming X’s CHIS status to the BBC and, if so, in what terms and subject to what conditions. More generally, as the IPT (Burton J and Sir Richard Gaskell) recognised in Frank-Steiner v Data Controller of the Secret Intelligence Service (IPT/06/81/CH, 26 February 2008), at [45] (endorsing the submissions of Jonathan Crow QC, counsel for SIS):

“…for an NCND policy to be effective in ensuring that information is not revealed about individual cases, the NCND response must be provided invariably. This is not a novel point: it lies at the heart of the NCND policy as it is, and always has been, applied by the security and intelligence agencies.”

In the light of these principles, it is important that a party seeking to adopt a NCND stance in relation to a fact relevant to legal proceedings ensures that the court is candidly informed (if necessary in CLOSED pursuant to a public interest immunity application or a closed material procedure) about:

If it is unclear whether there has been such a departure, any material which evidences or suggests that there has been must always be candidly disclosed to the court (if necessary in CLOSED pursuant to a public interest immunity application or closed material procedure). This is an incident of the duty owed by any party engaged in court proceedings to ensure that the court is able to carry out its functions on a properly informed basis. It applied with particular force to the Attorney General in this case for the reasons set out in [14]-[19] above.