[2025] UKUT 076 (AAC)

It is fair to observe that the shape of the arguments made on behalf of Mr Greenwood on this appeal has shifted quite dramatically over time. As clarified in his skeleton argument (provided a week before the hearing before me) and as then developed at the hearing, Mr Greenwood relied on three main arguments, which I describe below.

First, he argued that as a matter of construction all rule 17(1) of the GRC Rules allowed the Met Police to do was to withdraw its ‘case’ before the FTT. It could not withdraw the appeal and the FTT therefore remained seized of that appeal and had to decide it under section 58 of FOIA. The FTT therefore erred in law in treating the appeal as having been withdrawn and the proceedings before it to have come to an end.

Second, and I think this had to be in the alternative to the first argument, Mr Greenwood argued that rule 32 of the GRC Rues required the FTT to hold a hearing to decide whether to consent under rule 17(2) to the Met Police withdrawing its case/appeal because the effect of such a decision was to dispose of the proceedings. I have said that this argument must on its face be in the alternative to the first argument because if the appeal has not been withdrawn then the appeal proceedings have not been disposed of.

Third, and again in the alternative to the first argument, the FTT failed to take account of relevant matters in deciding whether to consent to the appeal being withdrawn. Mr Greenwood argued that these relevant matters were (i) the lack of ability for Mr Greenwood to enforce compliance with an FTT decision through the FTT (and Upper Tribunal); (ii) rule 32 of the GRC Rules; and (iii) the ICO did not support withdrawal. In addition, Mr Greenwood argued the reasons the FTT gave for consenting to the appeal being withdrawn were inadequate.

In terms of remedy, Mr Greenwood argued that, having allowed the appeal and set aside the FTT’s consent to withdraw decision, I should remake the FTT’s decision by dismissing the Met Commissioner’s appeal to that tribunal and requiring him to disclose all the information the ICO’s Decision Notice of 20 June 2023 had required the Met Commissioner to provide. Implicit within this submission was the logically anterior step that I should remake the FTT’s decision by refusing to consent to the Met Police withdrawing their case/appeal from the FTT.

Virtually none of these arguments had featured in Mr Greenwood’s grounds of appeal. Those grounds had argued, inter alia, that the FTT had wrongly consented to the Met Police withdrawing its appeal because by so doing the FTT had terminated Mr Greenwood’s right embodied in Article 6 of the European Convention on Human Rights (“ECHR”) to be heard in support of the ICO’s Decision Notice and had diminished his rights under Article 10 of the ECHR. Neither of these ECHR arguments was relied on by Mr Coppel KC when opening the appeal before me for Mr Greenwood. Insofar as they were not thereby expressly withdrawn, they have no merit. Neither Article 10 or Article 6 of the ECHR add anything in terms of Mr Greenwood’s right to information under FOIA or his ability to challenge (or support) the ICO’s Decision Notice before the FTT: see Moss v IC and Cabinet Office [2020] UKUT 242 (AAC); [2021] AACR 1.

Although Mr Greenwood’s grant of permission to appeal to the Upper Tribunal is not limited, the appeal proceedings before me had to be fair and I was concerned that the late change to the arguments relied on by Mr Greenwood should not prejudice the ability of either respondent to address them fully. Both Mr Perry and Mr Amunwa were able to address me on the three arguments of Mr Greenwood (as summarised in paragraphs 33-35 above) at the hearing on 27 November 2024. However, I also gave the respondents time after the hearing in which to consider Mr Greenwood’s arguments further and add anything they wished to say in response to those arguments. Both respondents indicated by 6 December 2024 that they had nothing further they wished to add.

The ICO supported Mr Greenwood’s appeal on the second argument I have summarised above (the FTT had to hold a hearing before consenting to the appeal being withdrawn). He also argued the FTT had erred in law in wrongly holding that its jurisdiction was limited only to a consideration of the lawfulness of the conclusions in the Decision Notice, rather than the full merits review required by section 58 of FOIA. The ICO argued in addition that, in the light of the volume and nature of the information in the Problem Profile that the Met Police intended to still withhold from disclosure and Mr Greenwood’s opposition to withdrawal, the FTT exceeded its margin of discretion under rule 17(2) of the GRC Rules. He submitted that Upper Tribunal should set aside the FTT’s decision and remake it by refusing to consent to the Met Police withdrawing its appeal, and remit the proceedings for the FTT to decide the substantive issues on the appeal.

The Met Commissioner opposed all of these arguments and argued the FTT’s decision had been made lawfully and should be upheld.