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Kennedy v Charity Commission [2012] EWCA Civ 317

Case date: 20/03/2012

Court: Court of Appeal

Area/s of law: FoI, Human Rights

Background

In 2003-4 the Charity Commission conducted 3 statutory inquiries into the Mariam Appeal, a charity established by George Galloway. After they had concluded, Mr Kennedy, a journalist, made a request to the Charity Commission under the Freedom of Information Act 2000 for documents relating to the inquiries. The Commission refused disclosure, relying on the absolute exemption in s.32(2) of the Act, which provides:

Information held by a public authority is exempt information if it is held only by virtue of being contained in

(a) Any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or
(b) Any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry

Mr Kennedy contended that, on a proper construction of the Act, the exemption provided for by s.32(2) subsists only for the duration of the inquiry.

The case has a complicated procedural history. The Court of Appeal initially rejected Mr Kennedy’s construction, applying orthodox principles of statutory interpretation, but, in response to a late submission relying on the ECHR, remitted the case to the First Tier Tribunal to consider whether ECHR article 10 was engaged, and if so whether it required the section to be “read down” in the manner for which Mr Kennedy contended: [2011] EWCA Civ 367.

The First Tier Tribunal gave its decision on 18 November 2011, holding (by reference to Társaság a Szabadságjogokért v Hungary [2009] ECHR 618 and Kenedi v Hungary [2009] ECHR 786) that Mr Kennedy’s article 10 right to receive information was engaged and that the absolute exemption in s.32(2), in its orthodox construction, amounted to a disproportionate interference with that right, such that the section had to be read down and time-limited as Mr Kennedy had argued.

The case then returned to the Court of Appeal, with the Charity Commission challenging the decision of the First Tier Tribunal, effectively by way of cross-appeal.

Meanwhile, the Supreme Court had handed down its decision in Sugar v BBC [2012] UKSC 4 in which Lord Brown held that article 10 did not create any general right to freedom of information and that Tarsasag and Kenedi “fall far short of establishing that an individual's article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents.” Lord Mance agreed with Lord Brown’s analysis of the Strasbourg authorities. Lord Wilson said that he would “countenance somewhat more readily than does Lord Brown” the possibility that the refusal to disclose the requested information was an interference with article 10. Lord Phillips and Lord Walker did not comment on the article 10 issue.

Decision

Held, dismissing Mr Kennedy’s appeal, allowing the Charity Commission’s cross-appeal, but granting permission to Mr Kennedy permission to appeal to the Supreme Court:

  1. The finding that article 10 was not engaged by the refusal, in reliance on FOIA, to disclose the requested information was part of the ratio of Sugar: [48]-[52]

  2. The decision in Sugar was determinative of the article 10 issue in the present appeal: [53]-[58]

  3. In any event it was more appropriate for the Supreme Court itself to decide whether or not the factual situation in the present case was sufficiently different in material respects from that under consideration in Sugar to fall within the ambit of Article 10(1) whether under existing Strasbourg jurisprudence or, in the light of policy considerations, a desirable and logical extension of the existing Strasbourg jurisprudence.

Aidan Eardley

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