Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 2
September 2011 under reference EA/2011/0007) involved the making of errors in
point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the
Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the
tribunal for rehearing by a differently constituted panel.
Reasons
for Decision
A.
Abbreviations
1.
I have used these abbreviations:
Camden: London Borough of Camden
Commissioner: Information
Commissioner
FOIA: Freedom of
Information Act 2000
B.
History and background
2.
On 25 August 2009, Mr Voyias requested information from Camden under section 1 of FOIA. He asked for the address of every void property in the
Borough in which a non-individual was listed as the owner or as having a
material interest in the property. He later said that he was only interested in
residential property. At the hearing, he told me that the addresses were what
he was interested in. ‘The information is the addresses’, he told me. In other
words, he was not interested in any redacted information. Camden refused to
provide the information sought. At first, it relied on the exemption in section
43(2) of FOIA. Later on review, it also relied on the exemptions in sections
12(1) and 21(1).
3.
Mr Voyias applied to the Commissioner under section 50 of FOIA. In the
course of the proceedings before the Commissioner, Camden withdrew the
exemptions it had relied on. Instead, it relied on section 31(1)(a):
31 Law enforcement
(1) Information which is not
exempt information by virtue of section 30 is exempt information if its
disclosure under this Act would, or would be likely to, prejudice-
(a) the prevention or
detection of crime; …
This is subject the public interest test under section
2(2)(b):
2 Effect of the
exemptions in Part II
(1) In respect of any
information which is exempt information by virtue of any provision in Part II,
section 1(1)(b) does not apply if or to the extent that-
…
(b) in
all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.
Camden’s argument was that the prevention of crime would be
prejudiced by the increase in crime by squatters using the information sought
to identify empty properties.
4.
The Commissioner decided that the public interest favoured maintaining
the exemption, with the effect that Camden was right not to disclose the
information requested.
5.
Mr Voyias exercised his right of appeal to the First-tier Tribunal. The
tribunal consisted of Judge Henderson, Darryl Stephenson and Mike Jones. It
decided the appeal without a hearing. It found that section 31(1)(a) was
engaged in that:
it is likely that disclosure of
the disputed information would have a negative impact on the prevention of
crime. We find that the list would be of use to organized squatters and that
this type of squatting is associated with the types of criminal activity set
out above. We are also satisfied that the list would be of use for the criminal
purposes of organized criminals. The level of prejudice is real, actual and of
substance.
The tribunal then undertook a detailed consideration of the
public interest, which I will not attempt to summarise. It concluded that the
public interest was in favour of disclosure. It directed Camden to provide the
information set out in its decision.
6.
Camden applied for permission to appeal. The First-tier Tribunal refused
permission and Camden renewed its application to the Upper Tribunal. I gave
permission and held a hearing on 28 May 2012. Ben Hooper of counsel appeared
for Camden. Christopher Knight of counsel appeared for the Commissioner,
speaking to a skeleton argument prepared by Edward Capewell of counsel. Mr
Voyias spoke on his own behalf. I am grateful to them all for their written
submissions and oral argument.
C.
The scope of the public interest in the prevention of crime
7.
The tribunal made an error of law by misdirecting itself on the scope of
its enquiry. I accept Mr Hooper’s and Mr Knight’s argument on this.
8.
The error is contained in this passage:
50. The Tribunal adopts the
approach applied at para 65(f) in Bexley that in considering public
interest factors in favour of maintaining the exemption, they must relate to
the particular interest which the exemption is protecting. In this case the
prevention of crime. … The Tribunal does not consider that any perceived social
disadvantage of living next door to squatters, or the costs of the eviction of squatters
are matters that the Tribunal is entitled to take into consideration since
squatting is not illegal. However, public costs e.g. the costs of repair
and extra security to Council buildings to prevent criminal damage is a
legitimate factor as it is attributable to the interest that the exemption is
protecting.
Judge Henderson purported to remove public and Council
under the slip rule. There was a misdirection both as originally written and as
later changed.
9.
Sometimes the impact on the prevention of crime will have to be
considered in general terms. Sometimes, as in this case, it is possible to consider
particular crimes. The tribunal devoted most of its consideration to the
argument that the information could be used by squatters who might commit
criminal damage to gain access to, and to secure, the premises. I deal with the
appeal on the same basis. Squatters might, though, commit other offences, such
as abstracting electricity. And people other than squatters might use the list.
10. The
error in the tribunal’s reasoning was to assume that certain acts are made
criminal just for their own sake. That is not so. Preventing crime prevents the
criminal acts themselves and the consequences that accompany or follow them. These
factors have to be taken into account as part of the assessment of the public
interest. The consequences of a crime may be financial or social. They may be
direct or indirect. Just to take criminal damage, there are the costs of
security measures, the cost of repairs, increased insurance premiums for the
area, and an impact on the local property values. There is no justification for
taking account of only some of these financial consequences. There is no
difference in principle between the costs that are carried by private
individuals, by the public purse or spread through insurance premiums. Nor is
there a difference in principle between the cost of repairing the damage and
the cost of evicting someone who caused the damage in order to gain entry and
possession. And there is no justification for severing financial costs from
social costs. Mr Hooper gave a telling, if perhaps not very likely, example.
Suppose that the crime were theft of the wheels from ambulances. The public
interest would not be limited to the financial cost of replacing the wheels,
but would surely include the impact on the patients if the ambulances were not
available. These consequences may not be as easy to quantify, but they can be
more important. Criminal damage and its consequences can reduce the quality of
life in a neighbourhood. There is a psychological element involved, which may
not be rational. People may feel more vulnerable or threatened than they really
are. But the impact is none the less real for that.
11. There
must, of course, be some limit to the factors that can be taken into account.
Mr Hooper suggested that the line should be drawn at the consequences that were
objectively foreseeable. Mr Knight preferred a test of reasonable
foreseeability. I am not sure that there is much difference between them.
Reasonable foreseeability is the more familiar and has a respectable pedigree
in other areas of law. But that is a problem in itself, as there is a danger
that tribunals will carry across the learning from those areas. I prefer to
start from the task that the tribunal has to perform. It has to make an assessment
of the public interest. In performing that task, it should take account of any
factors that are sufficiently connected to the interests involved to be part of
that assessment. If I had to capture that connection in a phrase, I would say
that the tribunal should take account of any consequences that can readily be
anticipated as realistic possibilities. That would include the factors I
mentioned in the previous paragraph. It would exclude factors such as the
possibility of a flying splinter blinding a passing child as a door is broken
open.
12. The
tribunal was right that squatting itself is not an offence. It was right to
focus on the prevention of crime rather than on the prevention of squatting. But
it was wrong to focus so narrowly on the nature of the particular offence of
criminal damage and its immediate consequences.
D.
Assuming that things will otherwise remain the same
13. As
I have said, the disclosure of the information in this case might encourage other
offences than squatting. It could be used by arsonists. More likely, it could lead
to theft, especially theft of the heating and water systems. The tribunal dealt
with this and decided that such thefts usually occurred on building sites
rather than in empty properties. That may be what the evidence shows at the
moment. But it does not follow that that would remain the case if the
information were disclosed. Disclosure might change behaviour. Metal thieves
with access to a full list of Camden’s empty properties might think it
worthwhile to change their practice. The tribunal did not deal with this
possibility. I have not treated this as an error of law, as I did not hear
argument on it. I mention it so that the tribunal can avoid making this
assumption at the rehearing.
14. This
point is not limited to theft of heating and water systems. Tribunals have to
be alert to the possibility that disclosing information may affect behaviour.
It is a mistake to assume that behaviour will continue as before and assess the
public interest on that basis. The tribunal has to assess the likelihood of
prejudice. It is wrong to limit that assessment by making assumptions one way
or the other.
E.
The significance of other forms of accountability
15. The
tribunal made an error of law by misdirecting itself on the significance of
other forms of accountability. I accept Mr Hooper’s and Mr Knight’s argument on
this.
16. Mr
Voyias argued that disclosure would further accountability. Camden and the
Commissioner argued that there were other forms of accountability that were
more proportionate. Specifically:
·
information provided to Central Government and held on the
Department for Communities and Local Government website;
·
Camden’s internal statistical information;
·
financial and policy incentives to relet as soon as possible; and
·
audit.
17. The
tribunal said:
55. It was argued by the
Commissioner and accepted by the Tribunal in Cabinet Office v ICO and Dr
Christopher Lamb EA/2008.24&29 that the public interest in
accountability is not significantly reduced just because of the
existence of another regulatory mechanism.
Judge Henderson purported to add significantly under
the slip rule. There was a misdirection both as originally written and as later
changed.
18. The
relevant passage in the majority decision in the Cabinet Office case is
this paragraph:
80. The majority view also
stresses that it is the coincidence of all the identified factors being applied
to the particular information in question that generates the impetus for
disclosure. This is not significantly reduced by the investigations and
enquiries that have taken place. In the view of the majority the questions and
concerns that remain about the quite exceptional circumstances of the two
relevant meetings create a very strong case in favour of the formal records
being disclosed.
I read that paragraph, especially the second sentence, as a
statement made in the context of that case. The tribunal was merely setting out
its assessment in that particular case. The word significantly was
merely part of that assessment. I do not read the passage as stating any
principle of general application. If it does, it is wrong in law. The tribunal
has to apply section 2(2)(b) of FOIA. In doing so, it has to take account of
the factors relevant to the public interest whether in maintaining the
exemption or in favour of disclosure. If accountability is a factor, any other
forms of accountability will be relevant. The tribunal must assess the nature
and extent of their significance. That assessment can only be made in the
context of the case.
19. Judge
Henderson commented on this ground of appeal when refusing permission to appeal
to the Upper Tribunal. She said that it was clear from the decision as a whole
that the tribunal had not made this error. To show this, she then quoted a
passage from the tribunal’s reasons. I have considered what she says, but to me
the passage does not have the effect she claims for it.
F.
First-tier Tribunal’s approach to its previous decisions
20. This
is a convenient place to comment on the way that the First-tier Tribunal
approaches its own decisions and those of its predecessor, the Information
Tribunal. In the cases I have seen, the tribunal is careful to say that it is
not bound by those decisions. That is right as a matter of principle and authority.
See Hampshire County Council v JP [2009] UKUT 239 (AAC), [2010] AACR 15 at [15] and West Midland Baptist (Trust) Association (INC) v
Birmingham Corporation [1967] 2 QB 188 at 210 and 225. Previous decisions
are of persuasive authority and the tribunal is right to value consistency in
decision-making. However, there are dangers in paying too close a regard to
previous decisions. It can elevate issues of fact into issues of law or
principle. This, in my view, is what has happened in the decisions on vexatious
requests (section 14 of FOIA). It can also lead to statements being taken out
of their context and given a general significance. This is what has happened in
this case.
G.
How to use the slip rule
21. Judge
Henderson dealt with Camden’s application for permission to appeal to the Upper
Tribunal. She issued a document headed Refusal of Application for Permission
to Appeal and Amendments under the Slip Rule. Among her detailed reasons
for refusing permission she purported to make two changes to the tribunal’s
written reasons. I have mentioned them above. By the slip rule, she was
referring to rule 40 of the Tribunal Procedure (First-tier Tribunal) (General
Regulatory Chamber) Rules 2009:
40 Clerical mistakes and
accidental slips or omissions
The Tribunal may at any time
correct any clerical mistake or other accidental slip or omission in a
decision, direction or any document produced by it, by—
(a) sending
notification of the amended decision or direction, or a copy of the amended
document, to each party; and
(b) making
any necessary amendment to any information published in relation to the
decision, direction or document.
22. Both
Camden and the Commissioner criticised the judge for using the rule in the
way she did. They also asked me to make clear for the First-tier Tribunal the
scope of rule 40.
23. The
tribunal made the same errors of law in both versions of the decision. In those
circumstances, I do not have to decide whether the changes were outside the
scope of rule 40. It is, however, my impression that they were. I will,
therefore, deal with this issue. I explained how the slip rule should be used
in AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC)
at [16]:
Rule 36 [of the
Tribunal Procedure) (First-tier Tribunal) (Social Entitlement Chamber) Rules
2008] is by its contents a species of slip rule and should be interpreted in
accordance with the nature of that type of provision. As such, it deals with
matters that were in the judge’s mind when writing but for some reason did not
find their way onto the page. Typical examples are the typing error that
produces the wrong date or a momentary lapse of concentration that results in
the word ‘not’ being omitted. The rule does not cover matters that the judge
had planned to mention but forgot to include. Obviously, it is difficult for
the Upper Tribunal to know what was in the judge’s mind, but the extent of the
changes are an indication. It is difficult to classify the omission of a total
of nine lines of explanation as in the same category of mistake as a typing
error or a momentary lapse of concentration. For that reason, I decide that the
changes made by the presiding judge were not authorised by rule 36.
24. It
follows that the tribunal cannot use rule 40 if it has changed its mind and had
further thoughts. There is ample authority for that proposition. The decision
of the Lands Chamber of the Upper Tribunal (George Bartlett QC and N J Rose
FRICS) in Leasehold Valuation Tribunal for the Midland Rent Assessment Panel
v Clarise Properties Ltd [2012] UKUT (AAC) 12 (LC) at [15]-[17] is but the
latest.
25. I
also draw attention to what the Court of Appeal said in Brewer v Mann
[2012] EWCA Civ 246. The judge in that case had made much more extensive
changes than Judge Henderson. The Court of Appeal analysed the authorities and
said at [31]:
… where a judge
has received no request from the parties to reconsider his judgment or add to
his reasons, and has not demonstrated the need in conscience to revisit his
judgment, but on the contrary has received grounds of appeal and an application
for permission to appeal on the basis of the alleged inadequacies of his
judgment, then it would be most unwise for him to rewrite his judgment (other
than purely editorially) and it would take the most extraordinary reasons, if
any, to justify such a course on his part. It is also plain to us that this was
not the case of a short judgment on a straightforward issue where an appeal
might be avoided if the judge supplied further reasoning which had been requested
of him.
26. Judge
Henderson could have made the changes she did under section 9(4)(b) of the
Tribunals, Courts and Enforcement Act 2007. In order to do that, she would have
had to carry out a review. It is clear from her reference to rule 40 that she
did not use that procedure.
H.
The other grounds of appeal
27. There
were other grounds of appeal. I have not dealt with them, because ultimately
they are criticisms of the tribunal’s assessment of the public interest. As the
tribunal misdirected itself on the approach to that assessment, there would be
little point in analysing whether its detailed assessment was flawed. The
points can be made, if appropriate, to the tribunal at the rehearing.
I.
The rehearing
28. I
have set the tribunal’s decision aside, because it contained errors of law.
29. I
have directed a rehearing because the assessment of the public interest would
be better undertaken by a panel that contains members who have been selected
for their knowledge and experience relevant to freedom of information.
30. I
have directed that the case be heard by a different panel. This is not a case
in which the First-tier Tribunal’s decision was complete apart from one
omission, which the same panel could usefully deal with. Nor is it a case in
which the tribunal made a mistake that could be neatly severed from the rest of
its decision. This is a case in which the tribunal misdirected itself on the
approach to the assessment of the public interest. That assessment needs to be
undertaken afresh and that is more easily done by a fresh panel.
|
Signed on original
on 6 June 2012
|
Edward Jacobs
Upper Tribunal Judge
|
