MI5 does not have to say if abusive man was a spy, judges rule

The security service can continue to neither confirm nor deny whether a man who attacked his girlfriend with a machete was an MI5 agent, judges have ruled.

In 2022, a BBC News investigation established through multiple sources that the man – known as X for legal reasons – was an MI5 agent.

He used his MI5 role to coercively control Beth, his ex-partner.

He was physically and sexually abusive, and was filmed threatening to kill her and then attacking her with a machete.

Beth, not her real name, complained to the watchdog which considers complaints against the intelligence services.

She has asked the Investigatory Powers Tribunal (IPT) to investigate MI5’s recruitment and handling of X, and whether any steps were taken to address the risk of harm he posed. The IPT will consider whether MI5’s conduct breached Beth’s human rights by enabling X to subject her to violence and abuse with impunity.

The IPT is a panel of senior judges which investigates human rights claims against MI5, MI6 and GCHQ. The IPT’s non-public hearings can take place in secret, with evidence kept from claimants, or in private, meaning not in public but with access for claimants and their lawyers.

MI5 has always refused to publicly confirm whether or not X was an agent, meaning an authorised informant.

A preliminary hearing in May centred on whether MI5 should be able to maintain its position of neither confirming nor denying – known as NCND – whether X was an agent.

Her legal team, led by the Centre for Women’s Justice, argued it will be a serious interference with Beth’s ability to have a fair trial. They submitted that X had already disclosed his role to Beth and that hearings could take place in private.

Lawyers for MI5 argued that setting aside the longstanding NCND principle would be damaging to national security.

In a judgment, the IPT has ruled in favour of MI5, saying the principle “fundamentally relies upon the absolute consistency of its application”.

The two judges conclude MI5 agents are “effectively given a guarantee that their status will not be acknowledged” and caveats would undermine it.

The judges say they “accept that maintaining NCND impacts on Beth’s fair trial rights” because she cannot counter whatever evidence may or may not be presented in secret, but there are “procedural safeguards” to reduce the impact, such as tribunal lawyers representing her interests.

The full trial is scheduled for January 2025.