Miscarriage of justice victim told he can’t have access to case files

Martin Shipton

One of Wales’ most prominent miscarriage of justice victims has failed to persuade the Information Commissioner to order the release of material held by South Wales Police relating to the murder for which he was wrongly convicted.

Michael O’Brien spent 11 years in jail after being found guilty with two other men of killing Cardiff newsagent Phillip Saunders while robbing him outside his home in 1987. There was no forensic evidence against them and all three had their convictions quashed by the Court of Appeal, which criticised the oppressive questioning they were subjected to by the police.

In the years since, Mr O’Brien has become a tireless campaigner against miscarriages of justice and believes there should be a public inquiry into historic wrongful convictions obtained following investigations by South Wales Police.

He has also been pressing the force to reinvestigate the Saunders case, making a concerted effort to identify the real killer.

Disclosure

As part of this campaign, in June 2023 Mr O’Brien submitted a Freedom of Information request to South Wales Police seeking the disclosure of a number of items relating to the Saunders murder.

The material sought included:

* details and results of forensic tests, including DNA tests, carried out on exhibits during the original investigation;

* if a DNA profile of a potential suspect was found, and if so where it is held;

* whether a match was found for a fingerprint discovered on a bottle at the murder scene;

* details of the most recent cold case review and disclosure of the report;

* details of all relevant cold case reviews undertaken since 1988, with their reports, as well as any reviews carried out by forces other than South Wales Police;

* information relating to clothes possibly dumped by the real killer in a street not far from the murder scene.

South Wales Police rejected all of Mr O’Brien’s requests on the grounds that they were “vexatious”.

The Information Commissioner’s Office (ICO) has now told Mr O’Brien that the Commissioner, John Edwards, agrees with the police position.

Vexatious

Explaining why, the ICO states: “Section 14(1) of FOIA [the Freedom of Information Act] states that a public authority is not obliged to comply with a request for information if the request is vexatious. The word ‘vexatious’ is not defined in FOIA. However … it is established that section 14(1) is designed to protect public authorities by allowing them to refuse any requests which have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress.

“FOIA gives individuals a greater right of access to official information in order to make bodies more transparent and accountable. As such, it is an important constitutional right. Therefore, engaging section 14(1) is a high hurdle. However, the ICO recognises that dealing with unreasonable requests can strain resources and get in the way of delivering mainstream services or answering legitimate requests. These requests can also damage the reputation of the legislation itself.

“South Wales Police have informed the Commissioner that in relation to part 4 of the complainant’s request alone, there are 884 pages in total. It would take a considerable amount of time to read through each page carefully to ensure any exempt information is identified and the appropriate exemption applied. This would involve the interrogation of all the reports to identify what is and is not suitable for disclosure and the reasons why/why not.

“Due to the amount of information held, South Wales Police stated that it is not possible to quantify the time it would take to ensure appropriate disclosure/non-disclosure. However, South Wales Police has informed the Commissioner that it would involve resources in Joint Legal Services, the Crime and Criminal Investigation team and the Freedom of Information team. South Wales Police have estimated that reading through all the reports would take in excess of 20 hours.

“South Wales Police conducted a review of 20 pages to try and realistically estimate how long it would take to prepare all the reports for disclosure. It stated that reading through and making relevant notes for 20 pages took 28 minutes, even without redacting information or applying exemptions. Based on that review it would take at least 20 hours to read through the reports and that is before consideration of exemptions/public interest test etc.

“It is the complainant’s view that they are entitled to receive the requested information as it is of extremely significant personal importance to them.

“It is South Wales Police’s position that to comply with the request would be an unreasonable burden and would require a disproportionate effort which cannot be justified by the purpose and value of the request.

“In the Commissioner’s opinion, South Wales Police have evidenced that compliance with this request would clearly involve a significant diversion of resources which they could not reasonably be expected to absorb without it having a knock on effect for its other business areas. He is therefore satisfied that South Wales Police have demonstrated that complying with the request would place a grossly excessive burden on it which is not capable of being justified by the request’s underlying purpose or value.

“The Commissioner has considered both the complainant’s position and South Wales Police’s arguments regarding the information request in this case. In reaching a decision he has balanced the purpose and value of the request against the detrimental effect on South Wales Police of responding to it. Although he acknowledges that there is serious purpose and value to the complainant’s request, and the information is likely to be of interest to the wider public, the Commissioner finds that the request is vexatious on the grounds of burden, and that South Wales Police were entitled to rely on section 14(1) of FOIA to refuse it.”

Mr O’Brien said: “I am very disappointed with the decision. My aim is to ensure that positive steps are taken to find the real killer – not only for the benefit of me and my two fellow miscarriage of justice victims, but even more importantly for the relatives of Mr Saunders, who deserve real justice after all these years. I intend to appeal against the decision.”