Attorney General v BBC

Reference: [2022] EWHC 380 (QB)

Court: High Court (QBD)

Judge: Chamberlain J

Date of judgment: 24 Feb 2022

Summary: Open justice – whether hearing in public or private pursuant to CPR 39.2 – national security

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Appearances: Adam Wolanski QC - Leading Counsel (Defendant)  Hope Williams (Defendant) 

Instructing Solicitors: BBC Legal Department

Facts

The BBC (D) seeks to broadcast a programme about an individual, “X”, including allegations that:

  • X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners;
  • X is also a covert human intelligence source (a “CHIS” or an “agent”) for the Security Service (“MI5”);
  • X told one of these women that he worked for MI5 in order to terrorise and control her;
  • MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS: at [1].

The Attorney General (C) seeks an injunction to prevent D from broadcasting the programme on the basis that it would: (a) involve a breach of confidence or false confidence, (b) create a real and immediate risk to X’s life, safety and private life and (c) damage the public interest and national security. She invites the court to grant relief to restrain what she says would be a breach of confidence, and to protect X’s rights under Articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”): at [2].

Chamberlain J held that part of the application would take place in closed court pursuant to the closed material procedure prescribed by sections 6 and 8 of the Justice and Security Act 2013 and CPR 82: at [4]. The remaining portion of the hearing would be in ‘open’.

Issue

Should the open portion of the hearing take place in public or private pursuant to CPR 39.2?

Held

The open portion of the hearing should take place in public: at [9]. Chamberlain J gave four reasons for this decision: at [20].

1) There was no apparent legal basis for restraining D from broadcasting a story which did not identify X: at [20(a)]. There was nothing on the face of the pleading, nor in the evidence, to suggest that publication of the story without identifying X would give rise to a risk to X’s life or safety and would have effects on his right to respect for private or family life: at [22]. Further, nothing in the skeleton or oral arguments suggested any legal basis for a more general obligation not to publish anything about the operation of the security or intelligence services which would damage national security: at [22]-[23]. As a result, there was no good reason to hold the interim relief hearing in private, provided nothing was said which might directly or indirectly identify X: at [20(a)].

2) Some elements of the story had already been published in an article in The Daily Telegraph on 21 January 2022, which quoted what appeared to be a Government source: at [20(b)]. The witness statement produced by C did not enable the Court to conclude that the Government source was “someone acting without authority”: [27]-[28]. This conclusion was relevant to C’s application in two respects:

a) It impacted on the extent to which it was “necessary to sit in private to secure the proper administration of justice”. It would be unfair to allow one party to put its own “spin” on a case without allowing the other party to put before the public even the basic factual elements of its defence: at [33].

b) The information (including the quotations and reporting from the “source”) was now in the public domain and had been widely reported: at [34]. However, Chamberlain J accepted that the proposed broadcast would add to the material in the public domain by revealing that X’s activities involve “a particular kind of extremism”: at [38].

3) C had not made out a convincing case that publication of a story which did not identify X would cause real damage to national security: at [20(c)]. As a general proposition, great respect was due to the expert view of the executive; but the invocation of national security is not always conclusive, and the court is entitled and required to carefully consider the quality of the reasons given before deciding what weight to give to it: at [43]-[46]. The evidence dealt almost entirely with the risks that would arising from naming X, not the risk of publishing the fact of the BBC’s intention to identify X unless restrained by the Court: at [48]-[49]. No moderately informed CHIS would suppose that MI5 have a veto power on what private parties or the press can say in public, and might be reassured to learn that MI5 was doing its best, at considerable expense, to keep X’s identity secret: at [50]-[51].

4) The public interest in open justice outweighed any risks established by C’s evidence: at [20(d)]. The relief that C was seeking involved an interference with D’s freedom of expression and the correlative rights of members of the public to receive information: at [57]. C did not discharge the burden of establishing by clear and cogent evidence that such a significant derogation from the principle of open justice is required or justified: at [58].

Comment

C’s application for an interim injunction was heard on 1-2 March 2022. Judgment is reserved.