Robin Callender Smith v The Information Commissioner & Anor

Where information attracts legal professional privilege, Freedom of Information Act section 42 carries significant inherent public-interest weight against disclosure even without proof of case-specific harm. The exemption remains qualified. The decision-maker must place all relevant factors on both sides of the balance and must not treat privilege as an absolute bar.

The First-tier Tribunal has a full merits jurisdiction to re-strike that balance. On a further appeal, the Upper Tribunal may intervene only for error of law. It may not substitute its own view merely because it would have evaluated the competing public interests differently. If the competing public interests are equal, the statutory presumption favours disclosure.

The appellant sought from the Crown Prosecution Service legal advice obtained in connection with the discontinuance of the 2002 trial of Paul Burrell. The request concerned the competence and compellability of the Sovereign to give evidence in criminal proceedings.

The Information Commissioner decided that the advice was exempt under Freedom of Information Act section 42(1), but that the public interest favoured disclosure. The First-tier Tribunal, in case EA/2019/0275, allowed the CPS’s appeal on 21 October 2020 and re-struck the public-interest balance in favour of maintaining the exemption.

The appellant appealed on the basis that the FTT had given excessive weight to the inherent public interest in preserving legal professional privilege and insufficient weight to transparency, accountability, the age of the advice and the constitutional importance of the issue.

1. Appeal dismissed. The FTT made no error of law in concluding that the public interest favoured withholding the legally privileged advice under Freedom of Information Act section 42.

2. Once legal professional privilege is established, the qualified exemption carries significant inherent weight against disclosure. That weight exists without proof of specific prejudice from the particular disclosure: DBERR v O’Brien v IC [2009] EWHC 164 QB. It must nevertheless be balanced against the public interest in disclosure and must not turn section 42 into an absolute exemption.

3. The FTT had correctly considered both the inherent weight of privilege and the case-specific factors. It was entitled to give little additional weight to the CPS’s asserted risks, while still finding that the factors favouring disclosure did not equal or outweigh the inherent public interest in preserving privilege. The absence of a demonstrated chilling effect or other particular prejudice did not remove that inherent weight.

4. The constitutional importance of the subject matter could support both transparency and the need for frank, confidential legal advice. The FTT was entitled to regard the age of the advice as immaterial on the facts, having found that the advice remained current and concerned a live issue. It was also entitled to find that the advice was legal advice, not CPS policy.

5. The FTT had a full merits jurisdiction under Freedom of Information Act section 58 to reach its own public-interest balance. The Upper Tribunal’s function under section 11 of the Tribunals Courts and Enforcement Act 2007 was confined to identifying legal error. The FTT had directed itself correctly, considered the relevant matters and reached an evaluative conclusion open to it.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appellant’s appeal and confirmed the FTT decision: [2022] UKUT 60 (AAC).
• First-tier Tribunal (General Regulatory Chamber, Information Rights): allowed the CPS’s appeal from the Information Commissioner and held that the requested legally privileged advice should not be disclosed (EA/2019/0275, 21 October 2020).
• Information Commissioner: had held that Freedom of Information Act section 42(1) was engaged but that the public interest favoured disclosure (Decision Notice FS50803813, 4 July 2019).