Is a Police Misconduct Panel a “Court”? Kanter-Webb v ICO Clarifies the FOIA Exception

31 July 2025

In Kanter-Webb v Information Commissioner [2025] UKUT 171 (ACC), the Upper Tribunal (“UT”) conducted a detailed analysis to determine whether Police Misconduct Panels (“PMPs”) constitute a “court” for the purposes of the exemption under section 32 of the Freedom of Information Act 2000 (“FOIA”). The judgement offers authoritative guidance on an important point of statutory interpretation, correcting the First-tier Tribunal’s (“FTT”) approach and confirming that PMPs do not constitute “courts” within the meaning of section 32 FOIA.

Background

The case arose from a FOIA request made by the Appellant for the transcript or audio recording of a high-profile police misconduct hearing. Several Hampshire Constabulary officers accused of serious misconduct, including racist, sexist and homophobic remarks which resulted in the dismissal of three officers. Hampshire Constabulary initially refused disclosure under section 31 (prejudice to public functions, 32 (court documents) and 40 (personal information) of FOIA. The FTT held that the exemption under section 32 could be relied on as the PMP, if chaired by a legally qualified individual, was a “court” for the purposes of FOIA.

The Barras Principle

The Barras principle, recently reaffirmed by the Supreme Court in Centrica Overseas Holdings Ltd v HMRC [2024] UKSC 25, permits the court to infer that Parliament intended a statutory provision to bear the same meaning it had been given by previous authoritative case law, where that provision is later re-enacted in a different statute. In this case, the UT accepted that Parliament had intentionally adopted the same definition of “court” as a “tribunal or body exercising the judicial power of the State” under section 32(4) FOIA as under section 19 of the Contempt of Court Act 1981. Accordingly, the case law under the 1981 Act is directly relevant to the interpretation of section 32 FOIA. Even where the Barras principle applies, the Court should still consider the underlying purpose of section 32 FOIA, which is to enable courts and tribunals to rule on disclosure of their own records.

Principles for Determining Whether a Body is a “Court” Under FOIA

Having determined that the Barras principle applies, the UT reviewed an extensive body of case law and distilled its conclusions into clear principles (set out verbatim from paragraph 121 of the judgement):

(a) Determining (a) Determining whether a body is exercising the judicial power of the state involves a holistic assessment of its functions and powers;

(b) The nature of a holistic assessment and the requirement to carry one out indicates that the absence (or presence) of a particular individual feature is less likely to be decisive;

(c) A body’s functions may evolve over time, and therefore the holistic assessment of whether it is exercising the judicial power of the state may also change;

(d) One should avoid focusing on whether a body has procedures or processes that are particularly similar to, or distinct from, a body that has been held to exercise the judicial power of the state. That approach risks applying the incorrect test and not the one prescribed by section 32 of FOIA;

(e) Exercising the judicial power of the state should not be confused with “acting judicially” in the sense of performing functions with a judicial mind and applying principles of natural justice;

(f) In a similar way, the fact a body is subject to requirements in term of how it approaches its decision-making, as a result of being subject to Article 6 of ECHR, should not be confused with a confirmation that those requirements, of themselves, indicate it is exercising the judicial power of the state; and

(g) A body does not become a court within the meaning of section 32(4)(a) of FOIA by adopting particular processes or nomenclatures for itself / its actions. The test is, and remains, whether it is exercising the judicial power of the state and requires an assessment of its functions and powers.

Application to PMPs

Applying these principles to PMPs, the UT conducted the holistic assessment of the purposes and functions of PMPs required by (OAO) Bailey and Morris v (1) Secretary of State for Justice and (2) Parole Board [2023] EWHC 821 (“Bailey”) and Attorney General v BBC [1981] AC 303 (“AG v BBC”). The UT found that PMPs act on behalf of Chief Constables, who bear the responsibility for decisions about whether officers should remain in the force. The essential purpose of a PMP is to support the Chief Constable in this quasi-employer function. While PMPs act in the public interest and must conduct proceedings fairly and independently, including in line with Article 6 ECHR, they do not exercise the judicial power of the state.

The UT noted that legally qualified chairs bring a judicial mind to decision-making, but this does not alter the fundamental functions of PMPs. The UT also considered the availability of appeal routs to the Police Appeals Tribunal, the use of accelerated and special case hearings and the formal procedural framework as relevant context. These factors reflect the need for fairness, independence and, in the case of accelerated hearings where this is in the public interest, expediency in disciplinary proceedings. However, the UT found that these and several other factors that were considered all pointed to the conclusion that PMPs are not exercising the judicial power of the state. On that basis, the UT held that PMPs are not courts within the meaning of section 32 FOIA.

Conclusion and Significance

The UT’s judgement in this case provides valuable guidance on the meaning of “court” for the purposes of section 32 FOIA, with broader implications for the interpretation of that term under section 19 of the Contempt of Court Act 1981. By reaffirming the approach in Bailey and AG v BCC, the Tribunal clarified that it is the nature of a body’s purpose and functions, not its composition, formality or internal processes, that determines whether it exercises the judicial power of the state.

The UT’s comprehensive analysis offers a structured framework for assessing whether other panels, tribunals or statutory bodies qualify as “courts” under these statutory regimes and for the purposes of FOIA fall within the court documents exemption. For PMPs specifically, the judgement means that records such as transcripts or audio recordings are no longer automatically exempt under section 32. This may have significant implications for transparency in police misconduct proceedings, subject to the application of other FOIA exemptions,

The UT noted that the Constabulary had also relied on the exemptions in sections 31 and 40 of FOIA. Those exemptions remain to be considered by the FTT on remission in due course. The scope and application of those provisions will determine whether disclosure must ultimately be made.