Case No. UKUT-60-(AAC)

15. In its decision dated 21 October 2020, the FTT allowed the CPS’s appeal from the Information Commissioner’s decision and decided that the requested information should not be disclosed. It decided that the exemption under section 42(1) FOIA was engaged and the public interest balance did not favour disclosure. The operative parts of the FTT’s decision are as follows:‘22. It was argued that the advice note was not general as it was obtained specifically in relation to the case referred to in the request, and that the age of the advice was not a relevant circumstance. The CPS argued that Halsbury’s Laws of England set out the legal position on the specific question on the compellability of the Sovereign, and so the public interest in the advice received by the CPS is lessened as a result. It is said that the withheld information ‘does not advance the learning of the law’ beyond what can be gleaned from the textbooks, and that the issue about the compellability of the Sovereign is very rarely raised in any event. …..29. Mr McGill also gave evidence in open session in the case which supported the contents of his witness statement. He confirmed that the advice in question was, in fact, from senior treasury counsel and had been requested by the then Director of Public Prosecutions (DPP). This detail had previously been redacted from the documentation and so the information was opened to Prof Callender Smith, together with the CPS concern, expressed in the redacted part of paragraph 2 of the CPS skeleton argument that ‘at the heart of this appeal’ was the question ‘if Senior Treasury Counsel’s Advice on a matter such as the present cannot be kept out of the public domain – what hope is there for a Prosecuting Advocate’s Advice in a ‘run of the mill’ prosecution in a local crown court?’. SUBMISSIONS AND DISCUSSION 32. Mr Heppinstall for the CPS emphasized the test set out in paragraph 53 of the DBERR case (see paragraph 12 above) and supported the evidence of Mr McGill. 33. Mr Perry, for the Commissioner, emphasized the main public interest arguments relied upon by the Commissioner in the decision notice (see paragraph 16 above). These can be summarized as relating to accountability and transparency in decision making, especially where the advice in question has been obtained with public funds. Mr Perry augmented these reasons on behalf of the Commissioner by referring to the constitutional importance of the issue, the passage of time since the advice was provided, the fact that the advice provides something akin to the CPS policy on the issue in question, and that no prejudice, in his submission, would be caused by disclosure. 34. Mr Perry accepted the formulation of the test to be applied in s42 FOIA cases, as set out in the DBERR case, but also argued that the ‘in-built’ significant weight to be given to LPP could change depending on the particular circumstances in which the advice was given. 35. However, in my view there is nothing in the case law to which I have been taken which indicates that the ‘in-built’ significant weight can vary from case to case. The approach I have to take is to recognize that there is a significant in-built public interest in non-disclosure in LPP cases under s42 FOIA, as the court said in DBERR paragraph 53, ‘in any event’. As the court indicated in paragraph 51 of that case it is ‘not necessary to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question’. 36. It is then necessary to assess whether there are other factors to be taken into account which support non-disclosure, and then consider whether the public interest in disclosure is equal to or outweighs those combined factors. 37. In relation to other factors which support non-disclosure, it seems to me that the CPS has overegged its position in this appeal. It is argued that extra weight should be given to the public interest in non-disclosure because this was advice sought by the DPP from senior treasury counsel. It is also argued that the particular nature of advice from prosecuting advocates in criminal proceedings should provide additional weight. 38. These factors may be worthy of a degree of additional weight, but the answer to the CPS question in its skeleton argument, set out above (‘what hope is there for a Prosecuting Advocate’s Advice in a ‘run of the mill’ prosecution in a local crown court’ if this advice from senior treasury counsel cannot be kept out of the public domain) is, in my view, straightforward. Each case has to be considered on its own merits where a request for disclosure is made, and the public interest for and against disclosure also considered in each case. As in this case, those issues can then be considered by the Commissioner and this Tribunal, and no absolute guarantee can be given to any prosecuting advocate that the public interest would not lead to disclosure. The fact that there may be particular factors in a case which leads to disclosure under FOIA does not undermine the principle of LPP in other cases where different factors may be important. 39. As well as possible disclosure under FOIA Mr McGill explained, there are times when the CPS discloses advice from prosecuting advocates in the context of civil litigation or a public inquiry. Prosecuting advocates, therefore, are also at risk that advice from a particular case might be disclosed by the CPS for those purposes. An example in the case of Mouncher v South Wales Police [2016] EWHC 1367 (QB) was given by Mr McGill, and it can be seen in section 4 of the long judgment in that case that extensive reference is made to prosecuting counsel’s written advice as well as advice provided in face to face meetings with the CPS. This example was presented to illustrate that the CPS does not advocate a blanket ban on disclosure of advice from prosecuting counsel, but it also illustrates that prosecuting advocates will be aware that there are indeed other occasions apart from the FOIA scheme where the contents of advice might be disclosed. 40. In my view if the advice in this particular case were disclosed it would have very little or no chilling effect on prosecuting advocates advising on cases in 2020, ‘run of the mill’ or otherwise, even on the basis that this was advice sought by the DPP from senior treasury counsel in a case of significant interest. This is a very specific advice on a point of law from many years ago and it has been acknowledged that no reference in it is made to any particular prosecution or defendant (although I accept that it was obtained with a particular prosecution in mind). Prosecuting advocates in live cases today would, in my view, recognize the special factors in this case and would continue to provide robust and independent advice in accordance with their professional duties and the Faquharson guidelines. 41. However, the fact that I am sceptical about the strength of the CPS claimed additional factors in support of the public interest in non-disclosure, does not necessarily lead to a conclusion that the advice should be disclosed. Indeed, it is my view that the public interest in disclosure is not at least equal to or greater than the ‘in-built’ public interest in non-disclosure. I accept the submission made by the CPS that the public interest factors in favour of disclosure raised by the Commissioner do not, in fact, add up to very much. 42. In relation to the constitutional importance of the case as emphasized by Mr Perry, it should be noted that in Corderoy the Upper Tribunal at paragraph 76 found that: - ‘The importance of the issue and the public interest in the issue works both ways because it supports the need for frankness and confidentiality between client and lawyer on the one hand and the arguments in favour of transparency and fully informed debate on the other’. 43. Thus, the fact that the advice sought was on an issue of constitutional importance, can provide an additional public interest reason for non-disclosure as well as a reason for disclosure.44. Mr Perry also relied on the fact that no prejudice would be caused if there were disclosure of this document, as an issue which added to the public interest in favour of disclosure. He referred as a summary of the factors supporting this to paragraph 41 of Commissioner’s decision which states that ‘…the legal note is 17 years old…it is general in nature and does not make any direct reference to the court proceedings in question’. 45. As indicated above, I largely accept that argument that no prejudice will be cause by disclosure of the advice, and I think that the possibility of disclosure in this case leading to any kind of opening of floodgates would be very unlikely, or that disclosure in this case would risk a miscarriage of justice. However, I also note, as explained above, that no prejudice has to be identified for the ‘in-built’ public interest in non-disclosure in LPP cases to apply. 46. I accept that the length of time since the advice was provided is also a factor which could be of some importance. However, there is nothing in the case law which suggests that the age of the advice lessens the ‘in-built’ public interest in non-disclosure. It might be that the age of the advice would lessen the ‘additional factors’ relied upon by the CPS but, as set out above, I have given those little weight in any event. I also accept that if the advice provided is still current (as it is said to be in this case) and about an issue that is still said to be live, then the fact that the advice was provided some years ago is not a factor which would point towards disclosure. 47. I also do not agree that the advice, even if it is current, amounts to a CPS ‘policy’ on the issue in question which elevates the public interest in disclosure. It remains legal advice (albeit paid for by the public purse) and, as the CPS argue, anyone is entitled to obtain their own advice on the issue, taking into account, if thought relevant, the additional Article 6 issues raised by Prof Callender Smith. 48. In the end, despite Mr Perry’s best efforts on behalf of the Commissioner, it is my view 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-law in s42 FOIA cases. For the reasons set out above 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, even in a case where I am prepared to accept that little or no prejudice would have been caused by disclosure. 49. That finding is sufficient to dispose of the appeal in favour of the CPS…’