The BBC wanted to broadcast a programme about, “X”, which was to include allegations that: (i) X was a dangerous extremist and misogynist who physically and psychologically abused two former female partners; (ii) that X was also a covert human intelligence source (variously referred to as a “CHIS” or an “agent”) for the Security Service (MI5); (iii) that X told one of these women that he worked for MI5 to terrorise and control her; and (iv) that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS. The BBC said that the broadcast and the identification of X by name was in the public interest, as it would inform women considering a relationship or liaison with X that he was violent and dangerous, and it was relevant to the public debate on the coercive control of women by their male partners and on the failure of state security institutions to address the problem.

The Attorney General applied for an injunction to prevent the BBC from broadcasting the programme. The AG’s stance was that she would neither confirm nor deny that X is or was a CHIS, other than in closed proceedings under the Justice and Security Act 2013. She submitted, however, that irrespective of the truth of the allegation, the BBC’s proposed broadcast would: (i) involve a breach of confidence or false confidence; (ii) create a real and immediate risk to the life, safety and private life of X; and (iii) damage the public interest and national security. The AG invited the court to restrain what she said would be a breach of confidence by the BBC and to grant relief to protect the rights of X under Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR), which she said were, as a matter of law, absolute and should prevail over the rights and interests of others, including the interests of any women who might in the future be harmed by X.

The hearing was held partly in open and partly in closed.

Chamberlain J said that the key factors in relation to the competing public interests that had to be balanced were:

1. the danger posed to women by X;
2. any means of preventing or mitigating this danger, other than publication of X’s identity;
3. the nature and extent of the risk to X if his identity was disclosed;
4. the measures likely to be taken by relevant authorities to protect X, the extent to which they would be capable of protecting X from that risk and the effect of those measures on X’s private life;
5. the nature and extent of any wider damage to national security which would flow from disclosure of X’s identity;
6. in the light of the measures likely to be taken to protect X, the extent to which publication of X’s name or image would be capable of protecting women generally from any danger he might pose to them; and
7. the effect on the rights of the BBC, and those who would receive the information it wished to convey, of relief preventing the public disclosure of X’s identity.

On the danger posed by X to other women and whether there were other means of addressing it, Chamberlain J noted the various mechanisms that already exist under UK law to protect women from the risks of domestic abuse and violence. He also noted that they were part of the means by which the UK discharged its general positive obligations under Articles 2 and 3 ECHR to have in place a system to protect its citizens. However, he said, that did not negate the value in public disclosure of the identity of someone who was reasonably believed to pose a risk of violence. The mechanisms were mainly focussed on addressing risks to specific individuals. Public disclosure was, in principle, capable of addressing the more general risk posed to women. However, he said that the words “in principle” were important as to whether and to what extent public disclosure would in fact serve to address the risks posed by X. This depended on the facts.

As for risks to X’s life and safety arising from publication of his name and image, Chamberlain J heard evidence from a senior and experienced MI5 officer in both the closed and open proceedings, explaining that there would be a real and immediate threat to X’s life or serious risk of harm. Chamberlain J rejected the BBC’s argument that the evidence was “generic”, as the MI5 officer was specific about the groups from which the risk arose, and his evidence was based on knowledge of those groups and their previous conduct. Overall, Chamberlain J was satisfied that disclosure of X’s identity would expose him to a “real and immediate risk” of death or serious injury at the hands of others. This risk was “substantial or significant”, not “remote or fanciful”, and would be “present and continuing”.

There was evidence in closed about the measures that would be taken to protect X’s identity, that they would need to be extensive, and that those responsible would be likely to implement them. However, the evidence was also that the measures would have a very substantial impact on X’s private and family life. Further, the AG submitted that publication would cause wider damage to national security, as it would discourage people from working for MI5. Chamberlain J said that this argument should be given commensurate weight in the balancing of public interests, following the authorities.

Chamberlain J said that because there might well be a significant danger that X would act violently towards a woman with whom he had a liaison in the future, he would need “considerable persuasion” to grant an injunction if it would mean a material impact on women’s ability to access information that might protect them from the risk of violence by X. However, this had to be balanced against evidence from the AG that measures implemented to protect X if his identity were to be disclosed would, in fact, substantially undermine the protective effect that disclosure would have on women considering a relationship or liaison with him. Once the measures were taken, public disclosure of X’s identity would not materially reduce any risks that X posed to women, nor would it materially increase any danger that X posed to women.

As for the impact on the BBC’s Article 10 rights if the injunction were granted, Chamberlain J said that, while an injunction would constitute a significant interference with the BBC’s rights, it would not prevent it from making the allegations central to its story, nor from drawing attention to what it said were the important issues of public concern to which it gave rise, namely the allegation that X abused his CHIS status and that MI5 was wrong to continue to use him as a CHIS.

Overall, Chamberlain J held that the AG was more likely than not to succeed at trial in establishing that the balance of public and private interests favoured the grant of relief prohibiting the BBC from disclosing X’s name and image. This was the case whether the law of confidentiality or that of ECHR rights was applied. Accordingly, the injunction was granted. (Her Majesty’s Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 826 (QB) (7 April 2022) — to read the judgment in full, click here).