MI5 could still face contempt of court proceedings over incorrect evidence provided in a bid for an injunction against the BBC pending the outcome of an investigation, judges at the High Court have said.
In 2022, then-attorney general Suella Braverman went to the High Court to stop the broadcaster airing a programme that would name a man who has allegedly abused two women and is a covert human intelligence source.
An injunction was made in April 2022 to prevent the corporation disclosing information likely to identify the man, referred to only as “X”, though Mr Justice Chamberlain said the BBC could still air the programme and the key issues, without identifying him.
But at a hearing earlier this year, the London court was told that part of the written evidence provided by MI5 was false.
Lawyers for the BBC told the court the “low threshold” for launching contempt proceedings against MI5 and a number of individuals, for not being fully transparent with the court, had been met.
In a decision on Wednesday, the Lady Chief Justice Baroness Carr said that a further investigation should be carried out and that it would be “premature to reach any conclusions on whether to initiate contempt proceedings against any individual”.
The senior judge said that the new investigation should be carried out on behalf of the Investigatory Powers Commissioner.
Baroness Carr, sitting with Dame Victoria Sharp and Mr Justice Chamberlain, also said: “The investigations carried out by MI5 to date suffer from serious procedural deficiencies.
“Their conclusions cannot presently be relied on.”
The written witness evidence, now accepted to have been false, said the Security Service had maintained its policy of neither confirming nor denying (NCND) the identities of intelligence sources.
However, MI5 disclosed X’s status to a BBC reporter, but then said it had kept to the NCND policy.
Lawyers on behalf of MI5 apologised earlier this year and carried out two investigations, which concluded the false evidence was given due to a series of mistakes with no deliberate attempt by any staff member to mislead.
In Wednesday’s 26-page ruling, the three judges said they were not “satisfied” with the investigations or their conclusions.
They added: “It is regrettable that MI5’s explanations to this court were given in a piecemeal and unsatisfactory way — and only following the repeated intervention of the court.”
In the programme about X, the BBC alleged the intelligence source was a misogynistic neo-Nazi who attacked his girlfriend, referred to by the pseudonym Beth, with a machete.
Beth is bringing related legal action in the Investigatory Powers Tribunal (IPT), with the judges finding on Wednesday that the specialist tribunal – which investigates allegations against the UK intelligence services – was also misled.
Baroness Carr later said: “Whilst we accept the genuineness of the apologies proffered on behalf of MI5, the fact remains that this case has raised serious issues.
“MI5 gave false evidence to three courts. This was compounded by inadequate attempts to explain the circumstances.”
Following the ruling, MI5 director-general Sir Ken McCallum said: “I wish to repeat my full and unreserved apology for the errors made in these proceedings.
“We take our duty to provide truthful, accurate and complete information with the utmost seriousness.
“Resolving this matter to the court’s satisfaction is of the highest priority for MI5 and we are committed to co-operating fully with the Investigatory Powers Commissioner’s Office and the court.
“MI5 is now embarked on a programme of work to learn all lessons and implement changes to ensure this does not happen again. This programme will build in external challenge and expertise – with independent assurance to the Home Secretary on our progress.
“MI5’s job is to keep the country safe. Maintaining the trust of the courts is essential to that mission.”
A BBC spokesperson said: “We are pleased this decision has been reached and that the key role of our journalist Daniel De Simone in bringing this to light has been acknowledged by the judges.
“We believe our journalism on this story has always been in the highest public interest.”
