[2025] UKUT 171 (AAC)

Mr Goss did not dispute the relevance of the same wording in different statutes in terms of the Barras principle and statutory interpretation principles in considering the Explanatory Note to FOIA. He argued for caution, however, in applying those principles to a definition that is common across multiple different statutes and contexts. Mr Goss argued the risks include broadening the definition inappropriately, or introducing inconsistencies because it means something different for FOIA to the Contempt of Court Act 1981.

Mr Goss agreed with Mr Davidson’s submissions that a judicial tribunal in the sense referred to in paragraph 21 of R (IPCC) v West Mercia [2007] 1 WLR 1077 (“West Mercia”), refers to a tribunal acting judicially, and covers whether a PMP is a tribunal exercising judicial power. Mr Goss argued that this was what he had argued before the FTT, at a time when Rabbi Kanter-Webber disputed a PMP falling within all parts of the definition of court in section 32(4). Mr Goss submitted that he neither argued, nor had the FTT understood him to assert, that West Mercia decided a PMP is exercising the judicial power of the state. Mr Goss argued that the wording at paragraph 39 of its decision confirms the FTT understood the argument in the terms he had put it.

Turning to the composition of a PMP, Mr Goss argued that removing the requirement for having a legally qualified chair (“LQC”) from 07 May 2024 onwards should be considered in the context that other bodies without LQCs may still exercise the judicial power of the state (for example, lay magistrates).

Mr Goss submitted that the chief officer of a police force does not decide appointments to a PMP. They are instead made on a fair and transparent basis by the local policing body. See regulation 28(4) of the PCRs 2020, which Mr Goss argued was substantially the same on this issue as the PCRs 2012. Mr Goss submitted that the local policing body is separate from the police force in question and is democratically elected. He argued this was part of the checks and balances that Parliament has put in place for oversight of police forces – to have a lay majority on the panel not appointed by the police force itself.

Acknowledging there is no single set of criteria for appointment, Mr Goss argued that local policing bodies often operate shared regional lists of lay members. He confirmed there could be a difference in approach between different regions in terms of who is treated as having qualifications or experience relevant for disciplinary proceedings for the purpose of regulation 28(4)(b)(i) or who is selected to a list of candidates for the purpose of regulation 28(c).

Mr Goss referred to Home Office statutory guidance, issued under the Police Act 1996, about how the disciplinary powers should be exercised. This includes the broad mechanics of how the policy disciplinary system works. Mr Goss also referred to the College of Policing providing guidance on outcomes, but stated it was more akin to sentencing outcomes guidance. The parties had discussed including these documents in the authorities bundle but had ultimately decided against doing so.

Mr Goss submitted that a PMP could be seen as appropriately independent from the executive and that this is inherent in the misconduct regime. Mr Goss submitted the second requirement is to be independent of the parties. When asked about the fact the PCRs 2020 provide for the police force to be the appropriate authority and (now) provide for the chief officer of that force to be the chair, Mr Goss submitted it would be unthinkable that the chief officer would chair the panel and also perform the functions of the appropriate authority. He acknowledged the regulations do not themselves require this separation but argued that it would be contrary to the requirement that it is a judicial tribunal acting judicially.

Mr Goss argued there is a mechanism in the regulations where if an officer is made aware of the panel, they are entitled to object – regulation 21 of the PCRs 2012 and regulation 35 of the PCRs 2020. He confirmed that the objection can be ignored but argued this would provide an immediately reviewable ground for appeal or on which to base a claim for judicial review.

Mr Goss argued the emphasis on independence was supported by paragraphs 78 to 81 of R (Wheeler) v Police Appeals Tribunal and Chief Constable of Cumbria [2022] EWHC 117(“Wheeler”). Mr Goss argued that it was necessary for Article 6 compliance for the PMP to be independent and impartial. He acknowledged the chief officer of the police force in question would (now) chair the PMP, but while not independent of the police force, the chief officer would be independent of the allegations put, and the manner in which they were put.

Mr Goss acknowledged that being able to compel attendance at a hearing was relevant to the holistic approach envisaged in Bailey, but not determinative. He argued that paragraph 45 of Bailey also confirmed that compelling attendance is not an essential feature of exercising the judicial power of the state, by confirming the county court or the High Court can issue a witness summons in support of an inferior court or tribunal. Mr Goss argued that regulation 32(5) of the PCRs 2020 permits a PMP to compel a witness to attend, underpinned by the process described in paragraph 45 of Bailey.

Mr Goss argued that Lord Donaldson MR’s remarks in Leary v BBC are firmly obiter. He acknowledged that Leary was one of a number of decisions that the Court of Appeal in GMC said were in line with its conclusion. Mr Goss argued that what can be drawn from this is no more than that the remarks expressed in Leary do not contradict the findings in GMC. Mr Goss submitted it goes too far to say that Lord Donaldson’s obiter comments were in any way incorporated into the reasoning in GMC.

Mr Goss argued that the reference to self-regulatory power and duty of the medical profession in 1580E of GMC was not a reference to voluntary submission by the person to the jurisdiction. Mr Goss argued this must be right, otherwise a wide variety of bodies and courts accepted as exercising the judicial power of the state would not satisfy the definition in section 32 of FOIA. Mr Goss argued that no-one is compelled to join the armed forces, but there is no doubt that the courts martial are courts. He acknowledged the courts martial have a power to imprison, which is not available to a PMP. Mr Goss also acknowledged that this might undermining drawing a comparison between the two bodies.

Mr Goss argued that the ICO’s interpretation of GMC was too broad, and it should not be taken as applying to all forms of disciplinary proceedings. Mr Goss observed that since 2015 there has been a distinct Medical Practitioners Tribunals Service (“MPTS”) with a Medical Practitioners Tribunal (“MPT”). He argued this is distinct from the position in 1998 when the professional conduct committee of the GMC was exercising considerably more discretion and had set the applicable processes and rules itself. He argued the Law Commission’s observation in a recent Consultation Paper supports this. Mr Goss submitted he was not arguing GMC was no longer good law, but medical disciplinary proceedings now involve a very different factual situation. Mr Goss argued it is wrong to look at GMC and to regard it as preserving the position in aspic.

Mr Goss contrasted the historic position for GMC regulatory action with the regime for PMPs. He described PMPs as having, for many years, involved a highly prescriptive statutory regime in primary legislation with exacting detail for the form, procedure and process to be applied. Mr Goss submitted that an officer may appeal to the Police Appeal Tribunal against the finding or sanction on relatively narrow grounds. Mr Goss submitted the appropriate authority has no right of appeal to the Police Appeals Tribunal but, where a decision has been appealed to the Police Appeals Tribunal, the appropriate authority can seek judicial review in respect of its outcome decision.

Mr Goss argued the regime for police officer discipline is very far from self-regulatory; see, for example, the decision in R (Lino Di Maria) v Commissioner of the Metropolitan Police and others [2025] EWHC 275 (“Di Maria”). Mr Goss argued that Di Maria demonstrated how the Metropolitan Police cannot dismiss someone who does not meet the basic conditions for vetting or has had their vetting removed.

Mr Goss argued paragraph 44 of the FTT’s decision was not saying that a PMP constituted without a legal chair was not a court. Mr Goss stated that if pushed to accept it, he accepted the reasoning in my decision dated 07 May 2024 that it would be surprising that the change in composition of a PMP would change whether or not it was exercising the judicial power of the state.

Mr Goss argued the changes to PMP composition were made for a variety of reasons but did not affect the fundamental attributes like independence and the need to act judicially. He explained Legally Qualified Chairs (“LQCs”) were introduced in 2015 to prevent (the perception of overly) supportive police officers chairing PMPs affecting the decisions. In practice LQCs had proven far more lenient than expected. In order to tackle this, the regulations were amended in 2024 to restore having the chief officer as chair of the PMP (the position pre-2015).

Mr Goss argued that a key difference between the position when GMC was decided in 1998 and the position now, has been the influence of Article 6 of the ECHR and the requirement for tribunals to be independent, impartial, and to sit in public (subject to various qualifications). Mr Goss argued that a PMP complies with the post-Human Rights Act model recognised in Di Maria. Mr Goss argued that each of the requirements to be independent, impartial, fair and to have a decision-making function are present in a PMP and were considered in Bailey at paragraphs 47 to 52 to be characteristics of a court.

Mr Goss argued his position went further than the argument that police officers exercise powers of the state given to them by the state. He argued that PMPs have functions and powers that go beyond that. Mr Goss argued that paragraph 20 of Eckland has to be read alongside paragraph 43. He argued that if one does so, it is clear the proceedings before PMPs cannot simply be equated to ordinary disciplinary proceedings.

Mr Goss argued an employer can generally operate on the basis there are reasonable grounds for the allegation and then has the protection of the Employment Tribunal process that if it is asked to review the decision, the Tribunal will look at whether it was within the range of reasonable responses. Mr Goss contrasted this with the process before a PMP, where the appropriate authority must prove their case on the balance of probabilities. He argued there is no right to representation in a pure employment case, but every right to legal representation in a police case.

Mr Goss accepted that misconduct proceedings represent part of the purpose of a PMP. He argued, however, that as indicated in paragraph 69 of Victor, the PMP’s functions go further than the disciplinary function common to all employers and quasi-employers and protects the public interest in the independence of police officers. He argued paragraph 71 of Victor is also relevant to a PMP’s functions.

Mr Goss argued a vital part of a PMP’s function is protecting the political independence of police officers, and to provide an independent scrutiny. Mr Goss argued that if police officers were only given the protection of ordinary employees, they could be compelled to use their coercive powers in particular ways, including misuse. Mr Goss argued this would collapse the political independence of policing, a crucial part of separating the powers of the state.

Mr Goss argued a PMP is there to ensure the features common to any regime, namely professional conduct and upholding high standards, as indicated in the cases of L v Law Society [2008] EWCA Civ 811 and Bolton v Law Society [1994] 1 WLR 512. He submitted that what is different about policing, however, is that the disciplinary regime is also there to provide protection for the officers as well as the public. Mr Goss argued that this is why it ensures independence of decision-making.

In terms of the accelerated misconduct hearing procedure, Mr Goss argued it applies where the public interest in removing someone from the office of constable is high because the case is clear cut. He submitted it is most commonly used for criminal conviction cases, or where an officer fully admits very serious misconduct. In those cases, the public interest balance is different; the interests of protecting police officers’ independence gives way to the public interest in resolving matters quickly. Mr Goss argued the procedure still requires proof on balance of probabilities and an officer remains legally represented.

Mr Goss argued regulation 39 of the PCRs 2020 provides, in practice, for protection against contempt of court. He argued regulation 39(4) and (7) provide a narrow subset of the power to exclude people from a hearing, but only cover where someone is giving evidence. They cannot exclude a party to proceedings. Mr Goss argued there have been cases where a PMP has ordered reporting restrictions about the identity of a witness. He argued this binds the officer subject to proceedings as well as everyone else. Mr Goss argued that deciding there is no contempt of court protection for an order made under regulation 39 would mean that an officer could ignore a reporting restrictions order and say whatever they liked. He argued it was unrealistic to use private law to enforce an order.

Mr Goss confirmed that Hampshire Constabulary does not know of any proceedings where action had been taken under the 1981 Act because of a person breaching a reporting restrictions order. Mr Goss acknowledged that Hampshire Constabulary’s Response to the Upper Tribunal appeal had not set out an emphatic position whether a PMP was a court for the purpose of the 1981 Act. Mr Goss explained it had initially considered section 19 an unhelpful diversion from addressing section 32 of FOIA. Mr Goss submitted that, having reflected on the force of the submissions about the link between section 19 of the 1981 Act and section 32 of FOIA, Hampshire Constabulary now accepted this was a point that needed to be confronted head on.

Mr Goss acknowledged it might be considered unusual for PMPs to exercise the judicial power of the state and for police forces not to know they were doing so for contempt of court purposes. He stated it should have been considered when the relevant regulations for the PMPs regime were being drafted.

Mr Goss’s skeleton argument addressed open justice principles despite these not being mentioned by the parties in the FTT proceedings. Mr Goss explained Rabbi Kanter-Webber had argued that open justice was a key principle supporting disclosure of information in other FOIA cases he had brought. Mr Goss stated he agreed with Rabbi Kanter-Webber that open justice applied to PMPs, but for different reasons. Mr Goss argued PMPs operate open justice principles because they are exercising the power of the state. If the Upper Tribunal was against him on the issue of whether a PMP was a court, Mr Goss explained his fallback position was that the open justice principle did not apply to PMPs. This was more consistent than PMPs not being courts but open justice applying to them.

On judicial immunity. Mr Goss argued that this is one of the features a PMP enjoys, which is part of the holistic approach, but he would not press for it as a necessary and sufficient condition. He argued it might be necessary, but he would accept it is not sufficient.

Mr Goss argued the FTT reached the right outcome, although he conceded its reasoning could have been tauter in places. He argued that if the FTT did go wrong in its reasons or reasoning, nonetheless it reached the right outcome.