The FTT has considered the public interests relating to the section 30 FOIA exemption, where  information was held for the purposes of investigation, in Breeze v IC and the Chief Constable of Norfolk Constabulary and the Crown Prosecution Service EA/2011/0057.

Mr Breeze  requested  ‘A copy of the 400 page case report or similar document compiled by Norfolk police for submission to the CPS as part of Operation Meridian’ from the Chief Constable of Norfolk Constabulary. The background to his request was that in about September 2007 his brother, Mr. Andrew Breeze (“AB”), had been charged jointly with a fellow director, Dominic Wilson (“DW”), with conspiring to defraud the National Health Service of about £2,000,000 by dishonestly claiming very substantial fees for extra care for patients at the private psychiatric hospital, Cawston Park in Norfolk which they owned and ran. The case had been referred to the police by NHS Counter Fraud Service, a department within the NHS. They had been tried in 2009. Several weeks into their trial at Norwich Crown Court the judge directed verdicts of not guilty following acknowledgement by the prosecution that the jury could not properly be invited to convict either of them on the evidence adduced. The judge emphasised that both left the court “with their heads held high”. It was subsequently accepted by the CPS that the case should not have come to court.  HM Solicitor General made a statement to the House of Commons acknowledging this, apologising to both defendants and repeating the judge`s exoneration. T he Chief Constable of Norfolk Constabulary launched an investigation under the auspices of the Independent Police Complaints Commission (“the IPCC”) into the conduct of the police investigation (“Operation Meridian”). Mr Breeze complained to the CPS which established its own inquiry as to what had gone wrong after the matter had been referred for a decision as to prosecution.

The Information Commissioner decided that section 30(1)(a)FOIA was engaged (as information that had been held at any time for the purposes of any investigation which the public authority has a duty to conduct with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it). He found that the public interest in maintaining the exemption prevailed. In the circumstances, the Commissioner did not go on to consider whether section 40 FOIA was also engaged. Mr Breeze appealed against the Commissioner’s decision.

The FTT commented that the consequences for the defendants were disastrous financially and, for a considerable time, in terms of reputation. The wasted financial cost to the exchequer was considerable. There is plainly a substantial public interest in righting such wrongs, if or in so far as that can be achieved and discovering why such a costly mistake occurred. On the other hand, there are substantial public interests involved in the protection of confidential information generated by a criminal investigation and of the identity of witnesses, potential witnesses and, very obviously, patients receiving treatment in any kind of hospital. The ICO had considered the public interest issues raised in relation to the performance of the Norfolk Constabulary in Operation Meridian i.e. the public interest in protecting the flow of future information to the police by shielding witnesses and potential witnesses from public identification and preserving, where possible, the confidentiality of police inquiries. However, the IPCC had subsequently been involved and therefore the FTT joined the CPS as a party, so that it could also consider the public interest in knowing the role of the CPS in the investigation and the evidential basis on which the CPS took the decision to charge, given the failure of the prosecution before the intended close of its case.  The FTT “invited the CPS to consider waiving privilege as to the content of counsel`s advice as to charging and later as to the sufficiency of the evidence. The CPS courteously declined to waive, as it was fully entitled to do. We draw no adverse conclusions from a perfectly legitimate decision“.

The FTT considered the rationale for section 30 and found that it was for (a) the protection of witnesses and informers to ensure that people are not deterred from making statements or reports by the fear that they may be publicised, (b) the maintenance of the independence of the judicial and prosecution processes  (c) the preservation of the criminal court as the sole forum for determining guilt and (d) the importance of ensuring that the police and CPS communicate frankly and fearlessly, free of any concern that every recommendation or reservation will be routinely exposed to public scrutiny, if the prosecution fails. The protection from prolonged exposure to publicity of witnesses and those who made statements but were not required as witnesses was a further factor in this case, though its importance varied from one witness to another. The FTT concluded that the Solicitor General`s statement in Parliament said all that could reasonably be said about the shortcomings of the CPS performance and therefore to a very substantial degree the information which might be provided by disclosure of the Case Summary was already in the public domain, in a more readily accessible form. The FTT therefore upheld the Commissioner’s decision that the balance of the public interest was in favour of maintaining the exemption in section 30(1).

Rachel Kamm, 11KBW