A Burgundy diary – 27 May 2020


Picking cherries; and fading evening light


This evening it’s been time to pick cherries; and still we’re in May, which worries me a little. A wild cherry tree grows by the path alongside our back field. At least I think it’s wild: certainly it belongs to no-one standing as t does on the bank to the track. And now its branches are rich with bright red cherries. Just one branch yields a comfortable crop for two or more (those that aren’t eaten as they’re picked). I’ve not ever picked cherries like that as they hang ripe from the branches


Our own tree in the garden – planted fifteen years ago – is full of fruit. I am sure there is a branch which overhangs a little. Now brushes my head as I pass. Can cherries, as they ripen, weigh down enough a branch for it to droop? Or am I imaging it? Can that only happen with heavier fruit such as apples and pears and quinces?


Now – later – as the light dies and a near half-moon hangs in the sky, I can see the remains of the day burning across the valley from the barn. Oranges and reds smoulder in the late evening sky. The nearby hills are black, in contrast to the remains of colour in the night sky. Further away that black fades into a soft, almost sultry, dark, dark grey in the Morvan distance. The fresh wind of the day has dropped, so that now the night is still; the dark and glow of the evening are still; and only crickets disturb the deep dusk night. The orange fades. The light softens to a soft ochre glow. The light will stay in the sky for sometime yet as mid-summer waits not long away.


David Burrows

27 May 2020

A Burgundy diary – 21 May 2020


A vapour trail again…


This must be the finest time of year to see nature. An open blue sky, trees a deepening green, the fields a rich verdant beneath the clear wind-brushed skies. Wild flowers are everywhere. Today elder flower (sureau) can be added to the list of trees in bloom which are emerging towards summer.


There are more cars on the road again as the lockdown lifts; and this evening I saw what may be my first sight of a vapour trail for a long time, like a rent in the evening sky. It will be sad if we go immediately back to the rich person’s access to easy air travel. Yet after covid19 it may never be quite the same again. Flygskam – ‘shame of flying’ in Swedish – may yet take a greater hold, as it was beginning to do last year. Perhaps only the most essential flights will be taken in the future. Our lives need not be poorer for much less air travel. Plenty of journeys – most distant holidays and other inessential luxuries – need not be taken at all. Many quite distant journeys can be taken by train. The train journey can be part of a holiday and much more relaxing than interminable air terminals and cramped flight conditions….


Covid19 may yet change work travel – with a little imagination – for many of us. It may encourage more people to find they can live outside cities and communicate from their homes. And finally, could it yet encourage us that distant travel can be more modest?


And back to local earth: a cycle ride, again, along the local one-time railway line from here to Épinac market. Here – taking vestiges of transport back over 180 years – is a modest snap (fuzzy quality) of a level-crossing keeper’s house. It only occurred to me then that the order of transport development would have been, first, a modest local track (not much more than a farm track, probably from medieval times and before), crossed then by the steam railway (around 1840). Most of another 70 to 80 years would have elapsed before there would have been any need for tarmacadam and a level-crossing, and therefore for a crossing keeper. Who can remember the level-crossings with a keeper who emerged periodically – half-hourly, more or less – to open and close the gates to stop cars getting in the way of the trains?


David Burrows

21 May 2020

Ascension Day

Publishing of information about police inquiries


Confidentiality: investigation, but no charge…


One of the more uncertain areas of the law must be for those who are investigated by police or other agencies (see eg ZXC below) but not – yet, perhaps – charged with any offence. It is uncertain for the individuals concerned, for the journalist and other publisher (eg on social media) who may find out about it, and for any lawyer asked to advise. Can the fact of enquiries be reported by the media?


Broadly – and ‘broadly’ is the best that can be said – if a person is not charged, publicity will be banned. Once a charge is made open justice principles apply. If it is child care proceedings which are in issue, privacy continues once proceedings start; but if, on the same facts, a parent is prosecuted probably their name (but not that of the child) will be in the open.


Two very different aspects of confidentiality have been in the reports in the past three months: one (ZXC v Bloomberg LP [2020] EWCA Civ 611 (15 May 2020)) was an unsuccessful appeal from Nicklin J and the other and earlier a decision by Nicol J in Pharmagona Ltd v Taheri anor [2020] EWHC 312 (QB), [2020] WLR(D) 129 (17 February 2020). In Pharmagona a husband and wife were made subject to injunction not to publish or otherwise pass on information from their former employers to others, save if they were asked by enforcement agencies. It is the second – ZXC – with which this post is concerned.


‘Confidentiality’: towards a definition


But first, what is ‘confidentiality’ as a legal principle? In the 1980’s ‘Spycatcher’ case (Att Gen v Guardian Newspapers Ltd (No 2) [1988] UKHL 6, [1990] 1 AC 109 at 280 concerning release of government information received in the course of employment) Lord Goff said of confidentiality:


‘I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others…. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.’


The definition which – despite Lord Goff’s modesty, has been accepted as authoritative by text-book writers since – captures the three main components of ‘confidentiality’:


  • That information comes to the knowledge of the confidant, who knows it is confidential (or should know it is confidential – as in ZXC);
  • The situation is such that, where necessary, the confidant can be prevented from passing on confidences;
  • There is a public interest in confidences being protected (if need be).


Expectation of privacy during a criminal investigation


In ZXC the question was: ‘[2] to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.’ The parties to the appeal agreed that if someone is charged with an offence, there can be no expectation of privacy.


JXC was a senior employee of X Ltd a company which was the subject of a request for information from a UK ‘Legal Enforcement Body’ (UKLEB) in relation to X Ltd’s dealing with ‘a foreign state’. No one had been charged. UKLEB sent a long letter of request to the appropriate authority in the foreign state. The ‘confidential nature could not have been made clearer’ said Simon LJ (at [17]). The letter came into possession of a journalist for the defendant, who published it and the name of JXC. Nicol J said he had found it a ‘striking feature’ of the case that there seems to have been no appreciation in Bloomberg of the ‘highly confidential nature of the’ letter of request (at [24]).


Resolution of this case depends on the court assessing the facts in two stages:


‘[42] … Stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest, in the present case Bloomberg’s right to freedom of expression under article 10.’


Thus – based on the House of Lords decision in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 – does the applicant start with a ‘reasonable expectation of privacy’ (eg balanced against the applicant’s own courting of publicity or the applicant’s own behaviour. If they do, the court must balance privacy against freedom of expression. Is the public interest in confidentiality outweighed by the public interest in freedom of expression?


The court held, as did Nicol J, that JXC had a reasonable expectation of privacy; but did that survive where he was under investigation by the police or otherwise. What JXC shows is that the law prefers that confidentiality be retained, but that there are no hard lines where an adviser or the court can be categoric. There are two important decisions in recent years, which – superficially at least – conflict: Khuja v Times Newspapers Ltd [2017] UKSC 49 (19 July 2017), [2017] 3 WLR 351 and Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J. Both are considered by Simon LJ.


In Khuja Mr Khuja was indicated by one witness as involved in a sex abuse inquiry; but he was not charged in the subsequent criminal proceedings. A seven justice Supreme Court (with Lords Wilson and Kerr in the minority) held that his name was correctly publicised. In Richard the BBC publicised the fact of a sex abuse inquiry concerning Cliff Richard, which resulted in no charges. Sir Cliff recovered damages against the BBC. Both cases are cited in JXC; but the minority’s judgment in Khuja is what the Simon LJ centres his definition of the modern law upon.


Confidentiality: public interests balanced between privacy and freedom of expression


Thus, for Simon LJ his resolution of this case can be found in summary, that if a person has not been charged (JXC had not even been arrested), publicity will generally be forbidden:


‘[82] … I would take the opportunity to make clear that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.’


In a short judgment Underhill LJ stressed that the confidentiality of the letter of request as between UKLEB and the foreign state may be one thing. JXC’s privacy may be a separate matter. He was a little more luke-warm than Simon LJ. He could see no basis for differing from Nicol J’s decision.


Confidentiality is critical to many aspects of privacy and in particular to many professional relationships. Privacy is not absolute (save in the case of the confidentiality in legal professional privilege); but it provides an important protection in many cases where it is to be balanced against the important public interest in freedom of expression.


David Burrows

19 May 2020


A Burgundy diary – 19 May 2020


Of rose hips and lane verges


Verges of the lanes are rich with wild flowers and vigorous green grass in the glowing evening sun: forget-me-not, corn-flower, red campion and scabious and many more. Horses in the fields stand in an undulation of rich green and sun-drenched buttercups.  Ox-eye daisies wash and sway in the grass. Hedges are dotted with honey suckle and dog rose: in French, chevre fieulle and eglantine (a word which is also eglantine in English, and rosiers des chiens in French, I think). I’ve tended to prefer the expression chevre fieulle to honey suckle (though it’s a close thing); and eglantine has a touch of gentleness over dog rose. (On a quite separate point, I definitely think the English mistletoe scores over the French gui – which is everywhere here, clinging insidiously to trees.)


I used to go to a ferme auberge near here. It was on the limestone cliffs which circle above Nolay (on the edge of the Cote d’Or). They had a kir with a licquer of grate-cul (as of crème de cassis for a genuine kir). I had no idea what gratte-cul was at the time, but I used to drink the kir. It was a pale orange pink colour, with a taste which told me nothing. It was only some years later that I found out that what I was drinking came from rose hip (the fruit of a rose). Mostly it applies to the fruit of the wild rose (eglantine or dog rose). I shall try to buy some of the liqueur, and of the other things made from rose hips; and collect the hips from the hedges as they ripen and find out what I can make for myself…


David Burrows

19 May 2020



A Burgundy diary – 18 May 2020


Sun rise, sun set at the barn


The sun rises behind trees opposite the front of the house, and sets on the horizon provided by the hills above Vergoncey at the back. When the moon is full it rises as the sun sets and follows the same trajectory over the house.


When you can see the sun set – as is mostly the case now – it moves slowly along the sky-line each day. It will slow now and stop on 21 June, before moving slowly back to the south. My question to myself is where will be its summer solstice point on the hills to the west of us?


What I also realise now is how the light of the sun continues to move, as it glows and its red deepens and darkens. It continues to move north along the sky-line in the hour or two after it sets. If I think about it, it is obvious that it would move like that. It dips deeper below the horizon and then rises towards tomorrow; but it’s only been as I’ve watched that light move toward the Morvan hills in the view beyond us that I’ve fully appreciated the fact.


David Burrows

18 May 2020

A Burgundy diary – 17 May 2020



A time of marguerites and scabious


Looking from the barn the field below us is a sea of deepening meadow grass, ready for cutting in a month or so. Go down the field and look back and the field is rich with ox-eye daisies, marguerites. It is like one of those Turkish rugs whose colour changes according to the direction from which you look at them.  Here and everywhere fields are studded by these elegant, gentle flowers, a statement of summer to come.


Hawthorne has shed its blossom, but now – higher in the trees – acacias are shrouded in flowers. Each have the faint sound of bees in them collecting for the hives which dot the area. Up the road, tucked away against a low wall by the small chateau, there is a line of fifteen hives or more.


And, as ever, the road sides are rich with wild flowers: all colours and types of flower, changing slowly as the season changes. My favourite for this time of year remains scabious. We have a few in the roadside outside.


David Burrows

17 May 2020

A Burgundy diary – 16 May 2020


Tour de Grosme


Across the road in front of the barn here is a lane that runs to the main road (Autun-Beaune), and across that to a small forest road. The road – not much more than a track, and only rarely used by cars – climbs and winds up through the woods. Eventually – three or four miles (6 kms) later – it comes out again on the main road (having passed a mysterious small Carthusian nunnery – le Prieuré du Val Saint-Benoît – tucked away in the woods).


On top of the first climb of the forest road, almost hidden in the trees, is a substantial medieval stone tower. One wall, perhaps a little more, is all that is evident at first. It is easy to miss it. It is hidden by trees. On the map it is described coyly as Tour de Grosme. My local historian source M Roland Niaux describes it being the share of Sully lands (where a substantial chateau still stands) which in the late thirteenth century came to Girard de Chatillon.


As a castle Grosme must always have been modest; but there is much more there in the undergrowth, I suspect, than the tower. When I last explored the site the ground was shrouded with periwinkle (pervenche), which cloaked mounds and old workings and the evidence of a short outer wall. A smaller tower and outbuildings are there. You could see then, before the trees were in leaf, why the position for the castle had been chosen. It looks across the opening valley of the Drée river towards the castles at Sully and Épinac, though with a deeply forested – perhaps impenetrable – hillside behind. No one now seems to care much for it – poor sad secret place as it slowly crumbles back into its periwinkle carpet.


David Burrows

16 May 2020