This month the Upper Tribunal gave two judgments of general procedural application: one on the standard of proof and one of the composition of the tribunal.
In Doorstep Dispensaree Ltd v Information Commissioner  UKUT 132 (AAC), Judge Mitchell considered the standard of proof in proceedings before the FTT on appeal against a monetary penalty notice. The UT considered the category of cases which are classed as civil for the purposes of Article 6 ECHR but which employ the criminal standard of proof, where consequences of the proceedings are so serious to justify this. This is the case where the consequences are such as to affect the person’s liberty, for example.
A monetary penalty notice under the Act is to be appealed to a civil tribunal where it is under s155(1). It requires the Commissioner to be “satisfied” of matters. In contrast, a different penalty regime exists under ss196-200 which is framed by reference to criminal process, and uses the language of criminal offences.
Judge Mitchell concluded that it was the clear intention of Parliament to create two distinct penalty regimes, only one of which is overtly criminal in nature. Where a penalty notice is issued pursuant to s155(1), it is a civil penalty for domestic law purposes. The Judge went on to consider whether the criminal standard of proof ought to apply nonetheless: the answer was “no”. Although the levels of penalty that may be imposed under s155(1) are significant and when imposed at the higher level must amount to a “serious consequence”, there is no additional consequent deprivation of fundamental liberty such as to justify employing the enhanced standard of proof. Accordingly, the civil standard applies to an appeal under s162(d).
In Shipton v Information Commissioner  UKUT 170 (AAC), Judge Wikeley considered whether the FTT could lawfully sit with a “short” tribunal comprising two judicial office holders, and if so whether a third panel member could dip in and out of the case.
In that first instance case, a specialist member of the tribunal had been unable to attend a date on which oral evidence was heard in an appeal under FOIA. The hearing had proceeded with two judicial members of the panel. The parties consented to the third member watching a video recording of the evidence, before returning to the panel to heard (and determine) oral submissions on a later date.
The UT considered whether this amounted to an irregularity capable of making a material difference to the outcome or the fairness of the appeal.
The UT noted that the Tribunals, Courts and Enforcement Act 2007, Schedule 4, Part 2, paragraph 15(6) provided that parties could agree to an appeal being heard by a short tribunal of just two judicial office holders. However, that was then decisive of the nature of the tribunal and an extra member could not rejoin. That is because the matter which the Tribunal had to “decide” (using the wording of the Act, was made by a continuous process of decision-making beginning when the Tribunal started hearing the case. It was false to say that the decision-making only occurred after the evidence and arguments had concluded.
Shipton v Information Commissioner  UKUT 170 (AAC) https://www.bailii.org/uk/cases/UKUT/AAC/2023/170.html
Doorstep Dispensaree Ltd v Information Commissioner  UKUT 132 (AAC) https://www.bailii.org/uk/cases/UKUT/AAC/2023/132.html
A monthly data protection bulletin from the barristers at 5 Essex Chambers