The attack of the black marker pen

Walton Prison in Liverpool

As the furore grows over the amount of black marker pen used to redact MPs expenses a fascinating case with parallels to Parliament’s has been issued by the Information Tribunal.

It concerns more serious items than duck houses and property ‘flipping’ and centres on the case of the highly unfortunate George Kelly, who was wrongly convicted and then hanged for a gruesome double-murder committed more than 50 years ago.

Kelly was hanged for murdering two men at the Cameo Cinema in Liverpool in March 1949.

Cinema boss Leonard Thomas, 44, was counting the night’s takings in an upstairs office when he was shot by a robber along with his friend and assistant 30-year-old John Bernard Catterall. The gunman escaped with the night’s takings of £50.

Kelly, a labourer, who denied any involvement in the murder was convicted on the basis of evidence from a prostitute, a pimp and an ex-con. On February 1950 he was hanged and buried within the grounds of Walton Prison, in Liverpool.

He was eventually posthumously cleared of the crime in 2003 when the Court of Appeal heard that a statement given to detectives by a prosecution witness, claiming another man had confessed to the crime, was not been disclosed to the defence.

But it was when attempts were then made to give Kelly a proper burial on consecrated ground that the Freedom of Information Act and the Data Protection Act impinged upon the case.

In the 50 years between Kelly’s burial and his acquittal the authorities added to his indignities by building a car park over his last resting place.

It would appear that the car park’s existence caused some concern at the then Department of Constitutional Affairs (now the Ministry of Justice) as to precisely where his body was and the costs associated with exhuming his body to allow his surviving family to have a proper burial.

A representative on behalf of the family submitted requests to the Government department asking for notes and documents it held on its discussions about the exhumation, specifically a copy of the advice given to the Minister to issue the exhumation licence in principle for Mr. Kelly; a copy of all communications with the National Offenders Management Service (NOMS) regarding this matter; and the records in relation to communications with a named individual.

Initially the department refused the request claiming it was subject to a S.36 (prejudicial to public affairs) and S.40 (Personal Information). But by the time the case reached the tribunal the issue had been narrowed to just the S.40 exemption as it applied to individual working for the Government.

The Tribunal ruled that the note of a telephone conversation was still covered by the S.40 exemption but that a submission to the minister should be released with a minimum of information redacted.

It said in its decision: “The situation in terms of the Submission dated 28 November 2005 is different. The starting point is that Mr George Kelly had his conviction for a notorious double murder quashed in June 2003.

“At that point he was an innocent man. It is reasonable for the public — and this is not limited to his relatives — to want to understand how the exhumation decision was arrived at in these circumstances and, insofar as it is possible, to understand the reasons for any delay (particularly the 32 months that occurred in this case) in the proper burial accorded to him.

“…the current (final) redaction is, in the Tribunal’s view, still much too restrictive. Proper caution and sensitivity about the issues set out on the Submission is one thing but it is clear to the Tribunal that - in the balancing exercise that is at the core of decisions in this area - the balance tips in favour of disclosure with the most minimal redaction possible and proportionate, and that this disclosure generally is necessary in the public interest.

“In cases such as this HM Prison Service and the Ministry of Justice are dealing with delicate and sensitive historical issues. With the improvements in forensic science techniques it is quite possible in the future that there will be other cases like Mr. Kelly’s where a person has been executed by the State and then exonerated through the appeal system and where relatives wish for a proper burial to take place. The matters set out in the Submission are generally informative about the process and the issues which need to be considered and it is in the public interest that these are disclosed.”

So while the officials who released the Prime Minister’s expenses feel it is necessary to redact his £99 Sky TV subscription it would appear the Tribunal take a somewhat more liberal approach to what can be allowed to be disclosed under the act.

A full copy of the Tribunal decision can be found here.