Cruelty Free International v Information Commissioner & Anor

A limited right to receive information may arise under article 10 where access is instrumental to freedom of expression and the requester and information meet the specified gateway criteria. Pre-existing domestic dicta do not bar a tribunal from recognising that right where they contain no binding ratio and a later Grand Chamber decision supplies a clear framework.

A tribunal hearing a freedom of information appeal may interpret an external enactment relied on to establish an exemption. Even where an absolute confidentiality prohibition unjustifiably interferes with article 10, section 3 of the Human Rights Act 1998 cannot be used to create a new defence to a penal provision where that would require policy choices and amount to legislation. If the tribunal cannot make a declaration of incompatibility, the statutory exemption still governs the appeal.

Cruelty Free International requested Home Office information about licences for animal testing of ingredients used in certain cosmetic products. The Home Office withheld material under section 44 of the Freedom of Information Act 2000, read with section 24 of the Animals (Scientific Procedures) Act 1986. The Information Commissioner upheld that approach, and the First-tier Tribunal dismissed CFI’s appeal in [2025] UKFTT 00676 (GRC).

CFI appealed, arguing that the First-tier Tribunal had misunderstood its jurisdiction and that the absolute prohibition violated its article 10 right to receive information. It also argued that section 3 of the Human Rights Act 1998 required the statutory provisions to be read down. The Upper Tribunal considered its jurisdiction, the effect of precedent after Magyar Helsinki Bizottság v Hungary, whether CFI’s article 10 rights were engaged and violated, and whether a compatible reading was possible.

1. The Upper Tribunal allowed the appeal on a point of law, set aside the First-tier Tribunal’s decision and re-made it. The appeal against the Commissioner’s decision was nevertheless refused. The First-tier Tribunal had not decided that it lacked jurisdiction; its comments on jurisdiction arose when considering permission to appeal and did not materially affect its decision. The Upper Tribunal had jurisdiction to decide whether the section 44 exemption applied, including the construction and application of the external enactment relied on to prohibit disclosure. A possible judicial review route did not remove that statutory appellate jurisdiction.

2. The rule in Kay v Lambeth LBC applies to binding ratios of higher courts, not their non-binding obiter dicta. The earlier decisions in Sugar and Kennedy v Charity Commission did not establish a binding ratio that article 10 could never protect a right to receive information. Their relevant majority reasoning was obiter. The Grand Chamber decision in Magyar Helsinki Bizottság v Hungary supplied a clear, limited framework and addressed the concerns underlying the earlier dicta. Taking that decision into account under section 2 of the Human Rights Act 1998, the Upper Tribunal followed it. It held that the contrary precedent reasoning in Moss v Information Commissioner was unsafe and should not be followed, while leaving Moss’s separate factual basis and the outcomes of later cases on their other grounds undisturbed.

3. The four Magyar gateway criteria were met: the request was to enable freedom of expression; the information concerned public affairs and matters of public interest; CFI acted as a public watchdog; and the information was ready and available. The absolute prohibition also left no practical alternative route to obtain the information. Its effect was therefore an interference with CFI’s article 10 rights.

4. The interference pursued legitimate aims, was rationally connected to them, and the objectives were sufficiently important. But the blanket prohibition was more intrusive than necessary and failed to strike a fair balance. It protected all information given in confidence, without regard to sensitivity, public importance, requester, consent, prejudice or possible redaction. It also prevented scrutiny of the Home Office’s reasoning when exercising public powers in a matter of substantial public interest. The interference was disproportionate and unjustified under article 10(2).

5. Section 3 of the Human Rights Act 1998 could not be used to add a public-interest or actionable-breach-of-confidence defence to section 24 of the Animals (Scientific Procedures) Act 1986. Section 24 is penal, contains no such defence, and focuses on the circumstances when the information was given in confidence. Creating a defence would require policy choices and cross the boundary from interpretation to legislation. The ordinary construction in BUAV v Secretary of State for the Home Department therefore applied. Any remedy by declaration of incompatibility lay under section 4 of the Human Rights Act 1998, but the Upper Tribunal lacked power to grant one.

1. Upper Tribunal (Administrative Appeals Chamber): allowed the appeal on a point of law, set aside the First-tier Tribunal’s decision and re-made it, refusing the appeal against the Commissioner’s decision.
2. First-tier Tribunal (General Regulatory Chamber), [2025] UKFTT 00676 (GRC): dismissed CFI’s appeal and upheld the Commissioner’s decision notice. The decision was dated 10 June 2025 and amended on 4 July 2025.