[2025] UKUT 171 (AAC)

On 26 April 2022, Rabbi Kanter-Webber appealed to the First-tier Tribunal (“FTT”) against the ICO’s Decision Notice. Hampshire Constabulary was joined as Second Respondent to the appeal on 19 August 2022. On 08 January 2024, a FTT held a hearing of Rabbi Kanter-Webber’s appeal. This was attended by counsel on behalf of the First and Second Respondents, but Rabbi Kanter-Webber did not attend, on the basis he had childcare commitments. He indicated he was content for the FTT to go ahead in his absence.

The FTT’s Decision Notice records its decision was given on 30 January 2024. Paragraph 24 of the FTT’s Decision Notice explains it indicated to the parties present that it wished to hear submissions on the section 32 exemption first. The FTT wrote that given the nature of that exemption, it would not be an efficient or proportionate use of court time to hear detailed submissions on the other exemptions. The FTT wrote that the parties present agreed with that approach.

The FTT wrote the following under the heading “Discussion”:

“28.

We begin our discussion with whether the audio recordings are “documents” for the purposes of section 32. Having had regard to the principles set out in Edem v ICO and MOJ [2015] UKUT 0210, we are satisfied that they are. We conclude that “document” is not confined to a written document, and we note also that “document” is defined in the 2012 Regulations to include “anything in which information of any description is recorded and includes any recording of a visual image”.

29.

There is, in our view, no real dispute that the transcript and recordings were created by the administrative staff of the PMP, and for the purposes of proceedings in a particular cause or matter, in this case the disciplinary proceedings against the six officers. We note also, in passing, that rule 37 of the 2012 regulations in force at the time of the hearing (and reproduced as reg 44 of the Police (Conduct) Regulations 2020, the successor to the 2012 Regulations) requires a verbatim record to be taken, and that a copy can be supplied to the officer concerned, if so requested.

30.

The question then arises whether the PMP is a court as defined in section 32 (4) (a). The appellant argues that is not, as it does not exercise the judicial power of the state; the respondents argue that it does, and that it is a court for the purposes of FOIA.

31.

The appellant submits that the Court of Appeal has twice held that a PMP is not a Court, and while that may be in respect of the Contempt of Court Act 1981, there is no principled reason why section 57 of that Act which uses wording identical to that of FOIA should be interpreted differently.

32.

We turn then to the cases cited by the appellant. In Leary v BBC (unreported) (1989), the issue concerned an injunction sought by Mr Leary who was a witness in the proceedings. In that case, the Master of the Rolls stated:

“But Mr Leary is not the subject of any criminal proceedings. He is not the subject of any police disciplinary proceedings, and so far as disciplinary proceedings were concerned, if he was, we should have to consider two further matters: first whether they were active, and secondly whether the tribunal which hears police proceedings is a court at all. This would turn on section 19 of the Contempt of Court Act which defines a court as including “any tribunal or body exercising a judicial power of the State”. I express no view about whether a police disciplinary tribunal is a court within that definition. There is an obvious distinction between such a tribunal and a Mental Health Tribunal in that mental patients do not voluntarily submit to the jurisdiction of a Mental Health Tribunal, whereas police officers do voluntarily submit to the jurisdiction of a police disciplinary tribunal in the sense that nobody is compelled to become a police officer, and it is a part of the incidence of police service.

But as I say I express no view about that. That may have to be decided in some future case where it arises as a matter essential to the decision.”

33.

This demonstrates that the Court of Appeal expressly declined to reach any finding as to whether a police disciplinary panel is a court.

34.

In GMC v BBC [1998] 1 WLR 1573, the Court of Appeal considered whether a disciplinary panel General Medical Council was a court for the purposes of the Contempt of Court Act 1981. The GMC was created by statute, and its procedural rules are established by Statutory Instrument. Its procedures (at least in 1998) were modelled on criminal trials. The Court noted also the distinction drawn in earlier cases between administrative functions and judicial functions, but it did observe that the test set out in the 1981 Act reflects the common law. It was noted also that, certainly by 1981, the courts had recognised that some tribunals had acquired the characteristics of courts. A PMP is no longer held in private by a Chief Constable was the case when Leary v BBC or GMC v BBC were heard. We note also that, as was held in R (Chief Constable of Thames Valley Police) v PMP [2017] EWHC 923, a PMP is now seen as separate entity from a Chief Constable.

35.

The legal landscape has changed significantly since 1998, and the authorities were reviewed in R (Bailey v Secretary of State for Justice [2023] EWHC 821 at [27] ff. The Divisional Court noted that some tribunals are courts for the purposes of the 1981 Act. Whether a body does exercise the judicial power of the state is an issue to be considered holistically and, as was observed in Bailey at [48], the proposition for determining whether a body is a court should be its ability to deprive a citizen of his liberty was rejected.

36.

We note that in his skeleton argument at [11], the appellant seeks to rebut Hampshire’s submission that certain features of a PMP indicate that it carries out a judicial function.

37.

We accept that a PMP must sit in public and must be chaired by a legally qualified chair, as is the case with First-tier Tribunals. That is not so with the GMC where there may be a legal assessor to advise the panel as used often to be the case with lay magistrates. It also has clearly laid out rules of procedure, detailing how examination and cross-examination is to be carried out. There is, we find, no meaningful or substantive difference between those and many First-tier Tribunals.

38.

As Mr Goss submitted, a PMP has the right to control its procedure when it comes to making decisions on anonymity, as can be seen from the decision issued by the PMP in this matter - see for example regs 35 and 36 of the 2012 Regulations. As with Courts and Tribunals the extent to which matters are disclosed is a matter for the chair of the panel.

39.

Some support for Hampshire’s position can be derived from R (IPCC) v Chief Constable of West Mercia [2007] EWHC 1035 at [21] where the High Court proceeded on the effective basis that a PMP was Tribunal but without deciding the issue.

40.

As the appellant submits, much of this is also true of the regulators like the GMC. But, there is a crucial difference in the case of police officers, which in our view, sets PMPs apart from other professional regulators. The GMC decides who is, or is not, entitled to practise as a doctors registered with it; it determines who has a license to practice. A PMP has the power to decided, as Mr Goss submitted, who is entitled to be a constable.

41.

We accept that, as was submitted, a constable is an office holder under the Crown as opposed to an employee as is set out in R(Victor) v Chief Constable of West Mercia [2023] EWHC 2119 (admin). The appointment of a constable is an act of the state and constables must swear an oath or attestation to carry out their office. They are entrusted with the direct exercise of the coercive powers of the state. Constables, as a matter of law, have powers of arrest, and to compel others to do things or conduct searches which would, if carried out by an ordinary person, be unlawful. That is not the case with doctors or similar regulated professions. Absent the narrow area of compulsory detention under the Mental Health Acts, they can only operate on the basis of consent. If that is not extant, then a court order is needed.

42.

A further area of difference is that a GMC hearing may have the effect of making it impossible for a doctor to get employment in that capacity, and while its panels may investigate matters of conduct which could also fall within the remit of Employment Tribunals, they do not decide on issues such as whether a dismissal or other sanction was justified. In contrast, a PMP does in part address these issues, officers being unable to bring claims of unfair dismissal to an Employment Tribunal.

43.

We do not accept that, as the appellant submitted, PMPs’ functions are administrative rather than judicial. While it is correct to submit that both functions required fairness, impartiality and so on, the rules for courts are different; a key issue is transparency and control over its proceedings and fairness.

44.

Taking all these factors into account holistically, we find that a PMP is a body which, when constituted with a legal chair, is a court for the purpose of section 32 of FOIA. Accordingly on that basis, we are satisfied that that absolute exemption conferred by that section applies.”