WITNESS STATEMENTS, CPR 32 AND … SPIES: GOVERNMENT MUST GIVE SOURCE OF INFORMATION OR BELIEF

The judgment in  HM Attorney General for England And Wales v British Broadcasting Corporation (BBC) [2022] EWHC 380 (QB) relates to confidentiality and spies.  It also contains some important observations on the information needed, and formal requirements, when a witness statement is drafted.

a statement made by a government lawyer “on instructions” is useful only to the extent that those who give the instructions are identified. This is why CPR 32 PD para. 18.2 provides that a witness statement must indicate (1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief and (2) the source for any matters of information or belief”.

THE CASE

The government is seeking an injunction preventing the BBC from broadcasting a programme in which it is alleged that someone was a dangerous extremist, misogynist who physically and psychologically abused two former partners and was also an agent for MI5.  One issue is the extent to which the information had been “leaked” to the media and who leaked it.  The government was asked to explain. Its explanation was less than satisfactory.

THE JUDGMENT IN RELATION TO WITNESS EVIDENCE

The judge had made an order that the government explain how the article came about and whether it came from a government source.  A witness statement was filed, however its failure to comply with CPR 32 meant that it had no real evidential value.

    1. On 21 January 2022, The Daily Telegraph published an article under the headline “Exclusive: Government seeks to gag BBC over spy story”. The article reported that the Attorney was seeking an injunction to prevent the BBC from “allegedly identifying a spy working overseas”. The article reported the BBC’s view that the story was “overwhelmingly in the public interest”. The case was said to echo the Spycatcher affair. The Attorney’s position was said to be that the broadcast presents “a risk to people’s lives”. An unnamed source was quoted as saying that there was “huge disquiet” about the broadcast. The article continued as follows:

“The source said: ‘It is really serious – there are serious risks. The programme would be a massive compromise for our security’.

Identifying the spy concerned would have ‘very serious consequences for the BBC’ and would be ‘a risk to people’s lives’, the source said, adding: ‘These people are doing very, very difficult jobs in incredible circumstances. They are risking their lives. This is not James Bond – these are real people.”

    1. The contents of this “exclusive” report were widely repeated in other press and media outlets.
    1. At the initial hearing on 26 January, I indicated that it would be a matter of concern if the Attorney was seeking to hold part of the hearing in private while, at the same time, the Government were briefing the press about the case. But it was inappropriate to draw any conclusions at that stage and I invited the Attorney to file a witness statement addressing the media coverage of the case, which would be considered at the hearing on 16 February 2022.
    1. The Attorney filed the statement of Louise Wallace, a lawyer in the Government Legal Department. The Attorney now concedes that The Daily Telegraph “appears to have had some kind of inside ‘source'”, but asserts that this was “someone acting without authority”.
    1. In my judgment, Ms Wallace’s statement does not enable that conclusion to be drawn. This implies no criticism of Ms Wallace herself, who is no doubt reporting accurately what she has been told. But a statement made by a government lawyer “on instructions” is useful only to the extent that those who give the instructions are identified. This is why CPR 32 PD para. 18.2 provides that a witness statement must indicate (1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief and (2) the source for any matters of information or belief”.
    1. In Punjab National Bank (International) Ltd v Techtrek India Ltd [2020] EWHC 539 (Ch), at [20], in a passage cited in the White Book at para. 32.8.2, Chief Master Marsh said this:

“In my judgment, where the maker of a statement is relying on evidence provided by a witness who is an officer of, or employed by, an incorporated body, the requirements of paragraph 18 of Practice Direction 32 to provide the source of evidence is not complied with merely by saying that the source is the entity or officers of the entity. If the source of the evidence is a person, as opposed to the source being documents, the person or persons must be identified and named. A corporate entity cannot experience events and can only operate through the medium of real persons. A failure to identify the source in a manner that complies with paragraph 18.2 will mean that the court has to consider whether to place any weight on the evidence, especially where it touches on a central issue.”

    1. I would respectfully endorse that interpretation of CPR 32 PD para 18.2 as correct. It applies at with least much force to government departments as it does to corporate entities. When the issue being addressed is whether a particular press statement was made with authority, it will be important to identify in respect of any relevant department (i) which (named) individuals have authority to authorise such statements to be made; (ii) which (named) individuals have said what about whether such authority was given.
    1. Without this information, phrases like “The Home Office is not aware…”, “As far as No. 10 is aware” and “My clients have confirmed” (all of which appear in Ms Wallace’s statement) are of very limited probative value. In any event, so far as the Attorney General’s Office, Home Office, MOJ and DCMS are concerned, the statement does not actually say in terms (even on the basis of instructions from an unidentified person) that no-one from these departments was authorised to brief the press in the terms reported in the Daily Telegraph article.
    1. The consequence is that there is no evidence before me to negative the inference which arises from the terms of the article itself: that the “source” referred to in that article is a Government source. Whether that person was acting with authority, and if so whose authority, is not a matter on which any reliable conclusion can be drawn at this stage. But the evidence of Ms Wallace certainly does not establish that the statement was made “without authority” if that phrase is to be given any meaningful content.
    1. These conclusions are relevant to the Attorney’s application for privacy in two ways. First, the fact that a Government source (whether acting with or without authority) appears to have briefed the press about this case has an impact on the extent to which it is “necessary to sit in private to secure the proper administration of justice” within CPR r. 39.3. It would in principle be unfair to allow one party to put its own “spin” on a case without allowing the other party to put before the public even the basic factual elements of its defence.
  1. Second, leaving aside any question of authority, the fact remains that the information (including the quotations and reporting from the “source”) is now in the public domain. As I have said, after the “exclusive” article in The Daily Telegraph, the content of that article was very widely reported in other press and media outlets. The question of damage to national security which might flow from a broadcast about X’s conduct which does not identify X has to be considered against that background.