The lawyer, the BBC and the Freedom of Information Act.
15 February 2012 | By Katy Dowell
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The determination of lawyer Stephen Sugar and his widow Fiona Paveley to force the BBC to reveal details of the 2004 Balen Report into its Middle East reporting has meant that this case has been before the courts at least 10 times - discounting judicial review attempts.
No doubt the BBC will come in for further criticism for the extent of its legal spend on the case, but it was a fight that the claimants refused to let go, forcing the broadcasting corporation to reveal its legal claws.
Today the Supreme Court brought to an end a seven-year legal battle over the scope of the Freedom of Information (FOI) Act and whether it obliged the BBC to publicly reveal the details of the 2004 report.
The BBC, it said, was right to reject the request. Once it is established that the report was held by the BBC for the purposes of journalism, it is exempt from production under the FOI Act, even if the information is also held for other purposes.
The Balen report, which was written by senior journalist Malcolm Balen, examined closely the BBC’s coverage of the Israeli/ Palestinian conflict.
Following its internal publication, members of the public requested that it be published. Around the same time the BBC was coming in for criticism that its reporting of the conflict was biased. The report was considered by the BBC’s Journalism Board, which consequently commissioned a paper called ’Taking Forward BBC Coverage of the Middle East. It resulted in a number of internal changes, including the development of training, auditing of the use of on-air experts and the creation of the post of Middle East editor.
Sugar set out on his litigation journey at the beginning of 2005 in front of the Information Commissioner. By the time the Supreme Court handed down its ruling today the case had been in front of at least 18 senior judges, with both the Master of the Rolls Lord Neuberger and the Supreme Court president Lord Phillips involved with two of its outings.
After the Information Commissioner had ruled that the BBC was right to refuse the request, Sugar appealed to the Information Tribunal, which reversed the decision in his favour (29 August 2006).
Throughout his battle he was represented by Essex Court Chambers’ Tim Eicke QC, who took silk last year.
The broadcaster, meanwhile, instructed Blackstone Chambers’ Monica Carss-Frisk QC. Initially the case was handled by BBC lawyer Jaron Lewis, but since his departure to RPC (where he is working for Associated Newspapers (10 February 2012), the case has since been taken over by head of litigation Sarah Jones, who has since been promoted to general counsel (17 January 2012).
The battle intensified when the BBC went to the High Court to argue that the Information Tribunal did not have jurisdiction to hear the appeal. A secondary point was also made - although not discussed at the hearing - that if the tribunal did hold jurisdiction it was wrong in its ruling.
Mr Justice Davis ruled in favour of the BBC (27 April 2007) and the battle went to the Court of Appeal (CoA). The appellate court panel made up of Lord Justices Buxton, Lloyd and Sir Paul Kennedy upheld the first instance ruling (25 January 2008), paving the way for the House of Lords to get involved.
The shock decision of the House of Lords panel, which included Phillips SCJ and Neuberger MR, to overturn the jurisdiction rulings made by the lower courts effectively reinstated the tribunal’s decision in favour of Sugar (11 Febuary 2009) and the BBC started an uphill battle at the High Court to have the tribunal’s ruling quashed as, it argued, it was flawed as a matter of law.
Mr Justice Irwin agreed that it was flawed and the court was back in favour of the BBC (2 October 2009). Undeterred, Sugar continued to the Court of Appeal and Neuberger MR had his second outing on the case. He rejected the appeal, confirming that the request fell outside the scope of the FOI request (23 June 2010).
Finally the case reached its last domestic stop at the Supreme Court, with Phillips SCJ chairing the panel of five hearing the case. It upheld the CoA decision.
Whether the case will now head to the European courts remains to be seen. What is clear is that both sides are deeply entrenched in a legal battle with potentially political implications.