‘Limbs in the Loch’ killer William Beggs fails in appeal against decision to refuse FOI request for information relating to police murder inquiry

William Beggs argued that the decision by commissioner Rosemary Agnew was “erroneous in law”, but judges in the Inner House of the Court of Session ruled that the arguments advanced on behalf of the appellant “must be rejected in their entirety”.

Mr Beggs was sentenced to life imprisonment in 2001 for murdering 18-year-old Barry Wallace and dismembering his body in December 1999 at a flat in Kilmarnock, Ayrshire, and discarding the limbs and torso of his victim in Loch Lomond and disposing of his head by throwing it into the sea off the Ayrshire coast.

Lord Drummond Young, Lord McGhie and Lord Armstrong heard that the appellant, who is serving his life sentence for murder in HMP Edinburgh, wrote to Strathclyde Police in October 2010 requesting certain information that he claimed he was entitled to under the Freedom of Information (Scotland) Act 2002.

He sought information relating to the way in which officers had dealt with complaints that he had made about the alleged oppressive use by the police of “intelligence” relied upon in seeking a warrant to search his home, the extent to which officers had allegedly been involved in “unofficial and official briefing” which resulted in the dissemination by the media of material “prejudicial” to him, and the alleged failure on the part of police officers to conduct “appropriate inquiries” into the circumstances surrounding the death of the murder victim.

Strathclyde Police responded to that request, but the appellant was dissatisfied with the way in which they did so and in December 2010 he requested the Police Investigations and Review Commissioner (PIRC) to review their response.

Following further correspondence, in April 2013 the PIRC disclosed certain information to the appellant, consisting only of the appellant’s own personal data, while other information was withheld under sections 29 and 31 of theData Protection Act 1998 and section 38(1)(b) of the Freedom of Information (Scotland) Act 2002.

In May 2013 the appellant wrote again to the PIRC to request a review of the earlier decision, as he did not consider that the response had been justified according to the terms of the exemptions that were cited, but the PIRC decided that the original decision should be upheld without modification.

Thereafter, in December 2013, the appellant wrote to the Scottish Information Commissioner to express dissatisfaction with the result of the PIRC’s review and to apply to her for a decision in terms of section 47(1) of the 2002 Act.

The appellant claimed that the PIRC had failed to apply the relevant data protection principles contained in the 1998 Act properly and had not properly applied the statutory exemption in section 30(b)(ii) of the 2002 Act, but after considering the submissions from both sides the commissioner rejected the application.

The appellant then appealed against the commissioner’s decision to the Court of Session under section 56 of the 2002 Act, which permits an appeal on a point of law.

He argued that the commissioner’s conclusion that disclosure would be likely to cause the “substantial inhibition” envisaged by the section 30(b)(i) exemption, that is to say inhibition from the free and frank provision of advice, was not supported by adequate investigations.

It was also submitted that the commissioner concluded that the PIRC was entitled to apply the exemption in section 30(b)(i) “without giving intelligible reasons”, and that she failed to give intelligible reasons for concluding that the public interest in disclosure was outweighed by the public interest in maintaining the exemption.

In relation to the application of section 38(1)(b), it was claimed that the commissioner concluded that the disclosure necessary to fulfil the appellant’s legitimate interests did not outweigh the prejudice that would be caused to the data subjects’ rights, freedoms and legitimate interests, but did not give an adequate or intelligible explanation of the underlying reasoning.

However, the appeal judges rejected all of the appellant’s arguments.

Delivering the opinion of the court, Lord Drummond Young said: “In our opinion the commissioner’s reasoning cannot be faulted. She took account of the submissions made to her, to the extent that she considered them relevant, and made use of the correct statutory test…In our opinion the commissioner gave adequate reasons for her conclusion that the PIRC was entitled to apply the exemption in section 30(b)(i).

“The critical factors…were the sensitivity of the information, the nature of the communications and the circumstances in which the information was created. In our opinion these are plainly material factors…the proper legal tests were applied, and we cannot fault the commissioner’s reasoning, or stigmatise it as unintelligible.”

In relation to the public interest test in section 30(b)(i), the commissioner acknowledged that there was a “public interest in transparency” in relation to the actions and decision-making processes of public bodies, including the police, and that disclosure of the information would shed some light on those actions and processes, but thought that there was a “justifiable expectation” on the part of the individuals concerned in the communications that the information would not be disclosed to the public, and that it would discourage relevant parties from corresponding openly and candidly in relation to such matters in future.

“On that basis, she considered that the public interest in maintaining the exemption in section 30(b)(i) outweighed the public interest in disclosure, and that accordingly the PIRC was entitled to withhold the information. In our opinion this reasoning cannot be faulted,” Lord Drummond Young added.

In relation to section 38(1)(b), the commissioner decided that the relevant information was the “personal data” of a number of individuals who could be identified from the information, meaning section 1(1) of the 1998 Act was satisfied.

Lord Drummond Young said: “In our opinion the commissioner in her decision gives an entirely adequate and intelligible explanation of her reasoning. She correctly identified the critical balancing exercise that arises under condition 6 of Schedule 2, and she proceeded to carry out that exercise.

“In the present case it is not suggested that the Commissioner’s decision is perverse or unreasonable in the foregoing sense. Nor was it suggested that she failed to take account of the specific factors that were put forward by the appellant and the PIRC, or that she took account of an irrelevant factor. All that is left, therefore, is a complaint about the weight accorded to the various factors, which cannot be an error of law.”