“This FOIA request is for the legal grounds - redacting any personal or sensitive personal data - contained within any Treasury Counsel's Opinion on the discontinuance of the trial of Paul Burrell at the Central Criminal Court in 2002.”
“The narrow issue of interest in this FOIA request - and this may be reflected in both Treasury Counsel's Opinion as well as the advice given on discontinuance - is the law 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. The leading case on this issue - which may or may not have been considered in the Opinion and/or advice on discontinuance, is R v Mylius (1911). This issue, which arose during the course of the case, may not have been part of Treasury Counsel's original opinion. It is likely, however to have been part of the advice given on discontinuance.”
‘41. … it is for the public authority to demonstrate on the balance of probability that the scales weigh in favour of the information being withheld. That is as true of a case in which section 42 is being considered as it is in relation to a case which involves consideration of any other qualified exemption under FOIA. Section 42 cases are different simply because the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question. … 53 In my judgment that paragraph is a clear indicator that the Tribunal failed to attach appropriate weight to the exemption. The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least.’
“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
‘Lord Taylor went on (at p. 508C) to reject a submission that, by analogy with the doctrine of public interest immunity, there might be occasions, if only by way of rare exception, in which the rule should yield to some other consideration of even greater importance: “But the drawback to that approach is that once any exception to the general rule is allowed, the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had “any recognisable interest” in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined.” As Lord Lloyd said in the Derby case (at p.509D): “….the courts have for very many years regarded legal professional privilege as the predominant public interest. A balancing exercise is not required in individual cases, because the balance must always come down in favour of upholding the privilege, unless, of course, the privilege has been waived.”’
‘Mr Bates accepted that the weight which should properly be given to the exemption in any event, by reason of the risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of LPP, may vary from case to case. If, for example, the requested information is very old, or relates to matters no longer current, a disclosure may damage that confidence to a lesser extent than if the information was recent, or relates to matters still current. We consider that he was right so to accept. The jurisprudence of the FTT further indicates that the factors in favour of maintaining the exemption are not necessarily limited to the general one just indicated, but may include the effect which disclosure would have in the individual case. For example, if the dispute to which the advice relates is still live at the time of the request, it may be considered unfair that the requester should have the advantage of access to the authority’s advice, without affording the authority the same advantage: West EA/2010/0120 (15 October 2010 ), at [13(5)].’
“Usually, if not always, the contention that an exemption carries “inherent weight” involves the contention that, regardless of whether there is any prejudice to the public interest as regards the particular policy or matter to which the information relates, disclosure must necessarily result in some prejudice by reason of a general impact on the public interest factor which the exemption is designed to protect.”
“The first is because it exempts “information in respect of which a claim to legal professional privilege ..... could be maintained in legal proceedings”
“In considering whether the Commissioner’s notice is in accordance with the law, the Tribunal must consider whether (in the present context) the provisions of FOIA have been correctly applied. The Tribunal is not bound by the Commissioner’s views or findings but will arrive at its own view. In doing so it will give such weight to the Commissioner’s views and findings as it thinks fit in the particular circumstances….Adjudging the balance of public interest involves a question of mixed law and fact, not the exercise of discretion by the Commissioner. If based either on the Commissioner’s original findings of fact or on findings made by the Tribunal on fresh evidence, the Tribunal comes to a different conclusion from the Commissioner concerning the balance of public interest, that will involve a finding that the Commissioner’s notice was not in accordance with the law and should be corrected”
“my task in this appeal is not to re-evaluate the policy decisions of the Commissioner and the Tribunal. It is to ensure that the Tribunal did not err in law in its detailed consideration of the policy issues it considered relevant in assessing the public interests for and against requiring [disclosure]”
‘(1) The decision fails to recognise the weight of the public interest factors detailed in the original decision by the Information Commissioner requiring the CPS to disclose the requested information. … (3) Despite Judge Cragg QC’s comments detailed below, he ultimately failed to reach the correct public interest balance in s.42 FOIA and – in doing so – reinforced the perception that in terms of LLP it is, in all but name, an absolute exemption.’