Intercept as Evidence: A Freedom of Information Request for the Government's Legal Advice

Intercept as Evidence: A Freedom of Information Request for the Government's Legal Advice

In November 2012, the Bingham Centre made a request for information under the Freedom of Information Act 2000 to the Home Office seeking disclosure of legal advice relating to the admissibility of intercept evidence, so that the advice could be seen and considered by the wider community.

After the Home Office refused the request, the Bingham Centre appealed that decision through the Information Commissioner and Tribunal processes.

In March 2014, the Information Commissioner decided that the section 42(1) exemption (legal professional privilege) was engaged and that the balance of the public interest favoured maintaining the exemption.

In September 2014, however, the First-Tier Tribunal allowed the Bingham Centre's appeal and the Home Office was ordered to disclose the legal advice:

"A majority of the Tribunal, having read the actual legal advice which constitutes the disputed information, was strongly of the view that the arguments around whether intercept should be admitted as evidence should be public and that the difficulties in implementing a workable 'intercept as evidence' system should be an open public debate. All the arguments both for and against such a system should be aired in public with the various interest and pressure groups having an opportunity to consider existing legal (and other) opinions and to respond to them. The majority felt that there would be an ultimate benefit in developing a good sound workable 'intercept as evidence' system through such public debate and that the detrimental effect of disclosure was negligible if not non-existent".

Subsequently, in November 2014, the Home Office was joined as a party and given permission to appeal to the Upper Tribunal.

In June 2015, the Upper Tribunal allowed the appeal, set aside the First-tier Tribunal's decision and ordered a complete rehearing before a new Tribunal.

A hearing was held in November 2015 and on 9 December 2015 the First-tier Tribunal upheld the Information Commissioner's Decision Notice and dismissed the Bingham Centre's appeal.

The Bingham Centre was unable to pursue this freedom of information request further, primarily due to time and resource constraints.

The Centre's work was led by Lucy Moxham and Eric Metcalfe acted pro bono for us.

DOCUMENTS

Re-hearing before new First Tier Tribunal (Information Rights)

9 December 2015: Bingham Centre for the Rule of Law v Information Commissioner and Home Office EA/2014/0097 

Appeal to the Upper Tribunal (Administrative Appeals Chamber)

3 June 2015: Home Office v IC and Bingham Centre for the Rule of Law [2015] UKUT 0308 (AAC) 

Appeal to First Tier Tribunal (Information Rights)

19 September 2014: Bingham Centre for the Rule of Law v Information Commissioner EA/2014/0097 

Decision notice

24 March 2014: Decision Notice (FS50503882) - Decision of Information Commissioner