[2025] UKUT 171 (AAC)

In his submissions, Mr Davidson emphasised the importance of Parliament actively choosing to adopt the same definition of “court” in section 32(4)(a) of FOIA that is provided for in section 19 of the Contempt of Court Act 1981 (“the 1981 Act”). Mr Davidson argued the Barras principle was effectively “turbo charged” in this situation. A clear line of intention could be drawn by the words used being the same as in the 1981 Act which itself drew on earlier case law (in particular, the decision in AG v BBC). The same test had been adopted expressly when legislating FOIA and the Explanatory Note confirmed this intention.

Mr Davidson argued that the case law about open justice and judicial immunity provides less assistance in identifying whether a PMP is a court for the purpose of section 32. He acknowledged the case law is circling the same gravitational centre as section 32 of FOIA (i.e., considering a court of some description). Mr Davidson argued, however, that they are not focused on the same test and the Upper Tribunal should be wary of adopting them in construing what is meant by a definition Parliament intended should be based on contempt of court. He submitted that the question about when judicial immunity is engaged is about whether proceedings can properly be described as “judicial” without necessarily representing they are courts by reason of exercising the judicial power of the state.

Mr Davidson acknowledged disciplinary bodies, such as the GMC disciplinary tribunal, are required to comply with Article 6 of the European Convention on Human Rights (“ECHR”), and therefore have their own form of open justice, are required to be in public, and have to apply fairness in their decision-making. He argued, however, that it doesn’t follow from the fact that they can be said to be acting judicially, within the meaning given by Lopes LJ in Royal Aquarium [1892] 1 Q.B. 431 at page 452, that they are exercising the judicial power of the state.

Mr Davidson agreed Article 6 of the ECHR applies to PMP proceedings and that that its decision-making requires a judicial level of fairness, procedural rules and to be set out in legislation. Mr Davidson argued, however, that none of those matters tell you anything about whether the PMP is a court exercising the judicial power of the state. He argued that a PMP’s function inevitably means it must adopt fairness requirements. Mr Davidson argued, however, that the range of bodies carrying out that function extends well beyond the boundary of the definition of court in section 32 of FOIA.

Mr Davidson argued that in AG v BBC, Lord Edmund-Davies used the description of “trappings” to mean things that may indicate a body is making decisions judicially but are not sufficient to mark it out as a court for a particular purpose. Mr Davidson emphasised that a body might assume procedures to support standards of fairness and procedural regularity, but doing so does not confer on it the judicial power of the state.

Mr Davidson acknowledged the test to be applied is, as explained in paragraph 54 of Bailey, to perform a holistic assessment of the function and powers of the body in question. Mr Davidson emphasised that in setting out this test, the analysis the Court of Appeal had given to the earlier case authorities fed into its assessment. Those earlier case authorities included AG v BBC, AG v Associated Newspaper Group plc [1989] 1 WLR 322, Pickering v Liverpool daily Post and Echo Newspapers [1991] 2 AC 370), Peach Grey & Co v Sommers [1995] ICR 549 and GMC v BBC.

Concerning a PMP’s functions, Mr Davidson placed particular importance on paragraph 43 (and its footnote) of Eckland v CC of Avon and Somerset Constabulary[2022] ICR. Mr Davidson argued this paragraph confirms a PMP makes the decision affecting the relationship between a chief officer and a member of their force that would ordinarily be the responsibility of the chief officer as a quasi-employer. Mr Davidson argued that the decision made is no higher than a self-regulatory disciplinary decision by a professional regulatory authority such as the GMC. Mr Davidson argued this is what Eckland squarely addressed and the kinds of factors and standards it applied in reaching that decision.

Mr Davidson argued that the scope of the PMP’s decision-making is confined to those who voluntarily submit to its jurisdiction by becoming a police officer. He argued the sanctions a PMP may apply are limited to those affecting a person’s employment as a police officer.

Mr Davidson argued the approach to be taken reflects that in GMC, and the binding authority pre-dating FOIA (explaining how the section 32 definition is to be applied). He argued the process reflects a (quasi) employment decision where the employer itself makes the decision about whether the person should remain in its employ, albeit with the quirks and procedural requirements that apply.

In terms of composition of the panel, Mr Davidson returned to what Underhill LJ explained in paragraph 43 of Eckland and emphasised that it remains the chief officer (with his or her interest in the outcome of proceedings) who appoints the panel. Mr Davidson emphasised that it does not follow from this that a PMP cannot be independent or act judicially in its decision-making (applying “judicially” with the meaning given by Lopes LJ in Royal Aquarium).

At the time of Rabbi Kanter-Webber’s information request, there was a requirement for a PMP to have a legally qualified chair (“LQC”). Mr Davidson argued that requiring LQCs had been introduced to improve PMP procedure, rather than as a necessary feature of what they did. He argued the presence of a LQC did not help in identifying the functions of a PMP or whether it exercised the judicial power of the state. Mr Davidson argued it represented a trapping of the kind described by Lord Edmund-Davies in AG v BBC. Otherwise, the fact that the police conduct regulations had been amended and this requirement removed, would mean the PMP’s essential functions had changed. Mr Davidson argued the fact the legislator’s discretion allowed it to add, and to remove, this requirement, indicated it is not a fundamental feature of a PMP, but an optional add-on.

Mr Davidson argued the absence of a centralised qualification process for eligibility to sit on a panel and no standard or independent processes to regulate those appointments is consistent with a PMP’s function being about the relationship between the police force and officer.

While Mr Davidson argued the trappings a body gives itself offer limited assistance to identifying whether it is a court, he singled out for consideration the limited power for a PMP to call witnesses. If a PMP exercises the judicial power of the state, and one with state level importance, it would be surprising if a member of the public as opposed to someone already subject to the PMP’s jurisdiction, could refuse to assist the PMP.

Dealing with paragraph 54 of Bailey, Mr Davidson argued that decision is an authority for the proposition that all functions and powers are to be weighed in the balance (holistically). Mr Davidson argued that while Lord Edmund-Davies identified in AG v BBC that there is no checklist or sure guide for identifying whether a body is carrying out the judicial power of the state, the Upper Tribunal was entitled to weigh in the balance the fact that a PMP cannot call witnesses, as part of the holistic assessment Bailey has identified.

Mr Davidson argued regulation 39 of the PCRs 2020 implicitly recognised the weaknesses in what a PMP can do by way of reporting restrictions. Mr Davidson acknowledged regulation 39(3)(c) provides for directions imposing reporting restrictions, but argued it lacks teeth for enforcement. He argued the mechanism for managing disclosure of information relating to the proceedings is largely controlled by regulation 39(4) and (7). These empower the PMP to make persons not party to the proceedings withdraw while evidence is being given that may disclose information of kinds set out in paragraph (7).

Mr Davidson argued the fact the PCRs 2020 provide for an alternative procedure (formerly a special case hearing, now an accelerated misconduct hearing) involving a chief officer alone and no panel, emphasises the nature of the quasi-employer relationship between the chief officer and the officer concerned. He argued that as a matter of logic, this adjustment cannot change the function carried out by a decision maker.

Mr Davidson argued that the decision a person cannot continue as a police officer is entirely akin to a medical practitioners tribunal upholding confidence in the medical profession and does not tell you anything more than that. He confirmed he accepted this represented a purpose (and in turn, a function) of a PMP, as indicated in paragraph 71 of R (Victor v Chief Constable of West Mercia Police[2024] EWHC 2119 (Admin) (“Victor”). Mr Davidson argued, however, that this represents an equivalent purpose to a disciplinary regulatory body. These are established, not only to make decisions about individuals, but also to have an effect on the broader confidence of the public in that particular profession. Mr Davidson argued this would therefore feed into a PMP’s functions, whether or not it was exercising the judicial power of the state.

Mr Davidson argued the FTT made a material error of law to the extent that it placed weight on the functions of the police officers subject to decisions by a PMP. More generally in terms of the test the FTT applied, Mr Davidson argued that the FTT focused too much on the “trappings” of a PMP and focused too little on the fundamental functions of a PMP. He argued this was an error of approach and, in consequence, a material error of law.

Mr Davidson submitted the FTT’s conclusion that a PMP was a court when constituted with a legal chair, reiterated that the FTT had focused too much on the trappings of the PMP rather than its functions. Mr Davidson argued the FTT made an error of law by using this feature to tip its decision over into deciding a PMP is a court.