Council wins Upper Tribunal appeal over decision by First-Tier Tribunal to certify contempt of court

The Upper Tribunal (Administrative Appeals Chamber) has allowed an appeal by Rotherham Metropolitan Borough Council in a case that originated from the town’s child sex abuse scandal in 2014.

In Rotherham Metropolitan Borough Council v Harron & The Information Commissioner's Office and Harron v Rotherham Metropolitan Borough Council & The Information Commissioner's Office ( Information rights - Freedom of information - right of access) [2023] UKUT 22 (AAC) Mrs Justice Farbey ruled the First-tier Tribunal (General Regulatory Chamber) (FTT) had been wrong to say that the local authority had been in contempt of court over Freedom of Information disclosures to first respondent Liam Harron and to allow his appeal against a decision notice issued by the Information Commissioner.

Mr Harron later applied to the FTT for certification to the Upper Tribunal (UT) for contempt of court on the grounds that Rotherham had breached the FTT’s decision on disclosures that should be made to him.

The FTT certified an offence by Rotherham of failure to comply with the terms of the FTT’s substituted decision notice.

Farbey J noted: “This is the first case to come before the UT for decision in relation to the application of the certification provisions…in section 61 of the Freedom of Information Act 2000 as substituted by the Data Protection Act 2018 Schedule 19(1) para 60.”

In August 2014, Alexis Jay published the report of the Independent Inquiry into Child Sexual Exploitation in Rotherham 1997-2013. 

Mr Harron and Chrissy Meleady the following February published a booklet called Voices of Despair Voices of Hope, which contained contributions from victims and others affected.

Rotherham ordered 1,500 copies and began distribution but later that year cited independent expert advice on its content and decided against further distribution. 

Mr Harron wanted to know why Rotherham ceased distribution and a lengthy dispute ensued over what information the council would disclose to him.

This eventually led to an FTT hearing in 2018 at which Rotherham provided a closed bundle of documents containing material which was alleged to be exempt from disclosure by virtue of legal professional privilege.

The FTT concluded not all of it fell within this and so could be disclosed to Mr Harron. 

Rotherham sent him a redacted version of the same closed bundle and a later internal review found Mr Harron had been provided with all the information covered by the FTT’s substituted decision.

Mr Harron then asked the Commissioner to direct Rotherham to disclose the redacted information and the Commissioner referred him to the FTT for any enforcement issues. 

The question of whether the FTT or Commissioner had enforcement powers was at the time already before the UT and in May 2020, Judge Jacobs concluded the FTT has the power to certify a public authority’s conduct as an offence of contempt.

Mr Harron applied for certification over the missing information and the FTT decided that in respect of the ‘Q&A document’ Rotherham had breached the terms of the substituted decision and concluded: “Given the clear and prolonged nature of the breach, and despite such breach not being wilful and having accepted that the relevant document has now been provided, I conclude that it is appropriate in furtherance of the public interest… to exercise my discretion to certify a contempt to the Upper Tribunal.”

Farbey J said the burden lay on Mr Harron to raise clear and comprehensible allegations and the FTT noted that he had repeatedly and consistently highlighted the Q & A document but “did not however provide adequate reasons why repeated references to a document may in themselves amount to an allegation of contempt”.

She said Mr Harron’s written submissions for the FTT certification proceedings, “do not contain any clear or comprehensible allegation that he ought to have received the Q & A document as part of the FTT’s requirements in the substituted decision. 

“Conversely, there was no burden on [Rotherham] to discern, infer or otherwise ascertain for itself that a document that Mr Harron did not want and that he had received long before the substituted decision was a candidate for contempt.”    

Farbey J said: “In my judgment, the FTT ought as a matter of fairness to have ensured that any breach of a requirement to provide a copy of the Q & A document in response to the substituted decision was put to [Rotherham] as a specific allegation and dealt with at the hearing. 

“The FTT’s decision to treat [Rotherham] as contemptuous on the basis of an allegation not clearly put to [it] was a material error of law because [it] was not given a fair opportunity to deal with the allegation.”

She noted Mr Harron received a copy of the Q & A document in August 2016 and “it would be highly unlikely that a court would treat a public authority as a contemnor in relation to something that had already taken place prior to the commencement of any court proceedings”.

The judge added: “The FTT certified an offence in relation to a single document among the numerous other documents that [Rotherham] had supplied to Mr Harron. 

“On this basis too, any contempt order was bound to be disproportionate and so no offence should have been certified.  The interests of the administration of justice are not served by disproportionate contempt orders. The FTT erred in concluding that its certification served the administration of justice.”

Farbey J allowed Rotherham’s appeal and said: “I have reached the conclusion that there are no other grounds for certification.”

Mark Smulian