Britain’s top spy chief should face contempt proceedings after MI5 gave false evidence to courts, judges told
MI5’s director general should face contempt of court proceedings after the security service provided false evidence to three courts, senior judges have been told.
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The High Court heard on Friday that further action should be taken over evidence used by MI5 in a successful attempt to secure an injunction against the BBC in 2022, and which remained uncorrected for three years.
The injunction prevented the corporation from identifying a man known only as X, who is alleged to have abused two women and was working as a covert human intelligence source, or CHIS, for MI5.
The BBC was still able to broadcast its documentary, which claimed X was a misogynistic neo-Nazi who attacked his then-girlfriend with a machete, but was barred from naming him.
At the centre of the case is evidence provided by MI5 claiming the service had maintained its long-standing policy of neither confirming nor denying whether X was an intelligence source.
That position was set out in a witness statement during injunction proceedings and was later repeated before the Investigatory Powers Tribunal, where MI5 was defending a separate claim brought by one of X’s former partners, known as “Beth”, over his alleged abuse of her.
However, the BBC subsequently told MI5 that it had recorded a conversation in 2020 with an MI5 officer, known as Officer 2, in which he confirmed that X was a CHIS.
Read more: MI5 under scrutiny after report finds 'serious failings' led to courts being given false evidence
MI5 admitted last year that the evidence it had provided was wrong, with director general Sir Ken McCallum issuing a “full and unreserved apology for the errors made”.
The High Court is now considering whether MI5 and individual officers, including Officer 2, should face contempt proceedings over what happened.
Charlotte Kilroy KC, representing Beth, told the court in written submissions that there were “compelling reasons” to begin proceedings against current or former MI5 officers, as well as Sir Ken in his capacity as head of the service.
Anyone found in contempt of court can face up to two years in prison or a fine.
Ms Kilroy argued that the false evidence “did not emanate from one individual, or a ‘bad apple’”, but instead reflected conduct that was “sustained and long-lasting”.
She said: “There have been repeated efforts to prevent the truth emerging. The reality of the dishonesty and false evidence that has taken place has only emerged because MI5 was faced with incontrovertible proof of its wrongdoing.”
She also argued that Officer 2 “knew that his dishonesty was likely to result in an interference with the administration of justice”, while other officers who became aware of the problem either failed to ensure the evidence was corrected or had their warnings ignored.
There was therefore, she said, “strong and cogent evidence” that MI5 officers may have committed contempt, while the service itself had “benefited from the dishonesty of its officers”.
The incident has already been examined in a series of reviews.
In July, Deputy Investigatory Powers Commissioner Sir John Goldring found “serious and systemic failings” within MI5 over the handling of the case.
His report concluded that Officer 2 had lied to colleagues about his involvement and that “his lies formed the foundation of MI5’s false account”.
Sir John said a “major programme of work to address the failings identified” was already under way.
Tim Otty KC, representing MI5, repeated the service’s apology in court and said it was “fully committed” to making changes, but argued that contempt proceedings were neither necessary nor appropriate.
He told the court that Officer 2 had lost his “previously strong reputation among his colleagues”, while another officer had been suspended pending disciplinary proceedings, measures he said had already produced a “serious punitive and deterrent effect”.
Mr Otty said: “It is difficult to see what contempt proceedings could add to that investigation in illuminating what took place and why, and identifying what needs to take place to avoid recurrence.”
He also argued there was “no basis” for Sir Ken to be held vicariously liable and said there was no “strong case” for MI5 itself to face corporate liability for criminal contempt.
Matthew Butt KC, representing Officer 2, told the court his client accepted that his actions “were not in line with MI5 policy” and that he “deeply regrets this and profoundly apologises to the court and the parties for his shortcomings”.
However, Officer 2 denies acting dishonestly or intending to interfere with the administration of justice and does not accept the findings made against him in Sir John’s report.
Mr Butt said Officer 2 had been under significant pressure when he confirmed X’s status to the BBC, arguing that “external communications were a distraction from the critical focus upon internal communications which had been paralysed by Covid restrictions”.
He also argued that Officer 2 had not directly caused the false evidence to be placed before the courts and said contempt proceedings would be neither proportionate nor in the public interest.
The injunction preventing journalists identifying X remains in force.
Beth settled her claim against MI5 in March, with the security service making no admission of liability.
The hearing before the Lady Chief Justice, Baroness Carr, Dame Victoria Sharp and Mr Justice Chamberlain is due to conclude later on Friday.