[2025] UKUT 171 (AAC)

Having received my grant of permission to appeal, the ICO indicated it considered the FTT had made material errors of law. Hampshire Constabulary argued that there were no material errors of law by the FTT and invited me to uphold the FTT’s decision, with the additional reason that it placed reliance on what the Court of Appeal said about judicial immunity for PMPs in Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ. 943 [2005] ICR 329.

I directed for an oral hearing of the appeal to take place, which occurred on 13 February 2025. On 16 July 2024, Rabbi Kanter-Webber emailed the Upper Tribunal indicating that if a hearing of the appeal was arranged, he would prefer a video hearing as he lives in Brighton and his caring responsibilities meant it would be easier for him to take place in a remote hearing. Hampshire Constabulary’s counsel had, however, requested an in person hearing in London. Hampshire Constabulary’s counsel also made representations requesting a hearing of 1.5-2 days.

In response to the representations, I directed for the hearing to take place in person at the Upper Tribunal’s London venue. I did not consider the matter suitable for hybrid hearing arrangements with one party taking part remotely and other parties face to face. I also directed for the hearing to be one day, rather than the longer time estimate requested by Hampshire Constabulary. My approach balanced the time estimate for the hearing with the fact that it would be in person, to minimise the inconvenience for Rabbi Kanter-Webber in taking part at a hearing in London given he lives elsewhere and has caring responsibilities.

On 31 January 2025, Rabbi Kanter-Webber emailed the Upper Tribunal, writing that as previously stated, he was unable to attend an in-person hearing in London due to childcare commitments. This appeared to be a reference to his statement that he would prefer a video hearing (although that earlier preference had not been put in terms that Rabbi Kanter-Webber could not otherwise attend). Rabbi Kanter-Webber wrote that he did not propose to submit a skeleton argument, and was content to rely on, and adopt, the ICO’s submissions, which he had seen. Rabbi Kanter-Webber also responded to a number of matters raised in the skeleton argument from Hampshire Constabulary.

At the hearing on 13 February 2025, the ICO was represented by Mr Leo Davidson of Counsel and Hampshire Constabulary by Mr John Goss of Counsel. I invited representations from each of them about proceeding in Rabbi Kanter-Webber’s absence. Both invited me to proceed, on the basis that the position of Rabbi Kanter-Webber and the ICO were broadly aligned, no request had been made to postpone the hearing, and the interests of justice favoured going ahead.

Having applied rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I decided to proceed with the hearing. I was satisfied that Rabbi Kanter Webber had been notified of the hearing date. I considered it was in the interests of justice to proceed, broadly for the reasons the other parties gave at paragraph 22 above. I took into account the overriding objective of acting fairly and justly by avoiding delay where compatible with the resolution of the issues. I also took into account that Rabbi Kanter-Webber was adopting the ICO’s position and arguments and had not asked for the hearing to be postponed so he could participate.

Mr Davidson and Mr Goss both invited me to reach a conclusion whether a PMP is a court for the purpose of section 32 of FOIA. They requested this on the basis that:

I explored with both counsel whether any decision that PMPs are not courts within the meaning of section 32, might have adverse consequences for the other exemptions Hampshire Constabulary had put forward of section 31(1)(g) and section 40 of FOIA. Counsel and I agreed this would be a potential issue if I decided that PMPs did not fall within the definition in section 32(4)(a) of FOIA. Both Counsel indicated they wished me to go ahead on the basis that they did not consider, in principle, that my findings would impinge on what might need to be considered under the other exemptions, and that of those exemptions, only section 31 might be affected.

Although Rabbi Kanter-Webber was not present at the hearing to share his views, his appeal grounds included that there is a public interest in the Upper Tribunal giving an authoritative answer to a question relevant to a significant area of FOIA practice. That argument is broadly consistent with me deciding whether, in principle, PMPs are courts for the purpose of section 32, rather than simply deciding whether the FTT made one or more material errors of law in its decision.

The appeal before the FTT included closed material, which was, for obvious reasons, not disclosed to Rabbi Kanter-Webber. When I granted permission to appeal, I invited the parties’ views about whether the Upper Tribunal could proceed solely by reference to the open hearing bundle used by the FTT. No party objected to this approach and Hampshire Constabulary actively supported it. There was, in any event, limited need to refer to the open FTT bundle. This is consistent with the observations from Mr Davidson and Mr Goss. I was provided with a joint bundle of relevant documents and authorities running to 1111 pages. At the hearing, Mr Goss also handed up additional authorities, namely Anderson Solicitors and others v the Solicitors Regulation Authority [2012] EWHC 3659 (Admin) 2013, L v the Law Society [2008] EWCA Civ. 811, and R (Lino Di Maria) v Commissioner of Metropolitan Police and others [2025] EWHC 275 (Admin).

I record my gratitude to Mr Davidson and to Mr Goss for their thoughtful submissions and their engagement with the legal issues arising in this appeal.

A full day was taken up in legal argument. To manage the length of this decision, I have not set out the detail of the written arguments and have sought to distil the parties’ oral arguments, rather than reflect them verbatim. I have, however, taken full account of the parties’ written and oral submissions before reaching my decision.