Discover more from A Lawyer Writes
A dangerous extremist and misogynist
Story the BBC has been fighting to publish is not about a ‘spy’ after all
In my column for the March edition of The Critic, which was sent to subscribers this week and should be reaching the shops around now, I discuss the politicisation of the attorney general. I can’t quote from the piece before it appears online, some time next month, but the headline and subhead should give you an idea of my thinking:
As you can see, my starting point is a case that Suella Braverman, acting on behalf of the government, has brought against the BBC. That case will be heard in the High Court next week by Mr Justice Chamberlain.
For weeks, we have had very little idea of what this case was about. Yesterday, though, Chamberlain published a judgment that made things a great deal clearer. Although I added a brief update yesterday to a piece I had published the day before, Chamberlain’s judgment deserves closer attention.
Until yesterday, we thought that Braverman was trying to stop the BBC identifying a “spy” working overseas. This was based on a story the Telegraph published on 21 January. Comments from a government source implied that the spy was an officer employed by the secret intelligence service MI6.
This struck me as more than a little odd. First, the BBC would not normally seek to identify an intelligence officer. And secondly it was inconsistent with a reference to the Home Office in published court papers: MI6 is responsible to the foreign secretary.
We can now see that the Telegraph was misinformed by its source. The agency concerned is not MI6 but the domestic security service MI5. And, far from being an employee, the “spy” was an outsider who provided the agency with information — a so-called covert human intelligence source, or CHIS.
The BBC says it is in the public interest to name this CHIS for a number of reasons, summarised by the judge:
he is a dangerous extremist and misogynist who physically and psychologically abused two former female partners
he told one of these women that he worked for MI5 in order to terrorise and control her
MI5 should have known about his behaviour and realised that it was inappropriate to use him as a CHIS
All this information was subject to an injunction until Chamberlain included it in the first paragraph of the judgment he published yesterday. Braverman chose not to appeal against publication of this information.
Her position is that she is happy for the BBC to make allegations about MI5’s handling of sources provided that no source is named. She also has no problem with allegations being made about an individual provided he is not identified as an MI5 CHIS. It’s putting the two together — which is, of course, the whole point of the BBC story — that she is trying to stop.
At next week’s hearing, Chamberlain will consider whether the CHIS should be named. In the meantime, he cannot be identified.
As I explained on Wednesday, Chamberlain rejected Braverman’s argument that the “open” part of the hearing should be heard in private. We now have a better understanding of his reasons.
First, there were no grounds for concluding that publishing a story about this CHIS without naming him would either breach his human rights or damage national security. So long as the CHIS is not identified at the open hearing, there was no good reason for excluding the press and public.
Secondly, some elements of the story had already been published by the Telegraph, quoting what appeared to be a government source. The government could not ask for a hearing behind closed doors if, at the same time, it was briefing the press.
But was it? Braverman’s current position is that the Telegraph “appears to have had some kind of inside source” — but this was “someone acting without authority”. A hapless government lawyer was wheeled out to try to distance the attorney from the story. But Chamberlain saw through that, saying “there is no evidence before me to negative the inference which arises from the terms of the article itself: that the ‘source’ referred to in that article is a government source”.
Of course, the information given to the Telegraph was significantly inaccurate. Identifying a serving MI6 officer would have been much more dangerous than identifying a source who had previously given information to MI5. Chamberlain did not speculate on why the government appeared to have misled the public about the BBC story. But I don’t suppose he was very impressed.
An unnamed witness, described as a “senior and experienced MI5 officer”, told the court that publication of the BBC story would lead other covert sources to believe that MI5 was unable to keep their identities secret.
However, Chamberlain thought that current and potential sources might be worried that the BBC had received its information as the result of a “a deliberate or careless act of the intelligence agencies themselves”:
If so, they might be reassured to learn, in circumstances such as these where the BBC allege that X is a CHIS, and X told a third party that he was a CHIS, and the BBC obtained this information from the third party, that MI5 is nonetheless doing its best, at considerable expense, to keep X’s identity secret.
Chamberlain’s judgment, coming from a judge who is familiar with work such as this and who previously served as a special advocate, shows confidence and maturity. He accepts, “as a general proposition, that great respect is due to the expert view of the executive”:
But even on issues touching on national security, the invocation of national security is not always conclusive. To paraphrase Maurice Kay LJ in a closely related context, it is not simply a matter of a government party to litigation hoisting the national security flag and the court automatically saluting it… The extent to which it is appropriate to defer to the executive depends on the legal context. And, even in contexts where great deference is appropriate in principle, the court is still entitled and required to consider carefully the quality of the reasons given for any assessment before deciding what weight to give to it….
I have carefully considered the evidence adduced by the attorney for derogating from the principle of open justice. I have no doubt that the evidence represents the sincere views of those who made the relevant statements.
In my judgment, however, for the reasons I have given, the attorney has not carried the burden of establishing by clear and cogent evidence that such a significant derogation from the principle of open justice is required or justified in this case.
Now we can see why the BBC has been fighting so hard to broadcast its story.
A spokesperson for the attorney general said: “We respect the court’s judgment”.
A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.