Kennedy v Charity Commission

Article 10(1) does not confer a general right of access to information held by public authorities. A refusal to disclose documents, made consistently with the domestic legislation governing disclosure, does not engage the freedom to receive information merely because the applicant is a journalist or social watchdog. Applying the ratio of Sugar (Deceased) v British Broadcasting Corporation [2012] UKSC 4, the court declined to read down section 32(2) of the Freedom of Information Act 2000 under section 3 of the Human Rights Act 1998. It therefore did not undertake an Article 10(2) proportionality analysis.

Dominic Kennedy, a journalist, sought information from the Charity Commission concerning inquiries into the Mariam Appeal launched by George Galloway. The Commission refused disclosure under section 32(2) of the Freedom of Information Act 2000.

The Court of Appeal had previously held that the exemption continued after the inquiry ended, but referred the Article 10 issue to the First-tier Tribunal. The Tribunal found an interference with Article 10, held it disproportionate and read down section 32(2) so that the exemption ended when the inquiry ended. The Commission cross-appealed. The central issue was whether Article 10(1) required access to the information or a compatible reading of section 32(2).

Disposition. Lord Justice Etherton, with Sir Robin Jacob and Lord Justice Ward agreeing, allowed the Charity Commission’s cross-appeal on the Article 10 issue and dismissed Mr Kennedy’s appeal.

1. Binding authority. The court held that Lord Brown’s analysis and decision in Sugar (Deceased) v British Broadcasting Corporation [2012] UKSC 4 formed part of that decision’s ratio and was binding. Lord Mance agreed with Lord Brown’s analysis. Lord Wilson agreed in substance, while recognising that a future case might justify further development of Strasbourg jurisprudence.
2. Article 10(1). The established line beginning with Leander v Sweden, and including Gaskin, Guerra and Roche, was not materially extended by Matky, Társaság or Kenedi. A person’s journalistic role, or the fact that the applicant acts as a social watchdog, did not distinguish the present case from Sugar. Article 10(1) therefore had no application.
3. Article 10(2) and section 3. Because the Article 10(1) threshold was not met, the court did not decide whether section 32(2) was a justified and proportionate restriction under Article 10(2). It also declined to read down section 32(2) under section 3 of the Human Rights Act 1998.
4. Further appeal. The court observed that the full duration of the statutory restriction after an inquiry may be difficult to justify, but left that issue unresolved. Permission was granted to appeal to the Supreme Court on both the Article 10 boundaries and the conventional interpretation of section 32(2).

1. Court of Appeal (Civil Division): On the restored hearing, allowed the Charity Commission’s cross-appeal, dismissed Mr Kennedy’s appeal and granted permission to appeal to the Supreme Court.
2. Court of Appeal (Civil Division), earlier hearing: In judgments handed down on 12 May 2011, the court dismissed the appeal on the conventional construction of section 32(2), but referred the Article 10 issue to the Tribunal: [2011] EWCA Civ 367.
3. First-tier Tribunal (Information Rights): In its decision dated 18 November 2011, found that the conventional construction interfered with Article 10, was disproportionate and required section 32(2) to be read down.
4. Administrative Court, Queen’s Bench Division: The proceedings originated from the decision of Mr Justice Calvert-Smith in CO/7463/09.