Andrew Challinor v The Information Commissioner & Anor

This Decision relates to an Appeal brought by the Appellant, Mr Challinor, pursuant to section 57 Freedom of Information Act 2000 (“FOIA”). It is in respect of a Decision Notice (“DN”) issued by the Information Commissioner (“the IC”) on 23 November 2023. It concerns a request for information (“the Request”) made to the Serious Fraud Office (“the SFO”) regarding BetIndex Limited (“BetIndex”).

References to page numbers in this Decision are to an open bundle (“the Bundle”) of 484 pdf pages provided for the Appeal.

Mr Challinor, Counsel for the SFO and the SFO’s witnesses are thanked for their attendance at the Appeal. The IC was not represented and did not attend.

What follows is a summary of the submissions, evidence and our view of the law. It does not seek provide every step of our reasoning.

There is a considerable amount of available information about BetIndex and the process of its insolvency can be seen in decisions of the Royal Court of Jersey and in the decision of Vos Jin the High Court in Re Hyde and Others [2021] EWHC 1542 (Ch).

BetIndex was incorporated in Jersey. It traded as Football Index. It was a sports betting platform which launched in 2015 with an operating licence from the Gambling Commission. On 11 March 2021 the Gambling Commission suspended its gambling licence and BetIndex suspended its trading. After a period in Administration it was wound up with Joint Liquidators appointed on 5 November 2021.

There was (and remains) considerable public interest about BetIndex. Specifically concern has been raised about the ability of those with funds held by it to recover them and more generally it raised questions about on-line gambling and the regulatory response to such platforms. Mr Challinor in his Reply (73) said that Football Index was a:-

He told us that in his view, if one includes families, the collapse of BetIndex will have directly harmed many thousands of people both financially and socially. He gave us his estimate that it will have caused losses in excess of £124m (73) and that some consumers had individual losses of over £100,000. He drew our attention to a victim impact statement exhibited by him in the Bundle (390) which described the very difficult impact the collapse of BetIndex has had on that person.

In his witness statement and at the Appeal he said that he believed “on substantial grounds” that BetIndex was a highly dangerous ponzi scheme (92). In his view, there were warning signs about BetIndex to which the authorities should have reacted before its collapse. As an example he referred to (89) a market update document dated 16 March 2022 in which the annual dividend yield for BetIndex for February 2019 – January 2022 was calculated at 11.77% at a time when the Bank of England rate was at 0.75%.

We have no doubt that many people lost considerable amounts of money from being involved with BetIndex and this will have caused great distress.

The SFO is a non ministerial government department. It was created by the Criminal Justice Act 1987. It describes its role, as being “...a specialist prosecuting authority tackling top level serious or complex fraud, bribery and corruption.” In its Response (31-32) the SFO said that:-

In a witness statement made by Samuel Wright of the SFO he said (379) that the SFO “takes on a handful of investigations every year that meet the Director’s Statement of Principle (“DSOP”).” He exhibited the DSOP as SW1 (387). In a witness statement made by Chloe Wootton of the SFO she set out (373) a number of ways in which the SFO is held to account. She referred to the statutory obligation to report to Parliament, the giving of oral evidence to Select Committees in Parliament, the ability of Members of Parliament to ask questions of the AG and the provision of performance statistics. We also noted that:-

FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing if that information is held (section 1(1)(a) FOIA) and if that is the case to be provided with that information (section 1 (1)(b) FOIA).

These entitlements are subject to exemptions which can be absolute by section 2(2)(a) FOIA or qualified and subject to the public interest balancing test (“PIBT”) set out in section 2(2)(b) FOIA which is that “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”

The Tribunal exercises a “full merits appellate jurisdiction” (IC v Malnick and ACOBA [2018] UKUT 72) and its role is set out in section 58 FOIA. This provides that:-

Mr Challinor confirmed that the wording of his Request was:-

The SFO responded on 5 July 2023 (457). It indicated that if it had any relevant information then it would be exempt by section 30(1)(b) FOIA and by section 30(3) FOIA it was entitled to provide a neither confirm nor deny (“NCND”) response. It also set the SFO’s position on the PIBT (458). The SFO maintained its position follow an internal review (459) and also referred to sections 30(3) and 31(3) FOIA.

Counsel for the SFO confirmed that due to the exemption(s) the SFO relied upon, they had not taken issue with the “yes/no” parts of the Request and the exemptions relied upon were those found at sections 30(1)(b) with 30(3) and section 31 with 31(3).

On 31 July 2023 Mr Challinor complained to the IC. He said that the information requested should be provided and that “Sufficient time has now elapsed for the public authority to provide the information.” On 23 November 2023 the IC issued the DN with the conclusion that the SFO was entitled to rely on section 30(3) FOIA and that as regards the PIBT (7) “...the factors in favour of confirmation or denial do not equal or outweigh those in favour of maintaining the exemption.”

On 29 November 2023 Mr Challinor issued his Notice of Appeal. The outcome he sought was (13) “...the disclosure of the withheld information.” The Appeal was supported by Grounds of Appeal (“the GoA”). The parties’ positions were then set out in:-

We were assisted by the SFO’s open submissions of the 8 April 2024 (348 – 365) and the authorities bundle. We were also assisted by the information provided by Mr Challinor during the Appeal and after the Appeal namely his notes, a speech by Sara Lawson KC and a copy of the questions he asked the SFO’s witnesses.

The Bundle contained (92-93) a statement from Mr Challinor, the Appellant. Two statements were also filed by the SFO from (1) Chloe Wootton who has worked at the SFO since 2021 (367- 377) and (2) Samuel Wright who has worked at the SFO since July 2013 (378 -387). Both gave evidence at the Appeal.

We also had a closed bundle provided pursuant to rule 14(1) 2009 Rules and held a short closed hearing with Counsel for the SFO. We reviewed the closed bundle and were satisfied that the rule 14 Direction had been appropriate.

Counsel for the SFO provided a gist of the closed material and closed hearing for the Tribunal and parties (Barrett v The Information Commissioner & Financial Ombudsman Service [2024] UKUT 107 (AAC) (20 April 2024)). A copy is attached to this Decision. A copy was provided to Mr Challinor and the Tribunal had the opportunity to consider his comments on it dated 21 June 2024 together with information from the Jersey Gambling Commission provided by him.

Relevant parts of Section 30 (1)-(3) FOIA provide as follows:-

The relevant part of Section 31(1) FOIA says:-

Section 31(3) FOIA provides that:-

The exemptions claimed are subject to the PIBT which is determined as at 5 July 2023 (Montague v ICO and Department for Business and Trade [2022] UKUT 104 (AAC).

In addition for example to All Party Group on Extraordinary Rendition v IC [2013] UKUT 560 (para 149) and Christopher Martin Hogan and Oxford City Council v the Information Commissioner EA/2005/0026&0030 we were referred to authorities including these relating to having a consistent NCND policy and setting a precedent such as:-

Hensley v IC, Chief Constable of Northamptonshire, IT, 10 April 2006:-

Maurizi v IC, CPS (EA/2017/0041):-

Manzarpour, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 1086 (Admin) (10 April 2014) in which it was held:-

The parties agreed that the SFO was entitled to deploy the exemption(s) claimed. We agree. The issue between the parties is therefore whether the PIBT (judged at 5 July 2023) favours disclosure of the information requested or maintenance of the exemption(s) claimed.

The IC’s submissions on the PIBT are mainly found in the DN from para 29-44. The SFO’s position is in its Response to the Request (458) and Response to the Appeal from para 39 (37) and in the 2 witness statements. Points were highlighted by Counsel in the open submissions and at the Appeal (348). Mr Challinor’s position can be seen in the GoA (16-19) and his Reply to the IC (72-29) and his Reply to the SFO (388-398). We also had regard to his witness statement and what he told us at the Appeal (which we also saw in his notes).

A number of reasons have been put forward as to why the public interest favours disclosure. These include:-

Mr Challinor set out 5 “magnifying factors” at para 46 of his Reply to the SFO (397) he said:-

In his Reply to the SFO he also made these points:-

Another matter raised by Mr Challinor in favour of disclosure was (76) because in his view the SFO has “a publicly-recognised lamentable performance in investigating and prosecuting.” In the GoA (para 15) he says that “thus there is a public interest in improving scrutiny of their work.” He says that NCND can be used inappropriately by bodies to hide “operational inefficiencies and ineffectiveness”.

He says that:-

In so far as the SFO agreetheythat there are public interest reasons for disclosure they argue that either the interests are already satisfied (at least in part) by steps they take or by the way in which the SFO is already scrutinised or they are not as strong as the reasons in favour of maintaining the exemption.

Reasons put forward as to why the public interest favoured the NCND response being maintained included these:-

Mr Challinor accepts that there are some reasons that favour maintaining the exemption but says that in his view these are reduced by:-

In his opening notes (para 14/15) he also said that:-

It was useful to hear from Samuel Wright, whose evidence we accepted, in response to the questions. He was asked about the use of the term “ponzi scheme” and was referred to a speech made by the General Counsel of the SFO on 2 September 2019 in which she said “Our caseload displays all flavours of fraud and corruption. We see pension fraud schemes, we see ponzi schemes”. While he was careful to clarify that he was speaking hypothetically he confirmed that (as he says at page 19 (395) para iv) the term “ponzi scheme” is sometimes referred to in the SFO.

He said he was opposed to all forms of criminality and that his advice to a member of the general public who had reason to believe that “there was a £120 million highly dangerous Ponzi scheme in operation” was (hypothetically) to report it to the Police, the SFO or for example a Member of Parliament.

He was also asked to give an example, of any ponzi scheme operated by a commercial business “that wouldn’t be on the SFO’s intelligence radar, i.e. that the SFO would be comfortable with?” We thought it understandable that he was not able to give such an example.

He set out for the Tribunal what factors the SFO used to decide whether to launch an investigation. He referred to its statutory role and the DSOP exhibited to his statement at SW1 (387). From this we noted that the Director’s duty to investigate is discretionary.

He explained the process for taking on and closing investigations following on from para 21 of his statement (382). From his answers we noted that some referrals proceed to investigations but some do not and that even if referrals do not proceed the SFO remain open minded if more information comes to light and a referral can be reopened. He also said that some matters from referral through investigation to a charging decision can take “5,6,7 years maybe more”

He told us that the SFO does not take on all matters that are reported to them for various reasons but including resourcing.

It was also helpful to hear the answers to questions put to Chloe Wootton, whose evidence we also accepted, who explained from her perspective how FOIA requests are dealt with at the SFO, her experience in dealing with them and how they came to her to consider at the review stage.

It was put to her that there was a potential for NCND responses to be culturally embedded and that the SFO had a FOIA strategy which was not to provide information. She said that there was no “SFO strategy” for FOIA except to comply with the legislation. However Mr Challinor referred her to the exhibit to her statement (376). This is called “FOI Desk Notes s30 and 31 exemptions.” It is in effect a guide on to how to respond to certain FOIA requests. It has a number of start points but these guides appeared to conclude a number of times by saying that using NCND will always be the SFO’s approach and they contained no reference to the PIBT. She pointed out that while it started with the words “Alway apply neither confirm nor deny” the guide actually said “Always apply ‘neither confirm nor deny’ to prevent the use of FOI requests to reveal covert investigations” and that while PIBT is absent from the document she said that this document had been prepared by her and that she had created it to help people in the team, that it was not an official SFO document and that the PIBT is part of relevant FOIA assessments.

She was asked about how the SFO made decisions about publicising investigations dealt with by her at paras 15- 21 of her statement. She was not aware of any internal formal guidance on when to make information public. Her answer was that the SFO is a small enough organisation that these decision are made on a case by case basis by a dedicated group of more senior people and so there is no perceived need for internal guidance which one might need if such decisions were delegated to more junior people. She said that the SFO would generally not bring a pre charge case into the public domain but that this might happen for example if there was overt operational activity such as a search or if the investigation had become public in some way such as if it had been mentioned in Parliament.

We accept that Mr Challinor and the SFO had given appropriate consideration to the PIBT question and considered reasons in favour of disclosure, against, the weight of such arguments and the balance. In our deliberations we kept in mind the considerable concern about the BetIndex situation and that people had suffered as a result.

In our view all the reasons which related to the public interest in holding the SFO to account and opening them up to scrutiny or related to concerns about their operational or budgetary performance would have had a high weight but this was considerably reduced because of the many ways in which the SFO is already held to account as seen towards the start of this Decision.

The Request seeks information about the fact of, stage reached and scope of what might or might not be an operational matter for the SFO. The nature of the SFO’s role is that they will be dealing with the most complex and serious levels of alleged criminality within their remit. They might often be reliant upon potential whistleblowers. Such investigations will often be lengthy and necessarily involve covert techniques. Exposing the SFO’s investigations to risks associated with disclosure are unlikely to be in the public interest.

We accept the principle of the SFO’s arguments about the desirability for consistency. Even when in a particular case the answers might present a low or even no operational risk there is a risk that a selective application of NCND replies on being analysed could lead to the SFO revealing information about their focus and approach generally.

We also accept that if the SFO did not maintain a NCND position in such cases then over time an observer, being able to view many responses to FOIA requests, might also gain intelligence or obtain a clearer picture about the SFO’s approach and focus which could be exploited against the public interest.

We accept that responding to a FOIA request prior to charge or some overt action might create an issue as regards the obligation of privacy. While this is not a bar on publication (or answering a FOIA request) it does mean that answering would require some very clear reasoning especially when pre charge.

We agree with Mr Challinor that in the case of BetIndex any hypothetical pre charge release of information about the company could not now harm it. However it could (theoretically if such information exists) negatively impact the Directors and potentially other employees.

We agree with Mr Challinor that the passage of time might be a relevant factor when considering the risks raised by the SFO. Mr Challinor suggested that when calculating the passage of time the start point by when BetIndex should have been on the SFO radar was 2015. However we note the SFO have maintained a NCND response and in any event up until March 2021 BetIndex held a gambling licence. There is no formulaic answer where after x years the balance would shift. Each case would need to be considered when deciding how to respond based on the all the relevant factors known at the relevant date. In our view it was not relevant in this case.

Mr Challinor suggested that the answers to his questions are so well known a NCND response has no value. Where the “cat is out of the bag” and information requested is widely known then we agree that this might be a reason favouring disclosure “to the world”. In this case our conclusion was that while there are assumptions being made there was no evidence provided by Mr Challinor that the public knew the answers to the questions asked.

We also considered the submission that the SFO’s strategic approach to FOIA requests was to be opposed to providing information because it has an understandable organisational culture of secrecy. We noted the questions put to Chloe Wootton on this. We make no findings as to the organisational culture at the SFO but it would come as no surprise to us if it did have a very strong culture of operational and data security and confidentiality. However having heard the evidence, including Chloe Wootton’s explanation of her role in the FOIA process, we accept that that words “always” and/or the absence of a reference to the PIBT in the document exhibited at CW1 do not show that the SFO failed to carry out its review of FOIA requests or this Request properly before deciding to seek to rely on an exemption. We noted in any event that the SFO’s response to the original Request in this matter came with its explanation of the PIBT consideration.

As regards the SFO’s approach to the publication of information while Mr Challinor was critical of the SFO’s processes we heard no evidence that made us doubt the witness evidence. Towards the end of the Appeal he did mention a case from the SFO’s website which he said indicated an inconsistent approach about which Counsel was unable to take instructions at that stage. Our conclusion was that it is possible that the SFO might at times appear to have an inconsistent approach but that this might be because it operates a case by case approach.

It was clear to us that there were a number of reasons why the public interest was in favour of disclosure and in favour of maintaining the exemption(s) claimed however as a result of the matters set out above in our view the balance favoured the position put forward by the SFO.

Therefore it is our Decision that, if the SFO holds the information the subject of the Request, the information would be exempt by section 30(1)(b) FOIA and therefore the provision of section 30(3) FOIA applies and that the balance of the public interest favours maintaining the exemption and the NCND response.

The DN was in accordance with the law and it is not our view that the IC should have used its discretion differently. The Appeal is dismissed.

The following written evidence was put before the Tribunal on behalf of the Second Respondent 

Closed written submissions;

A closed witness statement; and  

An unredacted copy of the letter from the SFO to the Information Commissioner dated 19 October 2023 (a redacted copy of which appears at p.468 of the hearing bundle). 

The evidence heard in the closed session related to: 

The applicability of the exemptions under the Freedom of Information Act 2000; and 

Factors relevant to the public interest balancing test. 

The Tribunal also heard oral submissions made by counsel for the Second Respondent in relation to that evidence. Those oral submissions related to:  

The public interest in understanding what (if anything) is being done by the Second Respondent regarding the Football Index matter; and  

The chilling effect that disclosure might have on the Second Respondent’s ability to obtain Information in future investigations. 

One of the matters addressed by the Second Respondent’s evidence was the fact that the Football Index matter is or was under investigation by the Gambling Commission and Insolvency Service. Enquiries made by counsel for the Second Respondent subsequent to the hearing have confirmed that this information is in the public domain. See: 

“Government publishes independent report into regulation of Football Index” -  https://www.gov.uk/government/news/government-publishes-independent-report-into-regulation-of-football-index   (“The Gambling Commission is also carrying out a separate regulatory investigation into BetIndex Ltd on which it will report in due course, and has referred the case to the Insolvency Service…. BetIndex Ltd has been referred to the Insolvency Service by the Gambling Commission to ask that they consider whether the actions of the directors prior to administration breached insolvency or fraud laws”).

“Football Index updated – 29 June 2021” - https://www.gamblingcommission.gov.uk/news/article/football-index-update-29-june-2021 (“there will be limitations on what information we can publish whilst our regulatory investigations are ongoing”).  

On 20 September 2022, the Department for Digital Culture, Media and Sport responded to a written question submitted by Mr Richard Holden MP and stated: “the Insolvency Service has confirmed that the conduct of BetIndex Limited’s directors is currently being investigated by them. The progress and outcome of the investigation will depend on the evidence obtained. It will not be possible for the Insolvency Service to comment on the investigation while it is ongoing.” See https://questions-statements.parliament.uk/written-questions/detail/2022-09-02/45150/ .