Concealed Evidence and Disclosure Difficulties
Part1: The BBC and Sussex Police
In 2003, Sussex Police (and the CPS) entered into an agreement with the BBC.
This allowed the BBC access to the investigation and subsequent trial. The resulting ‘documentary’ was aired in 2004, shortly after Graham’s first trial.
Pre-trial, the BBC were passed sensitive and confidence evidence. For reasons that will be explained below, the magnitude of this unlawful disclosure and the officers involved remain a secret between the BBC and Sussex Police.
In one particular case, police interview tapes were handed over to the BBC, without the consent of the witness. A civil action was taken against Sussex Police, who settled out of court.
Sussex Police’s involvement in these unlawful activities raises a number of unanswered questions. What was motivating those involved in the investigation – a quest for the truth or 15 minutes of fame and an appearance/consultancy fee? Was it considered ethical and professional for Sussex Police to ‘get into bed’ with the BBC and allow them access, pre-trial, to sensitive and confidential evidence? Disclosing this material to a third party risked it being leaked and forcing a retrial. So why take the risk? Draw your own conclusions.
In an effort to answer some of the above questions, a Freedom of Information Act (FOIA) request was made to the BBC. The information requested included:
A copy of the contracts between the BBC and Sussex Police.
The details of the fees paid to Sussex Police and their officers.
A copy of the production schedule and chronology.
A list of the evidence Sussex Police passed to the BBC and the dates of this disclosure.
Any other documentation of relevance.
On 10th July 2012, James Leaton Gray (Head of Information Policy and Compliance) replied with:
“(….)The BBC is (….) not obliged to provide this information to you and will not be doing so on this occasion. Part VI of Schedule 1 to the (Freedom of Information) Act provides that information held by the BBC (…) is only covered by the Act if it is held for ‘purposes other than those of journalism, art or literature’ (….)
(…) one of the main policy drivers behind the limited application of the Act (…..) was to protect freedom of expression and the rights of the media under Article 10 European Convention on Human Rights (….)
(….) we have also considered whether the information might be personal data as defined by the Data Protection Act (DPA) (….)
However, the DPA also provides an exemption for the processing of personal date where the personal data are (sic) processed for the special purpose of journalism, literature and art (…)”
It is unclear how disclosing the requested information would negatively affect the BBC’s human rights on freedom of expression. What this means is that every activity the BBC engages in, whether lawful or not, can be concealed by stating its purpose is one of journalism and therefore exempted from disclosure under Part VI of Schedule 1 of the FOIA.
A complaint was made to the Information Commissioner’s Office (ICO), who investigate FOIA/DPA non-compliance issues. After consideration, their decision upheld the BBC’s position:
“(…) the request is for information held for the purposes of journalism and that the BBC was not obliged to comply with Parts I to V of FOIA”.
The IOC cited several cases in support of their decision:
*Sugar v BBBC (2009) UKHL 9
*Sugar v British Broadcasting Corporation and another (2010) EWCA Civ 715
*Sugar (Deceased) v British Broadcasting Corporation (2012) UKSC 4
*Sugar v Information Commissioner (EA/2005/0032, 29th August 2006)
The ICO went on to investigate “(….)a number of issues in relation to the (DPA) (….)”. However, the decision was equally unhelpful.
Given the recent history of the BBC’s and the Police’s questionable practices, is it right and proper that they can hide behind legislation, that may be being used to conceal unlawful activity? If they have nothing to hide, disclose the information requested.