[2023] UKUT 142 (AAC)

Neither side sought an oral hearing and I am satisfied that it is not necessary to hold one to determine the matter.

I accept that Mr Williams is correct that in paragraph 48 of the decision the Tribunal should have said that the duty in paragraph 23 of Schedule 3 of the 2002 Act was to determine whether the report indicated that a criminal offence “may have been committed” rather than “has been committed”, although that emerges from the language of paragraph 23 of Schedule 3 itself, to which Ladkin simply refers. The Tribunal had, however, accurately referred to the statutory provision in paragraph 46, namely whether the report indicates that a criminal offence “may have been committed”. In addition, I accept the ICO’s submission that nothing turns in this context on the distinction between “may have been committed” rather than “has been committed”, as in either case it would be the DPP who would make the decision whether in fact to bring charges and ultimately it would be for the courts to decide whether an offence had been committed. In those circumstances the slip in paragraph 48 was not material to the outcome of the appeal and I dismiss it as a ground of appeal.

The exemption in s.30(1), so far as material for present purposes, provides that

“30(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purpose of –

(a)

any investigation which the public authority has a duty to conduct with a view to it being ascertained –

(i)

whether a person should be charged with an offence …”.

By contrast, the exemption in s.31 provides that

“(1)

Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—

…

(g)

the exercise by any public authority of its functions for any of the purposes specified in subsection (2)”.

(2)

The purposes referred to in subsection (1)(g) to (i) are—

(a)

the purpose of ascertaining whether any person has failed to comply with the law,

(b)

the purpose of ascertaining whether any person is responsible for any conduct which is improper”.

The essence of Mr Williams’ argument is that s.30(1) only exempts, as a class, any information held at any time by a public authority for the purposes of a criminal investigation (or criminal proceedings) conducted by it. He says that the IOPC does not conduct a criminal investigation and that the criminal investigation is not conducted by the IOPC itself, but by the DPP (as per the explanatory notes to s.30), or that the IOPC does not have a duty to investigate offences (as per the guidance notes), so that the exemption is not engaged.

The wording in s.30(1)(a)(i) is very different from the wording in s.31(2)(a) and (b). Under s.31 the public authority body must be exercising its own functions for the purpose of ascertaining any of the purposes in subsection (2). By contrast, under s.30(1)(a)(i) the investigation must be conducted pursuant to a duty with a view to it being ascertained whether a person should be charged. The phrase “with a view to it being ascertained” strongly suggests that the ascertainment of whether a person can be charged with an offence can be conducted by a body other than the public authority which is under a duty to conduct the investigation. There is no necessary community of identity between the two bodies.

If the construction for which Mr Williams contends were the correct one, one would have expected s.30(1)(a)(i) to read

“30(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purpose of –

(a)

any investigation which the public authority has a duty to conduct with a view to it being ascertained by the authority[itself] …

(i)

whether a person should be charged with an offence …”

Such a formulation would have been familiar to the draftsman, who had used just such a formula in s.30(1)(b), namely that information is exempt if it has at any time been held by the authority for the purpose of

“any investigation which is conducted by the authority and in thecircumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct”.

Alternatively, the formulation used in s.31 could have been used, with the result that s.30(1)(a)(i) would have read

“any investigation which the publicauthority has a duty to conduct for the purpose of [itself] ascertaining in the exercise of its functions –

(i)

whether a person should be charged with an offence”.

Like the Tribunal below, I do not find DVLA, which was decided in the context of s.31, to be of assistance in relation to the interpretation of s.30(1)(a)(i), other than that the word “ascertain” connotes some element of determination.

In addition, I accept the argument by the ICO about the risk of undermining the investigatory and decision-making process involved in deciding whether criminal charges should be brought in any particular case. That risk does not arise if the exemption is be construed such that it applies where one public authority has a statutory duty to investigate a potential offence with a view to assisting in the decision as to whether charges should be brought, even though the ultimate decision on whether to bring charges is made by a different public body. Any alternative finding would risk undermining the purpose of the exemption, namely to protect the integrity of the decision-making process whereby criminal charges might be brought. It would undermine the purpose of the exemption to provide a means whereby a requestor could access the investigatory information which is a necessary preliminary to the ultimate decision whether or not to charge, even where disclosure might potentially prejudice that process. Moreover, as the ICO also argued, s.30 is not an absolute exemption; insofar as it is in the public interest for such information to be disclosed, the exemption would not prevent disclosure.

Accordingly, I am satisfied that there is no requirement under s.30(1)(a)(i) for the IOPC to be the body which will ascertain whether or not a person should be charged with an offence. It is sufficient if the investigation is conducted by the IOPC, pursuant to its statutory duty under the 2002 Act, with a view to it being ascertained by the DPP whether a person should be charged with an offence. It is not necessary under s.30(1)(a)(i) that the investigation be conducted with a view to it being ascertained by the IOPC whether a personshould be charged with an offence. In short, a public body can rely on the exemption in s.30(1)(a)(i) in circumstances where it is not the body ultimately responsible for deciding whether to charge a person with an offence.

What, then, of the explanatory notes to s.30 ((a) that the information must be held for the purposes of a criminal investigation (b) conducted by the authority itself) and the guidance of the ICO himself (that the exemption could only be claimed by an authority which had a duty to investigate offences), when as per paragraph 21 of Ladkin the purpose of a DSI inquiry was not an inquiry into criminal conduct, but was only an inquiry to establish facts? Mr Williams noted that the ICO seemed to be arguing against his own guidelines.

The modern approach to statutory interpretation was summarised by Lord Hodge in R(O) v SSHD [2022] UKSC 3,[2023] AC 255at [29]-[31] (with emphasis added):

“29.

The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke[1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated:

‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context’ (R v DETR, Ex p Spath Holme [2001] AC 349, 396).

Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397:

“Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”

30.

External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty … But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.

31.

Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme 396, in an important passage stated:

“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House ... Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

The position therefore is that explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions

“But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.”

In the light of the conclusion which I have reached about paragraph 30(1)(a)(i) of FOIA, the explanatory note to s.30 cannot displace the meaning conveyed by the words of the statute. In the light of the policy underlying the exemption, they are clear and unambiguous and do not produce an absurd result.

The guidance of the ICO is just that: guidance. It cannot affect or alter the meaning of the statute. It does not therefore avail Mr Williams to seek to rely on the ICO’s guidance to the extent that it conflicts with the interpretation of the Act which I have reached.

Subject to the slight caveat about paragraph 48 which I have mentioned above (but which in any event was not material to its decision), I am therefore satisfied that the Tribunal was correct to conclude that

“49.

Taking all those matters into account we consider that in this case there was a duty to conduct the investigation [as set out by the Tribunal in paragraphs 39 to 47] with a view to it being ascertained, ultimately by the CPS, whether a person should be charged with an offence.

50.

The report consists of information held by the IOPC for the purpose of that investigation. The exemption is therefore engaged.”

(The reference to the CPS should be to the DPP, but nothing turns on that point.)

Mr Williams did not maintain on appeal his contention that the public interest in disclosing the information outweighed the public interest in maintaining the exemption and it is not therefore necessary to consider that matter.

For the sake of completeness, I should add that I did not derive any assistance from the decision of Upper Tribunal Judge Church in Williams v ICO [2023] UKUT 57 (AAC) which concerned the different question, albeit arising out of the same subject matter (but where Mr Williams had made a request for information of Devon and Cornwall Police), as to whether the Tribunal was entitled to find that the anticipated inquest proceedings fell within s.31(1)(g), read with s.31(2)(b) of FOIA. S.30 was not under consideration and was not the subject of any argument.