British Union for the Abolition of Vivisection v Home Office & Anor

For the criminal prohibition in the Animals (Scientific Procedures) Act 1986, “given in confidence” requires a subjective, fact-sensitive inquiry. The question is what the official knew, or had reasonable grounds for believing, when the information was supplied, including the giver’s expressed or reasonably inferred intentions.

The court declined to import the three-part civil test for breach of confidence from Coco v AN Clark (Engineers) Ltd. That test serves a different purpose and balances different interests. Information may be given in confidence even if the procedures described are standard or lack originality.

The appellant requested information from five project licences for animal research. The Home Office refused disclosure, relying on section 24 of the Animals (Scientific Procedures) Act 1986 and section 44 of the Freedom of Information Act 2000. The Information Commissioner upheld the refusal.

The Information Tribunal allowed the appellant’s appeal, holding that “given in confidence” imported the three-part civil test for breach of confidence. Eady J allowed the Home Office’s appeal on a point of law and restored the Commissioner’s decision. The issue before the Court of Appeal was whether the Tribunal had adopted the correct construction of section 24.

Appeal dismissed. Lord Justice Carnwath delivered the judgment of the court.

1. Section 24 of the Animals (Scientific Procedures) Act 1986 is expressed in subjective terms. It asks whether the person possessing the information knew, or had reasonable grounds for believing, that it was given in confidence. The inquiry is factual and focuses on the position when the information was supplied, together with the giver’s intentions as expressed or reasonably inferred from the circumstances.
2. The court rejected the Information Tribunal’s conclusion that section 24 incorporated the three-part test derived from Coco v AN Clark (Engineers) Ltd [1969] RPC 41. There was no statutory or contextual basis for importing a separate objective test from the civil law of confidence. The criminal provision and the civil cause of action address different relationships and purposes.
3. The civil test in Coco was designed to balance competing commercial interests where there was no contractual arrangement. Section 24 instead protects information supplied to the state for a statutory purpose against use by an official for another purpose without the supplier’s consent. The Act contains no requirement to balance that protection against a general public interest in disclosure under the Freedom of Information Act 2000, subject at most to the position of the hypothetical defendant.
4. Information may be given in confidence even where the procedures described are standard. Lack of originality might matter to a commercial claim involving copying, but it does not restrict statutory protection against misuse by a public official.
5. The Commissioner’s factual conclusion that the Home Office had reasonable grounds for believing that the withheld information was supplied in confidence was not challenged in the Court of Appeal. The Commissioner’s decision was therefore correctly restored.

For completeness, the court observed that section 24 fits uneasily within the disclosure scheme created by section 44 of the Freedom of Information Act 2000. It also agreed that developments in modern confidence and human-rights law, including the relevance of Articles 8 and 10 of the Human Rights Convention, should be considered in any general review of section 24. Those observations did not affect the construction issue or the result.

• Court of Appeal (Civil Division): dismissed the appeal and confirmed the Information Commissioner’s decision: [2008] EWCA Civ 870.
• High Court, Queen’s Bench Division: Eady J allowed the Home Office’s appeal on a point of law and restored the Commissioner’s decision.
• Information Tribunal: allowed the appellant’s appeal, holding that section 24 imported the civil law tests for breach of confidence.
• Information Commissioner: upheld the Home Office’s refusal of the requested information.