[2025] UKUT 171 (AAC)

The FTT made a number of errors of law in its decision dated 30 January 2024.

Having correctly identified it needed to carry out a holistic assessment of the PMP’s functions, at paragraph 43 of its Decision, the FTT’s Decision referred to functions that demonstrated the PMP was a body that needed to act “judicially”, rather than demonstrating it was exercising the judicial power of the state. The features the FTT identified of: “fairness, impartiality, transparency and control over proceedings” were consistent with a body acting judicially within the meaning given by Lopes LJ and Fry LJ in Royal Aquarium(and confirmed by Viscount Dilhorne and Lord Edmund-Davies in 339H to 340B of AG v BBC).

Although the FTT labelled these as judicial functions, it did not address the case law confirming that there is a distinction between acting judicially and exercising the judicial power of the state and why it was that features consistent with the former indicated the PMP was performing the latter. The FTT therefore misdirected itself in law. It also made an error of law by failing to provide adequate reasoning to confirm that it applied the correct legal test.

At paragraphs 40 and 41 of its Decision, the FTT expressly identified the powers or functions of police officers subject to the PMP jurisdiction as a crucial difference allowing it to distinguish PMPs from other professional regulators, such as the GMC. The approach of not looking at the functions and powers of the body, but instead considering the functions of the persons about whom it makes decisions, is not supported in any of the relevant case law applicable to determining whether PMPs are courts for the purpose of section 19 of the Contempt of Court Act 1981. In particular, it is not consistent with the holistic assessment described in Bailey. The FTT therefore elided the functions and powers of the PMP with those of the police officers subject to its decision-making.

As a result, the FTT took into account immaterial matters (the powers and functions of the police officers about whom the PMP made its decisions) in reaching its decision. Alternatively, the FTT failed to provide adequate reasoning to support its decision on this issue. This was an error of law.

At paragraph 44 of its Decision Notice, the FTT concluded that when constituted with a legal chair, a PMP is a body that is a court for the purpose of section 32 of FOIA. The wording of paragraph 44 of the Decision Notice suggests the FTT treated the presence of a legally qualified chair as a condition precedent for a PMP satisfying the definition in section 32 of FOIA. The FTT made an error of law in reaching a conclusion based on the composition of the PMP rather than its functions and powers.

Further or alternatively, the FTT did not explain what it was about the composition of a PMP that changed its functions so that having a LQC was a decisive indicator whether the PMP exercised the judicial power of the state. The FTT therefore made an error of law by failing to provide adequate reasoning for this part of its decision.

Applying the test set out in paragraph 10 of the Court of Appeal’s decision in R (Iran) v SSHD [2005] EWCA Civ. 982, the errors of law identified at paragraphs 82 to 87 above were material. Having misdirected itself in law, and having failed to provide adequate factual findings and reasoning about for its decision that PMPs were courts within the meaning of section 32 of FOIA, it cannot be said that the FTT’s errors of law would have made no difference to the outcome of Rabbi Kanter-Webber’s appeal.