HM Attorney General v BBC: court declines contempt proceedings over MI5 false evidence

A Divisional Court has decided not to initiate contempt proceedings over false evidence given on behalf of MI5, concluding that police investigation and any prosecution are the more suitable route for individual officers and that proceedings against the service itself would serve no purpose. In HM Attorney General v BBC [2026] EWHC 2802 (Admin), the Lady Chief Justice, Dame Victoria Sharp and Chamberlain J nonetheless stressed the seriousness of the findings and their likely effect on how courts treat MI5's corporate evidence.

The case arose from injunction proceedings brought to stop the BBC identifying a covert human intelligence source. MI5 evidence told the High Court, and later the Investigatory Powers Tribunal, that it had consistently applied its practice of neither confirming nor denying such status. That was untrue: its head of communications had confirmed the individual's status to a BBC journalist in 2020. In a July 2025 judgement the court found MI5's internal reviews procedurally deficient and adjourned the question of contempt pending an independent investigation.

That investigation was conducted by Sir John Goldring, Deputy Investigatory Powers Commissioner, at the Prime Minister's direction. He interviewed 36 witnesses, and his report, published in July 2026, found that Officer 2 knew he had departed from the policy and that his lies founded MI5's false account. Officer 3 was found to have misreported what Officer 2 said and bore considerable responsibility for the continued reliance on that account. The report also criticised wider failings, including the lack of proper authorisation. Officer 2 has resigned and Officer 3 faces disciplinary proceedings. MI5 accepts the findings, though neither officer does.

The court set out a two stage test under CPR 81.6. At the first stage it need only be satisfied that a contempt "may have been committed". The court rejected the officers' argument for a strong prima facie case, noting that KJM Superbikes v Hinton concerned private applicants and the risk of vindictive litigation. The second stage is an evaluative judgement on whether the public interest requires proceedings, weighing the strength and gravity of the case, the procedure needed and whether other mechanisms are better suited. The court held that no presumption favours either contempt proceedings or the criminal process.

Proceeding on the assumption, without deciding, that the first stage was met for Officers 2 and 3, the court said practical obstacles weighed heavily. Under the rule in Hollington v Hewthorne, Sir John's conclusions would be inadmissible against officers who dispute them, so a court would have to return to the raw material and many of the 36 witnesses, much of it classified. The court, lacking investigatory powers, could not realistically manage that task even with an amicus.

It considered the police, with the CPS deciding on prosecution, better placed, with misconduct in public office and perverting the course of justice raised in argument. Contempt would also require proof of a causal link between the officers' conduct and the false statement, which misconduct in public office would not.

The court did not resolve whether the Director General could be liable on a vicarious basis, or MI5 as an unincorporated entity, because it saw no public benefit either way. Vicarious liability would imply no personal fault on the Director General's part, and the individuals were not the "directing mind and will" of MI5 under Tesco Supermarkets v Nattrass. A financial sanction would only deprive MI5 of funds it needs, and the earlier criticisms and Sir John's report already served accountability.

Timothy Otty KC appeared for the Attorney General and the Security Service, and Jude Bunting KC for the BBC.