Smith v Information Commissioner and The Crown Prosecution Service: UTAA 18 Jan 2022

The Information Commissioner had decided that the CPS should disclose to the Appellant information he had requested in October and November 2018 relating to the discontinuance of the trial of Paul Burrell. Mr Burrell had been acquitted at the Central Criminal Court in 2002 on three charges of alleged theft of items from estate of the late Princess Diana. Specifically, the Appellant sought the legal advice relating to the competence and, as a separate matter, the compellability of the Sovereign (in this case the Queen) to give evidence at the trial.
The FTT allowed the appeal and decided that the CPS was not required to disclose the advice (the requested information) because, while the exemption for LPP under section 42(1) of FOIA was engaged, the public interest did not favour disclosure. It held that `the Commissioner erred in finding that the public interest in disclosure outweighed the significant in built’ public interest in non-disclosure demanded by the case in-law in s.42 FOIA cases’ [48]. The FTT decided that the `public interest in disclosure, based largely on transparency, accountability, lack of prejudice, and the constitutional importance of the issue, was not strong enough to equal or override that significant in built public interest [against disclosure of LPP], even in a case where [the FTT was] prepared to accept that little or no prejudice would have been caused by disclosure’.
The Upper Tribunal dismissed the appeal against the FTT’s decision finding that the FTT did not err in law in striking the balance of competing public interests and gave sufficient weight to the public interest factors in favour of disclosure.


[2022] UKUT 60 (AAC)




England and Wales


Updated: 23 May 2022; Ref: scu.677453