King's / Queen's Bench Division of the High Court

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

Fecha: 02-Jul-2025

The unrealistic maintenance of NCND

(b)

The unrealistic maintenance of NCND

74.

Even after MI5 had filed evidence making clear that Witness A’s evidence was incorrect, it took no steps of its own motion to consider whether to maintain NCND. Whether it could properly do so was raised as an issue by Chamberlain J at the hearing on 12 February 2025. MI5’s response was to file detailed submissions on 5 March 2025, maintaining NCND.

75.

This meant that the Attorney General’s position was that:

(a)

Witness A’s January 2022 evidence that NCND had been maintained was incorrect;

(b)

Witness A had realised this after reviewing the notes and transcript provided by Mr De Simone (which showed very clearly that Officer 2 had repeatedly departed from NCND);

but

(c)

MI5 still maintained NCND as to whether X was a CHIS.

76.

At the hearing on 2 May 2025, counsel for the Attorney General was asked whether the authenticity of the notes and transcript were in dispute. She said that there was “no real dispute” about this, but that NCND was nonetheless maintained. This meant that there was still no formal acceptance that Mr De Simone was telling the truth.

77.

In our judgment, by continuing to maintain NCND in these circumstances, MI5 was adopting a patently unrealistic position while at the same time casting formal doubt on the veracity of Mr De Simone’s evidence. The maintenance of that position until 23 May 2025 will have done nothing to bolster the confidence of any CHIS in MI5’s policy. The quid pro quo for the respect which must be accorded to MI5’s national security assessments is that MI5 must take care not to maintain such assessments when it is unrealistic to do so.