MI5 spared legal action after false evidence given to three courts
The evidence was provided as part of MI5’s successful bid for an injunction against the BBC in 2022.
MI5 and its director-general have avoided legal action after the Security Service “fell badly short” by providing false evidence to three courts.
Senior judges at the High Court said it “would not be in the public interest” for the court to initiate contempt of court proceedings over the agency’s failures.
The incorrect evidence was used in a successful bid for an injunction against the BBC in 2022, which prevented it from airing a documentary naming a man known as X who has allegedly abused two women and is a covert human intelligence source (CHIS).
MI5 maintained the information was accurate for three years but later admitted it was wrong, with director-general Sir Ken McCallum apologising.
In a statement after Tuesday’s ruling, Sir Ken said the judgment “underlines MI5’s serious failures in this case”, adding: “In this instance the agency I lead fell badly short.”
In July, the Deputy Investigatory Powers Commissioner, Sir John Goldring, found “serious and systemic failings” by MI5 and that one officer, known only as Officer 2, lied about his role in the incident.
A hearing in September was told MI5 and individuals including Sir Ken and Officer 2 should face contempt of court proceedings, with lawyers for one of the women allegedly abused by X claiming there were “repeated efforts to prevent the truth emerging”.
Reading a summary of the decision, Lady Chief Justice Baroness Carr said any court proceedings “should follow consideration by the police, and consideration of charges by the Crown Prosecution Service”.
Baroness Carr, sitting with Dame Victoria Sharp and Mr Justice Chamberlain, continued that proceedings at this stage would be “unlikely to do more than duplicate” the findings of Sir John’s report.
In their ruling, the judges said proceedings against individual officers would be “highly resource-intensive” and would “face some substantive hurdles, which may or may not be overcome”, including establishing a “causal link between what they said and did and the making of the false statement”.
They also said there was no public interest in further action against Sir Ken and that “nothing would be gained” from proceedings against MI5 as an organisation, adding: “Any sanction available against MI5 could be financial only.
“There could be no public interest in imposing a financial penalty whose only effect would be to deprive MI5 of funds it requires to undertake its important work.”
Sir Ken welcomed the decision, but said MI5’s work to “learn all lessons continues at pace”.
He said: “Our responsibility as MI5 is clear. The courts, and those charged with scrutinising us, must have confidence that information we provide is accurate and complete.
“That confidence now needs to be re-earned.
“As Director General, I am committed to taking all steps necessary to ensure that it is.”
The injunction, which remains in force, allowed the BBC to air a documentary which alleged X was a misogynistic neo-Nazi who attacked his then-girlfriend with a machete, but prevented the corporation from identifying him.
In a witness statement for the injunction proceedings, MI5 falsely claimed it had maintained its policy of neither confirming nor denying (NCND) to the BBC whether X is a CHIS.
This evidence was also given to the Investigatory Powers Tribunal, a specialist tribunal which investigates allegations against the UK intelligence services, where MI5 was defending a legal claim brought against it by X’s former girlfriend, known as “Beth”, over X’s alleged abuse of her.
But the BBC later told MI5 it had recorded a 2020 conversation with Officer 2, who confirmed X was a CHIS.
While MI5 undertook internal investigations into the incident, the same three judges said in July last year that these had “major deficiencies” which left them “unable to have the requisite degree of confidence in the conclusions reached”.
This led to Sir John’s investigation, with the Investigatory Powers Commissioner Sir Brian Leveson claiming MI5’s management of X “fell far below” the standards expected.
Officer 2 resigned from MI5 last year, while Beth settled her claim against MI5 in March, with the service making no admission of liability.