Rabbi Gabriel Kanter-Webber v The Information Commissioner & Anor

Whether a body is a court under Freedom of Information Act 2000, section 32(4)(a), requires a holistic assessment of its functions and powers. The question is whether it exercises the judicial power of the State. Acting judicially, applying fairness, or complying with Article 6 of the ECHR does not by itself satisfy that test. Nor do court-like procedures, nomenclature, or individual procedural features determine the issue. A police misconduct panel performs disciplinary functions on behalf of a chief officer within a quasi-employment relationship. Although it must act fairly, independently and impartially, it does not exercise the judicial power of the State and is not a court for section 32 purposes.

The appellant requested from Hampshire Constabulary the written outcome, sanction decision and transcript or audio recording of a police misconduct panel hearing. Hampshire Constabulary relied on exemptions under sections 31, 32 and 40 of the Freedom of Information Act 2000. The First-tier Tribunal considered section 32 first and held that the panel was a court for the purposes of the exemption: [2024] UKFTT 00090 (GRC).

The Upper Tribunal granted permission to appeal on grounds including errors in the legal test, reliance on the functions of police officers rather than the panel, and reliance on the panel’s composition. The central issue was whether a police misconduct panel exercises the judicial power of the State within section 32(4)(a).

1. Appeal allowed. The First-tier Tribunal’s decision of 30 January 2024 was made in error of law and was set aside.
2. The definition of “court” in section 32(4)(a) of the Freedom of Information Act 2000 has the same meaning as the corresponding definition in section 19 of the Contempt of Court Act 1981. The Explanatory Notes were admissible to identify the statutory context, and the Barras principle applied because Parliament had adopted an established statutory term of art.
3. The relevant question is whether the body exercises the judicial power of the State. This requires a holistic assessment of the body’s functions and powers. The presence or absence of an individual feature is not ordinarily decisive. A body’s functions may change over time.
4. The court must distinguish exercising the judicial power of the State from acting judicially. Fairness, impartiality, transparency, procedural control, Article 6 compliance and the application of a judicial mind may be required of an administrative body without making it a court. Court-like procedures, nomenclature and procedural trappings do not determine the statutory question.
5. The First-tier Tribunal had misdirected itself by treating fairness, impartiality, transparency and control over proceedings as demonstrating the exercise of judicial power. It had also considered the functions and powers of police officers rather than those of the panel, and treated the presence of a legally qualified chair as decisive without explaining why the panel’s functions changed.
6. A police misconduct panel’s essential functions are disciplinary. It decides, on behalf of a chief officer acting as quasi-employer, whether a police officer should be retained and on what terms. Its statutory purposes include maintaining public confidence and high standards in policing, deterring misconduct and protecting the public. Functional independence and the need to act fairly do not alter the essential character of those functions.
7. The accelerated misconduct procedure, under which the chief officer may decide conduct and sanction without a panel, supported the conclusion that the panel’s decision-making was equivalent to disciplinary decision-making by an employer or quasi-employer. The panel was not equivalent to an employment tribunal.
8. The appeal was remitted to a fresh First-tier Tribunal with directions to proceed on the basis that the police misconduct panel was not a court within section 32(4)(a), including at the date of the information request, and to determine whether the exemptions in sections 31(1)(g) and 40 applied.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the appeal to a fresh First-tier Tribunal with directions.
• First-tier Tribunal (General Regulatory Chamber): held on 30 January 2024 that the police misconduct panel was a court for the purposes of section 32 of the Freedom of Information Act 2000: [2024] UKFTT 00090 (GRC).
• Information Commissioner: issued a decision notice upholding reliance on section 31; the other exemptions were not considered.