HM Attorney General for England and Wales v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 07 April 2022 |
| Neutral Citation | [2022] EWHC 826 (QB) |
| Docket Number | Case No: QB-2022-000174 |
| Court | Queen's Bench Division |
[2022] EWHC 826 (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
Hugo Keith QC, Zubair Ahmad QC and Dominic Lewis (instructed by the Special Advocates' Support Office) as Special Advocates
Lord Pannick QC, Adam Wolanski QC and Hope Williams (instructed by the BBC Litigation Department) for the Defendant
Hearing dates: 1–2 March 2022
Approved Judgment
Introduction
The Attorney General (“the Attorney”) seeks an interim injunction to prevent the BBC from broadcasting a programme about an individual, “X”. In a judgment handed down in private on 22 February 2022 and made public on 24 February 2022 (neutral citation [2022] EWHC 380 (QB) (“the first judgment”)), I explained that the proposed programme would include the allegations:
“that X is a dangerous extremist and misogynist who physically and psychologically abused two 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.”
Part of the hearing of the application for interim relief has been held in OPEN and part in CLOSED, pursuant to the Justice and Security Act 2013 (“the JSA”). In the first judgment, I rejected an application by the Attorney that the OPEN part of the hearing should take place wholly or substantially in private (i.e. in the absence of the public and press). The OPEN hearing proceeded in public on 1 March 2022, with some limitations as to which parts of the evidence could be referred to in argument. There was a CLOSED hearing on 2 March 2022. The BBC and its legal team were not present at the latter hearing, but their interests were represented by special advocates.
In the OPEN part of the proceedings, the Attorney's stance has been neither to confirm nor to deny (“NCND”) that X is or was a CHIS. Either way, the Attorney says that to publish the allegation that he is or was one would endanger X and cause material damage to national security. In the CLOSED part of the proceedings, I have been told more.
The key facts, allegations and issues are as follows:
(a) The BBC accepts that the allegation that X is a CHIS is information relating to national security which is currently known only to a small number of people and is therefore capable of legal protection. The court can grant relief to prevent the disclosure of this information if the balance of public interests favours non-disclosure and/or if the court's obligation as a public authority under s. 6 of the Human Rights Act 1998 (“ HRA”) to protect X's rights under Articles 2, 3 and/or 8 the European Convention on Human Rights (“ECHR”) demands it.
(b) In the context of the allegation that he is or was a CHIS, the Attorney says that disclosing X's name or image would cause real damage to national security and that the balance of public interests favours the grant of relief. She also contends that identifying X would give rise to a real and immediate risk that X would be killed or subject to serious physical harm. In those circumstances, she submits that there can be no balancing of X's interests against the interests of others: X's rights under Articles 2 and 3 are, as a matter of law, absolute and must prevail over the rights and interests of others, including the interests of any women who might in the future be harmed by X.
(c) The BBC does not accept that revealing X's identity would give rise to a real or immediate risk to X. It submits that the allegations that X was and remains violent and dangerous towards women are highly credible. It contends that there is a strong public interest in publishing X's identity because the evidence shows that X used his status as a CHIS to coerce and terrify his partner and MI5 should have known about his behaviour and realised that it was inappropriate to use him or continue using him as a CHIS. This is relevant to the public debate on the coercive control of women by their male partners and on the failure of state security institutions to address this problem. Publishing X's identity will remove the story from the realms of the abstract and so bolster and intensify the other public interests in the story. It will also enable women considering a relationship or liaison with X to have access to information which may protect them from death or serious harm at the hands of X. A court considering relief which would prevent publication must bear in mind not only X's rights and interests, but also those of the women who would or might be protected by having information about what he has done.
(d) The balancing of these competing public interests in a particular case is an intensely fact-specific exercise. In this case, the key factors are:
(i) the danger posed to women by X;
(ii) any means of preventing or mitigating this danger, other than publication of X's identity;
(iii) the nature and extent of the risk to X if his identity is disclosed;
(iv) the measures likely to be taken by relevant authorities to protect X, the extent to which they would be capable of protecting X from that risk and the effect of those measures on X's private life;
(v) the nature and extent of any wider damage to national security which would flow from disclosure of X's identity;
(vi) in the light of the measures likely to be taken to protect X, the extent to which publication of X's name or image would be capable of protecting women generally from any danger he may pose to them;
(vii) the effect on the rights of the BBC, and those who would receive the information it wishes to convey, of relief preventing the public disclosure of X's identity.
My approach to this OPEN judgment
As noted above, this application has involved a closed material procedure under the JSA. Closed material procedures involve a substantial derogation from the fundamental procedural principles of open justice and natural justice: see Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39, [2014] AC 700, [2]–[8] of the judgment on jurisdiction. When giving judgment after a closed material procedure, there are two key safeguards. First, the OPEN judgment must identify every conclusion reached in whole or in part on the basis of evidence referred to in the CLOSED judgment and must say that this has been done. Second, the OPEN judgment should say as much as can properly be said about the CLOSED material relied upon: ibid., [68]–[69].
I have prepared this judgment with these two points firmly in mind. CPR r. 82.2 requires me to ensure that information is not disclosed in a way which would be damaging to the interests of national security. Subject to that, however, I have sought to ensure that the key factual conclusions are made public in this OPEN judgment, so that members of the public can decide for themselves what they think about the conclusions I have reached and the law on which they are based.
The evidence
Following the OPEN hearing of the interim relief application, it is possible to give some more detail than I gave in my first judgment about the allegations the BBC wishes to broadcast and about the Attorney's reasons for wishing to prevent that broadcast.
The BBC's sources include two of X's former female partners, to whom the BBC has given the pseudonyms “Ruth” (with whom X had a long-term relationship some time ago) and “Beth” (with whom X had a long-term relationship more recently). These women have not met.
Ruth's evidence to the court includes the following:
“I consider that [X] is dangerous enough to kill a woman and I fear that he will do so if he is not challenged and exposed. I think it is crucial that other women know his identity and what he looks like, so that he cannot trick and harm them.”
Beth has provided covert video footage which shows an apparently violent altercation in which X appears to attack her with a dangerous weapon and she can be heard to scream. This led to a police investigation which resulted in a criminal charge, but did not result in a conviction. Beth's evidence to the court is that:
“I think X is a very dangerous individual – to me, to ex-partners and to other women… He thinks it's okay to treat women the way that he's treated me. I believe he must be named [and] identified to the public at large to warn others.”
The experienced BBC journalist who researched the story says this:
“I think I would be betraying the trust of the women who have bravely shared their stories with me if we do not tell the whole story, identify X as having been involved with MI5, and warn others. I consider, based on the information I have gathered, that X is a person who may well progress to committing even more serious acts of violence, sexual violence and coercion. He appears to regard himself as having a licence to act as he does because of his connections with the security services.”
Ed Campbell, a senior and experienced News Editor at BBC News with responsibility for investigations, has considered carefully whether the story could be broadcast without identifying X. He says this in his witness statement:
“Television is a visual medium. Particularly where a programme concerns matters of serious public concern, it is important to ensure that it is presented in a manner which engages the interest of viewers. A story which anonymises X (and which could therefore...
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