HER MAJESTY'S ATTORNEY GENERAL for ENGLAND and WALES v BRITISH BROADCASTING CORPORATION

Whether information is likely to lead to identification requires assessment of a real risk, rather than statistical probability. The assessment must address the people who may seek to identify and harm the individual, and must allow for jigsaw identification by combining the disclosure with information already known or subsequently published. The risk must be evaluated realistically and cumulatively; the possibility of jigsaw identification does not justify prohibiting every piece of information. Ordinarily, identification injunctions should use general terms, leaving responsible media organisations to assess proposed publication. Where a crystallised dispute exists, particularly because relevant closed evidence is unavailable to the media, the court should resolve the issue. The court must consider all open and closed evidence, giving appropriate weight both to national-security assessments and to the expertise of experienced journalists and broadcasters.

The claim concerned “X”, whom the BBC alleged to be a covert human intelligence source for MI5 and to have physically and psychologically abused two former partners. In an earlier judgment, the court granted an interim injunction restraining identification while permitting publication of the core elements of the BBC’s story: [2022] EWHC 380 (QB); [2022] EWHC 826 (QB).

The parties agreed a general prohibition on disclosure of information directly or indirectly identifying X, but disputed numerous categories of secondary information. The disputes included material derived from closed evidence, which the BBC could not assess itself. This public judgment addressed the applicable general principles; the particular identifying information was dealt with privately.

1. The court held that injunctions prohibiting identification should ordinarily be framed in general terms. Broadcasters and publishers are generally well placed to assess whether proposed publication, viewed against information already publicly known, creates a real risk of identification. A crystallised dispute should, however, be resolved by the court rather than left to contempt proceedings, particularly where closed evidence is material.

2. The agreed question was whether disclosure was “likely to lead to” identification. That expression denotes a real risk, real danger or real chance, not a statistical probability. The approach in Attorney General v Greater Manchester Newspapers Limited and its endorsement in O’Riordan v DPP were used in applying that standard: [2005] EWHC 1240 (Admin).

3. The relevant audience was not confined to the public generally. The court had to consider groups who might wish to harm X if they learned that he was alleged to be a CHIS. Identification could occur directly, or indirectly through online disclosures by persons without malign intent which could later be combined with other information. The court had to remain alert to jigsaw identification, while avoiding a blanket prohibition on every potentially relevant fact. The court respectfully endorsed the caution in A Local Authority v A Mother that the risk of jigsaw identification can be overstated: [2020] EWHC 1162 (Fam).

4. MI5’s expertise and institutional experience warranted respect, but the risk of identification was distinct from the risk of harm or damage to national security. The court therefore considered all open and closed evidence, including the BBC’s institutional expertise and that of its investigative journalist. The Attorney General’s absolutist case, that publication of any further information in broad categories would create a real risk, was unrealistic and did not provide a firm basis for determining which combinations were identifying.

5. The editorial significance of information was irrelevant to whether its disclosure would identify X. The court assessed categories individually and then considered the cumulative disclosure of information judged safe to publish. The public judgment stated the general principles; the specific disputes were determined in the private part of the judgment.

The judgment describes earlier judgments in the same proceedings: [2022] EWHC 380 (QB) and [2022] EWHC 826 (QB). It is a first-instance judgment addressing the general principles governing the continuing injunction.