Judge had ‘no confidence’ in Security Service’s account of false evidence

MI5 is facing fresh scrutiny in the case of a violent neo-Nazi agent after a High Court judge said he had “no confidence” in the Security Service’s account of how a senior officer gave false evidence.

Ahead of a court hearing on Tuesday, the BBC can reveal Mr Justice Chamberlain ordered MI5 to hand over secret documents about the case.

He also said there was a further issue about the “correctness” of new evidence provided by a very senior MI5 officer.

Tuesday’s hearing comes four months after the BBC revealed MI5 had lied to three courts about a misogynistic agent known as X. The agent used his MI5 role to coerce and terrorise his girlfriend, attacking her with a machete.

The most senior judge in England and Wales, Lady Chief Justice Baroness Sue Carr, and the President of the King’s Bench Division Dame Victoria Sharp, will now join Mr Justice Chamberlain to consider what, if any, action should be taken about MI5’s false evidence.

There are a range of potential options, from accepting the conclusions of MI5’s investigations to initiating contempt of court proceedings against MI5 itself or individual officers – or both.

Usually, contempt of court proceedings are referred to the Attorney General, currently Lord Hermer, but in this case, he is technically representing MI5.

Details about MI5’s internal investigation into how it came to give the false evidence, which were included in the secret documents given to the court, may also be made public on Tuesday.

MI5 gave the evidence in 2022 after then-Attorney General Suella Braverman sought an injunction to stop a BBC investigation about X. She won him legal anonymity but failed to prevent the story being published.

During that case, a senior spy known only as Witness A said MI5 had stuck to its policy to “neither confirm nor deny” (NCND) that X was an MI5 agent during conversations with me in 2020, when I was investigating X’s conduct.

But, in February this year, the BBC was able to reveal Witness A’s evidence was false.

In fact, MI5 had disclosed X’s status in phone calls to me, which I had made notes of and recorded, as the Security Service tried to persuade me to drop my investigation.

MI5’s false claim was repeated in two other courts considering a legal claim against the Security Service by X’s former girlfriend, known publicly as “Beth”.

During hearings in recent weeks, Mr Justice Chamberlain raised the new concerns regarding MI5’s account of how it came to give the false evidence.

These concerns centred on accounts of the two investigations launched after the BBC exposed MI5’s false claims in February this year – an internal one, and an external review by the government’s former chief lawyer Sir Jonathan Jones KC, commissioned by Home Secretary Yvette Cooper.

In April, the court and the BBC were provided with a witness statement by the very senior MI5 officer – known as Witness B – purporting to summarise the investigations. They were also given an open, non-secret version of Sir Jonathan’s external review.

Although the court can receive sensitive information – and had security-cleared barristers, known as special advocates, acting on behalf of the BBC – it was not given a secret, closed version of the external review, nor a copy of the internal investigation report and its underlying documents.

After a request by the special advocates, Mr Justice Chamberlain made clear he wanted disclosure of the closed version of the external review. During a later hearing he ordered that MI5 also hand over the internal investigation report described by Witness B, as well as policy documents and interview notes with MI5 officers.

He also raised concerns about whether the open, non-secret documents originally provided to the court and the BBC were an accurate reflection of the closed versions.

He said Witness B had claimed the original open version of the report was a “fair and accurate” reflection of the closed version. But, having read the closed report, Mr Justice Chamberlain gave his provisional view that:

• It contained “potentially significant material” not in the open version of the report
• This material “raises real questions about whether Witness B could properly rely on the open version as a fair and accurate report of the closed report”
• Because of “the piecemeal way this has come to light”, he had “no confidence that the court has been given the full picture of how Witness A came to give false evidence”
• New material raised “a separate issue about the correctness of Witness B’s recent evidence in these proceedings”

The court will also hear on Tuesday whether MI5 will be able to continue to apply its policy of NCND in relation to the agent status of X within the legal case itself, despite publicly accepting it had departed from the policy in phone calls to me.

The NCND policy has allowed MI5 to withhold material from the BBC as well as the separate case brought by X’s former girlfriend Beth.

She had complained about MI5 to a specialist court, the Investigatory Powers Tribunal (IPT), and then sought a judicial review in a third court of an IPT ruling that allowed MI5 to apply NCND.

It meant that material confirming X’s agent status has been confined to secret hearings, where she was represented by the tribunal’s own barristers and her lawyers were excluded.