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

Section 24 of the Animals (Scientific Procedures) Act 1986 is a penal provision and must be construed according to its statutory wording and context. The phrase “given in confidence” is not confined to the three-part Coco v A N Clark formulation or to commercial secrets. The relevant question is whether the information was given in confidence when imparted, assessed by reference to the circumstances and the defendant’s knowledge or reasonable grounds for belief at that time. The provision does not require an express public-interest balancing exercise. Information prohibited from disclosure by section 24 falls within section 44(1)(a) of the Freedom of Information Act 2000.

The Home Office appealed under section 59 of the Freedom of Information Act 2000 against an Information Tribunal decision dated 30 January 2008. The dispute concerned requests by the British Union for the Abolition of Vivisection for information contained in animal-research project licence applications.

The Home Office relied on section 44 of the Freedom of Information Act 2000, contending that disclosure was prohibited by section 24 of the Animals (Scientific Procedures) Act 1986. The Tribunal held that information was given in confidence only where disclosure would involve an actionable breach of confidence, applying the three-part approach in Coco v A N Clark (Engineers) Ltd, and also treated public interest as relevant. The central issue was the proper construction of “given in confidence” in section 24.

1. The appeal was allowed. The Tribunal had adopted an unduly narrow understanding of the law of confidence by treating Coco v A N Clark (Engineers) Ltd as an exclusive definition. The modern law also protects private information and may recognise an obligation of confidence arising from the circumstances of disclosure, an express or implied agreement, an established relationship, or a statutory duty. The information need not possess an objective commercial “quality of confidence”.

2. Section 24 of the Animals (Scientific Procedures) Act 1986 is penal. Its language focuses on whether the information was given in confidence and whether the relevant person knew or had reasonable grounds for believing that to be so. The inquiry is directed to the position when the information was imparted. It does not require the official to make an objective assessment at the later disclosure stage of whether the information retained a legally protected quality of confidence.

3. The statute contains no express public-interest exception or requirement for a separate balancing exercise. Importing such a criterion would create serious uncertainty in a criminal context and would go beyond the wording Parliament had chosen. The retention of section 24 alongside the Freedom of Information Act 2000 required the court to avoid watering down its effect.

4. On the evidence, the information had been obtained in the exercise of the Home Office’s functions under the 1986 Act; the responsible official reasonably believed that it had been given in confidence; and disclosure was not for the purpose of exercising those functions. Disclosure was therefore prohibited by section 24 and constituted exempt information under section 44(1)(a) of the 2000 Act.

5. The court expressed concern about the practical tension between the two statutory regimes. Clear legislative criteria, potentially including confidential schedules identified when applications are made, would provide greater certainty. Those matters were for Parliament, not judicial reconstruction.

1. High Court (Queen’s Bench Division) — The appeal from the Information Tribunal was allowed.
2. Information Tribunal — On 30 January 2008, the Tribunal directed the Home Office to reconsider its interpretation of section 44 of the Freedom of Information Act 2000, construing section 24 of the Animals (Scientific Procedures) Act 1986 by reference to actionable breach of confidence and public interest.