Guardian journalist wins right to 'sensitive' court papers related to Griffin conviction

Out-Law News | 13 Feb 2012 | 11:29 am | 5 min. read

The Crown Prosecution Service (CPS) must disclose some papers it holds relating to the successful conviction of controversial right-wing politician Nick Griffin for a racial hate crime in the 1990s, an Information Rights Tribunal has ruled.

The Tribunal ruled that it was in the "substantial public interest" for the information to be disclosed. Guardian journalist Ian Cobain had requested the information under UK freedom of information (FOI) laws.

Cobain had appealed against a previous ruling on his request by the Information Commissioner who had determined that the CPS did not have to disclose any of the information he sought. The CPS will now have to disclose "witness statements and supporting exhibits" that Griffin's defence had relied upon at his trial as well as the final form of indictment he had been issued with.

CPS must also disclose "unedited records" of taped interviews the police had conducted with the British National Party (BNP) leader as well as published material issued by Griffin or the BNP which the CPS had gathered in evidence without having to "resort to coercive powers".

The Tribunal said that the material should be disclosed even though it constituted sensitive personal data. However, it ruled that some details which had been requested were exempt from disclosure under the FOI Act.

"Disclosure of the sensitive data would be 'in connection with' the commission of an unlawful act (hence the conviction), seriously improper conduct and arguably Mr. Griffin`s unfitness for political office. It would be for the purpose of journalism, Mr. Cobain`s occupation, and would be intended for publication in his newspaper and possibly thereafter, in a book," the judge David Farrer QC, said in his ruling (25-page / 100KB PDF).

"Given the issues involved, namely racial and/or religious hatred and the right to express even extreme views, we find that disclosure would be in the substantial public interest," he said.

"We do not consider that the passage of eleven years before the request renders disclosure unfair, or unwarranted by reason of prejudice to Mr. Griffin`s interests nor likely to cause substantial damage or distress to him. In making that judgement we have regard to Mr. Griffin`s age (50 at the date of the request, 39 at the date of trial), his continuing political prominence and his apparent claim to be an educated, reasonable and responsible MEP and party leader who has rejected any racial extremism formerly associated with his party," Farrer said.

In 1998 Griffin was prosecuted and issued with a substantial fine and suspended jail sentence for publishing material that was likely to stir up racial hatred in right-wing publication The Rune. Cobain had asked CPS for a copy of documents relating to the case under FOIA after discovering that the court where the trial was held no longer had a record of the files. However, CPS rejected Cobain's request believing that it did not have to disclose the information on the grounds that the information constituted sensitive personal data.

Cobain turned to the Information Commissioner, who is responsible for ensuring public organisations comply with FOIA, but despite criticising CPS for failing to look into the issue in sufficient detail he too determined that the information did not have to be disclosed. However, on appeal the Tribunal said that despite the fact the information was sensitive personal data there were legitimate reasons why CPS should have to disclose it.

Under FOIA individuals have a general ‘right to know’, which entitles them to be provided with information held by Government departments and public bodies. However, those bodies can legitimately withhold information requested in some circumstances. Information can be held back under qualified and absolute exemptions, although in the case of qualified exemptions organisations are still obliged to conduct a 'public interest test' to determine whether it is right for information to be disclosed – the presumption being in favour of that disclosure.

One absolute exemption in FOI laws allows public authorities to refuse to disclose information they hold when the information amounts to personal data where to do so would be a breach of the Data Protection Act. However, personal data can be legitimately disclosed in some cases.  For the data protection exemption, a slightly different public interest test applies for which there is no presumption in favour of disclosure.  Here, the legitimate interests of the public in the disclosure need to be balanced against the interests of the individual whose personal data would be disclosed. 

Under the Data Protection Act organisations must process personal data fairly and lawfully. Sensitive personal data, including information about "the commission or alleged commission ... of any offence" by an individual, should not be processed unless under strict conditions. However, a Data Protection (Processing of Sensitive Personal Data) Order does specify conditions in which organisations can legally disclose sensitive personal data.

Under the Order sensitive personal data can be disclosed if it is in the "substantial public interest" to do so, and as long as the information "is in connection with the commission by any person of any unlawful act (whether alleged or established)", or connected to a number of other acts. The information must also be for a "special purpose", which includes for journalistic, artistic or literary purposes. Finally, organisations must also consider that the data may be published so should "reasonably believe" that publication would be in the public interest.

The Tribunal said it was both fair and lawful for the information to be disclosed and that it was necessary for CPS to do so to fulfil a legitimate journalistic purpose, because it was in the substantial public interest for the information to be published and because that information was likely to be published. It said Griffin's rights, freedoms and legitimate interests would not be unfairly prejudiced by its decision.

"Given his marked preference for publicity, not least as to the trial, and his prominent and sensitive political role since, we conclude that disclosure to the world at large of the personal data requested would be fair and lawful. We do not doubt, nor was the point seriously contested, that disclosure is necessary for a legitimate investigative purpose of journalism. Given his position and his own attitude to such publicity, we find no prejudice to Mr. Griffin`s rights and freedoms or legitimate interests," the judge said.

David Farrer QC dismissed the Information Commissioner's claim that Cobain was not entitled to the disclosure of sensitive personal data because he was a journalist and therefore not 'a member of the public' as FOIA requires in order for personal data to be disclosed.

Farrer QC said that FOIA would be a "valueless tool" if journalists and other categorised members of society were unable to "investigate serious wrongdoing" and that it would raise questions over whether FOIA "was worth enactment".

However, the judge determined that CPS would not have to disclose some information Cobain had requested under a separate exception in FOIA.

Section 30 of FOIA allows public authorities to legitimately withhold information "if it has at any time been held by the authority for the purposes of ... any criminal proceedings which the authority has power to conduct".

This exemption means CPS does not have to disclose "material seized by the police from whatever premises" by executing warrants under the Police and Criminal Evidence Act (PACE), Farrer QC said. It also means CPS does not have disclose "internal CPS records which say nothing about Mr. Griffin`s defence" or "material of such limited public interest that the general interest in privacy prevails though both are slight".

Farrer QC said it was "self explanatory" why both the internal CPS records and privacy-prevailing material did not have to be disclosed but issued a more detailed rationale as to why PACE-obtained evidence did not have to be handed over.

"PACE and similar warrants, which are coercive and highly intrusive weapons in the investigator`s armoury, are granted for the exclusive purpose of a criminal investigation and it would be unfair and contrary to principle to require their further disclosure. It is plainly contrary to the public interest for such material to be made available to the public, regardless of its intrinsic character," the judge said.

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