Should the court bring contempt proceedings on its own initiative after MI5 gave false evidence about its agent “X”? No, held a Divisional Court of Baroness Carr LCJ, Dame Victoria Sharp and Chamberlain J on 3 November 2026 in HM Attorney General for England and Wales v British Broadcasting Corporation [2026] EWHC 2802 (Admin). Even assuming contempts may have been committed, it would not be in the public interest to bring contempt proceedings against any officer, the Director General of MI5 or MI5 itself (para 40).
What the case was about
MI5 has a well-established practice of neither confirming nor denying (“NCND”) whether anyone is a covert human intelligence source (para 2). X was an MI5 source. The BBC proposed to broadcast a programme alleging this, and the Attorney General brought proceedings to stop the BBC identifying him (paras 2–3). In those proceedings an MI5 officer, Witness A, said in a witness statement that MI5 had consistently applied NCND in relation to X, and the same evidence was given to the Investigatory Powers Commissioner’s Office and the Investigatory Powers Tribunal (para 3). In fact MI5’s Head of Communications (“Officer 2”) had confirmed X’s status to a BBC journalist in June 2020; this emerged when the journalist produced notes and recordings of the calls (para 4).
Where a court considers that a contempt may have been committed, CPR 81.6 requires it to consider on its own initiative whether to bring proceedings (para 5). In July 2025 the court found that MI5’s internal investigations and a review by Sir Jonathan Jones KC (hon.) suffered from serious procedural deficiencies, so their conclusions were not reliable, and adjourned pending an independent investigation (para 7). Sir John Goldring, appointed after the Prime Minister directed the Investigatory Powers Commissioner to investigate, interviewed 36 witnesses (paras 8–9). His core conclusions included that Officer 2 knew throughout that he had departed from NCND, that, in Sir John’s words, Officer 2’s “lies formed the foundation of MI5’s false account”, that another officer (“Officer 3”) significantly contributed to it, and that the duty of candour was never explained in terms to Witness A or the officers whose evidence fed into his statement, although there was good reason to believe they understood the need to tell the complete truth and disclose everything, favourable or not (para 10). Officer 2 resigned during 2025, Officer 3 faces disciplinary proceedings, and MI5 accepts the findings without reservation, though Officers 2 and 3 do not (para 12).
What the High Court decided
The court set out a two-stage test. First, the threshold is the one in CPR 81.6 itself: whether a contempt “may have been committed”, no more and no less (paras 16–17). The court rejected the officers’ argument that a “strong prima facie case” was needed; the authority relied on concerned applications by private parties, where there is a need to guard against vindictive litigants (para 17). Second, the court makes an evaluative judgment about whether proceedings on its own initiative would be in the public interest, considering the strength of the case, the gravity of the conduct, the facts in dispute and whether a summary procedure with no prosecutor is appropriate (paras 18–19). There is no presumption either way between contempt proceedings and the ordinary criminal process (para 21).
Sir John’s conclusions would not themselves be admissible against individuals who do not accept them, under the rule in Hollington v Hewthorne (para 29). Contempt proceedings would therefore mean going back to the raw documents and calling many of his 36 witnesses, where much of the evidence is classified and the witnesses’ identities are secret (para 30). The court assumed, without deciding, that Officers 2 and 3 may have committed contempt, and focused on the public interest (para 31).
The court lacks investigatory powers and personnel, and the task of marshalling this evidence could not realistically be undertaken by the court on its own (paras 32–33). If there is to be further action against Officers 2 or 3, it should follow a police investigation, with the CPS deciding whether to prosecute; misconduct in public office and perverting the course of justice were given as examples in argument (para 34). Contempt would also face substantive hurdles, including proving a causal link between the officers’ conduct and Witness A’s false statement, which a misconduct prosecution would not require (para 35).
The court did not decide whether contempt proceedings could legally be brought against the Director General or MI5 itself (para 36). Proceedings against the Director General would rest on vicarious liability without personal fault, which the court doubted was legally correct and saw no public benefit in (para 37). None of the individuals was part of MI5’s “directing mind and will” (para 38). Proceedings against MI5 itself were unlikely to do more than duplicate Sir John’s findings, and any sanction could only be financial, depriving MI5 of funds needed for its work (para 39).
Why it matters
- The threshold is low; the public interest decides. For court-initiated contempt, “may have been committed” is enough to move to the evaluative stage (paras 17–18).
- The procedure must fit the case. Where the court would have to investigate, the criminal process may be the better route (paras 19, 33–34).
- An inquiry’s conclusions are not a substitute for proof. Sir John’s conclusions were not admissible against those who disputed them; contempt would have to be proved through the underlying documents and witness evidence (paras 28–30).
- Corporate evidence from MI5 may face more scrutiny. The court said the findings will inevitably affect the confidence courts can have in MI5’s corporate evidence and may justify a more searching approach (para 15).
- In our view, where the duty of candour applies, it should be explained expressly both to the witness and to those supplying information for the statement; general awareness of the need to tell the truth was not treated as a substitute here (para 10).
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Read the full judgment: HM Attorney General for England and Wales v British Broadcasting Corporation [2026] EWHC 2802 (Admin) (The National Archives).