The Upper Tribunal has held that First-tier and Upper Tribunals are not bound by precedent to automatically reject the limited right to receive information under article 10 (“Freedom of Expression”) of the European Convention on Human Rights (ECHR) recognised by the Grand Chamber in Magyar Helsinki Bizottság v Hungary departing from the 2020 decision in Moss v Information Commissioner ( that had led tribunals to dismiss such arguments for six years.
In a case (Cruelty Free International v Information Commissioner and Home Office [2026] UKUT 328 (AAC)) brought by animal welfare campaign group Cruelty Free International (CFI), a three-judge panel of Lady Poole, Upper Tribunal Judge Citron and Upper Tribunal Judge Brewer found that CFI’s article 10 rights had been violated by the Home Office's reliance on the absolute exemption in section 44 of the Freedom of Information Act 2000 read with section 24 of the Animals (Scientific Procedures) Act 1986 (ASPA).
However, it still refused the appeal because the provisions could not be read compatibly with the Convention under section 3 of the Human Rights Act 1998 (which requires UK courts “as far as possible” to read and give effect to all primary and subordinate legislation in a way that is compatible with ECHR rights) and the tribunal has no power to make a declaration of incompatibility.
CFI asked the Home Office in May 2023 for information about licences granted for testing cosmetic ingredients on animals, including how the harm-benefit test in section 5B(3)(d) ASPA had been applied.
The Home Office withheld much of the material on the basis that section 24 ASPA makes it a criminal offence, carrying up to two years' imprisonment, to disclose information given in confidence in the exercise of functions under the Act.
The Information Commissioner upheld this position in July 2024 and the First-tier Tribunal dismissed CFI's appeal in June 2025, holding itself bound by Moss to refuse the article 10 ground.
The Upper Tribunal set aside the First-tier Tribunal's decision, finding that although it had correctly treated Moss as binding, the reasoning in Moss that higher court authority prevented tribunals from applying Magyar was itself reached in error of law.
Analysing the Supreme Court decisions in Sugar (https://www.supremecourt.uk/cases/uksc-2010-0145) and Kennedy (https://www.supremecourt.uk/cases/uksc-2012-0122) - both decisions on FOIA in which requesters tried, unsuccessfully, to use article 10 to get round a bar to disclosure - the panel concluded that neither contained binding ratio that domestic law does not recognise an article 10(1) right to receive information, and that only two justices in Sugar had reached that view.
The obiter dicta in those cases, it said, rested on the then unsettled state of Strasbourg case law, a concern Magyar had largely addressed by setting out four gateway criteria and a structured proportionality framework.
The panel said the conclusion in Moss was unsafe and ought not to be followed, and that FCDO v Information Commissioner and other Upper Tribunal cases had been clearly wrong to adopt it on that point, while leaving their outcomes on other grounds undisturbed.
Under Magyar, a requester has an article 10(1) right to receive information only where the purpose of the request is to enable freedom of expression, the information provides transparency on the conduct of public affairs, the requester is a journalist or NGO acting as a public watchdog, and the information is ready and available.
Even then, withholding will not breach article 10 if it is justified under article 10(2), which sets limits on freedom of expression where national security or public safety may be compromised or if the information was received in confidence. The panel rejected the Commissioner's argument that these criteria sit uneasily with FOIA's applicant-blind design, noting that sections 14 and 40 already make the identity of the requester relevant.
The panel also dismissed the respondents' submission that judicial review was the proper route for any challenge to section 24 ASPA. Section 58 FOIA requires the tribunal to decide whether a decision notice is "in accordance with the law", and where section 44 is relied on, the law includes the interpretation of the external enactment said to prohibit disclosure, including section 3 HRA.
The Home Office conceded that CFI met all four Magyar criteria. Applying the Bank Mellat (https://caselaw.nationalarchives.gov.uk/uksc/2013/39) proportionality test, the panel accepted that section 24 pursued legitimate aims of protecting commercially sensitive information, the licensing regime and the safety of those working in the industry, but found the blanket prohibition more intrusive than necessary and failing to strike a fair balance.
It contrasted section 24 with section 41 FOIA, which although also absolute incorporates a public interest test through the concept of an actionable breach of confidence, and said no principled justification had been advanced for treating confidential information under ASPA differently. Unlike Kennedy, Moss and Casey-Hulme, there was no practical alternative route to the information because section 24 would criminalise disclosure under any regime.
The appeal nonetheless failed at the final stage. CFI had asked the panel to read section 24 as applying only to information whose disclosure would constitute an actionable breach of confidence.
The panel, however, found that this would insert a public interest defence into a penal provision containing no defence of lawful excuse or public interest, and would involve policy choices for Parliament.
It agreed with Eady J's observation in the earlier Secretary of State for The Home Office v British Union for the Abolition of Vivisection and the Information Commissioner litigation that a tribunal would need to think long and hard before introducing criteria the legislature had chosen not to include, and concluded that the reading sought crossed the line into impermissible judicial legislation. The ordinary interpretation of section 24 given by the Court of Appeal in BUAV in 2008 therefore prevailed.
The panel noted that the government has said section 24 is under review since at least 2008, that a 2014 consultation described it as incompatible with the public right of access under FOIA, and that a parliamentary answer of 23 June 2026 confirmed the review remains open. CFI has a protective judicial review claim, issued in April 2025, stayed pending the outcome of the appeal.
The question of a leapfrog certificate for an appeal directly to the Supreme Court was raised at the hearing and left to be addressed with any application for permission to appeal.
Dr Emma Grange, director of science and regulatory affairs at Cruelty Free International, described the decision as an important ruling and said the public had a right to know the basis on which licences for animal experiments were granted. The organisation said it expected the case to go to the Court of Appeal for final resolution.
While CFI lost the appeal and section 24 ASPA still stands, until the case is heard by a higher court, the option for First-tier Tribunals to apply the Moss criteria is no longer available. Since 2020, an article 10 ground could be dismissed in a paragraph on the basis that Sugar bound the tribunal to reject it.
FTTs will need to engage with the Magyar criteria whenever a requester raises them, which will require a fact-finding exercise on whether the requester is a journalist or watchdog NGO, whether the request serves public debate, and whether the information is ready and available, followed by a Bank Mellat proportionality analysis if the criteria are met. Respondent authorities will need to evidence the legitimate aims and the proportionality of the statutory bar rather than simply pointing to it.
