SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)

Here we have a case about MI5, spies and lies.  However this is a site about civil procedure and evidence so we are  largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court)  and looking primarily at the issue in relation to the failure to comply with the basic rules about witness statements. The failures to comply occur across many types of litigation.

(The rules about witness statements applies to spies. There is nothing secret about that…)

‘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 the 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 being from 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.’

KEY PRACTICE POINTS

Granted there are not many cases about spies and lies. Further there are not many cases where a party is allowed to produce a “corporate witness statement”. However there are many cases in which those, who work in a corporate setting, make a statement on behalf of that corporation. Such statements have to comply with PD 32.18.

18.2 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.

This obligation is often overlooked. The Divisional Court reiterates its importance in this case. The obligation applies to all litigants, including MI5. Spooky… 

THE CASE

HM Attorney General for England And Wales v British Broadcasting Corporation [2025] EWHC 1669 (KB)

THE FACTS

The Attorney General obtained an injunction to prevent the BBC broadcasting a story about “X”. Evidence in support was given by a senior MI5 officer “Witness A” and the evidene was affirmed by MI5. It transpired that the evidence was false. However Witness A’s evidence had been used in proceedings before the Investigatory Powers Tribunal and in relation to judicial review proceedings, in addition to the injunction proceedings.

THE ADMITTED LIES

The Attorney General and MI5 admitted that false evidence had been given.

CONTEMPT OF COURT

The court were told of the investigations that had been made. It found that these were inadequate. Further investigations had to be made to discover whether contempt proceedings should be brought.

” 9. Issue 1 remains live, because giving false evidence in a witness statement can in some circumstances amount to a contempt of court. Where the court considers that a contempt “may have been committed”, CPR 81.6 requires the court to consider of its own initiative (i.e. even where no party has made an application) whether to proceed against the person concerned in contempt proceedings.”

90. CPR 32.14 provides that proceedings for contempt of court may be brought against a person who “makes or causes to be made” a false statement in a document verified by a statement of truth.

91. It is not necessary at this stage to examine in detail the state of mind which is necessary for a finding of contempt. For present purposes we consider it at least arguable that a person who provides information knowing or intending that it will be used in a witness statement, knowing that the information is false or without an honest belief in its truth, is guilty of contempt of court: see e.g. R (Ayinde) v London Borough of Haringey [2025] EWHC 1383 (Admin), [26].

92. We have already made reference to CPR 81.6. It provides as follows:

“If the court considers that a contempt of court (including a contempt in the face of the court) may have been committed, the court of its own initiative shall consider whether to proceed against the defendant in contempt proceedings.”

93. The application of CPR 81.6 involves a two-stage process. At the first stage, the court considers whether a contempt may have been committed. Once that threshold is met, the court must then reach an evaluative judgment whether contempt proceedings should be initiated: Ayinde, [28].

94. In view of the serious procedural deficiencies of the investigations, it is premature at this stage to form any view as to whether or not contempt proceedings are appropriate.

95. We note that, at paragraph 94 of his submissions, the Attorney General says this:

“If there is further action that the Court considers to be necessary, or further information that needs to be provided, then that will be done.”

96. We consider that further action is necessary. There should be a further, robust and independent investigation. It seems to us that the most appropriate forum for such an investigation would be IPCO. The Investigatory Powers Commissioner may, if he sees fit, nominate one or more of his judicial commissioners to carry out the task. The results of this investigation should then be provided to the court. We consider that all the materials that were made available to us should be provided to the individual or individuals conducting this new investigation.

CORPORATE WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF

The point of general relevance however, are the obligations that the rules place on someone making a witness statement which is relying on information given by others.  There is a clear duty to state the source of information and belief, with particularity.  The Court held that this general duty applied to a government organisation when witness statements were made in this context.

“(f) Corporate witness statements

97. The document in which Witness A gave false evidence was what is known as a “corporate witness statement”, i.e. a statement conveying the collective evidence of a company or other body. Evidence given on behalf of a government department or agency is often given in the form of a corporate witness statement. This can be a convenient way to present an “institutional view”, but it has dangers—as this case illustrates.

98. The court has already commented on these dangers previously in this litigation. Just as the injunction application was being filed, and at a time when the (then) Attorney General was seeking to persuade the court to hold the main hearing of the injunction application entirely in private, an article appeared in The Daily Telegraph which appeared to have emanated from a Government source. The material contents of the article were set out in Chamberlain J’s first judgment in this case: [2022] EWHC 380 (QB), [24]. The claimant was ordered to file evidence about the media coverage of the case. A witness statement was filed by a lawyer at the Government Legal Department (Ms Wallace), which contained evidence about the state of knowledge of various government departments.

99. Chamberlain J said this:

“28… 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.
29. 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 the 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 being from 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.’

30. I would respectfully endorse that interpretation of CPR 32 PD para 18.2 as correct. It applies with at least as 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 has been given.
31. 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…”

100. These observations were made in the context of evidence about an inquiry into a possible press briefing. They apply with equal force to the false statement made by Witness A in the witness statement of 26 January 2022 that “MI5 neither confirmed nor denied” X’s CHIS status.

101. Indeed, in our judgment, they apply generally to government departments and agencies, both on questions of fact and when conveying institutional views or assessments (including on matters of national security). Evidence of this kind is not exempt from the requirements of the CPR and practice directions.

102. Returning to this case, there were two options in respect of the evidence of Officer 2: to file a witness statement from him personally, or to serve a corporate witness statement dealing with his evidence. In our judgment, serious consideration should have been given to the first option, given Officer 2’s critical involvement in the material exchanges with Mr De Simone and his disposal of his contemporaneous records of those exchanges.

103. The Attorney General chose the second option. In those circumstances, Witness A’s statement should have complied with CPR Practice Direction 32 para 18.2.

104. Had it done so, the following information would have been revealed: there were no records of the relevant conversations; the evidence about what MI5 had done came only from the recollection of the officers concerned (whose identity should have been given, in CLOSED if necessary) with the date being given on which those persons were asked to and gave their recollections.

105. Further, since this critical information was second hand, the witness statement should have set out the degree of confidence those officers had expressed in their recollection. In addition, the officers should have been asked to read the passage of the witness statement which purported to record or summarise their recollections, and to confirm that the relevant part of the witness statement was correct. The witness statement should then have recorded that confirmation. Finally, Witness A should have stated whether the officers’ recollections had been the subject of any independent scrutiny or testing, including by Witness A.

106. This level of rigour will add to the burdens of those preparing evidence for government litigation, but it will deliver three important and related benefits. It will concentrate the minds of the persons providing the information on the accuracy of any statements they make. It will enable to the court to assess for itself how much weight should be accorded to the institutional evidence. In a case where the evidence given is deliberately or recklessly false, it will make clear who is responsible.”