Upper Tribunal rules that Counsel’s advice to DPP in Paul Burrell prosecution does not have to be disclosed under FOIA

A former judge of the Information Tribunal sought disclosure of Counsel’s advice to the DPP as to the competence and compellability of the Sovereign in connection with the discontinuance of the Paul Burrell (former Butler to Diana, Princess of Wales) criminal trial in 2002.

The Information Commissioner had ordered disclosure, but the FTT had granted the CPS’s appeal.  The FTT (Judge Cragg QC) had found that the inherent weight in legal professional privilege (LPP) was enough to outweigh the public interest in favour of disclosure.  The Upper Tribunal (Judge Jones) had to decide whether it were permissible for the inherent generic weight attached to LPP to operate in this manner, i.e. to outweigh factors favouring disclosure where there were no other fact specific factors in favour of non-disclosure.

Judge Jones held that so long as such an exercise did not impermissibly transform the LPP qualified exemption into an absolute exemption, then there was no objection to be this course being taken.  Accordingly the Upper Tribunal upheld the FTT’s decision.  The decision is an important addition to FOIA caselaw relating to the LPP qualified exemption.  The Upper Tribunal’s decision is here.

Adam Heppinstall QC acted for the CPS before the FTT and the UT.