[2023] UKUT 132 (AAC)

Sub-ground (a) of Ground 1 covers the same ground as Ground 2 and so will not be dealt with here.

The Tribunal is said to have erred by (a) accepting as ‘broadly correct’ that the burden of proof was of secondary importance on a full merits review, and (b) by holding that the Commissioner had only an initial evidential burden which shifted to the Appellant once evidence of the infringements was introduced. In my judgment, the Tribunal did not err in law as the Appellant submits.

The correct approach, according to both the Commissioner and, on my understanding of the submissions, the Appellant, required the Tribunal to consider for itself whether the MPN statutory conditions were met and, if so, whether it would be appropriate to impose a MPN at all and, if so, in the amount set by the Commissioner. I agree that is the correct approach but none of the Appellant’s submissions persuade me that the Tribunal deviated from it. This was not a case of a tribunal abdicating its decision-making responsibilities and unthinkingly confirming the decision under appeal. The Tribunal found that the Commissioner had, in one respect, mistakenly assumed that a MPN could be issued for contravention of Article 24(1) of the GDPR. The Tribunal also found that the Commissioner mistakenly found that the Appellant’s contravention involved some 500,000 documents when the correct number was around 67,000. Had the Tribunal been slavishly following the Commissioner’s penalty-setting approach, one might have expected it to reduce the penalty amount in the same proportion as the reduction in the number of breach documents. On the Tribunal’s findings, the number of documents involved was about 13% of the amount on which the Commissioner’s penalty was based (66,362 is approximately 13% of 500,000). Had the Tribunal simply made a proportionate reduction to the penalty, it would have imposed a penalty of approximately £36,000, but its revised penalty amount was £92,000. The Tribunal also found an additional breach of the GDPR (Article 5(1)(e)).

The correct approach, as just described, itself explains why the burden of proof (and the burden of persuasion in relation to the exercise of any statutory judicial discretion) may properly be described as of secondary importance in tribunal proceedings. To apply strict burdens of proof (or persuasion) may prevent the Tribunal from properly discharging its responsibility to decide the facts for itself and exercise any discretion afresh. This may explain why the Supreme Court in Hewage warned against making ‘too much’ of the role of burden of proof provisions. That advice has even more force in tribunal proceedings, such as the present, under legislation that does not include express provision about the burden of proof.

The Appellant characterises the Commissioner’s submissions as follows. Provided that the Commissioner acts rationally in finding an infringement, on appeal the evidential burden shifts to the Appellant who is required to prove there was no infringement. I do not think that is a fair description. It is accepted that the Tribunal’s responsibility under the DPA 2018 is to determine the facts for itself and to make up its own mind (or exercise its own statutory discretion) as to whether a MPN is called for and, if so, in what amount. That responsibility would not be discharged if a tribunal were to adopt an approach which effectively presumes the validity of a MPN unless the Appellant proves no infringement. However, this was not the approach taken by the present Tribunal. In referring to the Commissioner’s initial evidential burden, the Tribunal was simply identifying an evidential fact of life in proceedings before a tribunal charged with making its own findings of fact and exercising statutory discretions afresh. If the Commissioner adduces evidence which he argues shows a breach of the GDPR, an Appellant can either do nothing and hope that the Tribunal is not persuaded, or it can counter the Commissioner’s evidence with its own evidence. I agree with the Respondent that this is what the Tribunal meant when it referred to the Commissioner’s initial evidential burden.

The Commissioner’s evidential burden submissions rely on the Court of Appeal’s decision in Khan but, according to the Appellant, the Respondent misunderstands Khan. I do not agree that Khan was intended to be confined to civil penalties under the VAT legislation. I agree with Mr Lockley’s submissions that there is nothing in Khan, at [70] to [73], to suggest that the Court’s words were intended, as the Appellant submits, to have a restricted application to all or any of the following: VAT civil penalties; penalties calculated by ‘purely arithmetical means’; penalties whose imposition allows an individual to avoid the stigma associated with criminal prosecution; regulatory decisions that do not involve the imposition of a dis-benefit.

Even if a MPN amounts to a criminal charge for the purposes of Article 6 of the Convention, I agree with the Commissioner that the guarantees in Article 6(2) and (3) do not require a formal burden to be placed on the Commissioner of the type contended for by the Appellant. I agree with the Commissioner that the issue is whether the MPN scheme, as a whole and as applied in any particular case, is compatible with those guarantees. As Janosevic demonstrates, the burden may fall on the citizen, in relation to certain issues, even if the citizen faces a criminal charge. If the Tribunal’s approach to burdens of proof may properly be described as involving a presumption of fact or law, I agree with the Commissioner’s submission that, by reference to Lord Bingham’s Sheldrake criteria, it was not a presumption that ran counter to the requirements of Article 6.

Mr Coppel argued, with some conviction on behalf of the Appellant, that the Tribunal’s approach raised matters of deep constitutional concern. The deviant course taken had to be corrected to protect the citizenry from an overbearing state. However, these submissions were not supported by any persuasive authority.

For the above reasons, Ground 1 is not made out.