Category: Freedom of Information

Opening of secret evidence rules not limited to terrorism cases

22 July 2010 by Adam Wagner

A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment

The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.

The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.

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Russian mafia bribe police officer wins battle against the Times

14 July 2010 by Adam Wagner

Don't follow the money

Flood v Times Newspapers Ltd [2010] EWCA Civ 804 (13 July 2010) – Read judgment

A Detective Sergeant in the Metropolitan Police accused of taking bribes has won his battle against the Times to prevent the newspaper relying on the Reynolds defence, which allows allegations to be reported even the it they turn out to be wrong, in the interest of media freedom.

In June 2006 the newspaper had published an article entitled “Detective accused of taking bribes from Russian exiles”, leading the detective to sue in libel The Court of Appeal reversed the decision of Mr Justice Tugendhat in the High Court which had said the Times could rely on Reynolds privilege.  The Inforrm Blog has provided an excellent analysis of the judgment. The post sums up the facts as follows:

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Wikileaks founder emerges from hiding

25 June 2010 by Rosalind English

Wikileaks founder  Julian Assange, who has been on the run from the US authorities after being linked to a serious US national security breach, has come out of hiding in Belgium.

Medical records not as private as they may first appear under human rights law

28 May 2010 by Adam Wagner

General Dental Council v Rimmer [2010] EWHC 1049 (Admin) (15 April 2010) – Read judgment

A dentist has been ordered to hand over his patients’ medical records to a court in order to help his regulator prosecute him for misconduct. The case raises interesting questions of when the courts can override patient confidentiality which would otherwise be protected by the Human Rights Act.

When health professionals are being prosecuted for misconduct,their patients’ confidential records will almost invariably be disclosed to the court if requested, even without the patients’ consent. Some may find this surprising, given the fact that medical records almost invariably contain highly private and potentially embarrassing information which a person would justifiably not want disclosed in a public court. However, the situation is not as simple as it first appears, as demonstrated by the recent case of an allegedly dodgy dentist.

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Sarah Ferguson scandal raises debate on right to privacy

26 May 2010 by Adam Wagner

Sarah Ferguson, the Duchess of York, is in trouble for offering to sell her influence for cash. She proposed to sell access to her ex-husband Prince Andrew, a “trade envoy”, for £500,000 to an undercover reporter from the News of the World. The circumstances of the sting raise interesting issues in respect of the right to privacy under the Human Rights Act.

Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence“. The right is not absolute, and can be breached by a public authority “in accordance with the law and is necessary in a democratic society”, that is, if the breach is in the public interest. Only public authorities need to keep within these rules.

The Inforrm Blog has posted an interesting analysis of the issue, concluding that

it seems to us that there is a proper justification for the publication of the story.   What the Duchess was offering was “access to a public official”, for a payment which appears to be wholly disproportionate to the “monetary value” of the service offered… The fact that neither the Duchess nor the businessman had any specific wrongdoing in mind does not matter.  The whole transaction was “tainted” and its exposure was, we suggest, justified for that reason.
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Evolution of a right to freedom of information?

6 May 2010 by Adam Wagner

For much longer?

Whichever party wins today’s General Election, freedom of information in and outside the courts will be a key issue for the incoming government. In light of this, Hugh Tomlinson QC asks whether a “right to freedom of information” is evolving through human rights case law in an interesting piece on the International Form for Responsible Media Blog (Inforrm).

The Government is under increasing pressure to release information which was once uncontroversially secret. As we posted yesterday, freedom of information is a hot topic in the courts at the moment, specifically in the context of the security services and the information they are obliged to disclose to defendants in criminal trials and claimants in civil proceedings. In those scenarios, the right to a fair trial was conditional on a right to see information which goes to the heart of that trial (Article 6 ECHR). However, when divorced from the right to a fair trial, there is as yet no explicit right to information.

Article 10 of the Convention only extends to the right to “hold opinions and to receive and impart information“. This does not necessarily entail a right to access confidential Government information. Hugh Tomlinson says:

This has often been identified as an important weakness in the Convention. However, the position is changing: the Convention is a “living instrument” and recent case law suggests that, in accordance with international trends, the Convention may be evolving its own “right to freedom of information” as a fact of the right to freedom of expression in Article 10 of the Convention.

We posted recently on the the robust freedom of expression enjoyed by those living in the United States, as compared to the arguably less robust freedoms in the UK under Article 10 of the Human Rights Act 1998. Freedom of expression has gone hand in hand in the United States with superior access to government information. The US Freedom of Information Act was passed by Lyndon Johnson in 1966. It is only with the Freedom of Information Act 2000, sister-legislation to the Human Rights Act, that the UK has begun to catch up. The development of a right to freedom of information would close that gap further. As Tomlinson argues:

… the Court of Human Rights has recognised that there can be a right to access to official information. In some cases this has been done by reference to Article 8 of the Convention… Most recently, in the Hungarian Civil Liberties Union case (Társaság a Szabadságjogokért v. Hungary, Judgment of 14 April 2009) the applicant had been refused access to a constitutional complaint made by an MP. The Court said that “the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information” [27]

Read more:

• Summary of freedom of information manifesto commitments here and here
• The Inforrm post: part 1, part 2, and part 3

Court of Appeal launches offensive against secret justice with three linked judgments

5 May 2010 by Adam Wagner

… but not too blind

Home Office v Tariq [2010] EWCA Civ 462  – Read judgment, Bank Mellat v HM Treasury [2010] EWCA Civ 483 – Read judgment

[Updated 7/5/10]

The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.

An identically constituted court as in the Al-Rawi and others judgment had already held on the same day that evidence in a high-profile torture compensation claim should not be kept entirely secret.

In two further decisions, the same judges held that the Treasury must give sufficient disclosure to allow a bank accused of involvement in Iranian nuclear proliferation to not just deny but refute the allegations (Bank Mellat v HM Treasury), and that the Home Office must provide the “gist” of material it had wanted to keep secret from an employment tribunal (Home Office v Tariq). The court did not, however, go as far as saying that evidence can never be kept secret in cases involving national security.

All three cases revolve around the controversial “closed material procedure“, which allows certain evidence to be kept from the public and sometimes a defendant, and the use of “special advocates” (SA). As the Court of Appeal said in para 1 of the judgment, these procedures, developed as part of the fight against terrorism, represent “exceptions to the fundamental principle of open justice.” We have posted about the issues surrounding the special advocate system in relation to control orders (read post).

The cases higlight the strong line the courts have taken towards open justice since the AF case in 2009, a criminal matter in which the House of Lords (now the Supreme Court) held that it was a breach of the right to a fair trial under Article 6 to hold someone under a control order without sufficient information about the allegations against him even where disclosure would compromise the country’s national security (read our case comment).

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More secret evidence trouble for Government in foreign torture case

4 May 2010 by Adam Wagner

Binyam Mohamed

Al Rawi & Ors v Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) – Read judgment

The Court of Appeal has roundly rejected a request by the Government that evidence in a high-profile torture compensation claim should be kept secret from the public. It has also used the opportunity to emphasise that the interests of open justice would be serious compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.

This compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment.

The judgment is the latest in a series of reverses suffered by the Government in matters involving Binyam Mohamed and others in relation to their alleged torture. In February the Court of Appeal ordered it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by American authorities.

In the latest judgment, the Court of Appeal rejected the previous judgment of Mr Justice Silber in the High Court. The issue was whether the judge was right to conclude that it is open to a court, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.

The appeal judges concluded that it was not open for a court to order a closed material procedure, stating that:

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Mutual confidentiality between intelligence services trumped by open justice requirements

25 February 2010 by Elspeth Wrigley

R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

Court of Appeal orders Government to release Binyam Mohamed “torture” email

9 February 2010 by Adam Wagner

Binyam Mohamed

Read our case comment here

The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.

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