[2025] UKUT 308 (AAC)

The Commissioner argues that the Appellant relies on a ‘host’ of arguments about the law of confidence that were not put to the First-tier Tribunal. The Appellant appears to seek a re-run of the appeal that was made to that tribunal without recognising the limits placed on the Upper Tribunal’s jurisdiction which, as a second-tier appellate body, may only interfere with a tribunal’s decision if it made an error on a point of law.

At the hearing, Mr Perry, for the Commissioner, drew attention to the following features of the Appellant’s case before the Upper Tribunal which he argued were either impermissible, in the light of her case before the First-tier Tribunal, or misguided:

the Appellant’s submissions place the burden on SoSE to show that the information was confidential. That may have been the case before the First-tier Tribunal but to maintain the argument before the Upper Tribunal betrays a misunderstanding of its role as a second-tier appellate body;

Mr Moss’ oral arguments concerning SoSE’s core functions should have been raised, and tested, in proceedings before the First-tier Tribunal;

the Appellant seeks to rely on new evidence to show that SoSE “habitually” shares information and its resources in the public domain, and has retrospectively engaged in some kind of attempt at ‘damage control’;

the Appellant says she is hampered by not knowing whether certain statements made in a book published by SoSE are correct, but this only arises because the book was not put in issue before the First-tier Tribunal;

the Appellant submits that pupils at the Session were free to take pictures on their mobile telephones, but this was not in evidence before the First-tier Tribunal;

arguments about the ‘gagging’ of pupils who attended the Session are raised for the first time before the Upper Tribunal

“a significant element to be weighed in the balance is the importance in a democratic society of upholding duties of confidence that are created between individuals”;

“the test to be applied when considering whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached. The court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public”.