Thread by @tribunaltweets2

Good morning! Hopefully today this account will be live tweeting the appeal against the CPS refusal to disclose if Stonewall or other lobby groups were involved in the creation of its Hate Crimes guidance for schools in 2020
crowdjustice.com/case/challenge…

An application was made by a freelance journalist under the Freedom of Information Act but this was refused under section 36 of the Act - prejudice to the effective conduct of public affairs
ico.org.uk/media/for-orga…

The Information Commissioner (ICO) upheld the CPS refusal and the freelance journalist appeals.

Will tweet further if permitted.

Waiting for the conference host to join. JT is counsel for the CPS, NC is counsel for the freelance journalist, GR (I assume) Counsel for the ICO.

NC is having difficulties joining the remote hearing.

PT and EY are panel members and have joined the hearing.

Judge Buckley is presiding.

Asking Judge for permission to live tweet - CPS concerned about 'inadvertent' disclosure of 'closed material'. Judge asks me to speak directly about how to deal with this. NC highlights the inevitable 'delay' in tweeting, I promise to delete anything inadvertent.

Judge - we must be clear that closed matters dealt with in closed hearing. TT has permission to live tweet, subject to reservations about removal of any inadvertent disclosure.

[Apologies, apparently there is no representative from the ICO, GR is witness for the CPS]

Judge - we will start with examination of GR in open session and then move into closed session (bundle has number of redactions). NC wants to explore in closed session further info that exists which we cannot see.

NC has possibly 2 hours of questions for GR which will take us to noon. Further questions will go into closed session. NC requests 45 minutes in closing. Requests JT goes first. JT requests 30 minutes

[I am getting confused as to what is open and what is private here]. Judge would like time today for deliberations but it is not end of world if we have to come back another day.

Judge now dealing with redactions. Has on going duty to ensure this is appropriate. Some submissions to the DPP pg192 redaction starts. Clear why para 8 and 9 is redacted.
NC - I question if the headings should be redacted. Seems reasonable appellant should know subject matter

Judge now turns to her 'closed comparative bundle'. Pg 152. It is not a heading that assists NC, it will reveal the nature of the information.
Judge - my concerns related to para 12. Last two sentences should be redacted but not rest.

Judge - para 13, not clear why this is redacted. Para 14 does reveal nature of disputed info and can be withheld.
20th Nov subs to DPP, 197-8 para 9 not clear why this is closed at all. Para 10 I accept reveals nature of information.

Judge - letter to ICO pg 387, 93 of closed bundle. First para is redacted, I am not sure why. 2nd redacted para, last two sentences need to be closed. 3rd and 4th para, 3rd does not need to be closed, 4th does.

Judge - remaining item pg 391. 26th Nov email from the DPP in closed bundle at 101
JT - we discussed this yesterday and have opened it up. We disclosed ....
Judge - that is now open
JT - yes

JT now needs 5 minutes to take instructions from the CPS as to whether this redacted material should be in open court.

NC - would help me to have uncovered material read out and I could annotate my bundle.
JT - will also send typed version
Judge - quite a few paras are substantial but won't take you by surprise NC

JT - start with open supplemetary bundle para 12 'disclosure of this material ... would be likely to inhibit CPS staff to express themselves openly... vital CPS staff able to provide free and frank exchange... without fear of release into public domain'

para 13 - CPS staff ought to be confident... there is a safe space to debate their views and reach decision... likely to be inhibited if known internal email discussions likely to be released into public domain... likely to damage quality of staff views and lead to poor decisions

Para 9 second submissions 'disclosure of this material likely to inhibit CPS staff expressingly themselves openly.. internally and with partner organisations... should feel confident have safe space without fear of conversations released into public domain...

pg 387 main bundle 'arguments... disclosure of the material to the questions posed would inhibit CPS... from free and frank exchange'
3rd para - CPS staff should be able to express themselves openly.. confident about safe space...

Judge - NC has just had this information. Do you want a short adjournment
NC - no thank you, nothing very surprising in that
Judge - that deals with all preliminary issues I wanted to raise.
No other issues NC and JT.

Judge - we are looking at issues afresh. Qualified persons view being reasonable and the public interest balance.
GR to give evidence, not required to be under oath.

JT takes GR to witness statement which he adopts.
NC - Nature of consultation that led up to the Schools Pack. Should consult a range of people to ensure informed decision making. Refine proposals
GR - broadly speaking yes that's right

GR - if process working properly ensures we take stakeholders views into consideration when developing policy.
NC - do you agree different stakeholders may warn you of things you didn't see coming?
GR - inform us of different issues and wider landscape. Then over to CPS.

NC - that's nature of consultation
GR - yes ,fundamentally
NC - that works best if you consult diverse range
GR - yes that is right. CPS always endeavours to consult broadly on sensitive issues.

NC para 4 you name bodies consulted on previous 2012 School pack - GI, LGBT groups. See supp bundle 181. You name partners 2020 pack - Stonewall, GI, Diversity Role Models, Schools Out UK. That's a list of members of CPS Hate Crime external group?
GR - there were more.

GR - can't remember if they were all consulted with regard to the pack
NC -you can only say with certainty those named?
GR - yes, but it was broader than those listed
NC - can you remember anyone else?

GR - Tell Mama, they had strong views on the pack and the issues. This is anti Islam hate crime group. take reports from public. CPS wishes to access their knowledge. Can't recall if consulted on content but supportive of pack in principle and disappointed it was withdrawn.

NC - none had expertise in safeguarding?
GR - don't know
NC - none had interest in needs of women and girls?
GR - don't know
NC - none took 'Gender critical approach'
GR - I don't know

GR - we didn't consult Safe School Alliance, Transgender Trend or Bayswater group, think it unlikely. Don't know how they are constituted or what views they hold but if properly constituted charities they have legitimate purpose

GR - I genuinely am not aware of what those organisations do or what they work on. In principle I am sure they do useful work.
NC - are you aware of them to know they have relevant expertise re school pack
GR - no, I am not

GR - CPS was a Stonewall member at time of school pack. Not aware of details. Know CPS withdrew on basis no longer considered value for money.
NC - same is true of Ministry of Justice
GR - not aware of any details

NC - all the groups you consulted aligned closely with Stonewall
GR - broadly speaking they had similar views
NC - they all think GRA should be reformed for self ID and everyone treated as sex they declare. Fair?
GR - I don't know specifically

GR - re debate on self ID those organisations believe people should be free to self ID
NC - but everyone else should be required to treat them as their declared sex
GR - don't know

NC - and anyone who dissents is a bigot
GR - I don't know if that is what they believe
NC - CPS membership of Stonewall and fact no dissenting GC voices consulted, because Stonewall wouldn't have approved.
GR - reject that. Stonewall had no influence at all on who consulted.

NC - so you say this exclusion of GC and safeguarding voices happened by accident?
GR - it may well have done. Trying to recall process of how these groups got involved. Not in my witness statement. Trying to recollect.

GR - CPS decided at outside, stakeholder mapping at outset, who would engage and provide view that was useful to CPS and on that basis consulted. It is about testing different issues and trying to understand how best to position CPS, who has final say.

NC questions about the pack itself, in supplementary bundle, pg 30. 'What does CPS mean by LGBT hate incident.. no statutory definition, we adopt self perception of victim'. That is worryingly broad? simply up to anyone who is offended to define.

GR - my understanding of law, this proceeds from Stephen Lawrence Inquiry, investigation proceeds from victim's self perception. When it comes to prosecution, you start from that but the evidence has to be there. Needs nuanced reading. Starting point.

NC - but this is pack for teachers who aren't part of criminal justice system. So for those purposes, its worrying broad?
GR - no. That is what it states in our policy, don't understand why we would change that definition.

NC - pg 29 bundle. List of things that might be hate crime or hate incident
GR - its a long list. trying to be comprehensive. That is reason for detail.
NC - few specifics. 'outing someone' as gay or trans. Referring to biological sex?
GR - perhaps yes

NC - it can't mean anything other than referring to bio sex?
GR - yes
NC - bio sex of children in school needs to be known for basic safeguarding?
GR - yes, I accept that.

GR - we are worried about malicious outing to cause harm
NC - but this makes no sense, teachers and children need to know sex for basic safeguarding
GR - I don't know and don't know if this discussed

NC - what are the 'hate organisations' you refer to here? Aware Stonewall call LGB alliance a hate group? And Transgender Trend?
GR - no I am not aware, never heard of TT

GR - I honestly do not know what the point underlying that was
NC - it was to cover organisations that dissent from sex denialism that Stonewall seeks to promote?
GR - you can suggest that but I do not believe that is what was intended but can't say with certainty what was

NC - this list suggest a hate incident or crime is excluding from friendship groups. Worrying infringement on children's freedom of association?
GR - in context it is intended to suggest doing that in a malicious way to cause harm

NC - one of specific activities in pack, page 47. About toilet choice. short clip in which trans identifying male goes into ladies toilets and meet young women who object to his presence there.
GR - don't recall clip, don't think I have seen it, sure you are correct

NC - we see actor playing TIM at page 47. Back to page 41 point 5 notes for teachers say ask students about clip, how was girl treated ie. the trans identified man. Can class understand how she felt hesitant...refusing services is against the law..

NC - ridiculing someone is transphobia. So implication that girls upset by adult male in toilet are guilty of harassing or abusing someone.
GR - implication is that yes, a concern that type of behaviour could be interpreted as abuse.

NC - suggest the girls were at fault for reacting with dismay
Judge - re what behaviour, we haven't seen the clip and GR can't remember it.
NC - clip is arguably embedded in pack and CPS could make it available to view. JT can correct me if I am mischaracterising it

Judge - its not before us and GR hasn't seen it so bear that in mind
NC - do you accept the material you have seen indicates how I describe the clip is broadly right. Women's dismay might be abuse etc
GR - clip is to instigate discussion around behaviour

NC pg 138 supp bundle. 2nd bullet point. clear statement that anyone who has a gender identity should use the toilets aligned with gender ID not bio sex
GR - that is what it says
NC - adult male is therefore entitled to use ladies and shouldn't be challenged

GR - that points extends from what is written
NC - read pg 114 and 115. Gives impression that expressing dismay about man in ladies might make girls guilty of hate incident, even a crime.
GR - expressing dismay may have been behaviour but may have gone further to abuse/assault

NC - this exercise is to make girls ashamed
GR - no, intended outcome of school pack is not to make anyone ashamed, reject that.
NC - safeguarding issues?
GR - I am not an expert
NC - common sense. Any dangers in this message?

GR - yes I can imagine scenario where this would cause an issue.
NC - your witness statement para 9. you withdraw school pack in response to letter before action re judicial review. you say many disappointed.

NC - you are restrained; fair to say there was an almighty fuss?
GR - we had to have several conversations with them into October 2020 to explain rationale
NC - you had to withdraw it as it wouldn't stand up to review?

GR - content could have been amended. But number of factors. CPS peripheral to education. Not our core function. On that basis we should leave it to other organisations. Resources required to refresh pack, couldn't commit. And on going action distraction from other work re hate.

NC - embarrassing waste of money and effort?
GR - on reflection we would have done things differently.

NC - para 13 you say CPS required to work with wide range of stakeholders. Does that refer back to para 12, what are these principles?
GR - principles around working in consultative manner around policy development.

GR - principles of working in collaborative way and in manner than enables us to debate issues internally and with stakeholders to produce best quality policy advice.

NC - requirement of CPS to work with stakeholders, should always be safe to do that beyond reach of FOIA?
GR - not always, but when sensitive. Expect CPS policy officials to have a good understanding of sensitivities in policy area. Want officials to give free and frank advice.

NC - so what in your mind was special about development of schools pack?
GR - a very sensitive issue. Diverse views. Polarised area. my concern that disclosure on sensitive matter, particularly policy under development, can misrepresent or give partial picture of CPS position.

GR - this can give detrimental view on CPS - impression of alignment with group when there is no alignment. Risk to CPS as independent prosecuting authority. Officials may be constrained asking questions if assuming communications would be disclosed.

GR - pack had been withdrawn when FOIA make but consultation with valued stake holders still on going, they hoped CPS would reverse its decision. Timing is significant. Request refused, concern that material would be seen by stake holders and loss of confidence.

GR - Stakeholders might be concerned that there correspondence was released and would be reluctant to work with us in the future.
NC - when you say 'sensitive' do you mean more than lively public debate and people feel strongly
GR - that is fair way to put it. v polarised.

NC - CPS are civil servants and subject to usual expectations on civil servants. know they are subject to FOIA. Background assumption is disclosure.
GR - but they know the section 36 exclusion, and would want these discussions to fall under that.

NC - disclosure couldn't harm policy considerations about school pack it was withdrawn
GR - no, doesn't mean we would stop work on hate crime or have further consultations. not withdrawn, on going.

NC - need to maintain safe space for schools pack development had expired on publication?
GR - became a live issue again on discussions as to whether it should be withdrawn. Live issue throughout 2020.

NC - whole subject simply too hot to handle and CPS should discuss it without fear of scrutiny?
GR - no, look at it on case by case basis.

NC - any reason to think disclosure would create chilling effect on discussions
GR - I can talk openly about general impact. officials would feel they were less able to work with particular stake holders. Would deliberately not involve them if engaged sensitive issues

GR - we need to have frank conversations about their terminology, we don't take stakeholders word for it blindly with no critical lens but need to be informed and explain our position. Calculation of risk would change completely.

GR - that is contrary to best practice in policy development
NC - but stakeholders responsible members of civil society, they know they are engaging with public authority.
GR - we would be clear we have private conversations that we don't expect to disclose

GR - stakeholders make own calculations as to whether they engage on risk of disclosure. It's not a formal undertaking of confidentiality. Informal understanding. we say we benefit from their frank views, and we don't seek to disclose them.

NC - bad consequence of disclosure is that you wouldn't get engagement in the future?
GR - yes, definitely. Will give practical examples in closed session.
NC - should you consider only consulting those who are prepared to be public?
GR - we can do both in parallel

NC - relevance of media interest in Stonewall
Judge - time for short break. 10 mins. 11. 50.

NC - then and now controversy re Stonewall's influence on public life. this reinforces your concern about detrimental impact of disclosure.
GR - concern is very clearly significant media interest in Stonewall and its activities with public sector bodies.

GR - concern is that disclosure would misrepresent routine engagement and result in loss of confidence with CPS
NC - but if its routine, why not disclose?
GR - concern is chilling impact on CPS ability to debate issues and ask questions and deliberate policy

NC - that is particular to this issue because highly sensitive?
GR - that adds to it. We seek to be open and transparent but when deliberating policy concern is that it will lead to misrep. of CPS views, particularly when discussing not a final view.

NC - but you say misleading spin is risk, that applies to any disclosure about any consultation?
GR - not necessarily. In this case that is the judgment we have reached. Why? Sensitive and highly polarised. CPS is independent prosecuting authority.

GR - our only interest is successful prosecution of hate crime. Don't want to be drawn into debate. When we have those conversations with stakeholders we are debating and asking questions and applying own critical lense. But the bit at the start... risk if that released...

GR - ... risk officials may feel less easy about having that conversation.
NC - dramatic change in coverage of trans issues. set out in bullet points. Coverage shifted to human interest then policy issues became focus to address how institutions dealt with trans rights

NC - 2 different perspectives. Most trans groups felt coverage was aggressive, most feminist groups felt duty of the press to explore and challenge. Extension of rights for one group may have impact on other.. those questions need to be fully debated?

NC - coverage isn't a bad thing, its a good thing
GR - in principle, yes.
NC - read para re your analysis. 'intensification of debate, aggressive terminology... use of term 'terf' ... coverage of Rachel McKinnon, those who questioned sports called transphobic.

NC - this is indicative of heating up of debate. pg 228 another passage in same report. National tabloid article where R McK calls @fairplaywomen 'transphobic', also calling Martina Navratilova transphobic bigot... You speak of debate 'polarised' but nature of heat from one side

NC - those who dissent from Stonewall are bigots?
GR - not read all coverage. Discussion on both sides of a polarised debate.
NC - presumably you are familiar with the report you exhibit to your own statement.

NC - your report shows one side is profoundly intolerant of dissent
GR - not my reading. Strong feelings both side
NC - your report supports inference that what makes debate so toxic is tendency of one side to characterise other as bigots.

GR - do not accept that nor that we bowed to that intolerance. Stake holder engagement wasn't tailored to a particular view.
NC - para 26 your statement, you take issue with word 'lobbyist' in our ground of appeal. We don't suggest they aren't genuine charities.

NC - but the public have a right to know what they said?
GR - lobbying I take to mean assertive and pro active engagement with public body to adopt particular position and Stonewall did not lobby us in that sense. We actively sought their view.

NC - you describe aftermath of withdrawal as assertive. Very displeased. Pushed hard?
GR - yes, I agree. Ordinarily conversation v collaborative. in aftermath of decision we were lobbied. Members of that group approached us pro-actively

GR - we listen to views when they are shared with us, certainly.
NC - para 22 your statement. Decision to refuse FOIA Oct 2020, officials still engaged in difficult conversations with stakeholders. public interest test applied correctly.

GR - for all issues we have discussed. timing was a factor.
NC - the pack permanently withdrawn at this time and no realistic discussions to reissue
GR - certainly not on part of the CPS

NC - these groups had heard word 'no' and didn't like it?
GR - we regularly take unpopular decisions. Not first time they had heard no and didn't like it. not the nature of our engagement.
NC - they were thoroughly unhappy, tried to achieve results with no debate

NC - you had to withdraw pack as it wouldn't stand up to judicial scrutiny
GR - (don't understand his answer)
NC - no bad consequence from disclosure at this time
GR - stakeholders with on going relationships may have felt couldn't work with us

NC - you say timing important and difficult conversations still on going. Fair to conclude if new request made now, no difficulty in disclosing?
GR - we would consider it in the round. all issues remain live. timing was only part of it, not sole reason to refuse disclosure

NC - para 10 your statement, everyone you consulted now dismayed or furious with you?
GR - no one was furious, frustration and disappointment more appropriate words
NC - did anyone admit they got a lot wrong?
GR - there were reflections on content. Preference to amend.

NC - did anyone say we went too far, and should have considered rights of women and girls?
GR - can't remember that level of detail.
NC - no one pointed out problems before launch?
GR - not to my knowledge

NC reason not hard to spot - none had expertise or interest in informing you of pitfalls into which you fell?
GR - don't know
NC - safe space for policy development, but you allowed stakeholders to feel safe from dissent or debate?
GR - no, CPS will challenge and test.

NC - that isn't the kind of safe space public servants are entitled to? You aren't entitled to be safe from dissent?
GR - key thing, is chill effect on our officials to have conversations, real and significant concern.

NC - result of that excessive safety is that the CPS produced guidance that was unlawful and dangerous
GR - there were errors in the pack and they could have been avoided.

NC - if you consulted Transgender Trend you could have been warned?
GR - full understanding of stake holder landscape, try to achieve. The stakeholder list was shorter here. I accept we didn't hear all views and product took a particular shape.

NC - what would have happened if you tried to involve TT and Safe Schools Alliance
GR - can't speculate. we regularly have meetings with groups that don't agree.

Back after short break. JT re-examination
JT - you were asked about 'almightly fuss' you said disappointment re withdrawal... could you explain what you meant by the period of time for conversations?
GR - during October 2020 two meetings with external consultative group

GR - prior to that they had written/email expressing disappointment so we decided to meet to explain our decision. This was early Oct to early November.

Judge - tribunal has no open questions but will now be going into closed session to ask questions.
NC - please explore with GR how the chilling effect plays out in relation to statutory criteria.
Judge - finish closed session at 1pm. Resume public hearing 2.10pm.

The hearing has resumed.

NC has not yet seen the information from the other side.
Judge - application by one observer to have a copy of the evidence bundles. Will need to deal with that now. JT has seen it, NC has not.

Judge - have asked individual to provide more information as to why. She is another member of @tribunaltweets2 and wishes to understand what is going on. Specific open justice point.

To help the public understand how the court is deciding this case. We could simply send bundles to that individual on understanding that only available to her and not shared apart from section referred to in evidence. Or I can order limited disclosure.

JT - NC and I did discuss transparency and I agreed Mr Ritchie's statement could be disclosed in full as he has given evidence. And then my skeleton argument. That goes a long way re core issues. re pages in bundle, it does contain personal information.

JT - it wasn't prepared with a view to disclosure to world at large. client's data protection obligations.
Judge - only a few pages referred to in evidence, those could be provided.
JT - schools pack is problematic. Has been withdrawn.

JT - will take instructions on disclosure of pages
NC - on schools pack, I support application. I agree schools pack problematic but it was published and remains in public domain as widely commented on. Hard to see how that can be withheld at this point.

Judge - commitment to open justice. Will ask Miss Smith of @tribunaltweets2 if she has anything else to say.
JS - tweets are not transcripts so important to have the sections that were read out to check our para phrase
We woudn't publish personal information.

JS - easier to just let us have whole bundle. No criticism of our tweets apart from one where we made a guess as to who was speaking and corrected it within minutes.
Judge - what practically is easiest and how do we achieve it. Disclose anything referred to or read out.

JT - I will have to make a list, go through my list and then take instructions. Can't do that now.
Judge - making it workable. If we can get them to you at some point would that assist
JS - yes, nice if fresh in people's minds. After the event we add to paraphrase

JS - we want to be able to screenshot so people can see what was under discussion
Judge - JT, you haven't taken instructions but subject to any objections, what needs to be provided is the pages with sections referred to, rather than entire bundle. By tomorrow.

JT - our concern is about names and images. Can I put concerns in writing and have opportunity to reflect, will do this right after the hearing
Judge - I will make a decision. no objection to redact images and names I assume. NC do you need 5 mins for submissions? Back 2.45

Now NC submissions
NC - you have heard the background is that the CPS carried out consultation on schools pack with group of like minded organisations. That shared approach to treat TIM as women for all purposes
Judge - your sound not clear

NC - (sound lost) - that shared approach is characterised by tendency to claim that treating TIM as women for all purposes will have no adverse implications for women and girls. Dissenting voices excluded.

Doesn't matter if deliberate or not. Misstated the law and told girls their boundaries were something to be ashamed of. So poor it was withdrawn in disarray a few months after legal challenge.

NC - did qualified person address the statutory question? Was it reasonable? Were does public interest balance lie. CPS reliance on section 42

NC - If QP did not address the statutory question, the statutory exemption cannot apply. 393, 391 main bundle only pages with reference. 25 Sep 393 - DPP considered submissions and agrees to withhold for reasons given.

That is DPP opinion. What he says he is agrees to withhold. Doesn't say he agrees threshold question is satisfied. Bundles up two questions. Similar at other page re review request. email 26 Nov, DPP read advice and ... maintains decision.

NC - decision same both time and simply to withhold. Bit more detail 191 195 supplementary bundle. 15 Sep submissions. para 4 - recommendation. Note submission and approve withholding material.

NC - DPP been directed by that submission to consider whether or not he approves withholding. That is NOT the statutory threshold question. Must consider inhibition of free and frank views.

NC - sections under heading of timing. Two redacted. Section public interest. But there is nothing there in the open portions to suggest the DPP's mind properly directed to question he was required to address.

NC - para 12, recommend original decision to engage section 36 is upheld. Relevant decision is the initial one and if QP didn't direct their mind to question, exemption cannot be relied upon. Possible something in closed material that suggests otherwise, but consider carefully.

Judge - your submission in relation to later opinion, too late if he didn't address it initially? Can this be right? No requirement opinion at a particular time
NC - that must be right but those two documents must be read together with emails.

NC - if there is ambiguity not good enough... QP on both occasions simply took two questions as one and did not consider the exemption.

NC - even if those submissions direct the QP to the statutory question, I say conclusions at p 194 re public interest ... gave rise to response at pg 392 which simply states refusal. opinion is directed to conclusion of submission and asks wrong question.

NC - refer to case of Baird. QP opinion was badly worded but held to fall right side of the line. pg 58 para 15 in authorities bundle. tribunal note para 21 QP expressed himself in a way that invited criticism, he wasn't required to give opinion in particular format.

NC - this case is different. QP in Baird specifically mentioned the threshold question, albeit badly put. In this case, on basis of open material, nothing to suggest QP directed his mind separately to the threshold question.

NC - same inference supported by questions and answers in the ICO investigation. .... those making submissions simply hadn't understood the distinction between threshold question and balance of public interest.

NC - if I am right, exemption cannot be maintained. If you are not with me on that, and think QP did form a view on threshold, next question is was his opinion reasonable? no material capable of finding it reasonable.

NC - para 32 JT's skeleton argument is telling in itself. Word 'plainly' is often a tell for circs where there is not much to be said but this is valiant attempt to make bricks without straw. DPP offered no substantive information.

NC - JT relies on GR smt without identifying parts that influenced QP. That's understandable - pg 81 of bundle. see pg 83 for a basis that might have been given to QP but unredacted portion of that section boils down to assertion CPS should ALWAYS be allowed to engage privately.

NC - GR is simply saying the CPS should be exempt from the FOIA. ... read his witness statement as it stands. 'CPS is required to work with wide number of stakeholders...' appears to be simply statement that CPS should always do work in private. Not satisfactory.

NC - GR did understandably seem to draw back from that in oral evidence. He completely fails to explain why free and frank dialogue inhibited by disclosure. Need for safe space to discuss policy expired on publication. Expired long before request for information.

NC - GR's answers re safe space being live in October 2020 was no more than stakeholders remained upset. True these questions attract public and press interest - they are important and people feel strongly. GR says change in nature of coverage.

NC - it is not clear what the relevance of those changes in reporting have to either safe space or chilling effect claim. Absolutely true that debate has become toxic and heated... because of attempts by one side to shut down debate and call other side bigoted.

NC - wholly unclear why this means CPS should be allowed to consult only with one side and in private.

NC - para 25 of authority (?), 26 and 27.
Judge - we are very familiar with the authority.

NC - para 31 is illuminating. statement that section 36 applied but devoid of reasoning why. That is exactly what you are faced with here. Assertion of chilling effect but no explanation of how it operates here.

NC - No basis that stakeholders or civil servants are able to assume they are exempt from FOIA. ... if stakeholders are worth consulting, they should be equal to making their views known and stand up to public scrutiny.

NC - no material that would found a claim in reasonableness. If QP fails reasonable test that is an end to the matter.
Section 36 - public interest is decision for Tribunal. Look at Galloway and Gillingham.

NC - ...?... junior staff. resulting report disclosed. Reason to think individual junior staff who had been given explicit reasons to think statements confidential might in future be less willing to engage in investigations. in circs where patient died, sensitivities understood.

Gillingham - tweets by solicitor who had been suspended and under investigation. Process still live and underway. This FOI request was about a historic process - how had this schools pack come to be published with alarming content it had?

NC - - its a safe space for incubation of policy, not permanent long term space safe from any scrutiny. Another hospital case - journalist sought report on maternity unit, NHS refused, tribunal allowed appeal. Trust only had report 2 months at time of refusal.

NC - but tribunal swayed by fact that the NHS had benefit of 'safe space' for a number of years and failed to make much use of it. Professional obligations of staff involved. Reasonable expectation of civil servants and stakeholders, comporable to that.

They must be expected to be robust and courageous and able to deal with criticisms of their advice. The appellant isn't asking or individual statements, no uncovering of personal failings. This is institutional failing, precisely what FOIA is for.

NC - understand CPS reluctant, but that is what this process is for. Healthy state of affairs for criticism.

NC - GR focuses intently on sensitivity of particular topic, distinguishes it from typical policy case which would ordinarily not fall in exemption. But only sensitivity is that people feel strongly. That is not what sensitive for these purposes mean.

NC - the hospital cases show what sensitive means - individuals may be exposed to criticism of their own conduct, in circs where investigation needs to be carried out in atmosphere of candour.

NC - sensitive doesn't mean lots of people feel strongly. GR concerned stakeholders won't work with CPS in future, expectation of private conversations. Dependent on GR's understanding of sensitive which is misunderstanding.

NC - it was a wholly flawed one sided consultation on a matter of public interest. Parallels with Hill are striking. Wanted safety from encountering disagreement and challenge but hearing a range of views is whole purpose. If you want to avoid challenge, not doing it right.

NC - so QP did not engage with statutory question. Even if he did and was reasonable, the balance of public interest quite clearly falls the other side and favours disclosure. on section 42, difficult to assist without closed material

NC - if genuine concerns, can be dealt with by redaction. Please direct disclosure.

No questions for NC from Judge or panel. Break for a few minutes.

Closing submissions JT
JT - authority bundle tab 7 - familiar to tribunal but need to revist. page 107. page 114 para 19 explains how issue arose and how prejudice identified. para 22 and 27 set out approach taken by first tier tribunal that upper tribunal found wrong.

JT - approaching it as if a judicial review. That is flawed. Correct approach page 118. para 29 opinion of QP afforded measure of respect. 2 stage test, error of tribunal to require QP to evaluate further. but often QP does.

JT - tribunal look at these paras. Entirely key as to why this process was lawful. correct outcome should not be vitiated by technical error. Find opinion that prejudice was likely to arise but disclosure followed. That seems to be appellant's approach.

JT - if you adopt appellant's approach, this has been identified as in error. ...? (difficult without having access to authorities)... this tribunal engaging in full merits assessment of reasonableness and public interest and inevitably have more evidence than the QP

JT - testing assertion by testing GR's evidence. Don't need to go to guidance by ICO assess chilling effect - timing, content and sensitivity. This shows QP opinion reasonable and risk of chilling effect. Balance tips to maintain exemption.

JT - have dealt with content in closed submissions (so Tribunal have heard submissions we have not)

JT - was there a lawful opinion of QP. Relevant statutory test pg 192 supp bundle. (apologies this is very difficult without access to authorities)

JT - likely to inhibit. Loss of frankness and candour that can then follow. Key statutory test highlighted at least twice. answering public interest question does find that exemption was engaged and had weight.

JT - ask Tribunal to take common sense view and read submissions pragmatically. No doubt a finding that free and frank exchange was inhibited. ...is there any doubt in Tribunal's mind as to the view of the QP? There can't be in mind of conclusion reached.

JT - tribunal must reach own view, but DPP's opinion has some weight. ICO does recognise that QP not required to carry out test but may do so(??)

JT - next question. Was opinion a reasonable one? I say it was. QP aware of context that CPS staff work in and the sensitivities. Had sight of material. Aware of inherent weakness point. Can't say it was not reasonable.

JT - NC's arguments are simple disagreement. Turning to public interest balance. 3 categories, timing - relevant time is 1st October. CPS officials still engaged with difficult conversations with stakeholders. Policy very much live in Oct - how to manage withdrawal.

JT - it was a difficult decision but not one that stands alone. CPS still have to deal with LGBT hate crime and develop approaches to support victims and engage with groups. GR also gave evidence re further stakeholder engagement.

JT - that work is ongoing. those are the reasons I give to what sets this case apart from average policy development where no need for safe space or concern about chilling effect.

JT - content dealt with in closed session. Sensitive policy decision re withdrawal of schools pack and consultation with stakeholders. GR said chilling effect not about generic safe space but freedom to have honest dialogue with stakeholder groups.

JT - he was not trying to argue he and his team ALWAYS required a safe space. Case by case approach and sensitivity of issues. GR said goal at first stage is to gather info not engage in policy debate. So have very open and honest atmosphere. Blue sky thinking.

JT - risk of disclosing that, one is only showing part of the approach and could be concern only disclosing one side of that picture gives rise to real risk of that being portrayed in negative or critical way and stakeholders might take different approach in future.

JT para 16 GR witness statement. Need to fully understand issues to take on board. Final reason; sensitivity, This is driving factor as recognised by ICO. Tribunal familiar. Invite Tribunal to accept CPS submissions re inhibition.

JT - risk that initial opinions will be taken as definitive position. GR articulated concern that CPS goal is to advance policies that promote it as independent prosecutor. Disclosure of communications leads CPS into substantive debate about an issue not relevant to their core.

JT - concern CPS may be criticised for conduct not central to their role. This is compounded by fact that norms for public debate around these issues are developing and routine communication could become part of the debate, when it was never intended to.

JT - public interest is relatively minimal. Accept PI in transparency. But fact CPS worked with Stonewall and GI is in public domain. Increased pressure on those organisations not relevant. This was routine consultation.

JT - the cross examination focused on nature of consultation process but that wasn't focus of the FOIA request. Easy to clarify who was consulted. you don't need this material to engage. Demonstrates risk of deconstructing consultation to inform.

JT - schools pack has been withdrawn. Purpose of these proceedings not to examine its lawfulness. The content of schools pack is irrelevant.

JT - fire alarm which is not scheduled! Think we are OK. almost done. Point taken about form of evidence in appellant's skeleton, para 46. Chilling effect is a matter for your judgment. Case law set out.

JT - section 42. If Tribunal is against me, disclosure can be done with redaction. Sure we can reach agreement. End of submissions.
Judge - one question. you make reference to early stage communications, is that in witness statement?
JT - took that from GR oral evidence.

NC - brief comments.

JT - can provide documents in next hour.

Judge - given time we will have to meet on a different day to give decision. You will get a written decision.
Hearing ends 16.11