Tuesday, 11 April 2017


The Drum considers Judicial Review after latest FOI refusal

The Scottish Information Commissioner has refused a request by The Drum asking to further investigate payments made by the Lord Advocate to a law firm to stop the publication of details of her possible involvement in the Hollie Grieg case.
The Drum turned to the Scottish Information Commissioner earlier this year after a Freedom of Information (FOI) request to the Crown Office asking for details of the payments made by Angiolini's office to Levy and McRae was denied. That request was denied by the Crown Office on the grounds that providing that information requested is held by the Lord Advocate as the head of the system of investigation of deaths in Scotland.
The Drum disagreed with this position, believing that the information sought is not held in respect of criminal matters, and applied to Scottish Information Commissioner Kevin Dunion. That request has now been denied leaving a judicial review as The Drum's only real option if it wants to get to the bottom of whether the public paid the legal bills to protect Elish Angiolini's reputation by threatening various media titles with defamation proceedings.
Speaking of the matter The Drum's editor Richard Draycott said: "We are pursuing this matter as we believe there is a real public interest issue here. For months we have been asking the Lord Advocate's office a very simple question: who paid the legal bills when she instructed Levy and McRae to act on her behalf in the Hollie Grieg matter? Did the Lord Advocate pay the legal fees herself or did the taxpayer foot the bill? We do not accept that the information we are requesting is held in her position as the head of the system of investigations of death in Scotland and are determined to pursue this until we get an answer."
The Drum's has now replied to the Scottish Information Commissioner's latest denial through our legal advisors. Our letter again reiterates our position that the information we seek is not held in relation to Angiolini as the head of the system of investigation of deaths. The full letter is printed here:
Dear Sir
We thank you for your letter of 15th September 2010 on which we now have our client’s instructions. We note that you accept that there may well be circumstances where the Lord Advocate holds information other than as head of the systems of criminal prosecution and investigation of deaths in Scotland. We further note however that the Commissioner is satisfied on the basis of information obtained from Crown Office (my underlining) that the information requested is held by the Lord Advocate as head of the system of criminal prosecution and investigation of deaths in Scotland. We do not consider that the terms of your response are a satisfactory explanation of the matters on which we sought review.
You have failed to indicate on what basis you have considered that the Commissioner is satisfied, or indeed what information has been received from Crown Office to allow the Information Commissioner to reach that decision.
We have already highlighted to you in terms of our previous correspondence, in particular our letter of 14th July 2009, that Levy & McRae and Counsel were instructed in respect of media coverage concerning the Holly Greig case, and the protection of Elish Angiolini’s reputation so far as those matters were concerned. If our understanding is wrong in that regard then please advise accordingly.
For the purpose of clarity, can you confirm that the Information Commissioner’s position is that he is satisfied because: -
(a) there were criminal proceedings contemplated in respect of Holly Greig;
(b) there remain criminal proceedings contemplated in respect of Holly Greig
(c) instruction was given through the Lord Advocate’s office and accordingly the information relates to the office of Lord Advocate rather than any personal position so far as the incumbent holder of that office is concerned.
(d) any other pertinent reason
If the position is either (a) and (b) above, then it cannot possibly be that costs incurred in respect of the threat of legal proceedings for defamation are a matter of and concerning criminal proceedings either previously in contemplation or now in contemplation.
Messrs Levy & McRae and Counsel would not have been instructed by the Lord Advocate in relation to criminal prosecution and/or investigation of death. The correspondence from Levy & McRae to our clients, made it abundantly clear that they were instructed in respect of defamation proceedings. Defamation in Scotland is a civil remedy. It has nothing to do with criminal proceedings, in particular with the investigation and/or prosecution of crime or the investigation of sudden deaths and/or fatal accidents.
It is clear from the correspondence issued on behalf of Elish Angiolini that those instructed by her formed the view that matters published concerning her were defamatory. They were not instructed nor providing advice in respect of matters criminal. In terms of correspondence issued to this firm on 19th November 2009, my clients were provided with two options to deal with Elish Angiolini’s intimation of claim. Those were to publish an apology or for proceedings to be raised. The raising of proceedings made reference to sections 2-4 of the Defamation Act 1996.
If the position is as at (c) then we do not accept that proceedings as intimated would have been intimated to preserve the integrity of the office of Lord Advocate. Proceedings would have been required to have been instigated in the name of Elish Angiolini. It may be that the designation in court papers would have been Elish Angiolini, Lord Advocate, but civil proceedings would not have been raised in the name of the office of Lord Advocate.
Further, it is not borne out by the passing correspondence that matters are unique to the office of Lord Advocate. Indeed, it is clear that the defamatory imputation (if any) contained within the articles related to Elish Angolini’s actions on a personal and professional level. Correspondence issued by her solicitors makes it clear that “Given her position at the time and her subsequent position as Lord Advocate, it is difficult to imagine allegations more damaging, at a personal (my underlining) and professional level, and which obviously are defamatory”.
The office of Lord Advocate is unimpeachable. It is impervious to personal criticism. Any personal criticism would relate to the holder of that office, not the office itself.
In the circumstances we would ask that you reconsider your position and confirm on what basis the Information Commissioner is satisfied that the information is indeed held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland.
We look forward to hearing from you.
Campbell S Deane
Bannatyne Kirkwood France & Co

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