Request for information held by Ministry of Justice relating to investigation by Hon Ian Binnie QC into David Bain’s compensation claim

In December 2011 a Fairfax Media journalist requested the Minister of Justice to provide –

... all information [it held] referred to Justice Ian Binnie for his investigation and determination into David Bain’s claim for compensation for wrongful conviction and imprisonment.

The Minister transferred the request to the Ministry for a response. In February 2012, Fairfax Media complained to this Office about the Ministry’s withholding certain information. Before receiving the request, the Ministry released a substantial amount of information within the request. By that time there was also a significant amount of information in the public domain relating to the two criminal trials Mr David Bain faced. (At his first trial, Mr Bain was found guilty of five charges of murder and was sentenced to life imprisonment; at his second trial, he was found not guilty of the same charges.) Accordingly, my investigation of Fairfax Media’s complaint was limited in its scope. During my investigation, the Minister of Justice released Hon Ian Binnie QC’s report and the report of Hon Robert Fisher QC critiquing that report. The release of those two reports further limited the scope of my investigation.

For the reasons provided in this opinion, I formed the opinion that:

• the Ministry was entitled to rely on section 6(c) (prejudice to maintenance of the law) of the Official Information Act 1982 (OIA) to withhold a communication concerning deliberations of the jury at Mr Bain’s retrial and the reference to that communication in a letter of 25 March 2010 from Duncan Cotterill, solicitors for Mr Bain, to the Minister of Justice;

• as an affidavit sworn by Mr Bain on 10 December 2009 in support of his claim for compensation is now in the public domain, it is unnecessary for me investigate whether the Ministry was entitled to rely on section 9(2)(a) (protection of privacy) and section 9(2)(ba)(i) (protection of information subject to an obligation of confidence) to withhold the affidavit in response to the request; and

• the Ministry was entitled to rely on section 9(2)(f)(i) (protection of confidentiality of communications with the Sovereign or her representative) to withhold Mr Bain’s petition for mercy and supporting information.