HM Attorney General for England and Wales v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 24 February 2022 |
| Neutral Citation | [2022] EWHC 380 (QB) |
| Docket Number | Case No: QB-2022-000174 |
| Court | Queen's Bench Division |
[2022] EWHC 380 (QB)
Mr Justice Chamberlain
Case No: QB-2022-000174
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Eadie QC, Oliver Sanders QC, Jennifer Thelen and Emmanuel Sheppard (instructed by the Treasury Solicitor) for the Claimant
Zubair Ahmad QC and Dominic Lewis (instructed by the Special Advocates' Support Office) as Special Advocates
Adam Wolanski QC and Hope Williams (instructed by BBC Litigation Department) for the Defendant
Hearing dates: 16 February 2022
Approved Judgment
Note: This judgment was handed down in private on 22 February 2022 so as to allow the Attorney General time to consider whether to apply for permission to appeal. No notice of any such application was received by the time specified in directions. The judgment was therefore made public on 24 February 2022 by posting on www.judiciary.uk and by communication to law reporters through the usual channels.
Introduction and summary
The BBC wants to broadcast a programme about an individual, “X”. The programme is to include the allegations that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X is also a covert human intelligence source (variously referred to as a “CHIS” or an “agent”) for the Security Service (“MI5”); that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X's behaviour and realised that it was inappropriate to use him as a CHIS. The BBC says that the broadcast of this story, and the identification of X by name, is in the public interest.
The Attorney General (“the Attorney”), acting on behalf of the Crown, has brought a claim for an injunction to prevent the BBC from broadcasting the programme. The Attorney's stance has been that she can neither confirm nor deny that X is or was a CHIS, other than in CLOSED proceedings under the Justice and Security Act 2013 (“ JSA”). She submits, however, that irrespective of the truth of the allegation, the BBC's proposed broadcast would (a) involve a breach of confidence or false confidence, (b) create a real and immediate risk to the life, safety and private life of X and (c) damage the public interest and national security. The Attorney invites the court to restrain what she says would be a breach of confidence by the BBC and to grant relief to protect the rights of X under Articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”).
The Attorney has also made clear that there would be no objection to a broadcast making allegations about MI5's use and management of agents without naming or otherwise identifying X or any particular individual. Nor would there be any problem with a broadcast making allegations about the conduct and dangerousness of X without identifying him as an alleged MI5 agent.
The Attorney's application for an interim injunction has been set down for a hearing on 1 and 2 March 2022. Part of that hearing will take place “in CLOSED”, i.e. in the absence of the BBC and their legal team. The power to hold a CLOSED hearing arises under the Justice and Security Act 2013 (“ JSA”). I decided to exercise that power after a hearing on 16 February 2022 at which I made a declaration under s. 6 JSA and gave the Attorney permission to withhold sensitive material under s. 8 JSA.
The procedure provided for by the JSA allows the BBC and its legal team to be see some of the material. The material which they do not see is shown instead to “special advocates”, security-cleared lawyers who represent their interests. One of the tasks of the special advocates is to identify parts of the CLOSED material which can properly be disclosed to the BBC, sometimes in “gisted” or summarised form. The special advocates have already identified some such material. As is usual, there was a process by which the Attorney's lawyers considered the special advocates' requests and agreed what could be agreed. Outstanding points of dispute were determined by me. As a result of this process, the Attorney has provided some additional material to the BBC on 18 February 2022, in accordance with procedural directions I gave at an earlier stage.
The issue with which this judgment is concerned has nothing to do with the CLOSED part of the hearing on 1–2 March 2022. As everyone agrees, the CLOSED hearing will take place under the provisions of the JSA and CPR Part 82, without the BBC, or its legal team or the public being present. Once I have heard the application, I will give two judgments, one OPEN and one CLOSED. The OPEN judgment will contain all my key conclusions, but insofar as it is necessary to say anything about the CLOSED evidence and arguments, I will do that in a separate CLOSED judgment made available only to the Attorney's team and the special advocates.
The dispute I have to resolve concerns the other part of the hearing on 1–2 March 2022, normally referred to as the OPEN hearing. The word OPEN in this context just means that the hearing will take place in the presence of both sides and their legal teams. There is a general rule that every OPEN hearing takes place in public. Indeed, a hearing may not take place in private, even if the parties consent, unless and to the extent that the court decides that it must be held in private: see CPR r. 39.2(1). A hearing must be held in private if, and only to the extent that, the court is satisfied of one or more of a list of specified matters and that it is necessary to sit in private to secure the proper administration of justice. The specified matters include that (a) publicity would defeat the object of the hearing, (b) it involves matters of national security or (c) it involves confidential information and publicity would damage that confidentiality: CPR r. 39.2(3).
In this case, the Attorney submits that the OPEN hearing on 1–2 March should take place either wholly or substantially in private. The effect of her submission, if correct, is that the public would be told nothing about the nature of the proposed broadcast or about these proceedings except that:
“the [Attorney] is seeking an injunction against the [BBC] to prevent it publishing a news report which the [Attorney] submits would damage national security and breach Convention rights, without sufficient countervailing public interest, and which the Defendant says is in the public interest to broadcast” (see para. 6 of the Attorney's skeleton argument for the hearing on 16 February 2022).
As will be apparent from para. 1 of this judgment, I have rejected this submission and concluded that the OPEN part of the proceedings on 1–2 March 2022 should be conducted in public. The Attorney has not convinced me that there is a sufficiently compelling reason for departing from the principle that OPEN proceedings take place in public, the “open justice principle”.
I had planned to give my reasons orally at the conclusion of the hearing on 16 February 2022, but that was not possible because among the materials I considered were CLOSED materials. That being so, CPR r. 82.17, read with CPR r. 82.2, requires that the judgment be in writing, so that it can be checked to ensure that nothing in it inadvertently reveals sensitive material. I therefore indicated that I would reduce my judgment to writing and that I would do so quickly, so as to ensure that the hearing on 1–2 March can go ahead as planned.
What information does the Attorney's claim cover?
The BBC complains that the Attorney has been insufficiently precise about the information which is said to be covered by the alleged duty of confidence. In para. 6 of the Particulars of Claim, she pleads as follows:
“7. The Defendant owes the Claimant a duty not to publish or disclose without authority true or false information relating to national security which is confidential.
8. The allegations set out in the Letter [a letter from the BBC to the Home Office outlining the contents of the proposed broadcast], and the Report [the proposed broadcast] contains, information falling within paragraph 7 above.”
The relief sought is an injunction restraining the BBC from (among other things) “publishing or disclosing or causing or permitting to be published or disclosed any copy of the Letter or the Report or any copy or part thereof or any information or extract contained therein or derived therefrom” without the express prior written agreement of the Attorney.
The Attorney says that this form of relief is appropriate because it is not clear exactly what the proposed broadcast will contain. The proviso allowing for publication with the express prior written consent of the Attorney would enable the BBC to publish a story along the lines outlined in para. 3 above.
The BBC responds that this is not good enough. They point to CPR 53 PD, para. 8.2, which makes clear that in a claim for breach of confidence the claimant must specify in the particulars of claim (in a confidential schedule if necessary to preserve confidentiality) (1) the information said to be confidential and (2) the facts and matters upon which the claimant relies in support of the contention that it was (or is) confidential information that the defendant held (or holds) under a duty or obligation of confidence.
The BBC submits that the Particulars of Claim in this case do neither of these things. There is no confidential schedule and therefore nothing which identifies the information the Attorney says is confidential. Importantly for present purposes, there is nothing to suggest that the fact that the BBC proposes to publish the identity of X unless restrained by the...
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