Nearly three and a half years have passed since my original Freedom of Information (FOI) request to see the advice that led to Paul Burrell’s 2002 Old Bailey trial being abruptly stopped when the Queen was at risk of being called as a witness. The final answer is “no, you can’t see it.”
The issues were previously examined in my July 2019 Inforrm post here .
Mr Burrell had been acquitted on three charges of alleged theft of items from estate of the late Princess Diana. I asked for the legal advice relating to the competence and the compellability of the Queen to give evidence at the trial.
The Information Commissioner (IC) agreed this advice should be made public. She decided that “there was a stronger public interest in the public knowing about the competency and compellability regarding whether the Sovereign can be called as a witness in court proceedings than the public interest in withholding the information.”
The Crown Prosecution Service (CPS) appealed against this decision. After promptings this week to make my final – and unsuccessful – appeal judgment public, it is now available as Robin Callender Smith v The Information Commissioner and the Crown Prosecution Service EA/2019/0275. This case citation is misleading because the IC supported and joined my appeal in its first stage and simply did not take part in the second stage. I pay particular tribute to the articulate tenacity of Will Perry, Counsel for the IC before the First Tier Tribunal (FTT) on 23 September 2020, who stood in at short notice for a colleague.
Upper Tribunal Judge Rupert Jones decided that the qualified Section 42 FOIA (1) exemption given to Legal Professional Privilege (LPP) prevailed to deny my request.
 In this case there was a sensitive balancing exercise to perform between the pro-disclosure public interest in the public discovering what advice the CPS has received on the rare but constitutionally significant issue of the compellability and competence of the monarch, and the non-disclosure public interest in securing and maintaining legal advice privilege between two of the most senior prosecuting lawyers in the UK. …. In conducting that exercise the FTT interpreted and applied the proper principles of law and reached evaluative conclusions it was entitled to reach applying on the evidence before it.
 The public interest balance struck by the FTT was not the product of any error of law. Therefore, its decision must stand that the requested information should not be disclosed being exempt LPP material for the purposes of section 42 of FOIA.
So, despite a highly-publicised trial that cost the public at least an estimated £1.5m, the same public is not allowed to see the advice from Senior Treasury Counsel that led to the plug being pulled on the criminal proceedings.
While inevitably I sound like a sore loser, I find that decision astonishing. In my opinion, this decision reinforces the perception that the qualified s.42 (1) LPP exemption – with its surrounding caselaw – now has the almost unassailable status of an absolute exemption.
If the public interest elements in this particular request did not operate to tip the balance towards publication, then when?
As her reign reaches a natural conclusion, the fact that we still do not know the answer to this question is bizarre, even more so in the light of recent matters relating to Prince Andrew and questions that may still fall to be answered by Prince Charles as the Queen’s successor as sovereign.
This means that we are still not permitted to know the factors that determine whether or not the Sovereign is competent and compellable to give evidence in court.
Dr Robin Callender Smith is Honorary Professor of Media Law at the Centre for Commercial Law Studies, Queen Mary, University of London. His book ‘Celebrity and Royal Privacy, The Media and the Law’ was published by Sweet & Maxwell in December 2015.