Derek Moss v The Royal Borough of Kingston-Upon-Thames & Anor

Certification under paragraph 8 of Schedule 6 to the Data Protection Act 1998 is a gateway to the higher court, not a final determination of contempt. The First-tier Tribunal need only decide whether an act or omission is capable by its nature of constituting contempt and whether certification is warranted. The High Court’s inquiry includes deciding whether contempt occurred and, if so, imposing an appropriate sanction. Detailed questions such as service, notice and mens rea are ordinarily for the higher court. An individual’s application drawing non-compliance to the tribunal’s attention, and participation in the subsequent proceedings, do not of themselves breach Article 6 of the Convention.

The First-tier Tribunal decided in March 2017 that Kingston had breached its duty under section 16 of the Freedom of Information Act 2000 to provide advice and assistance enabling the appellant to reformulate an information request. Kingston did not comply. In 2022 the FTT certified the alleged failure to the High Court under paragraph 8 of Schedule 6 to the Data Protection Act 1998.

Farbey J held in [2023] EWHC 27 (KB) that the High Court could determine afresh whether the failure constituted contempt and found that it did not. The appeal concerned the respective roles of the FTT and High Court and whether the enforcement process breached Article 6.

The appeal was dismissed. The Court of Appeal unanimously held that the High Court had jurisdiction to determine whether Kingston’s non-compliance amounted to contempt and that the procedure did not breach Article 6.

1. Construction of paragraph 8. Paragraph 8 of Schedule 6 to the Data Protection Act 1998 had to be read as a whole, in its statutory context and having regard to its purpose. Paragraph 8 created a two-stage mechanism: certification by the FTT followed by inquiry by the High Court.
2. Role of the FTT. The FTT’s task was to identify an act or omission in relation to its proceedings which was capable by its nature of constituting contempt if committed before a court with contempt jurisdiction. It then had a discretion whether to certify the matter, having regard to whether inquiry and possible sanction were warranted. It was not required to make a final determination on service, notice, practicability or mens rea.
3. Role of the High Court. On certification, the High Court could inquire into whether the conduct would constitute contempt and, if so, deal with the person as it could have done had the conduct occurred in proceedings before it. The court was not confined to determining sanction on the basis of a binding finding by the FTT. The reasoning was consistent with the amended section 61 of the Freedom of Information Act 2000.
4. Article 6. The appellant’s application to the FTT merely brought the alleged non-compliance to its attention. The FTT itself certified the matter to the High Court. The appellant was not required to prosecute the High Court proceedings, and his participation in them, including making submissions and cross-examining a witness, did not make him responsible for enforcing the judgment against the state. The reliance on R (Majera) (formerly SM (Rwanda)) v Secretary of State for the Home Department, [2021] UKSC 46, was misplaced because that case concerned obedience to an order, not the statutory allocation of functions after certification.

Lord Justice Phillips agreed that the High Court had full jurisdiction and that the appeal should be dismissed, but considered that the FTT’s statutory certification task ordinarily required it to determine whether the conduct would constitute contempt, including relevant issues of notice and mens rea. Lord Justice Peter Jackson agreed with the lead reasoning that certification was not a shadow contempt determination.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 1438, the appeal was dismissed. The court held that the High Court could inquire into contempt following FTT certification and found no Article 6 breach.
• High Court, King’s Bench Division: In [2023] EWHC 27 (KB), Farbey J held that the High Court could determine whether the alleged non-compliance amounted to contempt and concluded that it did not.
• First-tier Tribunal: The FTT had required Kingston to provide advice and assistance under section 16 of the Freedom of Information Act 2000 and later certified the alleged failure to comply under paragraph 8 of Schedule 6 to the Data Protection Act 1998.