In the week that libel reform campaigners scored a victory in England, The Drum fails to get answers on whether the Scottish Government financed a libel action in Scotland on behalf of Lord Advocate.
The information is exempted from disclosure, says the Crown Office, "on the basis that it would be likely to prejudice substantially the prevention and detection of crime."
Angiolini had threatened to sue The Drum's sister title, legal magazine The Firm, for libel, and the Crown Office issued a statement to all Scottish news desks that a report in The Firm was potentially defamatory. As well as who paid Angiolini's costs, The Drum also asked how much the bill was.
The contentious article in The Firm reported criticism of the fact that nobody had been prosecuted over a case in which £13,500 was awarded by the Criminal Injuries Compensation Board to Hollie Greig, a Down Syndrome child said to be the victim of a paedophile ring in Aberdeen.
It is very unusual for a Government appointee to sue the media for defamation. And, despite being the largest employer of lawyers in Scotland, the Lord Advocate chose to use a private lawyer, Peter Watson of Levy & McRae, to represent her in the action against The Firm.
Mr Watson also represents disgraced Glasgow City Council leader, Steven Purcell, who is now under police investigation. If evidence of criminal activity is found, the matter would be reported to Angiolini's department, the Crown Office.
Levy & McRae also represents several major media outlets and has links to PR firm Media House, leading some to express concerns about potential conflicts of interest.
Richard Draycott, Editor of The Drum, said: "We felt it was a matter of real public interest to find out who was paying Elish Angiolini's bills. Was the magazine up against the Scottish Government or Angiolini personally? If the Scottish Government did foot the bill was that appropriate? After all, any award would have been due to her personally. Is defending the reputation of Government appointees an appropriate use of public funds?
"If she had won, she could have picked up more for damage to her reputation than the original victim did for being raped. The key issue is whether or not this sets a bad precedent. It cannot be healthy for Government officials to launch libel actions against the press, underwritten by the Government."
In the event the action was dropped, and a referral to the Press Complaints Commission was settled without an adjudication being made.
Draycott added: “The Crown Office's reluctance to answer questions from the media is not only frustrating us, but contributed to The Firm's original dispute with the prosecution service. Early on it wanted to know exactly when Angiolini was appointed regional prosecutor for the North East of Scotland and when exactly the decision was made not to prosecute the only individual ever charged in connection with the Hollie Greig case. It was only when legal correspondence reached an advanced stage that it was confirmed she was appointed for the area on the 21st of July 2,000. The decision not to prosecute was taken on the 20th of July 2,000.”
Angiolini continued, through Peter Watson, to threaten legal action elsewhere in relation to this matter.
In February Levy & McRae, wrote to an English-based website – UK Column - in the name of the Lord Advocate - threatening legal action on behalf of a sheriff who had been named in the Hollie Greig allegations. In submissions to The Firm the Lord Advocate claimed to have only a passing acquaintance with this Sheriff. That is another reason The Drum wanted to know who picked up the legal bill. If Angiolini was paying personally this would seem to be at odds with this position.
Across the UK, libel reform is on the agenda following the case of Simon Singh, who won after being sued by the British Chiropractic Association. Many observers have pointed out that the expense of defending libel actions can lead to a 'chilling' effect on the media as journalists may shy away from criticising those wealthy enough to launch defamation actions.
Although the law is different North of the Border, defending a libel action in Scotland can still be ruinously expensive.
As part of the Freedom of Information request The Drum also asked if any other media advisers had been retained by the Lord Advocate in dealing with this matter.
Below we publish the Crown Office's response in full. The Drum will now appeal this decision to them. If unsuccessful we will then lodge an application with the Information Commissioner.
FREEDOM OF INFORMATION REQUEST RESPONSE:
Thank you for your requests under the Freedom of Information (Scotland) Act 2002 ("FOISA") dated 24 March 2010 in which you seek the following information:
• Confirmation of who or which organisation is paying the legal fees for Levy & McRae representing the Lord Advocate Elish Angiolini in relation to media coverage concerning the case of Hollie Greig or who has paid Levy & McRae's legal fees?
* Confirmation of exactly how much has been paid to the law firm of Levy & McRae to date with regard to matters concerning the Lord Advocate and Hollie Greig?
• Confirmation whether any Counsel fees were incurred and if so who paid them or who will pay them?
• Confirmation, in relation to various media and public relations consultants who have been advising the Lord Advocate in relations to this matter?
• The names of all media and PR consultants who have been involved.
• Who paid the fees?
• Exactly how much they have been paid to date?
• Whether Levy & McRae were acting for the Lord Advocate or Sheriff X when they contacted UK Column to warn them an interdict was in force north of the Border in relation to Sheriff X? Who has or will pay the fee in relation to this matter? How much is the fee expected to be?
We have considered whether the information you have requested falls within certain exemptions under the Freedom of Information (Scotland) Act 2002.
We can confirm that this Department holds information which falls within the ambit of your requests, and although we have a duty to consider each one separately, we have come to the conclusion that they are closely connected which is relevant for the purposes of considering whether the information falls within any of the exemptions under the legislation.
We consider that the information you seek is exempt in terms of Section 35(1)(a) and (b) of the FOISA. This section exempts information from disclosure on the basis that it would be likely to prejudice substantially the prevention and detection of crime [section 35(1)(a)] and the apprehension and prosecution of offenders[section 35(1)(b)]. However this section is not an absolute exemption and the Crown is also required by law to consider the public interest in the disclosure of the information requested.
In his briefing notes on various exemptions under the Freedom of Information (Scotland) Act, the Scottish Information Commissioner has stated that when public authorities are considering disclosure the use of section 35(1) as with all other exemptions, must be justified on a case by case basis. The harm which would, or would be likely to, result from disclosure must be at the level of substantial prejudice.
Examples of the types of questions that might be relevant when considering whether substantial prejudice would, or would be likely to, follow from disclosure include:
• Would release of information revealing law enforcement techniques enable offenders to avoid detection?
• Would release reduce the prospects of a fair trial taking place?
• Would release affect the ability of the judiciary to function effectively and independently?
This could mean activities in relation to a specific (anticipated) crime or wider strategies for crime reduction and detection.
We have given careful consideration as to whether the public interest requires disclosure of the information requested. There is no simple definition of 'public interest' as it will depend on the particular circumstances, however it has been described as something that is 'of serious concern or benefit to the public', not merely of personal interest. It is therefore 'in the interests of' the public, i.e. it serves the interests of the public, not what the public is interested in. The types of questions that the Scottish Information Commissioner (who is responsible for administration and enforcement of the Freedom of Information regime within Scotland) suggests public authorities should ask themselves about the information when applying the public interest test include:
• Would disclosure of the information requested enhance public scrutiny of our decision making processes and therefore our accountability?
• Would disclosure contribute to the administration of justice and enforcement of the law or would it prejudice the prevention or detection of crime or the apprehension or prosecution of offenders?
• Would disclosure affect the economic interests of the whole or part of the United Kingdom?
• Would disclosure ensure the public is kept adequately informed of any danger to public health or safety, or to the environment?
• Would disclosure contribute to a debate on a matter of public interest?
• Would disclosure prejudice the protection of an individual's right to privacy?
We are satisfied in all of the circumstances that there are compelling reasons that the public interest is best served by applying the exemption under section 35(1)(a) and section 35(1)(b) in this case. We cannot provide the detailed reason for this decision because we consider that to do so would in itself disclose information which is exempt under this section, and also under section 26(c) of FOISA in light of live criminal proceedings which are now subject to the Contempt of Court Act 1981. Section 26(c) is an absolute exemption and is not subject to the public interest test.
If you are dissatisfied with the way in which your request has been handled, you do have the right to ask us to review it. Your request should be made within 40 working days of receipt of this letter and we will reply within 20 working days of your email to firstname.lastname@example.org.
The review will be undertaken by staff not involved in the original decision making process. If our decision is unchanged following a review and you remain dissatisfied with this, you then have a right to make a formal complaint to the Scottish Information Commissioner.
Crown Office and Procurator Fiscal Service