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

The manner in which the court was informed about MI5’s investigations

The manner in which MI5’s explanation for the false evidence to the court has been provided has been unsatisfactory.

The Attorney General’s original plan was to inform the court about the investigations that had been undertaken, and their outcome, entirely in OPEN. This course was taken in Witness B’s witness statement of 26 April 2025. That document contained Witness B’s personal assurance (reflecting Sir Jonathan’s own view) that the OPEN version of Sir Jonathan’s report was a “fair and accurate version” of the CLOSED report. When an application was made for disclosure of the latter to the special advocates, it was opposed. MI5 agreed to disclose it to the special advocates only after Chamberlain J made clear that he was likely to order its disclosure.

We have now read the CLOSED report and the material referred to in it. Much of this has now been disclosed in OPEN. We do not consider that the OPEN document was a “fair and accurate” version of the CLOSED report. The OPEN report omitted several critical matters, including the fact that the question whether MI5 had departed from NCND in relation to X had been investigated by IPCO and that, at one stage in the course of his investigation, the Investigatory Powers Commissioner concluded that MI5 had departed from NCND (though he was subsequently persuaded to change his view).

We are also concerned about the following matters. MI5 never took any active step to bring the existence of IPCO’s investigation to the attention of the court during the period when IPCO had expressed and not yet changed its view that MI5 had departed from NCND. MI5 thought that it had given a proper explanation of the circumstances in which false evidence came to be given without mentioning the fact of IPCO’s investigation. The CLOSED version of the report also provided considerable detail about the knowledge of the relevant circumstances on the part of MI5 officers other than Officer 2.

We do not consider that it could properly be said that the OPEN version was a fair or accurate account when it omitted this information. It may also be noted that, even once the CLOSED report had been disclosed, an order was required for the Attorney General to disclose the CLOSED documents referred to in that report. The result has been that documents have been provided in a piecemeal fashion. The impression has been created that the true circumstances in which false evidence came to be given have had to be extracted from, not volunteered by, MI5.