disclosure


Legal advice privilege should not extend to accountant’s advice, says Supreme Court

24 January 2013 by

tax-erase-remove-lower-270x167Prudential plc and another , R (on the application of) v Special Commissioner for Income Tax and another [2013] UKSC 1 23 January 2013 – read judgment

The Supreme Court has ruled that legal advice privilege should only apply to advice given by a member of the legal profession; that this is what the common law has always meant, and that any wider interpretation would lead to uncertainty. Two strong dissents do not find any principled underpinning for the restriction of the privilege to advice from solicitors or barristers.

The following summary is based on the Supreme Court’s press release (numbers in square brackets denote paragraphs in the judgment).


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EU’s non-disclosure of UK EU Charter “opt-out” documents is a breach of the EU Charter

13 January 2013 by


11374Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision

The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.

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Working with the elderly and infirm: a delicate balance of rights

30 October 2012 by

 R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment

Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.

The Legal Framework

Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State  who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”
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Prince Charles and the curious case of the Black Spider Letters

23 October 2012 by

Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.

It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.

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Azelle Rodney Inquiry lawyers can see surveillance film footage

16 October 2012 by

R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment

The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.

The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.

The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party)  was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel. 
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Sex abuse allegations against parent should be disclosed in contact proceedings

28 September 2012 by

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

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What did the German Chancellor say to the EU Commission to get this factory built on a nature reserve?

25 June 2012 by

IFAW Internationaler Tierschutz-Fonds GmbH; 21 June 2012, read judgment, on appeal from judgment of the General Court read judgment

I am in the middle of a series of posts about the way in which the EU institutions can be kept in check by individuals, including looking at challenges to EU measures (see my Inuit post) and the specifics of seeking an internal review of EU implementing Regulations via  the EU Aarhus Regulation 1367/2006  (see my post on the pesticides and air quality challenges). So it was a happy coincidence that last Thursday, the CJEU allowed an appeal in a case concerning documents sought by an NGO from the Commission. We are here in the territory of all EU institutions and all EU issues, not simply environmental questions arising under the Aarhus Convention, though, as we shall see, this is an environmental case.

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Sound of tumbleweed greets secret civil trials proposals

14 February 2012 by

65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.

Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.

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Analysis – Daily Mirror and The Sun in contempt over Jo Yeates murder case

29 July 2011 by

Her Majesty’s Attorney-General Claimant – and – (1) MGN Limited Defendants (2) News Group Newspapers Limited – Read judgment

The High Court has found that the Daily Mirror and The Sun were in breach of the Contempt of Court Act 1981 (1981 Act) in relation to their reporting of the Jo Yeates murder case. The court was strongly critical of the “vilification” of a man who was arrested but quickly released without charge.

The proceedings were in relation to Christopher Jefferies, a school teacher who was arrested early on in the investigation. The court fined the Daily Mirror £50,000 and The Sun £18,000.

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Why the Sharon Shoesmith decision is good for access to justice (and it has nothing to do with the case)

2 September 2010 by

Yesterday, Sharon Shoesmith was given permission to appeal in the judicial review of her dismissal by Haringey council as a result of the Baby Peter scandal. The case itself is complex and fascinating, but the detail should not overshadow the open and forward-thinking way in which the case has been dealt with.

The case was always likely to be full of controversy, complexity as well as salacious detail. This is not in itself remarkable; public law is often the cutting edge of social and political issues. What is unusual is the manner in which Mr Justice Foskett (full disclosure: he is a former member of my chambers) approached his task by not just in looking inwards to the legal system, but also outwards to the general public.

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