The Attorney General is seeking an injunction against the BBC (Kirsty O’Connor/PA)
(Picture: PA Archive)The BBC wants to broadcast allegations that a source working for MI5 is a “dangerous extremist” who physically and emotionally abused two female partners, in a case that the government wanted to keep secret.
The broadcaster is fighting an injunction bid by the Attorney General Suella Braverman to stop the programme from airing. She claims it would be risk the source’s life and pose a risk to national security.
Ms Braverman made an application for the High Court battle to be played out in private, but it was rejected by Mr Justice Chamberlain after it emerged details of the case had been leaked from within government.
Publishing his ruling on Thursday, the judge revealed for the first time what the court battle is about.
“The BBC wants to broadcast a programme about an individual ‘X’”, he said in the written ruling.
“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, 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.
“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.”
The government said it did not object to the BBC making allegations about MI5’s “use and management of agent”, or claims about the behaviour of X. But it wants to stop the broadcaster from naming the source.
The preliminary argument on publicity was heard before the judge at a private hearing, with a brief announcement made on Tuesday about the decision to hold parts of the main hearing in March in public.
In his detailed reasons, the judge said a story in the Daily Telegraph had been critical to his decision to reject the Attorney General’s secrecy bid.
The January 21 story, titled “Exclusive: Government seeks to gag BBC over spy story”, had reported that the BBC’s planned story involved an overseas spy and quoted “huge disquiet” from an unnamed source.
A lawyer from the Government Legal Department conceded last week that the newspaper “appears to have had some kind of inside ‘source’” but insisted it was “someone acting without authority”.
However the judge rejected the latter claim, saying the Attorney General had provided no evidence to back up the assertion that the leak was not authorised.
“The fact that a Government source (whether acting with or without authority) appears to have briefed the press about this case has an impact on the extent to which it is ‘necessary to sit in private to secure the proper administration of justice’”, he wrote.
“It would in principle 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.
“Leaving aside any question of authority, the fact remains that the information (including the quotations and reporting from the ‘source’) is now in the public domain.
“After the ‘exclusive’ article in The Daily Telegraph, the content of that article was very widely reported in other press and media outlets. The question of damage to national security which might flow from a broadcast about X’s conduct which does not identify X has to be considered against that background.”
The full hearing of the injunction application is due to be heard on March 1 and 2, with some parts conducted in private and other parts in open court.
