The High Court has granted an interim injunction restraining the BBC from broadcasting a programme identifying ‘X’, an alleged covert human intelligence source (‘CHIS’) for MI5.
The BBC alleges that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; 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 judge accepted that restraining the programme would represent a “very significant interference with the right of the BBC to freedom of expression and the correlative right of the public to receive the information the BBC wishes to publish”, and that the BBC “comfortably” met the test of establishing that the allegations it sought to publish are serious and have a credible evidential basis. However, the judge concluded that the Attorney was more likely than not to succeed at trial in establishing that the balance of public and private interests favoured granting the injunction, either on the basis of the law of confidentiality or ECHR rights.
The decision followed hearings in both open court and ‘closed’ sessions pursuant to the Justice and Security Act 2013, due to the reliance on evidence involving matters of national security. The BBC were not present at the closed hearings and have not had sight of the closed evidence, but its interests were represented by Special Advocates. The judge’s decision ultimately turned upon closed evidence, which he held established that:
- Disclosure of X’s identity would expose him to a “real and immediate risk” of death or serious injury at the hands of others;
- Extensive protective measures would be necessary to protect X if his identity was disclosed, and that the security services would be likely to implement such measures; and
- These protective measures would substantially undermine the protective effect which disclosure of X’s identity would have on women considering a relationship or liaison with X.
The Attorney had initially applied to prevent the BBC from broadcasting any story about X. However the judge acknowledged that the BBC could still broadcast a programme as long as it did not identify X. The Attorney also unsuccessfully applied for the injunction hearing to be held in private: see the judgment here and 5RB’s case report here.
The Court will hear further submissions on what information would identify X before finalising the precise terms of the injunction.