The Divisional Court has ruled that it would not be in the public interest to bring contempt proceedings following an investigation into false evidence given in litigation concerning MI5’s handling of a covert human intelligence source. The judgment addresses the limits of the court’s own-initiative contempt jurisdiction where the alleged misconduct is serious but the evidence is extensive, disputed and potentially better suited to investigation through the criminal justice system.
What did the High Court decide?
In HM Attorney General v BBC and Others and R (Beth) v Investigatory Powers Tribunal [2026] EWHC 2802 (Admin), handed down on 3 November 2026, the Divisional Court considered whether to initiate contempt proceedings against any individual identified in an independent investigation report, the Director General of MI5 or MI5 itself.
The court concluded that, even assuming that contempt of court may have been committed, it would not be in the public interest to initiate proceedings against any of those potential defendants. The court did not make a final determination that any individual or MI5 had committed contempt. Instead, it focused on whether proceedings brought by the court on its own initiative were an appropriate and proportionate course.
The judgment was delivered by the Lady Chief Justice of England and Wales, Dame Victoria Sharp and Mr Justice Chamberlain. It followed an earlier judgment in July 2025, in which the court had identified serious procedural deficiencies in MI5’s internal investigations and in a previous review, and had adjourned the question of contempt pending an independent investigation.
How did the false account emerge?
The proceedings arose from a BBC investigation into an individual referred to in the judgment as “X”, who had been a covert human intelligence source for MI5. The BBC proposed to broadcast allegations about X, including that he had been an MI5 source and that he had abused two former female partners. One of the women, referred to as “Beth”, alleged that X had told her he worked for MI5 in order to terrorise and control her.
MI5 ordinarily follows a “neither confirm nor deny” (NCND) policy in relation to whether an individual is or has been a covert human intelligence source. In earlier proceedings brought to prevent the BBC from identifying X, an MI5 witness statement said that the policy had been consistently applied. Similar information was provided to the Investigatory Powers Commissioner’s Office and the Investigatory Powers Tribunal in related proceedings brought by Beth.
That account was later undermined by notes and recordings made by BBC journalist Daniel De Simone. They showed that MI5’s Head of Communications, referred to as Officer 2, had confirmed X’s status as a source during telephone calls in June 2020. The material also indicated that Officer 2 had departed from the NCND policy in relation to other individuals. The recordings were placed before the judge in the injunction proceedings in December 2024.
Following the court’s concerns, the Prime Minister directed the Investigatory Powers Commissioner to investigate the circumstances in which false evidence had been provided. The Deputy Investigatory Powers Commissioner, Sir John Goldring, conducted the investigation, interviewing 36 witnesses and reviewing documentary material. His report identified failures involving Officers 2 and 3, the handling of information within MI5 and the preparation of evidence for the courts.
- Officer 2 confirmed X’s status as an MI5 source during calls with a BBC journalist.
- MI5 evidence stated that its NCND policy had been maintained.
- Recordings and notes of the calls were placed before the judge in the injunction proceedings.
- The Divisional Court identified serious deficiencies in the earlier investigations and adjourned the contempt question.
- The Prime Minister directed an investigation under section 230 of the Investigatory Powers Act 2016.
- The open version of Sir John Goldring’s report was published.
- The Divisional Court declined to initiate contempt proceedings.
Sir John’s report concluded, among other matters, that proper authorisation to depart from NCND had not been obtained; that Officer 2 knew he had departed from the policy; and that Officer 3’s conduct contributed significantly to MI5’s continued reliance on the false account. The report also identified shortcomings in the way information was recorded, checked and communicated to legal advisers.
MI5 accepted Sir John’s findings without reservation. Officer 2 had resigned during 2025, while Officer 3 was subject to disciplinary proceedings. The two officers did not accept the report’s findings concerning them.
What test governs contempt proceedings?
The court explained that a decision to initiate contempt proceedings on its own initiative involves two stages. First, under CPR 81.6, the court must consider whether “a contempt may have been committed”. The judges rejected the argument that a separate requirement for a “strong prima facie case” should be imported into this stage.
Second, the court must make an evaluative judgment about whether bringing proceedings would be in the public interest. Relevant considerations include the strength of the admissible evidence, the gravity of the alleged conduct, the facts in dispute, the procedure required to establish those facts and whether a summary process without a prosecutor is suitable.
The court emphasised that the criminal standard of proof applies when assessing the evidence relevant to the elements of contempt. It also noted that conduct which may amount to contempt could potentially be addressed through ordinary criminal investigation and prosecution. There is no general presumption in favour of either route: the appropriate course depends on the facts, the investigative resources required and the nature of the alleged wrongdoing.
“The decision will be fact-specific.”
The court’s explanation of the choice between contempt proceedings and ordinary criminal process.
Why did the court decline to proceed?
The court treated Sir John’s report as a clear and comprehensive account of a substantial investigation. However, the report’s conclusions would not themselves be admissible as proof against individuals who disputed them. The court referred to the rule in Hollington v Hewthorne, under which findings of fact made by another decision-maker are not ordinarily admitted as evidence in a subsequent trial.
Any contempt proceedings would therefore require the court to return to the underlying documents and call many of the 36 witnesses interviewed during the investigation. The evidence was extensive and, in significant part, classified. The identities of some witnesses were secret, adding further complexity to the process.
The court proceeded on the assumption, without formally deciding, that the evidence in the report showed that Officers 2 and 3 may have committed contempt. It nevertheless concluded that a court-led contempt process would be highly resource-intensive and could occupy the court for many weeks. The court did not have the investigative powers or personnel needed to assemble the evidence, interview and prepare witnesses, and prove the disputed facts.
The judges considered that, if further action against either officer were to be taken, it should follow a police investigation. The police have the appropriate investigative powers and resources. If sufficient admissible evidence of offences such as misconduct in public office or perverting the course of justice were obtained, it could be referred to the Crown Prosecution Service for a decision under the Code for Crown Prosecutors.
The court also identified substantive difficulties with contempt proceedings. In particular, it might be necessary to establish a causal link between the officers’ conduct and the making of the false statement by the MI5 witness. The court considered that the alleged conduct might fit the broader elements of misconduct in public office more readily than the specific form of contempt under consideration.
What about the Director General and MI5?
The court also considered arguments about whether contempt proceedings could be brought against the Director General of MI5 on a vicarious liability basis, and whether MI5 itself could be liable despite not being a body corporate. It did not decide those legal questions because it concluded that proceedings would not be in the public interest in either case.
As to the Director General, the court saw no public benefit in proceedings based on vicarious liability where the proposed responsibility did not require or imply personal fault. The judges considered that it would not be appropriate to impose a personal sanction on that basis.
As to MI5, the court noted that it had already made strong public criticisms of the agency’s conduct in the July 2025 judgment. Those criticisms had prompted the independent investigation. MI5 had accepted Sir John’s findings and had introduced a programme of remedial changes. The court considered that contempt proceedings against the agency would add little and would risk duplicating the findings already made.
The court further observed that any sanction against MI5 could only be financial. A financial penalty would deprive the agency of funds required for its work, without serving a public interest purpose in the circumstances.
What happens next?
The judgment does not direct that a criminal prosecution must follow, nor does it determine that any officer is guilty of a criminal offence. It identifies police investigation as the more appropriate route if further action is pursued. Any decision to prosecute would be for the CPS, applying the evidential and public interest tests in the Code for Crown Prosecutors.
The decision is also a reminder that the court’s own-initiative contempt jurisdiction is not an automatic response to every serious allegation of false evidence. The court must consider not only whether contempt may have occurred, but also whether the available procedure is capable of fairly and effectively establishing the facts and whether proceedings would serve the public interest.
Frequently asked questions
Did the High Court find that MI5 was in contempt of court?
No. The court declined to initiate contempt proceedings. It assumed, without formally deciding, that the evidence might show that Officers 2 and 3 had committed contempt, but it did not make a final finding of contempt against them or MI5.
Why were contempt proceedings not brought against the officers?
The evidence was complex, partly classified and dependent on extensive documentary material and witness testimony. The court considered that it lacked the investigative resources needed to conduct such proceedings effectively and that a police investigation would be more appropriate if further action were pursued.
Could the officers still face criminal prosecution?
Potentially. The court said that, following a police investigation, evidence of offences such as misconduct in public office or perverting the course of justice could be referred to the CPS. The judgment does not say that a prosecution has been commenced or will necessarily follow.
What is the NCND policy?
NCND means “neither confirm nor deny”. MI5 generally does not confirm or deny whether an individual is or has been a covert human intelligence source.
What is the significance of CPR 81.6?
CPR 81.6 requires the court, where it considers that contempt may have been committed, to consider on its own initiative whether to bring contempt proceedings. The judgment explains the threshold and the separate public interest assessment required before proceedings are initiated.