Judges order 'robust' inquiry into MI5 false evidence – Jude Bunting KC acts for the BBC
In a judgment handed down on 2nd July 2025, in Attorney General -v- BBC, and ‘Beth’ -v- Investigatory Powers Tribunal [2025] EWHC 1669 (KB), the Lady Chief Justice, the President of the King’s Bench Division, and Mr Justice Chamberlain ordered that there should be a robust investigation into how MI5 provided false evidence in three sets of proceedings.
In 2022, the Attorney-General sought an injunction to stop the BBC from broadcasting or publishing a story regarding a covert human intelligence source for MI5, X, who was accused of being a dangerous extremist and misogynist. The Attorney-General relied on a witness statement from an MI5 director, Witness A, who asserted that MI5 had neither confirmed nor denied X’s role as a CHIS in a series of telephone conversations with the BBC journalist. In fact, this assertion was false.
In January 2025, the Attorney General and MI5 admitted false evidence had been given, issued an apology, and outlined steps taken to investigate how it happened. In this judgment, the Divisional Court ruled that:
The special advocates, the High Court, the IPT and the Investigatory Powers Commissioner were all misled on the key question whether MI5 had departed from "neither confirm nor deny” in relation to X’s CHIS status.
NCND was maintained until shortly before the hearing on 3 June 2025, long after MI5 had filed evidence making clear that Witness A’s evidence was incorrect and any justification for its maintenance had disappeared. Thought should have been given at a much earlier stage to the question whether it was realistic to maintain NCND in the circumstances, particularly given that the effect of doing so was to cast formal doubt on the veracity of Mr de Simone’s evidence.
It is regrettable that MI5’s explanations to the Court were given in a piecemeal and unsatisfactory way.
The investigations carried out by MI5 to date suffer from serious procedural deficiencies. Their conclusions cannot presently be relied on.
In those circumstances, it would be premature to reach any conclusions on whether to initiate contempt proceedings against any individual. Consideration of that question is adjourned pending the outcome of a further investigation. The court considers that this further investigation should be carried out under the auspices of the Investigatory Powers Commissioner.
Separately, the court gave more general guidance about the way in which evidence from an agency such as MI5 should be presented and received in future. Parties should take care to ensure that evidence is given either by the person with most direct knowledge of the matter in question or, if given in a “corporate” witness statement, that the deponent makes clear from which other (named) persons the evidence derives, and precisely what, if any, independent scrutiny they have given to the evidence being proffered. The requirements of the CPR must be observed.
Jude Bunting KC acted for the BBC, instructed by BBC Litigation.
Media coverage includes: BBC, The Independent, The Standard
