Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 171 (AAC)

Fecha: 13-Feb-2025

Grounds on which I granted permission to appeal to the Upper Tribunal

Grounds on which I granted permission to appeal to the Upper Tribunal

12.

In an application form dated 11 March 2024, Rabbi Kanter-Webber sought permission to appeal to the Upper Tribunal. He gave detailed appeal grounds, which I addressed at paragraphs 8 to 12 of my decision notice granting permission to appeal. Using my inquisitorial duty, I also identified other matters for consideration in respect of one of the grounds of appeal, set out at paragraphs 13 to 39 of my decision granting permission to appeal. I also identified an issue of potential wider importance at paragraph 43 to 51 of my decision notice

13.

The appeal grounds are set out in detail in my decision notice dated 07 May 2024, but a summary of the grounds on which I granted permission to appeal is:

(a)

The FTT had distinguished PMPs from medical disciplinary panels, but I considered Rabbi Kanter-Webber’s grounds arguable that the FTT gave unclear reasoning for distinguishing the decision of General Medical Council v BBC [1998] 1 WLR 1573 (CA) (“GMC v BBC”);

(b)

In reaching its decision, the FTT placed particular focus on the fact police officers are “entrusted with the direct exercise of the coercive powers of the state”. However, it was unclear that there was any specific legal authority supporting this approach. Furthermore, it was not necessarily consistent with the holistic assessment of all the factors indicated by paragraph 54 of R (OAO) Bailey and Morris v (1) Secretary of State for Justice and (2) Parole Board) [2023] EWHC 821 (“Bailey”). The FTT’s approach potentially elided the functions of two different entities into each other for the purpose of assessing whether the entity making the decision is exercising the judicial power of the state;

(c)

The FTT’s approach was potentially inconsistent with the dictum of Lord Scarman at 359H to 360A of Attorney General v BBC [1981] AC 303 (“AG v BBC”). The FTT appeared to have placed particular weight on the functions held by police officers, rather than identifying clearly the PMP’s functions. This indicated the FTT may have taken account of irrelevant matters;

(d)

While the FTT correctly identified the importance of distinguishing between bodies exercising administrative functions and judicial functions, it was arguably unclear from the decision which specific functions the FTT decided the PMP held. The FTT did not appear to focus on the purposes for which the PMP was established and the functions it carried out (AG v BBC). Instead, the FTT appeared to focus on the way in which the PMP would perform its functions, without identifying what those functions comprised. This did not clearly reflect the principles established in AG v BBC or GMC v BBC;

(e)

Elements of the FTT’s decision focused on the composition of PMPs provided for in the relevant legislations. However, the composition of PMPs had been changed with effect from 07 May 2024 by amending the Police (Conduct) Regulations 2020. Changes included removing the requirement for a legally qualified chair, instead requiring the chair to be the chief officer of police of the police force concerned. The PMP would also no longer require a legally qualified member, although a legally qualified person would be appointed as an adviser to the chair and panel.

(f)

While the PMP in question was not affected directly by this change, it highlighted that the FTT may have focused on the way a PMP is arranged, without placing the essential focus required on its functions and to decide whether they were administrative or judicial. It would seem unusual that some of the factors relied on by the FTT would tend to indicate a PMP was a court at the date of its decision, but might indicate it was not one at the date the secondary legislation amendments came into force a few months later;

(g)

The Divisional Court in Bailey identified the need to look at a body’s powers (which arguably imported processes) as well as its functions. It was arguable the FTT’s reasons did not address some of the processes in place for a PMP that militated against considering it to be a court. Examples included that the legally qualified chair did not have to swear a judicial oath and was not recruited through a national state body but taken from a list maintained by a local policing body (allowing for different criteria to apply). Further, the PMP would include a senior police officer appointed by the appropriate authority. This might be perceived as reducing independence of the PMP overall. It had no direct comparator in bodies recognised as being courts (for example, employment tribunals); and

(h)

The FTT had referred to some support for Hampshire Constabulary’s position being derived from paragraph 21 of R (IPCC) v Chief Constable of West Mercia [2007] EWHC 1035. However, the paragraph cited by the FTT and its description of a PMP as a judicial tribunal, did not make clear whether the High Court was referring to a PMP exercising judicial functions, or acting judicially in the sense of conducting proceedings fairly and impartially (which would also be expected of a body exercising administrative functions). The FTT did not address whether the decision in West Mercia was describing the former or the latter. It might therefore have misdirected itself in law.

14.

I explained that my observations about the FTT’s decision were provisional and were subject to reconsideration once I had received and considered the parties’ representations (see paragraph 5 of Decision Notice dated 07 May 2024).

15.

I also explained that granting permission to appeal would allow the Upper Tribunal the opportunity to consider whether the Barras principle, or a wider principle of constructive interpretation, applied to the definition of court in section 32 of FOIA. I observed that the Explanatory Notes to FOIA state the definition in section 32(4):

“…is the same as in section 19 of the Contempt of Court Act 1981, thereby bringing in tribunals and other bodies exercising the judicial powers of the State.”

16.

I observed it therefore appeared that the Government’s intention was that in using the definition of court it provided in section 32(4) of FOIA, Parliament would import the same meaning of “court” used in section 19 of the Contempt of Court Act 1981. The Barras principle is expressed to apply where an enactment uses a processed term that is one upon which whose meaning the courts have previously pronounced. The Barras principle applies to allow it to be presumed that the term was intended to have the meaning that case law had already established.

17.

I observed that while the Barras principle is indicated to be at most, a presumption, with a strength varying according to the context, it seemed plausible to infer that Parliament intended the definition of court in section 32(4) of FOIA to have the same meaning as in section 19 of the Contempt of Court Act 1981, especially where the Explanatory Notes drew an explicit connection to the 1981 Act.