In September last year, Robin Hopkins blogged about an important FTT decision on the application of the prevention of crime exemption (s. 31 FOIA) to information amounting to a list of vacant properties held by Camden London Borough Council: Voyias v IC & Camden LBC (EA/2011/0007) (see his post here). In summary, the FTT held that s. 31 was engaged in respect of the list because there was a real and significant risk that disclosure of the addresses contained in the list would be exploited both by organised squatters who may commit crimes when entering the void properties and by professional criminals looking to strip the properties for commercial gain. However, the FTT nonetheless went on to conclude that the public interest balance lay in favour of disclosure. This was particularly because disclosure of the addresses would: lend colour to the important empty homes debate; would increase local involvement and would otherwise incentivise owners to put their properties back into use, which was a priority for Government and Camden. The FTT’s decision was highly controversial and was roundly criticised by the Housing Minister Graham Schapps who issued a statement asserting that this was a ‘bizarre decision that flies in the face of common sense’ and that ‘rather than trying to prevent the anti-social and unfair practice of squatting, this judge is instead insisting that Camden Council publish a ‘squatter’s road map’ – which in other areas has led to the numbers of squats doubling’.
Camden appealed the FTT’s decision to the Upper Tribunal (UT). The appeal was allowed. Judge Jacobs, who heard the appeal in the UT, held that the FTT had erred in its approach to the case particularly because it had adopted an unduly limitative approach when considering the ramifications of the criminality which it had found would be likely to occur in response to the disclosure. In particular, he held that the FTT had erred in this respect because, when applying the public interest test, it had failed to take into account all of the direct and indirect consequences of the criminality which would result from the disclosure; including not least the financial costs to both the private and public purses attendant on remedying resulting criminal damage and, further, the social costs associated with the kind of criminality in issue (see §10). He went on to order that the case should be remitted to a differently constituted FTT so that it could consider the application of the public interest test afresh.
Additional points emerging from the judgment which are worthy of note include the following:
- The UT rejected the argument that, when applying the public interest test, consideration should be given to the effects of disclosure which were ‘objectively foreseeable’ or ‘reasonably foreseeable’. Instead, the issue was simply whether the consequences of disclosure could ‘reasonably be anticipated as realistic possibilities’ (§11). With respect, it is unclear how this test materially differs from the ‘reasonably foreseeable’ test.
- The UT was of the view that, at the remitted hearing, the FTT should consider whether disclosure of the list would actually change the behaviour of criminals so as to make it even more likely that criminality would occur as a result of the disclosure (§§13-14).
- The UT noted that the FTT had, in the course of its judgment, relied on the earlier FTT decision in Cabinet Office v IC & Lamb (EA/2008/0024), in which the FTT had found that the fact that there were other accountability mechanisms available beyond the mechanism provided for under FOIA did not materially diminish the public interests in disclosure. The UT went on to find that the FTT in Voyias had erred in relying on the Lamb decision, particularly because that decision was not intended to express any kind of general rule but was instead confined to the particular facts of the case. (§§15-19).
- So far as the role played by earlier FTT decisions is concerned, the UT confirmed more generally that: the FTT is not bound by its earlier decisions; such decisions merely have ‘persuasive authority’ and, further, FTTs which rely too heavily on earlier decisions at the expense of a focus on the facts of the particular case before them risk falling into error (§20).
- The UT also criticised the FTT for seeking to use the ‘slip rule’ provided for under r. 40 of the FTT Rules as a vehicle for changing the substance of its decision. In essence, the UT held that r. 40 could not be relied upon so as to enable the FTT to express a changed view which was in substance different to the view which the FTT had originally formed of the case when it drafted its decision (§§21-25).
11KBW’s Ben Hooper and Chris Knight both appeared in the appeal to the Upper Tribunal.