The Upper Tribunal has issued an interesting decision in which it considered whether police misconduct panels are courts within the meaning of section 32(4)(a) of the Freedom of Information Act 2000 (FOIA).

Background

In January 2021, the appellant made a request for information to Hampshire Constabulary concerning a misconduct panel that had been convened under the Police (Conduct) Regulations 2012 (which have since been revoked by the Police (Conduct) Regulations 2020) between October 2020 and January 2021. The misconduct panel had been convened to consider allegations of gross misconduct made against six police officers based within the constabulary’s Serious and Organised Crime Unit. As a result of the misconduct hearing three officers were dismissed, one was issued with a final written warning and two would have been dismissed had they remained serving officers.

The appellant had requested from the Constabulary an electronic copy of the written outcome, the decision on sanction and the transcript (or if there was no transcript the audio recording of the proceedings). The misconduct panel had been held in public, but due to the ongoing Covid-19 pandemic the proceedings were viewable by live-link from a separate venue. There was also media coverage of the proceedings.

In responding to the appellant’s request, the Constabulary sent him a link to a short summary of the outcome but refused to disclose the transcript of the audio recording citing section 31(1)(g) of FOIA in reliance upon section 31(2)(a) and (b). The decision was upheld on internal review and by the Information Commissioner in a subsequent decision (by which time the Constabulary was additionally relying on sections 32 and 40 of FOIA).

The appellant appealed to the First-tier Tribunal which held that a police misconduct panel was a court for the purposes of section 32 of FOIA and dismissed the appeal on the basis that this absolute exemption applied. The appellant further appealed to the Upper Tribunal and permission to appeal was granted by the Upper Tribunal in relation to eight grounds (which are summarised at [13] of the Upper Tribunal’s decision).

Positions before the Upper Tribunal

The appellant did not appear at the substantive hearing due to caring responsibilities; however, he indicated that he adopted the Information Commissioner’s submissions and had had also made some written submissions by E-mail. At the hearing, the Commissioner argued that the First-tier Tribunal had made material errors of law while the Constabulary argued that there had been no material errors of law made by the First-tier Tribunal and invited the Upper Tribunal to uphold the decision of the First-tier Tribunal. The submissions made by Counsel for the Information Commissioner are summarised at [32]-[50] of the Upper Tribunal’s decision meanwhile the submissions of the Constabulary are summarised at [51]-[80].

Decision of the Upper Tribunal

The Upper Tribunal held at [81] that the First-tier Tribunal had made a number of errors of law in its decision and, at [88], that they were material. The First-tier Tribunal had correctly identified the need to conduct a holistic assessment of the functions of the misconduct panel [82]. However, it had failed to address the distinction found in the case law between the exercise of the judicial power of the state and acting judicially which amounted to a misdirection of the law [83]. It had also failed to provide adequate reasons to confirm the application of the correct legal test [83].

The First-tier Tribunal also considered matters that were immaterial in reaching its decision [85]. Specifically, it had looked at the functions and powers of the people subject to the jurisdiction of the misconduct panel (police officers) rather than the functions of the misconduct panel itself. The First-tier Tribunal used this approach to allow itself to distinguish police misconduct panels from other professional regulators, such as the General Medical Council. Such an approach was not supported by any authority and was inconsistent with the holistic assessment that it had correctly identified it needed to carry out [84].

The Fist-tier Tribunal further erred by treating the fact that police misconduct panels having legally qualified chairs as a relevant factor for satisfying the definition in section 32 of FOIA because this conclusion was based on the composition of the panel rather than its functions and powers [86]. It had also failed to give adequate reasons for why it considered that the presence of a legally qualified chair was a decisive indicator of whether the police misconduct panel was exercising the judicial power of the state [87].

The Tribunal went on, at the request of the parties, to determine whether police misconduct panels are courts within the meaning of section 32 of FOIA. The Upper Tribunal’s analysis of the question begins at [122] of the decision. Applying the holistic assessment that the Upper Tribunal was required to undertake, it concluded that misconduct panels are exercising a disciplinary function regarding matters of conduct on behalf of chief officers of police forces [176]. The panels are required to act judicially, essentially that they have to act in a way that is fair to all parties and apply an impartial and independent mind to their tasks [177]. The Upper Tribunal concluded that police misconduct panels do not satisfy the definition of a court for the purposes of section 32(4)(a) of FOISA noting that a police misconduct panel “acts in the public interest and has to act judicially when it does so, but it does not exercise the judicial power of the state.” [179]

The Upper Tribunal allowed the appeal and remitted it to the First-tier Tribunal for a fresh constitution of it to consider the other exemptions relied upon by the Constabulary. The Upper Tribunal further directed that that the First-tier Tribunal approach the appeal on the basis a police misconduct panel is not a court for the purposes of FOIA. [180]-[181]

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}