Sort of.
The way it works is that the PL opened an investigation based on the leaked emails in Der Spiegel. As part of their investigation they were entitled to ask for, and we were obliged to provide, certain documents. We failed to do so, almost certainly having taken legal advice, and quite possibly (given the arguments we ran in the subsequent court case) on the basis that we were concerned about confidentiality being maintained.
It is true that the only disclosable documents within that investigation are documents that relate to the matters being
investigated. However the rules in place at the time said this:
So there isn’t really an option to ‘take the fifth,’ so to speak. If there’s an allegation that we have cheated, the PL has the power to request documents that are relevant to that allegation.
It seems to me very likely that since Der Spiegel accused us of systematic cheating over many years the PL’s inquiry was wide enough to cover everything they asked for. Certainly that appears to have been the conclusion in the arbitration which was upheld by the High Court and the Court of Appeal. So whilst in theory we could have said ‘we aren’t providing X, it’s not relevant to your investigation’ the likelihood is that the investigation was so wide everything the PL asked for was potentially relevant. The question of what charges should be brought gets answered at the end of the investigation, not its beginning, so the charges we eventually faced were not relevant to what information we provided.
So to take the Al Jazira contract as an example, if that was all that was being investigated, we might well have said ‘we aren’t providing you with documents about image rights, they are irrelevant to your investigation’ But since the investigation was into, basically, everything , the disclosure requests were within the PL’s powers.
Our failure to comply with that is why, IMO, we are in trouble on the non-cooperation charge.