A criminal investigation into the Ministry of Justice over suggestions the department buried damning research has been dropped, despite senior legal figures saying the government’s failure to release the full report was “deeply disappointing”.
The Information Commissioner’s Office began investigating in May after formal complaints were made by BuzzFeed News and others that the government had concealed the existence of a 36-page internal report featuring explosive testimony from senior judges about the impact on the justice system of people appearing in court without a lawyer.
In a letter to BuzzFeed News this week, the ICO said it was closing the case due to “insufficient evidence” that the government had deliberately hidden the report and broken freedom of information law. The MoJ maintains that the 36-page document was just a draft.
BuzzFeed News will make a formal appeal of the decision to drop the case.
Penelope Gibbs, director of Transform Justice and one of the parties who made the original appeal to the ICO to release the research, said: “There are still questions to answer about why and how the Ministry of Justice suppressed this document. The ICO shouldn't close their investigation without answering them.”
The research was commissioned by the government to review the impact of cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) and was based on in-depth interviews with 15 crown court judges and six prosecutors.
The MoJ had initially turned down FOI requests for the report in spring 2017, insisting the politically embarrassing research needed to be kept secret because it related “to the formulation or development of government policy”.
The Information Commissioner compelled the MoJ to release it following appeals. Yet what was released by the MoJ was clearly marked “summary” and was just six pages long. The following week the full 36-page report — something the press office previously said did not exist — was leaked to BuzzFeed News. The government still insists that this earlier, full report was a draft and the only final version is the sanitised summary.
The ICO’s investigation does not appear to have addressed why the MoJ did not release the full 36 pages of research that existed. Instead the information watchdog seems to have accepted that the MoJ gave them the correct title and version of the report when they agreed to release the summary.
In a letter to BuzzFeed News, the ICO investigating officer says: “Upon review and assessment of this case, the ICO has determined that there is insufficient evidence to substantiate the allegation that a Section 77 FOIA criminal offence was committed in this instance. Whilst we understand your position, it is the view of the ICO that this allegation does not merit further investigation.”
The ICO has also accepted the MoJ’s explanation for releasing a six-page summary — instead of the seven-page summary that it had agreed with the ICO — as a “genuine administrative error,” despite the fact that the edits downplayed the research and made it sound less authoritative.
Gibbs of Transform Justice said: “I'm surprised and disappointed that the ICO appears to have decided that the release of a shorter, rewritten document was an ‘administrative error’. If so, can we see the documentary proof for this? And why were we given a summary, rather than the full research document?”
It was only after BuzzFeed News revealed the full leaked report that the MoJ went from denying it existed to releasing it to those who had originally requested it under FOI.
Andrew Walker QC, chair of the Bar Council, said the government’s resistance to making the research public in the first place was “deeply disappointing”.
He told BuzzFeed News “Our judges are uniquely well placed to see the effects of cuts in legal aid, and they are clearly deeply concerned. While they may feel constrained about speaking publicly about what they see in their courtrooms, their voices and experiences (appropriately anonymised) should not be kept from Parliament and the public in such an important area of policy debate.
“Indeed, in many areas, judges' concerns about the effects on justice of increasing numbers of unrepresented parties are already well known. It is difficult to see what is fundamentally different about their experiences in criminal courts, so the decision not to publish the full research remains deeply disappointing.
“It is increasingly clear that more funding for our justice system is urgently required. Parliament and the public should not be kept in the dark about the extent of the damage that the cuts have inflicted.”
Shadow justice secretary Richard Burgon said: “No one should be denied proper legal representation when their liberty is at stake. This research shone a spotlight on the very serious undermining of access to justice in our country that is becoming all too common under the Conservatives’ austerity agenda.
“It is not right that this information about only came to light become of the determined campaigning of BuzzFeed.
“Instead of the government giving the impression that it is trying to sweep such problems under the carpet, we need an open and transparent debate in this country about the viability of the criminal justice system and the very real threats to its future caused by unprecedented cuts.”
The Secret Barrister, the criminal barrister who has written an anonymous, best-selling book about the crisis in the justice system, said the department's release of the summary rather the full research "does not cast the MoJ in a positive light, as had BuzzFeed not known about the 36-page report, it is clear that the MoJ had no intention of disclosing its existence, and would have happily given the erroneous impression that the 7-page report represented the extent of the research".
An ICO spokesperson said: “The ICO is dedicated to upholding information rights in the public interest and it is important for people to exercise their legal right to access information from public bodies and for those public bodies to obey the law.
“We have carried out a detailed investigation and in this case found insufficient evidence that the law was breached. The Ministry of Justice have co-operated with the investigation throughout. There is a right of appeal through the Victim’s Code.”
A Ministry of Justice spokesperson said: “The Information Commissioner’s Office has concluded that there is absolutely no evidence of any attempt to deliberately withhold information.
“As we have repeatedly made clear, the 36-page version of the report was an early draft and clearly marked as such and we released the report as requested.”