Senior High Court judges have decided it "would not be in the public interest" for the court to initiate contempt of court proceedings against MI5 and its Director General, Sir Ken McCallum, over the intelligence agency's handling of a violent, misogynistic neo-Nazi agent.
The ruling follows a probe into MI5's failures in the so-called "Agent X" scandal, which saw intelligence officers provide false evidence to three courts. That incorrect evidence was used in a successful bid for an injunction against the BBC in 2022, preventing it from airing a documentary naming a man known as X, who had allegedly abused two women and is a covert human intelligence source.
Spy chief's apology
Sir Ken was forced to issue a heartfelt apology after the failures came to light. On Tuesday, he admitted MI5 "fell badly short" in the scandal, adding that "confidence" in its information "needs to be re-earned".
He said: "Today's judgment underlines MI5's serious failures in this case. I repeat my apology for those failures, and for the additional distress they caused to Beth."
"The High Court has not initiated contempt proceedings. That is welcome. Meanwhile our work inside MI5 to learn all lessons continues at pace."
"Our responsibility as MI5 is clear. The courts, and those charged with scrutinising us, must have confidence that information we provide is accurate and complete. That confidence now needs to be re-earned."
Judges' reasoning
Baroness Carr, sitting with Dame Victoria Sharp and Mr Justice Chamberlain, said proceedings at this stage would be "unlikely to do more than duplicate" the findings of Sir John Goldring's report.
In their ruling, the judges said proceedings against individual officers would be "highly resource-intensive" and would "face some substantive hurdles, which may or may not be overcome", including establishing a "causal link between what they said and did and the making of the false statement".
They also said there was no public interest in further action against Sir Ken and that "nothing would be gained" from proceedings against MI5 as an organisation, adding: "Any sanction available against MI5 could be financial only."
"There could be no public interest in imposing a financial penalty whose only effect would be to deprive MI5 of funds it requires to undertake its important work," they said.
Investigatory Powers Commissioner findings
In July, the Deputy Investigatory Powers Commissioner, Sir John Goldring, found "serious and systemic failings" by MI5 and that one officer, known only as Officer 2, lied about his role in the incident.
A hearing in September was told that MI5 and individuals including Sir Ken and Officer 2 should face contempt of court proceedings, with lawyers for one of the women allegedly abused by X claiming that there were "repeated efforts to prevent the truth emerging".
Reading a summary of the decision, Lady Chief Justice Baroness Carr said that any court proceedings "should follow consideration by the police, and consideration of charges by the Crown Prosecution Service".
The scathing Investigatory Powers Commissioner report revealed in July that senior MI5 officers "misled" investigators in a probe into the intelligence agency's handling of the agent. Officers "relied" on a "false account" which had been allowed to "take hold and persist" after confirming "X" was one of their agents.
They had claimed they had neither confirmed, nor denied (NCND), his role during a watchdog probe and in misleading responses to journalists. The intelligence agency has admitted giving false evidence to three courts over its handling of the man and confirmed it has settled a legal claim brought by the victim "without admission of liability".
MI5 was forced to pay X's victim, known as Beth, after she was allegedly attacked with a machete by her former partner, a violent, 'extremist' misogynist neo-Nazi, who used his MI5 role to coercively control her.
The Investigatory Powers Commissioner published a scathing 213-page report into Agent X. It said the "key individual who departed from NCND to the BBC journalist knew throughout what he had done yet failed to report it".
"Others in MI5 knew that NCND had been departed from, but a false account was allowed to take hold and persist," the report said. "That false account was subsequently relied upon in the injunction proceedings, before the Investigatory Powers Tribunal and in judicial review proceedings. Opportunities to correct the position were missed."
Beth claimed her abusive ex-partner boasted about being a paid informant for MI5. Shocking video footage published by the BBC allegedly showed her ex-partner attacking her with a machete. 'X' had previously been reported to police abroad about allegations of domestic violence against a previous partner.
MI5 confirmed 'X' was one of their agents, shredding their claim that they never confirm an agent's identity under a principle known as "neither confirm nor deny". Beth took legal action against MI5, claiming the intelligence agency breached her human rights by failing to protect her from agent X. She took the case to the Investigatory Powers Tribunal (IPT), where judges ruled much of the case should be held in secret after MI5 said it does not confirm agent identities.
