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

The Attorney General’s application for an injunction was supported by a witness statement from Witness A, signed on 26 January 2022. Witness A was a Deputy Director, who at that time had worked at MI5 for 18 years. The witness statement set out the discussions between MI5 and Mr De Simone in June 2020 and said this about them:

“11… During those discussions in June 2020, MI5 neither confirmed nor denied whether or not this individual was a CHIS, role-player or otherwise. However, MI5 did explain that running aspects of the story relating to this individual would cause damage to national security. MI5 asked that those aspects be removed, and Mr de Simone agreed to remove them…”

Mr De Simone responded to this in a witness statement dated 1 February 2022. At paragraph 31 of that statement, he said:

“On 8 June 2020, I received a call from a representative of MI5 and went on to have several conversations with him. I have read the account provided by ‘Witness A’ of these conversations. It does not correspond with my recollection in various respects.”

The proceedings were heard on a highly expedited timetable. On 13 February 2022 (before the hearing at which the s. 6 declaration was made), the special advocates appointed to represent the interests of the BBC in any CLOSED hearing (Zubair Ahmad KC and Dominic Lewis) asked for any notes recording the exchanges between MI5 and the BBC in June 2020. They explained as follows:

“The relevance of the detail of the exchange is hopefully clear. The engagement between MI5 and the BBC in June 2020 was effective in neutralising the risk that had been presented. If during that engagement MI5 did indeed [GIST: depart from NCND], then the justification for withholding that information from the Defendant in connection with the present proceedings in [sic] significantly weakened (and arguably falls away altogether).”

The Attorney General responded in writing on 15 February 2022 saying that there were no contemporaneous notes of the discussion which took place between MI5 and the BBC. It was acknowledged that there were “internal discussions” about whether to depart from NCND on an exceptional basis to an extremely limited number of trusted contacts at the BBC, in confidence. It continued:

“In the event, that option was not pursued – and NCND was maintained in the discussions which then took place, as detailed in Witness A’s confidential witness statement… Whilst there is no contemporaneous note of the discussions in June 2020 between MI5 and the BBC, it is evident that NCND was maintained because:

1)

Had there been a departure from NCND… that departure would have been recorded.

2)

The BBC have not stated that [GIST: there was a departure from NCND].”

At this stage, two points are worthy of note. First, MI5 took the absence of a written record of any departure from NCND as a basis for asserting positively, and without qualification, that there had been no such departure. The fact that there had been conversations of which no written record had been taken should have decreased, not increased, the confidence with which MI5 responded to the enquiry. Secondly, great reliance seems to have been placed on the fact that Mr De Simone had not said that there had been a departure from NCND. He had, however, said that Witness A’s description of the conversations (the key element of which was that there had been no departure from NCND) did not accord with his recollection. The fact that he had said nothing since was hardly surprising, because the enquiries being made by the special advocates were being made entirely in CLOSED. Mr De Simone had no knowledge of them, or of the answers to them.

The special advocates responded in writing on 16 February 2022, stating that they were surprised by the Attorney General’s answer and asking further questions:

“(i)

Were any notes (or other record) ever made by MI5?

(ii)

If notes (or other record) were made, why do they not now exist?

(iii)

If notes (or other record) cannot be found, what searches have been carried out?

(iv)

Would it not be expected/good practice that notes of such calls would be made, as in December 2021, particularly given the possibility, which had been contemplated, that MI5 would need to [GIST: depart from NCND]?

(v)

Is there any other contemporaneous (or near contemporaneous) record of the detail of the engagement in June 2020?... If so could we be provided with any such record?

(vi)

In the absence of contemporaneous notes, how / on what basis is Witness A able to state that ‘during the course of those discussions in June 2020, MI5 neither confirmed nor denied whether or not this individual was a CHIS, role-player or otherwise?’

(vii)

If not relying on his own knowledge, on what records did Witness A draw to make that apparently categorical statement?

(viii)

With what degree of confidence can Witness A make that statement?

(ix)

Was Witness A the person from MI5 who spoke to Daniel De Simone in June 2020?

(x)

If the answer to (ix) is ‘yes’, why does Witness A not say so in terms in either his OPEN or CLOSED statements?...

(xi)

If the answer to (ix) is ‘no’, or if others within MI5 spoke to Mr De Simone, in addition to Witness A, could all those who did speak to Mr De Simone make witness statement(s) setting out their recollection of the conversations?”

This request from the special advocates was sent on the same day (16 February 2022) as the interlocutory hearing to which we have already referred. The special advocates sensibly took the view that they could not pursue these requests before the court until they had received answers, and so they reserved their position.

The purpose of the hearing was to consider two matters. The first was whether there should be a declaration under s. 6 of the 2013 Act. As we have explained, the question whether MI5 could properly adopt a NCND stance in relation to X’s CHIS status was highly relevant to that issue.

The second matter considered at the hearing on 16 February was how the parts of the main hearing which took place in the presence of the BBC and its legal representatives would be conducted. As can be seen from [7]-[8] of Chamberlain J’s judgment of 24 February 2022, the Attorney General was submitting that these parts should take place entirely in private, i.e. in the absence of the press and public, pursuant to CPR 39.2(3)(a), (b) and (c). That submission was rejected, for various reasons, but the fact that MI5 had confirmed that X was a CHIS would have been highly material.

The Attorney General’s response to the special advocates’ request came in writing on 24 February 2022. The responses were as follows (we have interpolated our comments in italics after each one):

“a.

Paragraph 3(i) and (ii) – no notes or other records were made by MI5 in respect of the June 2020 meeting.

b.

Paragraph 3(iii) – no specific searches have been completed in respect of the June 2020 exchanges because the individual at MI5 who spoke to the BBC in June 2020 has confirmed that no notes or other records were made.”

The question was whether any notes or other record had “ever” been made. The evidence now available shows that the answer was almost certainly false. Officer 2 told the internal investigation that he “almost certainly” did make notes at the time but no longer had them. The reference to the “June 2020 meeting” was also misleading, because it suggests just one conversation between MI5 and the BBC when in fact there were many.

“c.

Paragraph 3(iv) – there is no MI5 policy or practice to make notes of all calls with journalistic contacts. The immediate focus of the conversation in June 2020 was to mitigate the risk of [GIST: damage to national security]. The result of that conversation was that that risk had been mitigated… There was therefore no enduring impact arising from this conversation which may have warranted a note to be drafted…”

This can now be seen also to have been false. In fact, as Sir Jonathan Jones’s investigation has revealed, there was such a policy: the Media Engagement Policy, which said that MI5 must “write up all contacts with the media (dates, venues, topics of questions and replies, and hospitality received or given), file the write-up to the corporate record and copy it where appropriate to senior management”.

“d.

Paragraph (v) – there are not other contemporaneous or near-contemporaneous records of the detail of the engagement in June 2020. [GIST: The outcome of the meeting was reporting verbally.]

e.

Paragraph (vi), (vii) and (viii) - Witness A spoke to the MI5 officer who had contact with the BBC in June 2020. The MI5 officer confirmed that it was his recollection that MI5 neither confirmed nor denied that X was a CHIS, roleplayer or otherwise. This also reflects Witness A’s recollection of what the MI5 officer confirmed verbally to Witness A at the time of the meeting. Witness A has a high degree of confidence that his position is accurate based on (i) the recent conversations he has had with the MI5 officer who had contact with the BBC at the time; and (ii) conversations in which he was personally involved in regarding the matter back in June 2020.”

On one reading (and, it may be said, the most obvious one) this paragraph suggests that Witness A spoke to Officer 2 in June 2020. Later material suggests this was not so. Sir James urged us to read “at the time of the meeting” as a reference to a meeting held a few days previously with a view to answering the special advocates’ requests. We reach no concluded view at this stage, but it is highly unsatisfactory that a response that was (at best) ambiguous was given.

“f.

Paragraphs (ix) and (x) – no. Witness A was not the individual who spoke to Daniel De Simone.

g.

Paragraph (xi) – no, we do not consider that obtaining further witness evidence in respect of the June 2020 meeting is either necessary or proportionate in accordance with the Claimant’s duty of candour. The meeting is already dealt with by the statement of Witness A, and what Witness A sets out in respect of the June 2020 meeting isn’t inconsistent with anything set out by the BBC. In any event, NCND was maintained in the June 2020 discussions: any departure would have been recorded … Furthermore, the BBC have not stated that [GIST: there was a NCND departure].”

In the light of what is now known, we consider this answer to be particularly troubling, for three reasons.

First, unlike the original evidence in paragraph 11 of Witness A’s statement, this response was given to a series of direct and precise questions posed by the special advocates, on a point whose relevance to the proceedings had been fully explained. The response to these questions contained at least two apparently false statements.

Secondly, the Attorney General appears to have placed considerable reliance on the fact that “what Witness A sets out in respect of the June 2020 meeting isn’t inconsistent with anything set out by the BBC”. But Mr De Simone had said that Witness A’s account of the conversations between him and MI5 did not accord with his recollection. As the Attorney General’s lawyers would have known, the special advocates would have had the opportunity to meet Mr De Simone before they received the CLOSED material, but could not communicate with him about any CLOSED material after receiving it, save pursuant to a security-cleared communication request. He would therefore have had no opportunity to verify or comment on the Attorney General’s response to the special advocates’ enquiries, which were all given in CLOSED. Indeed, he would not have seen any of the exchange between the special advocates and those representing the Attorney General until it was brought partially into OPEN on 17 March 2025.

Thirdly, as we have mentioned, these proceedings were heard on a highly expedited timetable. The special advocates’ initial enquiries were sent shortly before the hearing at which the declaration under s. 6 of the 2013 Act was made. The response came afterwards, on 24 February 2022. The main hearing was due to start on 1 March 2022. It was very unlikely that there would be time to raise disclosure questions of this kind even if it had been considered worthwhile doing so in the light of MI5’s unequivocal response. This must have been obvious to those involved.