HM Attorney General for England and Wales v BBC

Neither confirming nor denying a person’s status is not a legal immunity from ordinary litigation duties. It is a departure from normal pleading, disclosure and open justice requirements, requiring justification by the court.

A party relying on NCND must candidly disclose the relevant policy, any departure from it and the precise terms and authorisation of that departure. Government agencies must investigate evidence of misleading the court promptly and effectively. Corporate witness statements must identify the named sources of information, their confidence in it and any independent scrutiny.

The proceedings arose from an injunction obtained by the Attorney General to prevent the BBC identifying a covert human intelligence source, X. The injunction was granted after MI5 evidence stated that it had maintained a neither-confirm-nor-deny stance about X’s status. It later emerged that MI5 had authorised an officer to tell the BBC that X was a CHIS and that false evidence had been given to the High Court, the special advocates and the Investigatory Powers Tribunal.

The BBC proceedings were heard alongside judicial review proceedings brought by Beth concerning an interlocutory decision of the IPT, reported at [2024] UKIPTrib 3. The court considered how the false evidence arose, whether contempt proceedings should be initiated, whether NCND could still be maintained, and what further investigative and evidential steps were required.

1. NCND. The court accepted that there is powerful justification for protecting the identity of CHIS and informers through NCND. However, NCND is not a legal principle or immunity. It is a departure from ordinary legal norms and requires justification by the court. In closed material proceedings under the Justice and Security Act 2013, the government must establish that disclosure would damage national security.
2. A party relying on NCND must candidly inform the court of the relevant policy, the circumstances in which departure is permitted, and any departure in the case or related cases, including its authorisation, confidentiality and precise terms. Where departure is uncertain, material evidencing or suggesting it must be disclosed. Maintaining NCND after the evidence showed that it was unrealistic was unacceptable and cast formal doubt on the truthfulness of relevant evidence.
3. The High Court, special advocates, IPT and Investigatory Powers Commissioner had been misled. The MI5 investigations were procedurally deficient because they did not initially obtain the other participant’s evidence, had incoherent terms of reference, and reached final conclusions before considering significant further material. Their conclusions could not be relied upon. A further robust and independent investigation was required under the auspices of the Investigatory Powers Commissioner.
4. Under Civil Procedure Rules 1998 81.6, the court must first consider whether contempt may have been committed and, if that threshold is met, whether contempt proceedings should be initiated. In the present circumstances it was premature to decide whether proceedings should be commenced.
5. Corporate witness statements from government departments and agencies remain subject to CPR Practice Direction 32 para 18.2. They should identify named sources, distinguish personal knowledge from information or belief, disclose the basis and confidence of recollections, and state whether the evidence was independently scrutinised. Further action and investigation were directed.

The judgment describes earlier procedural stages in the injunction proceedings: a declaration under section 6 of the Justice and Security Act 2013 was made at [2022] EWHC 380 (QB); an interim injunction was granted at [2022] EWHC 826 (QB); and outstanding publication issues were addressed at [2022] EWHC 1189 (QB). The present Divisional Court determined the later issues concerning false evidence, NCND and further investigation.