IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2018/0018

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPLICATION FOR DECISION TO BE

CONSIDERED AFRESH BY A JUDGE

1. This is an application to the First-tier Tribunal in accordance with paragraph 3 of

rule 4 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules
2009 for a decision to be considered afresh by a judge.

Statement of reasons

2. In the present matter, the Commissioner used a single Decision Notice

(FS50656398) to record her decisions in respect of three individual complaints.
The justification for doing so was because her reasoning when determining each
of them was identical. The Decision Notice was issued on 22 June 2017

3. The Appellant submitted an appeal out of time on 30 January 2018 with an

application for an extension of time to apply.
4. The Tribunal gave its reasons why it was not appropriate to extend the time limit
for appealing and dismissed the appeal as out of time in a decision of 8 February
2018.

5. The Appellant is entitled to apply in writing within 14 calendar days of the date
that the decision was sent for it to be considered afresh. The Appellant does so for
the following reasons.

6. The Tribunal considers ‘the explanation given is unacceptable’ for the appeal
being 6 months and 10 days outside the 28 day statutory time limit. However, it is
noted that the explanations given by the Appellant in his application for an
extension of time have been misunderstood.

7. The Tribunal apparently considers that the amount of ‘time and effort’ needed to
appeal, which is referred to by the Appellant, is claimed by him to have been
increased (to the extent that it justifies the delay) because of the Commissioner
incorporating 3 complaints into the same decision notice.

8. It must be made clear that the consolidation of the complaints had no bearing on
the Appellant’s ability or decision to submit an appeal sooner. The fact is he was
unable to submit an appeal within the 28 day time limit and the decision (after
that) was simply down to whether the ‘time and effort’ involved in appealing
could be justified when it was probable that the extension would not be granted. It
was subsequently believed that the public interest value, brought about by the
wide press coverage of relevant issues, would make the granting of an extension
of time more probable and would justify the work needed.

9. The Tribunal considers a second reason why the explanation was not acceptable
which is apparently because the Appellant is unable to distinguish between the
Criminal Procedure and Investigations Act 1986 which governs how disclosure of
evidence is dealt with and the Freedom of Information Act 2000 which deals with
the disclosure of information to the public.

10. The Appellant has not confused the Acts and does not consider it possible to make
an application to the police to disclose evidence by way of a request for
 information disclosure under the Freedom of Information Act 2000. There is no
reason why the Tribunal would suggest that the Appellant believes this to be the
case.

11. The requests which are the subject of the appeal were made as a consequence of
the Appellant’s wrongful conviction which was caused because of the wholesale
abuse of the Criminal Procedure and Investigations Act 1986. Therefore, there is
simply a greater public interest value in the appeal to the Tribunal because of the
systemic failures of police and Crown Prosecution Service disclosing evidence
which is currently receiving wide press coverage.

12. The Tribunal considers the Appeal Grounds are of insufficient strength to justify
admitting the appeal on the basis of the interests of justice. However, there are no
reasons in the refusal notice (to extend time) to explain why the ‘submissions do
not disturb the conclusions of the decision notice’. The Tribunal then makes it
clear by the spurious content in paragraph 3.2 that an Appellant, if he is a member
of public (as opposed a public authority) has two opponents in an Information
Rights Tribunal which in this case is the Commissioner and the Tribunal.

13. It is unclear what relevance can be attributed to the Tribunal’s reference to a ‘trial
which took place in his absence as he chose not to attend’ or that the Appellant
had ‘appealed the Magistrates’ Court conviction to the Crown Court’. The
inference that the Appellant wishes to be economical with details surrounding why
he did not attend the trial and the appeal to the Crown Court is completely off the
mark. It is of course academic anyway because the Appellant alleges that the
police, courts and CPS have been complicit in disadvantaging him to the greatest
extent possible as a means to succeed in falsely criminalising and defrauding him.

14. In any event, the Appellant explains in his Grounds of Appeal why he did not
attend the trial. The fact that he did not go into detail does not reflect any wish to
keep anything from the Tribunal which would disadvantage him. It is the
wholesale breach of the Criminal Procedure and Investigations Act 1986 which
caused him to be wrongly convicted which is comprehensively evidenced in his
Grounds of Appeal. The failure to attend the trial and any outcome determined by
the Crown Court are also irrelevant because of this. If it is deemed relevant to the
 Tribunal, the details which are referred to in paragraph 3.2 of the refusal notice are
already held in appeals EA/2017/0062 and EA/2017/0161, the reference in both
cases is the Open Bundle, File 2, pages 5-113. The Commissioner included the
information in those appeals after he had contacted the Appellant asking to be
forwarded the papers referred to above on 17 May 2017 as follows:

“Further to the Tribunal’s directions below I would be grateful if you could

confirm by 23 May if you wish to have any further documents added to the
hearing bundle for this matter.

In particular I believe it would be useful for the following documents, linked

to from your FOI request of 4 May 2016 entitled “Degree of evidence -
Public authority vs. Member of public”, to be included in the bundle in order
to set out the background to the requests in the present matter:

[Links to online documents]

However, I am not able to download or print these documents. If you are

able to provide electronic copies of these documents, together with any other
documents you consider to be relevant by 23 May 2017, I would be
grateful.”

15. The Appellant forwarded the documents as requested but was not that naïve not to
know why they were asked for. It is more probable than not that the raising of
issues in paragraph 3.2 of the decision has been a ploy to prompt the Appellant to
alert the Tribunal to these documents (as he has done) so it can be determined that
he is raising matters that have been dealt by the courts and his requests have no
serious purpose and are therefore vexatious.

16. The Appellant accepts that the Tribunal will tend to agree that the requests are
vexatious on this basis but will be misconceived if it does because those papers
provide evidence of all the following failures which support the Appellant’s
allegation of being convicted on a false charge with Humberside police (HP) the
court and CPS all complicit:

 HP) failing to pursue all reasonable lines of enquiry and proceeding with
the case when it could not conceivably have met the evidential stage test
(witness statements were clearly unreliable and of questionable
credibility, i.e. false). breach of the Police and Criminal Evidence Act 1984
 The CPS failing to assess evidence to ensure that the charge is still
appropriate and where not, discontinue the prosecution, (improper case
management). breach of the Police and Criminal Evidence Act 1984

 HP failing to retain footage of a total 7 CCTV cameras covering relevant

areas in respect of the day of the alleged matter

 HP failing to obtain a statement from a witness who was in a position to

have given an account from a comparable perspective as the member of
police staff and the witnesses who submitted perjured evidence.

 failure of the CPS to properly serve material on the Appellant informing

him of his rights if he wished to call a defence witness. breach of the
Criminal Procedure and Investigations Act 1996

 witness statements containing completely untrue accounts. liable to

prosecution under section 89 of the Criminal Justice Act 1967

 failure of the CPS to properly serve material on the Appellant considered

capable of undermining the case for the prosecution which also set out
the statutory requirements to submit a written defence statement. breach
of the Criminal Procedure and Investigations Act 1996

 Magistrates court proceeding in the absence of the Appellant when there

was an acceptable reason for his failure to appear. breach of s11 of the
Magistrates' court Act 1980

 Magistrates’ court refusing to re-open the case as was required in the

interests of justice. breach of s142(1) of the Magistrates' court Act 1980

 Magistrates’ court refusing to hear the case again by different justices, as

was required in the interests of justice. breach of s142(2) of the
Magistrates' court Act 1980

 Magistrates’ court improperly managing the case following the entering

of a not guilty plea. contrary to the Magistrates’ Court Disclosure Review,
May 2014

 Magistrates’ court failing to assist parties comply with their respective

obligations in accordance with the ‘effective trial preparation form’. non-
compliance with guidance notes to the effective trial preparation form

 Crown court refusing permission to appeal on the spurious grounds that

the Appellant put forward no adequate reason for the appeal being out of
time and deliberately absented himself from trial.
17. There is no significance whatsoever as to why the Appellant did not lodge an
appeal on receiving the decision notice. The refusal states in paragraph 4 that
because he changed his mind this ‘considerably undermines his submissions that
the decision notice, at the time it was issued, was wrong in law’. This presumes
that all complainants who do not appeal a decision must agree that the
Commissioner’s determination is correct in law. This overlooks the possibility (for
example) that a potential litigant although believing he is right might evaluate the
probability of being successful on a playing field that is tilted so much in the
public authority’s favour that he would deem it to be futile.

18. The Appellant’s Grounds of Appeal, despite the contrary stated in the refusal,
provides sufficiently strong arguments to justify admitting the appeal in the
interests of justice. The Tribunal has in a number of decisions justified persistence
if it is in the pursuit of serious wrongdoing by a public authority or is a legitimate
line of enquiry. There is no logical reason to determine this applies differently in
respect of the Appellant’s conduct.

21 February 2018