“As time goes by … the fundamental things apply”. Why we should be told why R v Burrell was stopped in its tracks – Robin Callender Smith

Just over a year and a half ago, on 9 July 2019, Inforrm published my piece Will we discover when the Queen can be required to give evidence in court?

This relates to a FOIA request I made two and a half years ago on 12 October 2018 asking the Government – in the form of the Crown Prosecution Service (CPS) – for information to address the long-running Regina v Regina constitutional conundrum: when can the Queen, as reigning monarch, be asked or required to give evidence in her own courts?

I asked for “the legal grounds – redacting any personal or sensitive personal data – contained within any Treasury Counsel’s Opinion on the discontinuance of the trial of Paul Burrell at the Central Criminal Court in 2002.”

The Burrell trial hit the buffers, having cost taxpayers around £1.5m, when the Queen “recalled” a conversation with Paul Burrell about him keeping some of the late Princess Diana’s possessions “safe for the boys”, the young Princes William and Harry. At that stage, perhaps because the Queen could have been called to give evidence to that effect, the prosecution offered no evidence.

The timeline within this FOIA request is troubling historic exhibit on its own. The information I am seeking is – at the time of writing this – nearly nineteen years old. The Information Commissioner (IC) made her decision on my October 2018 request, ordering the CPS to reveal the information to me, on 4 July 2019.

She considered the public interest balancing exercise that operates in s.42 FOIA cases and concluded four key factors:

• There is public interest in public authorities being accountable for the quality of their decision making. Ensuring that decisions have been made on the basis of good quality legal advice is part of that accountability.
• Transparency in the decision-making process and access to information upon which decisions have been made can enhance accountability.
• There is a public interest in knowing whether or not legal advice has been followed in some cases.
• The fact that public funds had been spent on the legal advice added weight to the public interest arguments based on transparency.

The CPS appealed the IC’s decision to provide me with the information. Eventually there was a Cloud Video Platform (CPV) ‘virtual’ hearing of the CPS appeal, opposed by Counsel for the IC and me, before Judge Stephen Cragg QC, on 23 September 2020. He ruled for the CPS on 21 October 2020.

The IC’s limited resources being what they are it was left for me to appeal. That is a tortuous process. It involves asking the Judge who had just made the adverse decision for permission to appeal (it was refused) and only then being able to seek leave to appeal to Upper Tribunal (UT).

My leave to appeal to the UT was granted on 11 February 2021 by Judge Rupert Jones. The reference for the Upper Tribunal Appeal is GIA/51/2021. He was satisfied that two of my Grounds of Appeal “demonstrate a realistic (rather than fanciful) prospect of success.”

Those two grounds were:

• “The decision fails to recognise the weight of the public interest factors detailed in the original decision by the Information Commissioner requiring the CPS to disclose the requested information,” and
• “Despite Judge Cragg QC’s comments [which were then detailed], he ultimately failed to reach the correct public interest balance in s.42 FOIA and – in doing so – reinforced the perception that in terms of LPP [legal professional privilege] it is, in all but name, an absolute exemption.

As my first editor when I started doing national newspaper legal work in the 1970s, Sir John Junor of The Sunday Express, would have said: “I think we should be told.”

… and just how much more time must go by until we are?

Dr Robin Callender Smith is Honorary Professor of Media Law at Queen Mary, University of London’s Centre for Commercial Law Studies. He sat as a First Tier Information Rights Tribunal Judge for ten years until retirement in 2017 and is the author of Celebrity and Royal Privacy, the Media and the Law (Sweet & Maxwell 2015).