Line to take - LTT139 - Extent to which information referred to in court (in criminal proceedings) is in the public domain
- FOI/EIR: FOI
- Section/Regulation: s30
- Issue: Extent to which information referred to in court (in criminal proceedings) is in the public domain
- Source: Information Tribunal
- Details: Armstrong / HMRC
- Related Lines to Take: LTT22, LTT86
- Related Documents: EA/2008/0026
- Contact: GF
- Date: 05/01/2009
- Policy Reference: LTT139
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
In criminal proceedings, where documentary evidence is merely referred to (rather than actually disclosed) in open court, then the information contained within that documentary evidence will not automatically enter the public domain.
Even, where information has entered the public domain by virtue of having been disclosed or referred to in court, this does not necessarily mean that it remains in the public domain.
The fact that information referred to in court may have entered the public domain is not in itself conclusive in whether the public interest favours disclosure, but is one factor to be considered in the public interest balance.
Caseworkers need to firstly consider that where information is held only by virtue of being contained in a court record it will be exempt by virtue of section 32. In the Tribunal case considered here s32 did not apply.
In the case of Armstrong v the Information Commissioner and HMRC, the applicant, an investigative journalist, requested documents referred to in open court (either contained in the jury bundle or referred to elsewhere in evidence in front of the jury) during the trial of Abu Bakr Siddiqui.
Background - public access to documentary evidence in court (in criminal proceedings)
In considering this issue, it might be a useful starting point to think about what documentary evidence the public may have access to and therefore what information will usually enter the public domain in criminal proceedings. The focus of the following discussion is on the Tribunal’s consideration of access to actual documentary evidence rather than on access to information as applies under FOI.
The Tribunal heard details about the extent to which evidence referred to or presented in court is normally available to members of the public. Generally, the public won’t have access to:
- the jury bundle
- witness statements
- certain documentary evidence
The Tribunal summarised that “a member of the public, like the jury, would not have access to witness statements or other documents from the trial bundle” because “the evidence in the trial is the evidence given before the jury and witnesses may give different evidence from that contained in their witness statement so it could be misleading for that witness statement to be made available to anyone other than the parties and the judge” (paragraph 29). A member of the public also would not have access to the jury bundle. The Tribunal also said “certain documentary evidence, which was before the jury but not read out verbatim (especially documents such as maps or photographs) may be released to the press if, for example, it would aid understanding of proceedings”. It went on to say that “[r]eporters may also ask to look at particular documents to check spellings of names or to ascertain details which they did not hear at the relevant moment. More usually this would involve a request for an opening note or other document the contents of which are effectively in the public domain” (paragraph 29).
The Tribunal disputed the appellant’s comparison with civil proceedings; it was clear that it was not feasible to draw such parallels between criminal proceedings and civil proceedings about the extent to which information referred to in court was in the public domain due to the different nature of the jurisdictions and rules of procedure; and importantly, where members of the public are permitted to inspect the trial bundle in civil matters, it is not common practice in criminal trials (paragraph 90). For further information on Civil Procedure Rules, caseworkers can refer to LTT22.
The Tribunal referred to the Crown Prosecution Service Protocol on “Publicity and the Criminal Justice System”. The appellant had drawn the Tribunal’s attention to the following excerpt, which he argues was ‘sufficiently wide to cover all documents that are referred to in open court and/or are contained in the jury bundle or other bundles used in court that contain those documents’:
- “Prosecution material which has been relied upon by the Crown in court and which should normally be released to the media, includes... maps/photographs... and other documents produced in court” (paragraph 88).
However, the Tribunal challenged this and said that the Protocol exists to ensure that the media are able to present a fair and accurate report of court proceedings” and that its intention was not to provide widespread media access that would include being provided with a copy of all documentary exhibits referred to during a trial (paragraph 89).
Extent to which information referred to in court (in criminal proceedings) enters the public domain
What is significant in deciding whether the information has entered the public domain is the extent to which the content of any documentary evidence, i.e. the information rather than the actual document, enters the public domain. For example:
- a) Documentary evidence that is fully disclosed in open court, or is provided and released via the media enters the public domain. Here both the document itself and, in consequence, the information contained within it enters the public domain.
- b) where the content of a document is read out verbatim, the information has entered the public domain (although the actual document containing it has not)
- c) where reference to a document does not disclose the content of that document, neither the information nor the actual document has entered the public domain
In the Armstrong case the public authority disputed that the requested information was in the public domain, although it agreed that certain parts of the information that were read out can be said to have entered the public domain (paragraph 83).
The Tribunal stated that it could “envisage circumstances in which a jury is given access to material that is not to be disclosed in the open court, albeit that it is not felt necessary to hold that part of the trial in private” and acknowledged that the jury would have to view that material as part of the evidence, “but it cannot be said that material has automatically entered the public domain” (paragraph 84).
At paragraph 83, “HMRC stressed that it is an important consideration that the disputed information is not in the public domain in the form Mr Armstrong seeks, that is, collated in a file which can be considered, analysed and cross-referenced with other material available to others privately or in the public domain.” The Tribunal did not go on to give their view on this, but our approach would be to disagree with the importance the public authority attach to the format; The FOI Act provides the right to information rather than documents, and therefore, it not the format but the extent to which the content is in the public domain that we are concerned with.
Extent to which information that has entered the public domain remains in the public domain
The Tribunal were clear that even if the information “had entered the public domain by virtue of having been referred to during the Siddiqui trial in 2001, it does not necessarily follow that it remains in the public domain” (paragraph 85). The Tribunal agreed with the Commissioner’s observation in the Decision Notice that “knowledge obtained in the course of criminal trials is likely to be restricted to a limited number of people and such knowledge is generally short-lived” (paragraph 85). The Tribunal was therefore not satisfied that the information in question was in the public domain at the time of the request and as a result of that, it did not agree with the appellant that the information be disclosed.
In considering whether information that has entered the public domain via disclosure in open court remains in the public domain, case officers may wish to compare the information being withheld with the information accessible via other sources (such as media reports, internet), as at the date of the FOI request.
Case officers may also need to consider both;
- whether the actual information in question remains in the public domain, and
- whether the fact that this information formed part of the evidence for the court case remains in the public domain
Information in the public domain and the public interest in disclosure
The Tribunal went on to say “even if the information had previously entered the public domain, that is not in itself conclusive of whether the public interest weights in favour of disclosure, it is merely one consideration to be weighed in the public interest balance” (paragraph 86).
Non-documentary, verbal evidence heard in open court
Whilst not specifically considered in the Armstrong IT case the Commissioner considers the same principles as set out above will apply to verbal evidence given in court that does not form part of the any documentary evidence presented to the court (for example, where a witness refers to something under cross-examination that does not form part of the jury bundle, written witness statements, or other documentary evidence).
In such a situation the ICO would accept that this information will enter the public domain by virtue of being revealed in open court. Whether or not the information remains in the public domain, and whether the public interest weighs in favour of disclosure, will, as with information contained within documentary evidence, depend upon the circumstances of the case.
Whilst this situation may not arise very often- because verbal evidence that does not form part of the submitted documentary evidence will in many cases not be “recorded” information - the Commissioner considers that it may occasionally arise. For example, there may be information recorded in a public authority’s investigation file, that does not form part of the documentary evidence submitted in a court case but is disclosed in open court via the cross-examination of a witness.