Naked Brooke Shields - Shameless attempt to increase my hits!

Inappropriate motorbiking gear. The naked Brooke Shields' picture was replaced by the Tate Modern with this one.

Hollywood starlet Brooke Shields naked – if the start to this post doesn’t shoot me up the google rankings nothing will.

The full frontal image of Miss Shields standing in the bath naked, her face turned provocatively to the camera, has one deeply unsettling quality to it – the Ms Shields in the picture is only ten-years-old.

For centuries rich people and ‘clever’ people, and sometimes rich and ‘clever’ people have tried to justify pornography as art. When they do we have the makings of a controversy.  

That’s what happened at the Tate Modern when it put on display its image of a naked ten-year-old Brooke Shields.

The Tate, which has previously paid thousands of pounds for paintings constructed with elephant dung, took advice from lawyers about whether it should allow the Shields image to go on display.

One presumes that armed with this advice the photograph went on display only to be taken down when the Metropolitan Police visited the exhibition and warned it could be breaking obscenity laws.

Let me now nail my colours to the mast. I have seen the photo and after a momentary gaze at it you know that regardless of any laws it is just wrong.

When you then find out that, according to the Guardian, the image appeared in Playboy magazine with the full knowledge of Ms Shield’s mother it does nothing to quell any doubts you might have about the picture.

If somebody took a picture of a child like that and went to Boots to have them developed, you would expected the shop assistant to get straight on the phone to the police and the photographer arrested and jailed.

In all this preamble you may be wondering why this is appearing on my blog, which is ostensibly about Freedom of Information.

Well I asked for the legal advice supplied to the gallery by Withers LLP [link] on the assumption that they must have thought it was ok for the photograph to be displayed or it would never have gone on show.

Why do I think I should see the advice from the lawyers and break the sanctity of the S.42 (Legal Professional Privilege) exemption? Well as I see it there are two possible scenarios.

Firstly the lawyers told the Tate Modern not to put the picture on display but the gallery went ahead with it, risking prosecution knowing the image was potentially obscene. In which case there is a clear public interest in knowing that the state funding museum is run by people prepared to wilfully break our obscenity laws.

Secondly the lawyers told the Tate Modern the image was fine to display and shouldn’t bring any attention from the police. If this is the case then there is a clear public interest in knowing exactly what this erroneous advice was, as it was paid for with taxpayers money.

Of course there is a third possibility in that the advice from the lawyers was inconclusive (which would not really a big surprise). In which case I still say there is a clear public interest in establishing what the advice was, when it is taxpayers money being spent on it.

As an aside I don’t really think it takes swanky city lawyers to pontificate on whether this image should have been shown in the gallery or not – if you look at it you know it’s wrong and I challenge anybody to say different.

Well my request for the information was turned down by the Tate Modern. I appealed to the Information Commissioner, who also ruled against me [decision notice].

I then appealed to the Tribunal, but my appeal was out of time by a few days. The Tribunal allowed my appeal but the Information Commissioner appealed against me appealing out of time (confused!). The Tribunal then came down on my side and as we stand at the moment I am taking the Commissioner to a Tribunal over the matter.

WARNING: For those of you who want to see the image the head of Ms Shields, which cannot be considered indecent is on the Guardian site’s story of the controversy [here]. There is a website called iconic images which has the full picture which can be viewed (but don’t then come moaning to me) that you have been upset, revolted etc. It can be seen by clicking [here].

Summer time blues for CPS

Keir Starmer, the £200,000 boss of the CPS. Desk calendars for his staff perhaps? A new holiday rota maybe?

A recent judgement issued by the Information Tribunal has done little to dispel the fears of those who think the Crown Prosecution Service (CPS) doesn’t do the greatest job in the world.

The CPS was ordered to disclose information about a change in policy relating to a defence for reasonable chastisement of children.

It decided it would appeal the decision to the Tribunal – but it lodged the appeal 37 days outside the 28 day time frame for making such an application, and then claimed it was late because a lot of staff had been away over the summer holiday.

The CPS then had to put forward “special circumstances” why its appeal to Tribunal should be heard out of time. It said: “The DN arrived just before the summer vacation and because the decision as to whether to appeal involved consultation with a number of other public authorities it took some time to decide.”

The Information Commissioner opposed the application and the Tribunal ruled against the CPS saying: “The Tribunal has considered these arguments and is not convinced that in the circumstances of this case, where the appeal was submitted so long out of time, that this ground is a special circumstance under rule 5(2).

“Even if it is the Tribunal is not of the opinion that it would be just and right to allow the appeal to be accepted out of time on this ground alone. The Tribunal is particularly concerned that if it was to allow this application from a public authority whom, because of its functions, is more than aware of the need to comply with court and tribunal rules of procedure, then it would make it very difficult to refuse other applications made on a similar ground.”

But the story has a happy ending for the CPS as the Tribunal has allowed the appeal as it accepted the organisation’s second “special circumstance”.

Having lost the initial case in a battle over S.35 (Formulation of Government Policy) the CPS now wants to run its appeal to the Tribunal on the basis that it should have considered S.42 (legal privilege) and this argument was allowed.

So the moral of the story is: If the CPS, an organisation staffed with a disproportionate number of lawyers, can get away with saying we missed the most important legal point in the initial case and now we are out of time with our appeal – then anybody else should be able to run that argument as well.

Perhaps a dose of “reasonable chastisement” is needed in the offices of the CPS.

You can see the original Decision Notice [here] and the Tribunal’s ruling on accepting the appeal out of time [here].

Making a meal of a meta-request

Will it be worth the wait to see what's inside?

The saga of the so-called meta-request goes on….and on…. and on.

In January 2007 I asked a question of the Home Office about the way it had been treating my requests as I had evidence that it dealt with mine differently from the general public. This is a breach of its responsibilities under the Freedom of Information Act in that it should be “applicant blind” when it deals with requests.

My request was refused, I appealed and the appeal was thrown out as the information was deemed to be covered by Section 36 (Prejudice to the effect conduct of public affairs).

I took the case to the Information Commissioner who ruled in my favour and then the Home Office appealed against that decision, linked up with the Ministry of Justice, and took the case to the Information Tribunal.

At the Tribunal the Government tried to argue that meta-requests - the process where somebody asks questions about the way their question has been handled - were in some way an abuse of process.

This argument was rejected by the Tribunal and I sat at home waiting for the 1,250page bundle of documents to arrive in the post.

But that wasn’t the end of the matter and the Government appealed the decision to the High Court where a hearing took place earlier this year.

That decision has now been announced and again it was ruled that meta-requests are NOT an abuse of process and should be dealt with like any other Freedom of Information application.

However, there is one big BUT. The High Court has allowed the Home Office the opportunity to go through the material to see if any other exemptions apply to it. For good measure it is now claimed that although S.36 does not apply to it the Tribunal will have to rule if section 31 (law enforcement), section 35 (formulation of government policy), section 40 (personal information), section 42 (legal professional privilege), and section 43 (commercial interests).

So to summarise, two and a half years after I asked the question the Home Office has now been forced to do what it should have done all along - look at the question and see if it could and should answer it. Because of it’s ineptitude it has wasted hundreds of hours and thousands of pounds, essentially because it thought it shouldn’t have to answer my question.

Here is a link to a question I have asked on WhatDoTheyKnow asking for the figures of legal costs associated with the case both for the Information Commissioner [link] and the Home Office [link].

Here are copies of the decision in this case by the [ICO], the [Tribunal] and the [High Court].