The question whether the right to receive information under Article 10 ECHR affords members of the public a specific right of access to information held by public authorities is an important one for information law practitioners. This is a question which was explored in some detail by the Supreme Court in the case of Sugar v BBC. In Sugar, Lord Brown, who gave the principal judgment on the Article 10 issue, concluded that, the fact that: ‘every public authority has in one sense “the sensorial power of an information monopoly” in respect of its own documents’ does not mean that the Article 10 right to receive information was interfered with whenever a public authority refused access to information, particularly where the authority was acting consistently with domestic legislation governing access to information (§94). Thus, the fact that the BBC was not obliged under FOIA to disclose to Mr Sugar a particular report on its coverage of Middle Eastern affairs did not amount to an interference with Mr Sugar’s Article 10 rights (see further Julian Milford’s detailed post on the Sugar judgment).

The conclusions reached in Sugar have very recently been considered by the Court of Appeal in Kennedy v Charity Commission [2012] EWCA Civ 317 (see Robin Hopkins’ earlier post on the convoluted history of the Kennedy litigation). In Kennedy, a request had been made to the Charity Commission for disclosure of information relating to a charity set up by George Galloway. The Charity Commission refused to disclose the information on the ground that it was exempt under s. 32(2) FOIA (information held for the purposes of an inquiry). The effect of s. 32(2), when read together with ss. 62 and 63 FOIA, is that any information which is exempt under s. 32(2) remains exempt for 30 years. As the Court of Appeal observed, this ‘30 year rule’ applies irrespective of the content of the information, the harmlessness of the disclosure, the public interest in disclosure and the willingness of those who deployed the information in the course of the inquiry for it to be disclosed (§7). Mr Kennedy, a journalist, argued that this result unlawfully interfered with his right to receive information under Article 10. He went on to argue that the provisions of FOIA should be read down so as to enable the s. 32 exemption to be disapplied once the relevant inquiry has concluded. The tribunal (which decided Mr Kennedy’s appeal on the Article 10 issue before the Supreme Court’s judgment in Sugar was handed down) accepted Mr Kennedy’s argument. The Court of Appeal concluded that it was bound by the judgment in Sugar and, hence, Mr Kennedy’s case failed.

The Court of Appeal analysed the Sugar judgment in this way: 

  • Only three members of the Supreme Court panel addressed the Article 10 issue: Lord Brown; Lord Mance and Lord Wilson. Lord Brown gave the principal judgment.


  • Having analysed the relevant Strasbourg jurisprudence, Lord Brown concluded that the Article 10 right to receive information did not embrace a general right to access information held by the State. He went on to comment that, even had Article 10 embraced such a general right, there would have been no unlawful interference with that right on the facts of the Sugar case. This was because it was open to the State to legislate for a blanket exclusion for information held for the purposes of journalism, as was the case under FOIA. Lord Mance agreed with Lord Brown (§§42-45).


  • Lord Wilson may have analysed the issues under Article 10 somewhat differently. However, as he made clear in his judgment, he agreed with the essence of Lord Brown’s judgment (§46 & 50).


  • Their Lordships’ analysis of the Article 10 issue did not amount to obiter commentary. Instead, it formed part of the ratio of the judgment in Sugar (§§48-52).


  • The judgment in Sugar was determinative of the Kennedy appeal. This was notwithstanding that Kennedy was factually distinguishable from Sugar, particularly as Mr Kennedy was a journalist and Mr Sugar was not. Lord Brown had specifically considered whether it would have made any difference to the application of Article 10 if Mr Sugar had been a journalist or some other variety of ‘social watchdog’. He concluded that it would have made no difference (see §§53-55).


  • Even if Lord Brown’s judgment did not amount to the ratio of Sugar, the Court of Appeal would still have followed that judgment on the basis that it was a ‘very recent authoritative pronouncement by the Supreme Court’ (§59). 

Thus, Sugar was fatal to Mr Kennedy’s appeal before the Court of Appeal. However, importantly, the Court of Appeal gave Mr Kennedy permission to appeal to the Supreme Court. In granting permission, the Court of Appeal took into account that Mr Kennedy’s case was factually distinguishable from Mr Sugar’s case, particularly because Mr Kennedy was a journalist, whereas Mr Sugar was not, and also, in contrast with the BBC, the Charity Commission was not itself discharging journalistic functions. In taking these factually distinguishing features into account, the Court of Appeal appears to have been of the view that the Article 10 question may call for a different answer to the one arrived at in Sugar where the applicant is himself a journalist and the applicant’s request for disclosure does not bring into play the public authority’s own right to freedom of expression under Article 10. The Court also alluded to the seemingly draconian effects of the 30 year rule, as applied under s. 32(2) (see §62). For further analysis of the arguments in play in the Kennedy litigation, see Tim Pitt-Payne QC’s discussion of the Article 10 arguments in his paper which is posted here.