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

Interim relief restraining publication which engages Article 10 requires the applicant to show that publication is likely to be prohibited at trial. The court must give particular weight to freedom of expression and the public interest in journalistic material. In national security cases, the executive’s assessment of predictive risk is entitled to great respect, but the court retains responsibility for balancing the competing public interests. A real and immediate risk to life or safety may carry very great weight, while the interests of potential victims may also be relevant where the law permits balancing. Any injunction should be narrowly tailored and identify the prohibited information precisely.

HER MAJESTY'S ATTORNEY GENERAL for ENGLAND and WALES sought an interim injunction preventing the BRITISH BROADCASTING CORPORATION from broadcasting a programme about X. The proposed programme alleged that X was dangerous and abusive towards women and was, or had been, a covert human intelligence source for MI5.

The claim relied on breach of confidence, national security, and the protection of X’s rights under Articles 2, 3 and 8 ECHR. The Attorney maintained an neither-confirm-nor-deny position. The hearing used open and closed material procedures. The central issues were whether publication should be restrained, how the competing public interests should be balanced, and what form any injunction should take.

1. Relief granted. The Attorney was more likely than not to establish at trial that publication of X’s name and image should not be allowed. The stricter test in section 12 of the Human Rights Act 1998 applied, rather than the ordinary interim test in American Cyanamid Co. v Ethicon Ltd [1975] AC 396. In the circumstances, the court was as well placed to decide the issue as it would be at trial, so the more-likely-than-not standard was appropriate, applying Cream Holdings Ltd v Banerjee [2004] UKHL 44.
2. For breach of confidence, the information had to possess the necessary quality of confidence, have been imparted in circumstances importing an obligation of confidence, and be subject to unauthorised use. Where the Crown seeks relief, disclosure must also damage the public interest: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 and Attorney General v Guardian Newspapers (No. 2) [1990] 1 AC 109. The decisive question was whether the public interest in maintaining confidence outweighed the countervailing public interest in disclosure.
3. The court, not the executive, had to conduct that balancing exercise. Nevertheless, national security assessments involving predictive risk were entitled to great respect. Subject to rationality and other public law review, the executive determined the existence and weight of the national security risk, while the court held the scales and determined the overall balance. This approach followed the reasoning applied by analogy from Secretary of State for the Home Department v Rehman [2001] UKHL 47, R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60 and R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7.
4. The court found cogent evidence establishing a real and immediate risk that disclosure would expose X to death or serious injury. That phrase meant a substantial or significant risk, not a remote or fanciful one, which was present and continuing: Osman v UK (2000) 29 EHRR 245 and Rabone v Penine Care NHS Trust [2012] UKSC 2. The conflict in authority over whether Articles 2 and 3 precluded balancing against Article 10 did not need resolution. The court assumed in the BBC’s favour that balancing was permissible, while giving the risk to X great weight.
5. The BBC’s allegations had a credible evidential foundation. It did not have to prove their truth, establish that MI5 had acted unlawfully, or justify the allegations as if this were a defamation claim. Public disclosure would not materially protect other women because extensive protective measures for X would substantially undermine that protective effect. Publication would also cause material damage to national security, although the BBC could still broadcast the core allegations without identifying X.
6. The injunction therefore prohibited disclosure of X’s name, image, and secondary information tending to identify him. Consistently with Kent County Council v B (A Child) [2004] EWHC 411 (Fam), any restraint on media expression should be narrowly tailored and, where possible, precisely identify the prohibited information.

First-instance decision. The proceedings followed an earlier judgment on the privacy of the open hearing, reported at [2022] EWHC 380 (QB). The present court then determined the interim injunction application after open and closed hearings.