South Wales Police faces possible court action over failure to disclose report to miscarriage of justice victim

Martin Shipton

Solicitors acting for a miscarriage of justice victim have told the Information Commissioner that South Wales Police is acting unlawfully by refusing to release a report which expressed the suspicion that their client and his two co-accused were guilty of the crime after all.

Michael O’Brien is one of three men whose convictions for murdering Cardiff newsagent Phillip Saunders in 1987 were quashed after they had spent 11 years in jail.

In 2023 Mr O’Brien had leaked to him an internal police document that refers to a bigger report written by a retired senior detective who believed he, Darren Hall and Ellis Sherwood really did kill Mr Saunders near his home in Canton, Cardiff. The motive was said to be robbery of the cash takings received at Mr Saunders’ kiosk in Cardiff bus station.

The 21-page document, dating from 2003, was headed “Staff in confidence” and addressed to a chief superintendent in South Wales Police’s Professional Standards Department.

The document began by explaining that its purpose was to identify “strengths and weaknesses” in cases cited by the Miscarriages of Justice Organisation (MOJO) in its call for a public inquiry into a series of wrongful convictions that followed investigations by South Wales Police (SWP).

‘Suspicions’

Referring to the Cardiff Newsagent Three case, the document stated that the author of the longer report, a retired detective superintendent from Devon and Cornwall Police called John Smith, had “revealed his suspicions that the three acquitted men may actually still have been involved in this crime”.

Mr O’Brien was infuriated by the revelation and used the Data Protection Act to seek disclosure of the larger report. But South Wales Police refused to disclose the report to him.

Now Mr O’Brien’s solicitors, Hickman & Rose, have told the Information Commissioner’s Office (ICO) that the body should order the police to release the report.

In their letter to the ICO, Hickman & Rose point out that the disclosure request was turned down by SWP because of Section 45(4)(b) of the Data Protection Act. The section permits non-disclosure to “avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties”.

However, SWP did not provide reasons for their reliance on this exemption and did not inform Mr O’Brien of his right to make a complaint to the ICO. Later, after such a complaint was made, SWP said the Saunders murder remained an unsolved crime, adding: “An unsolved murder is extremely serious. The investigation remains open and periodically reviewed and to disclose information may undermine that investigation.”

Exemption

In March 2025, SWP said for the first time that in denying disclosure, they also relied on another exemption relating to the rights of third parties who could be affected.

In their letter, Hickman & Rose state: “Overall, it is apparent that SWP have engaged in a blanket refusal on the basis of these exemptions, without giving any proper consideration as to whether it is necessary and proportionate to rely on this exemption, which is unlawful.

“ … What is required is ‘a selective and targeted approach to non-disclosure, based on the facts of the case’. A blanket approach is not legitimate.

“SWP appears to have failed to consider the ICO’s Guide to Law Enforcement Processing. This states: ‘You could restrict access to some or all of the information depending on the circumstances.

As you must only restrict access to the extent necessary to achieve your purpose, you should generally provide as much information as you can – for example by redacting the sensitive data and providing the person with the rest of the information.

“It is clear that the approach which SWP has adopted to our client’s Subject Access Request is wholly inconsistent with the case law and the ICO’s Guide:

SWP has engaged in a blanket refusal.

SWP has not taken a selective and targeted approach, based on the facts of the case.

SWP are relying on the exemption to withhold everything. Yet it is inconceivable that the exemption, properly applied, could justify withholding all of our client’s personal data.

SWP have not provided the information that does not come within the restriction because SWP haven’t done any proper analysis of what does, and does not, fall within the exemption.

SWP have not explained why withholding the information is ‘necessary’ to avoid causing prejudice to the investigation. The mere fact that there is a murder investigation that remains open involving other suspects does not mean that disclosing our client’s personal data, much of which relates to decades ago and in circumstances where he is no longer a suspect, will cause prejudice to the investigation today. What is required is ‘proper and convincing evidence of prejudice and SWP haven’t given any..

SWP has not carried out any proportionality test taking into account our client’s right of access to his personal data and the importance to him of having access to his personal information relating to this wrongful conviction which upended his whole life.”

Third party rights

Turning to the issue of third party rights, Hickman & Rose state: “Again, it is apparent that SWP have engaged in a blanket refusal on the basis of an exemption without giving any proper consideration as to whether it is necessary and proportionate to rely on this exemption and whether there is an alternative approach, for example redacting the names of third parties, that would enable SWP to provide access to our client’s personal data.”

The solicitors conclude: [The] information is highly significant to our client, yet it appears SWP have not taken this into account.

“SWP has engaged in a blanket refusal without considering whether they are able to disclose some or all of our client’s personal data without disclosing the personal data of third parties. This is again unlawful.

“SWP’s letter does not make any reference to having considered what redactions could be made to enable them to provide our client’s personal data without disclosing third party data. Again, SWP are treating the exemption as justifying a blanket refusal when this is impermissible.

“ …For all of the above reasons, we consider that SWP’s decision is clearly unlawful and request that you review the lawfulness of the restriction of our client’s rights.”

Mr O’Brian’s solicitors are now awaiting a response before taking the matter to court.