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United Kingdom Information Tribunal including the National Security Appeals Panel


You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Gillingham v Information Commisioner [2007] UKIT EA_2007_0028 (26 September 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2007_0028.html
Cite as: [2007] UKIT EA_2007_28, [2007] UKIT EA_2007_0028

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Appeal Number: EA/2007/0028
IN THE INFORMATION TRIBUNAL
Information Tribunal Appeal Number: EA/2007/0028
Information Commissioners Ref: FS50130128
Freedom of Information Act 2000 (FOIA)
Decision Promulgated 26 September 2007
BEFORE
INFORMATION TRIBUNAL DEPUTY CHAIRMAN
ANDREW BARTLETT QC
and
LAY MEMBERS
MALCOLM CLARKE
SUZANNE COSGRAVE
Between:
LESLIE KEITH GILLINGHAM
ANN PATRICIA GILLINGHAM
Appellants
and
THE INFORMATION COMMISSIONER
Respondent
Representation:
For the Appellants:          In person
For the Commissioner: Akhlaq Choudhury
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Appeal Number: EA/2007/0028
Decision
The Tribunal dismisses the appeal.
Reasons for Decision
Introduction
1.  The Gillinghams are the owners of some freehold and leasehold lands
at Spratts Down, near Calshot in Hampshire. Their land is crossed by
an estate road. They object to the use of the estate road by vehicles
driven by neighbours, visitors, and others.
2.  The estate road is also a public footpath. Driving a motor vehicle on a
footpath without lawful authority is an offence contrary to Road Traffic
Act 1988 s34 (1). Accordingly, the Gillinghams have tried to persuade
the police to prosecute users of the road for the offence of driving on a
footpath.
3.  In this they have not been successful. The Crown Prosecution Service
(CPS) took advice from counsel and decided, in the light of that advice,
not to prosecute. The present appeal concerns the Gillinghams’
attempt to obtain disclosure of that advice and related documents.
The request for information
4.  The Gillinghams made a request of the CPS on 29 June 2006 under
the Freedom of Information Act (FOIA). They requested a copy of
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Appeal Number: EA/2007/0028
counsel’s advice, including copies of documents sent to counsel with
the instructions.
5.  The CPS responded on 7 July 2006 that whilst the Gillinghams could
have copies of documentation provided to counsel, the CPS was
unable to disclose either the instructions to counsel or counsel’s
advice. The response placed reliance on the exemptions under FOIA
s40(2) (personal Information where the applicant is not the data
subject) and s42 (legal professional privilege). At the Gillinghams’
request, the CPS conducted a review of its decision not to disclose the
instructions or the advice. By a letter dated 3 August 2006, the CPS
confirmed that the requested information would not be disclosed
because of the application of the exemption under s.42 of the Act.
The complaint to the Information Commissioner
6.  On 16 August 2006 the Commissioner received a complaint from the
Gillinghams in respect of the non-disclosure of counsel’s advice, the
instructions to counsel, and the documents sent to counsel with the
instructions.
7.  The Commissioner served his Decision Notice on 13 March 2007. He
considered whether the matter fell to be considered under FOIA or EIR
(the Environmental Information Regulations) and decided on the
former. He found that the Gillinghams had been provided with copies of
the documents supplied to Counsel. As regards the instructions to
counsel and counsel’s advice, he found that the qualified exemption in
FOIA s42(1) applied, but, for reasons set out at some length, that the
public interest in maintaining the exemption outweighed the public
interest in disclosure. The full text is available on the Commissioner’s
website under reference FS50130128.
8.  The Commissioner concluded that the CPS had dealt with the
information request in accordance with the Act. No steps were required
to be taken.
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Appeal Number: EA/2007/0028
The appeal to the Tribunal
9.  The Gillinghams appealed to the Tribunal on six grounds:
(1) The public interest in disclosure is greater because of the
number of people affected, given that the decision concerned a
public footpath.
(2) The public has a right to know the reason for the CPS’s decision
not to prosecute. No explanation has been provided to date.
(3) Contrary to the Commissioner’s belief, there are no ongoing
proceedings, and the civil courts have not determined the
ownership of the subsoil below the footpath.
(4) Their neighbour misrepresented the position to the Courts and
granted to tenants rights of way for motor vehicles over the
footpath, when he had no legal title to the subsoil. An unlawful grant
cannot constitute a defence to a prosecution.
(5) They have not been provided with copies of all of the material
sent to Counsel.
(6) The Commissioner failed to take into account the case of
Bakewell Management Ltd v Brandwood (2004) or a letter dated 5
April 2005 from the Gillinghams’ solicitor to the CPS.
10. Both parties submitted that the appeal should be determined on the
papers without an oral hearing. The Tribunal agreed, and so ordered.
The questions for the Tribunal
11. There has been no challenge to the Commissioner’s decision that the
matter falls to be considered under FOIA, rather than EIR. The
information requested is not information on environmental matters as
defined in EIR regulation 2(1) but is information concerning a decision
not to prosecute.
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Appeal Number: EA/2007/0028
12. The Commissioner was informed by the CPS, and accepted, that all
the material sent to counsel, other than counsel’s formal instructions,
was provided to the Gillinghams. The Gillinghams have not pointed to
any evidence which suggests any such material has been withheld.
Accordingly, the fifth ground of appeal is not substantiated and need
not be further considered.
13. The Gillinghams have not disputed that the section 42 exemption is
applicable to counsel’s advice, and the formal instructions pursuant to
which the advice was given. This is plainly correct. Instructions to
counsel, and counsel’s advice, are classic examples of information in
respect of which a claim to legal professional privilege could be
maintained in legal proceedings. There is no suggestion that privilege
has been waived.
14. Accordingly, the sole question for the Tribunal is whether the
Commissioner was right to conclude, in the particular circumstances of
the case, that the public interest in maintaining the exemption for
counsel’s advice and formal instructions outweighed the public interest
in disclosure: see FOIA s2(2)(b).
Evidence
15. We were provided with a bundle of relevant letters and associated
documents. We also read the decision of the Court of Appeal in
Hampshire County Council v Gillingham [2000] EWCA Civ 105, which
was referred to in the documents provided.
Analysis
16. The strength of the public interest in maintaining legal professional
privilege was discussed in the Tribunal’s decisions in Bellamy (3 April
2006) at paragraphs 8-11, Kitchener (20 December 2006) at
paragraphs 16-17, and Shipton (11 January 2007) at paragraph 13(d).
We refer to, and refrain from repeating, what was said in those cases.
It is sufficient for present purposes for us to note that, generally
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Appeal Number: EA/2007/0028
speaking, the public interest reasons for maintaining the legal
professional privilege exemption are particularly strong. This is
because the purpose of the privilege is to serve the administration of
justice and to safeguard the right of any person to obtain entirely frank
and realistic legal advice. The privilege is a fundamental human right
long established in the common law and now supported both by
European law and by Article 8 of the Convention for the Protection of
Human Rights and Fundamental Freedoms. Nevertheless the balance
of public interest must be assessed in each case to see whether in the
particular circumstances the public interest in maintaining the
exemption outweighs the public interest in disclosure.
17. For the purposes of the present case it should also be noted that the
policy reasons which undergird legal professional privilege apply as
strongly to the request for advice as to the advice itself.
18. A person seeking disclosure of material protected by legal professional
privilege could argue that Parliament, by making the exemption in the
Act qualified and not absolute, intended that legal professional privilege
could be overridden without any particular difficulty. We do not consider
that this is what Parliament intended. The test which we must apply is
that laid down in s2(2)(b), namely, that in all the circumstances of the
case the public interest in maintaining the exemption outweighs the
public interest in disclosing the information. This wording does not give
any guidance as to the degree of importance of the public interest in
maintaining a particular exemption. On the inherent importance of the
exemption we take our cue from the decisions mentioned in paragraph
16 above.
19. The first ground of appeal is that the public interest in disclosure is
greater because of the number of people affected, given that the
decision concerned a public footpath. We agree that the decision
concerned a public footpath and that this is a relevant factor which
must be weighed in considering the balance of public interest. This
must be done not singly but in conjunction with the other relevant
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Appeal Number: EA/2007/0028
factors. This factor is not a particularly strong one in the present
circumstances, since the number of people affected is small.
20. We take together the second, third and fourth grounds, namely (2) the
public has a right to know the reason for the CPS’s decision not to
prosecute, and that no explanation has been provided to date, (3)
contrary to the Commissioner’s belief evident in the terms of the
Decision Notice, there are no ongoing proceedings, and the civil courts
have not determined the ownership of the subsoil below the footpath,
and (4) the Gillinghams’ neighbour misrepresented the position to the
Courts and granted to tenants rights of way for motor vehicles over the
footpath, when he had no legal title to the subsoil: an unlawful grant
cannot constitute a defence to a prosecution.
21. To say that no explanation has been provided for the decision not to
prosecute is not quite correct. The matter was originally considered,
without the involvement of counsel, as far back as 2001. In a letter of
25 October 2001, the Hampshire Constabulary passed on the opinion
of a senior crown prosecutor, namely, that the Manor of Cadland had
granted rights of way with motor vehicles over the public footpath and
that visitors and tradespersons calling on the grantees would have a
lawful excuse if using the footpath for the purpose of access. The
Gillinghams disagreed with this reasoning and wrote a lengthy rebuttal,
which generated further correspondence. The Gillinghams’ view was
that no valid rights of way for motor vehicles had been granted.
Ultimately, after the obtaining of counsel’s advice, the CPS wrote on 17
May 2006, stating that counsel’s conclusion was that there would not
be a realistic prospect of conviction.
22. Thus the complaint is not that no information has been given
concerning the reasons for declining to prosecute but that the
information is insufficiently detailed. The Gillinghams would like to
know more, and contend that the public is entitled to know more.
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Appeal Number: EA/2007/0028
23. It is clear from the circumstances and the evidence before us that any
such drivers, if prosecuted, would claim, rightly or wrongly, to have had
lawful authority, pursuant to rights granted or purportedly granted by Mr
Drummond, as the tenant for life of the Manor of Cadland, or some
other similar rights.
24. We note of course that the Gillinghams dispute the validity of any such
rights and contend that Mr Drummond was not the owner of the subsoil
at the material time. If the Gillinghams are correct about that, it would
follow that the defence of lawful authority would not be available. But it
is not within the remit of this Tribunal to decide whether the Gillinghams
are right or wrong about that. The Tribunal’s task is to see that the law
on freedom of information is correctly applied, not to decide disputed
questions of property law.
25. We have not seen counsel’s opinion and do not know precisely what
counsel wrote in it. It would not be surprising if counsel advised that a
criminal court, faced with a charge dependent upon disputed issues of
property law resting on unclear facts, would have difficulty in reaching a
conclusion, beyond reasonable doubt, that the drivers lacked lawful
authority. Nevertheless, this is only speculation, and the Gillinghams
are correct in so far as they assert that detailed reasons have not been
made public.
26. Having studied the decision of the Court of Appeal in Hampshire
County Council v Gillingham
[2000] EWCA Civ 105, we are prepared to
assume in the Gillinghams’ favour that there are no ongoing
proceedings.
27. The Commissioner did not actually say in his Decision Notice that there
were ongoing proceedings. His reference (at paragraph 19) to a ‘live
issue’ is explained in later paragraphs, where he said that there was a
‘real possibility’ or a ‘reasonable prospect’ of further legal proceedings
(paragraphs 42 and 53). The Court of Appeal referred to the ‘incessant
warfare’ over the road since 1985. In our view the Commissioner was
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Appeal Number: EA/2007/0028
justified in inferring that there might be further proceedings. Even if
there were no prospect of further proceedings, that would be only one
factor to be weighed in making the judgment whether disclosure should
be made.
28. We are further prepared to assume, in the light of our reading of the
decision of the Court of Appeal, that (contrary to the view of the
Commissioner) the civil courts have not determined the ownership of
the subsoil below the road and footpath (although we note the absence
of any suggestion in that case that the Gillinghams themselves are the
owners of it).
29. This feature seems to us to be an obstacle to any prosecution. As we
have already indicated, if the ownership is uncertain, it is difficult to see
how a prosecution could end in a conviction. More relevantly for
present purposes, the fact that the ownership has not been determined
does not appear to us to be a reason for disclosure. If anything, it
suggests an increased probability of further litigation, and hence an
increased desirability that counsel’s opinion should remain private to
the party which commissioned it.
30. The Gillingham’s assertion, that the public has a right to know the
reason for the CPS’s decision not to prosecute, is in our view an
overstatement. Whether the public has the right to know the detailed
reasons depends upon the balance of public interest in the particular
circumstances.
31. The sixth and final ground of appeal is that the Commissioner failed to
take into account the case of Bakewell Management Ltd v Brandwood
(2004) or a letter dated 5 April 2005 from the Gillinghams’ solicitor to
the CPS.
32. Bakewell Management Ltd v Brandwood [2004] UKHL 14 was
concerned with whether it was possible to acquire an easement over
land as a result of long and uninterrupted user in circumstances where
(unless the owner had granted authority) the user was in breach of a
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Appeal Number: EA/2007/0028
statutory prohibition. In this context the House of Lords discussed
(among other things) section 34 of the Road Traffic Act 1988. At
paragraph 8 Lord Hope stated that section 34 recognises that it is open
to the owner of the land to grant the authority that is needed for the use
of it not to constitute an offence. This statement follows directly from
the wording of the section.
33. The letter dated 5 April 2005 from the Gillinghams’ solicitor to the CPS
presents arguments to the effect that Mr Drummond lacked the power
to grant rights of way for vehicles over the road.
34. As we have indicated, it is not for us to decide whether in the present
case the true owner of the subsoil of the road has given lawful authority
so that use of it does not constitute an offence. In our view the decision
in Bakewell and the assertions by the Gillinghams’ solicitor do not
affect the issue concerning the balance of public interest under FOIA.
Conclusion
35. The Commissioner submitted:
“... even if it had been the case that Mr & Mrs Gillingham had
been left completely in the dark as to the reasons for not
prosecuting, the public interest in their having such knowledge
would still not outweigh the very great interest in maintaining
privilege.”
36. The Commissioner considered the particular circumstances of the case
and weighed at some length the competing considerations (Decision
Notice paragraphs 30-52). While we do not take the same view as the
Commissioner on every point of detail the extent of our disagreement
does not affect the outcome. For the reasons referred to in paragraph
16 above, the public interest in maintaining legal professional privilege
generally outweighs the public interest in disclosure. For it not to do so,
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Appeal Number: EA/2007/0028
the public interest in disclosure needs to be particularly strong,
because proportionate reasons are required for not upholding a
fundamental human right. In order to make the broad judgment that is
required, it is not necessary for us to enter into the question whether
and to what extent Article 8 of the Convention applies to corporate
bodies, contrasted with individuals. We can see nothing in the
circumstances of the present case which constitutes particularly strong
reasons for disclosure. We agree with the Commissioner’s conclusion
that the public interest considerations in maintaining the exemption are
stronger than those which support disclosure. In our judgment they are
much stronger.
37. The appeal must therefore be dismissed.
38. Our decision is unanimous.
Signed
Andrew Bartlett
Deputy Chairman                                                        Date 26 September 2007
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