Case No. UKUT-60-(AAC)

1.The Appellant (Professor Robin Callender Smith) appeals the decision of the First-tier Tribunal (General Regulatory Chamber) – Information Rights - (“the FTT”) dated 21 October 2020. 2.The FTT (Judge Stephen Cragg QC) allowed an appeal by the Crown Prosecution Service (the ‘CPS’, the Second Respondent to this appeal) against a decision of the Information Commissioner (the First Respondent to this appeal) dated 4 July 2019. 3.The Information Commissioner had decided that the CPS should disclose to the Appellant information he had requested in October and November 2018 relating to the discontinuance of the trial of Paul Burrell. Mr Burrell had been acquitted at the Central Criminal Court in 2002 on three charges of alleged theft of items from estate of the late Princess Diana. Specifically, the Appellant sought the legal advice relating to the competence and, as a separate matter, the compellability of the Sovereign (in this case the Queen) to give evidence at the trial. 4.The Information Commissioner accepted that the exemption for Legal Professional Privilege (‘LPP’) under section 42 of the Freedom of Information Act (‘FOIA’) was engaged in relation to the requested information because it was legal advice. However, she decided that ‘there was a ‘stronger public interest in the public knowing about the competency and compellability regarding whether the Sovereign can be called as a witness in court proceedings (paragraph 45 of the Decision Notice), then the public interest in withholding the information.’5.The FTT allowed the appeal and decided that the CPS was not required to disclose the advice (the requested information) because, while the exemption for LPP under section 42(1) of FOIA was engaged, the public interest did not favour disclosure. It held that ‘the Commissioner erred in finding that the public interest in disclosure outweighed the significant in built’ public interest in non-disclosure demanded by the case in-law in s.42 FOIA cases’ [48]. The FTT decided that the ‘public interest in disclosure, based largely on transparency, accountability, lack of prejudice, and the constitutional importance of the issue, was not strong enough to equal or override that significant in built public interest [against disclosure of LPP], even in a case where [the FTT was] prepared to accept that little or no prejudice would have been caused by disclosure’.6.The Appellant appeals to the Upper Tribunal, with permission, arguing that the FTT erred in law in striking the balance of competing public interests and failed to give sufficient weight to the public interest factors in favour of disclosure.