ICO Enforcement Notices and Monetary Penalty Notices (“MPNs”), and the resulting appeals to the FtT, are the bread and butter of information law litigation. Readers of Panopticon would be forgiven for thinking that issues such as the burden and standard of proof in such appeals would be uncontentious. But not so, according to the appellant in Doorstep Dispensaree Ltd v Information Commissioner  UKUT 132 (AAC).
The facts read like an archivist’s worst nightmare. The appellant was a pharmaceutical company that supplied medicine to care homes. Its sole director and shareholder also ran a waste disposal firm which disposed of the appellant’s waste materials. The Medicines and Healthcare Products Agency (“MHRA”) searched that firm’s premises, including an outside yard which was publicly accessible from neighbours’ fire escapes, and seized 47 unlocked crates of pharmaceutical documents from the yard. The documents included medical prescriptions and medication administration records, many of which were soaking wet. They contained personal data and special category personal data related to the appellant’s business.
The MHRA informed the Commissioner, who issued an MPN of £275,000. This was the first MPN issued under the Data Protection Act 2018. Having largely failed in its appeal to the FtT against the MPN (albeit the FtT reduced the penalty to £92,000), the appellant ran no fewer than seven grounds of appeal in the UT. Many of the arguments were narrowly specific to the facts of the case, but three are of wider importance.
The burden of proof in FtT appeals against MPNs under the DPA 2018
The appellant argued that the FtT had wrongly limited itself to ‘marking the Commissioner’s homework’, (§61) and erred by treating the Commissioner as holding only an initial evidential burden which then shifted to the appellant (§157). UTJ Mitchell explained that the FtT had done no such thing. It had correctly engaged in a full merits review of the MPN, including by deciding the facts for itself and exercising any penalty-setting discretion afresh. The burden of proof was of secondary importance in such proceedings (§§159-161). Article 6 ECHR, even if the MPN did amount to a kind of criminal charge, did not require any burden of proof to be placed on the Commissioner (§162).
The role of the MPN in an appeal
UTJ Mitchell had no difficulty in finding that the FtT was correct to have paid careful attention to the MPN. The Court of Appeal in R (Hope and Glory) Public House Ltd v City of Westminster Magistrates’ Court  EWCA Civ 31 at §45 had clearly explained that a tribunal was required to pay careful attention to the regulatory decision under appeal, with the weight to be given to it a matter for the tribunal. That dictum applied to decisions of the Commissioner as much as to those of other regulators (§§165-169).
The civil standard of proof
The appellant argued that the criminal standard of proof applied on an appeal against an MPN under the DPA 2018. UTJ Mitchell dispatched this methodically.
- As a matter of domestic law, MPN appeals did not fall within the category of civil proceedings identified by Lord Hoffmann in Re B (children) (sexual abuse: standard of proof)  UKHL 35 at §5 that were so serious that they required the criminal standard of proof (‘beyond reasonable doubt’). That category involved orders that placed restrictions on an individual’s freedom, or where breach of the order would constitute a criminal offence (§§171-172). The imposition of a substantial financial penalty, such as by an MPN, is not sufficient, even if the consequences may be very severe for the recipient. The usual civil standard (‘on the balance of probabilities’) applied (§§173-182).
- As for the ECHR, even if appeals against MPNs did amount to determination of a criminal charge for the purposes of Article 6 (a point which UTJ Mitchell did not determine), the fair trial guarantees in Article 6 do not require the application of the UK’s domestic criminal standard of proof (§§183-185).
The appellant cannot be faulted for the ingenuity of its arguments. But ultimately the UT in Doorstep was undeterred from applying conventional principles. Appeals against MPNs are full merits reviews in which the FtT is required to determine the facts for itself, to the civil standard of proof. Orthodoxy prevailed.
Peter Lockley appeared for the Information Commissioner.