Cruelty Free International v Information Commissioner and Home Office

Cruelty Free International v Information Commissioner and Home Office [2026] UKUT 328 (AAC)

Cruelty Free International v Information Commissioner and Home Office [2026] UKUT 328 (AAC), Upper Tribunal (Administrative Appeals Chamber), 21 August 2026.

Background 

Cruelty Free International v Information Commissioner and Home Office [2026] (“Cruelty Free International”) was a three-judge Upper Tribunal case concerning access to information about animal experimentation and the right to receive information under Article 10 of the European Convention on Human Rights (“ECHR”). 

Cruelty Free International (“CFI”) is an animal-protection organisation which campaigns against experiments on live animals which cause pain, suffering, distress or lasting harm. In May 2023, CFI requested information from the Home Office concerning licences authorising testing on animals involving ingredients used in certain cosmetic products. CFI wanted to understand how the Home Office applied the harm-benefit assessment under section 5B(3)(d) of the Animals (Scientific Procedures) Act 1986 (“ASPA”). In response to CFI’s Freedom of Information request (“FOI”), the Home Office disclosed some information to CFI but made significant redactions. CFI argued that the redactions prevented meaningful scrutiny of how the Home Office evaluated and granted licences.

The Home Office justified its redactions and the withholding of the information under section 44(1)(a) of the Freedom of Information Act 2000 (“FOIA”) and section 24 of ASPA. The Home Office pointed out that section 24 ASPA made it a criminal offence to disclose information obtained in the exercise of functions under ASPA which was known or reasonably believed to have been given in confidence. This, it argued, meant the redacted information fell within the section 44(1)(a) FOIA exemption. Section 44(1)(a) provides that where the disclosure of information is prohibited by another enactment, it becomes exempt from the section 1(1)(b) FOIA right to disclosure. 

CFI complained to the Information Commissioner, who held that the Home Office was entitled to rely on the section 44 exemption. CFI then appealed that decision to the First-tier Tribunal, which dismissed the appeal in June 2025. CFI subsequently appealed to the Upper Tribunal. 

The Law

Freedom of Information Act 2000 

Section 1 of the Freedom of Information Act 2000 gives any person making a request for information to a public authority the right to be told by the public authority whether they hold that information, and if they do, to have that information communicated to them. 

Section 44(1)(a) FOIA creates an exemption to the general right articulated by section 1 where the disclosure of the requested information is prohibited by or under another enactment. 

There are a number of other exemptions to the section 1 general rule, including information whose disclosure would prejudice the effective conduct of public affairs (s 36), information protected by legal professional privilege (s 42), and trade secrets or information whose disclosure would prejudice commercial interests (s 43). These exemptions are all qualified exemptions which remain subject to a public-interest test. The section 44 exemption, however, is an absolute exemption which has no FOIA public-interest balancing test. Section 41 (confidential information) is nominally absolute but in effect is qualified because the common law of confidence incorporates a public interest test.

Animals (Scientific Procedures) Act 1986 

Under section 3 ASPA, regulated procedures may only be carried out, among other requirements, where the person undertaking them holds an appropriate personal licence and the work forms part of a programme authorised by a project licence. 

When determining an application for a project licence, section 5B(3)(d) requires the Secretary of State to carry out a harm-benefit analysis, assessing whether the harm caused to protected animals in terms of suffering, pain and distress is justified by the expected outcome. This assessment should take into account ethical considerations and the expected benefit to humans, animals or the environment. 

Section 24 ASPA provides a criminal prohibition on the disclosure of information obtained in the exercise of functions under ASPA which was known or reasonably believed to have been given in confidence. 

European Convention on Human Rights and Human Rights Act 1998

Article 10 ECHR protects freedom of expression, including freedom to ‘receive and impart information and ideas’. Article 10 is a qualified right, meaning that interference with it may be lawful where it is prescribed by law, pursues a legitimate aim, and is necessary and proportionate in a democratic society. 

Section 2 of the Human Rights Act 1998 (“HRA”) requires UK domestic courts to take the jurisprudence of the European Court of Human Rights (“ECtHR”) into account when exercising their judicial functions. Additionally, section 3 HRA requires courts to, so far as is possible, read legislation compatibly with the Convention rights. Section 4 HRA empowers specified senior courts to issue declarations of incompatibility when domestic legislation is not compatible with the ECHR and the incompatibility cannot be cured under section 3 HRA. The Upper Tribunal is not a specified court able to make such declarations. 

Magyar Helsinki Bizottság v Hungary (2016)

The case of Magyar concerned an NGO’s request for State-held information about the appointment of public defenders in Hungary. In its judgment, the ECtHR recognised a limited Article 10 right of access to State-held information where access is instrumental to freedom of expression. 

The Court outlined four criteria which must be met for such a right to arise:

1. The information is sought for the purpose of exercising freedom of expression – in other words, the requester intends to disseminate it;

2. The information concerns a matter of public interest;

3. The requester performs a public-watchdog role, such as a journalist or an NGO; and 

4. The information is ready and available rather than requiring the authority to create new information. 

Satisfying these four criteria gives rise to an Article 10 right to receive the requested information, subject to Article 10(2).

Relevant Domestic Authorities 

In BUAV v Secretary of State for the Home Department [2008] EWCA Civ 870 (“BUAV”), CFI, under its former name, challenged the interpretation of section 24 ASPA in the context of a FOIA request. The Court of Appeal held that section 24 should be given its ordinary meaning and that it did not incorporate a separate objective test derived from the law of confidence. It was entirely up to the giver of information – including licence applicants – whether they gave the information in confidence. Instead, the question was whether the person holding the information knew, or had reasonable grounds for believing, that it had been given in confidence, and the Home Office tells licence applicants that it will regard everything as having been given in confidence, save for the brief mandatory non-technical summaries (“NTSs”). The Court did not, however, consider whether Convention rights or section 3 HRA required section 24 to be interpreted differently – the case was pre-Magyar. 

In Sugar v BBC (No 2) [2012] UKSC 4 (“Sugar”), the appellant sought the BBC’s internal Balen Report on its coverage of the Israeli-Palestinian conflict. The five-judge Supreme Court held that the report was held for the purposes of journalism and therefore fell outside FOIA. In discussing Article 10, Lords Brown and Mance rejected the proposition that it created a general right to access information held by public authorities. Lord Wilson was more equivocal, such that it wasn’t clear whether there was the requisite majority on this issue.

In the subsequent case of Kennedy v Charity Commission [2014] UKSC 20 (“Kennedy”), a Times journalist sought documents concerning the Charity Commission's inquiries into the Mariam Appeal. The Supreme Court held that the relevant material was exempt under section 32 FOIA – it was held by virtue of a statutory inquiry. Additionally, in obiter dicta the majority, whilst acknowledging that ECtHR case law appeared to be developing, did not accept that Article 10 created a general positive right to obtain State-held information. Lord Wilson was one of two dissenters on this issue. Both Sugar and Kennedy were decided before Magyar. 

In the Upper Tribunal case of Moss v Information Commissioner and Cabinet Office [2020] UKUT 242 (AAC) (“Moss”), the appellant relied on the decision in Magyar (2016) to argue that Article 10 protected his access to requested information. The Upper Tribunal held that it was bound by the domestic approach in Sugar and Kennedy and so could not apply Magyar’s recognition of a limited Article 10 right of access to information.  This was because an earlier House of Lords case, Kay v Lambeth LBC [2006] 2 AC 465 (“Kay”), had decided that lower courts and tribunals had to follow binding decisions of the House of Lords (now succeeded by the Supreme Court) even in the face of a later contrary ECtHR decision. The Upper Tribunal in Moss, later supported by a three-judge panel in another case, ruled that reasoned comments by the Supreme Court (and, presumably, the Court of Appeal) fell within the Kay principle. This is what CFI challenged.

Judgment 

The Upper Tribunal’s reasoning in Cruelty Free International can be divided into six questions: 

1. Did the First-tier Tribunal and Upper Tribunal have jurisdiction to consider the ASPA/HRA arguments?

2. Was the Upper Tribunal prevented by domestic precedent from recognising the Magyar Article 10 right under the Kay principle?

3. Did CFI have an Article 10 right to receive this information?

4. Did withholding the information interfere with that right?

5. Was that interference justified under Article 10(2)?

6. Could s 24 ASPA be ‘read down’ under s 3 HRA to cure the violation?

(1) Did the First-tier Tribunal and Upper Tribunal have jurisdiction to consider the ASPA/HRA arguments?

The Information Commissioner and the Home Office argued that CFI’s human-rights challenge to section 24 ASPA should have been brought by judicial review. The Upper Tribunal disagreed and held that it and the First-tier Tribunal did have jurisdiction to consider the application and interpretation of section 24 ASPA, including the effect of section 3 of the Human Rights Act. Determining whether the section 44 FOIA exemption applied necessarily required them to decide whether disclosure was prohibited by section 24 ASPA. The possibility of challenging section 24 by judicial review did not remove that statutory jurisdiction. 

(2) Was the Upper Tribunal prevented by domestic precedent from recognising the Magyar Article 10 right?

In reaching its decision, the First-tier Tribunal (correctly) considered itself bound by Moss, and so was unable to recognise the Magyar Article 10 right established by the ECtHR. The Upper Tribunal, however, found this to be an error of law. It held that the earlier comments of the Supreme Court in Sugar which seemed to reject or express doubt about a positive Article 10 right to information were obiter, rather than binding ratio, and it was common ground that that was the case with the Kennedy majority dicta. The Kay principle did not extend to obiter remarks, however fully reasoned. The Tribunal also expressly departed from the relevant reasoning in Moss and held that the tribunal in Moss was wrong to conclude that domestic precedent prevented the Upper Tribunal from recognising the Magyar right. As such, the Upper Tribunal was not prevented from applying Magyar. 

(3) Did CFI have an Article 10 right to receive this information?

To determine whether CFI had an Article 10 right to receive the requested information, the Upper Tribunal applied the four Magyar criteria. It found that in the present case all four were satisfied. Indeed, the Home Office did not dispute that this was the case.

1. Expression – CFI wanted the information to inform the public, politicians and courts and contribute to debate over animal experimentation.   

2. Public interest – the material concerned how the Home Office exercised a statutory power in a controversial area.

3. Public watchdog – CFI’s investigations, education, advocacy, regulatory engagement and litigation meant it performed the relevant NGO watchdog function. 

4. Ready and available – the documents already existed within the Home Office licensing process.  

(4) Did withholding the information interfere with that right?

The Upper Tribunal held that the Home Office’s withholding of the information requested did indeed interfere with CFI’s Article 10 right established in Magyar. There was no realistic alternative way for CFI to obtain the sought-after material. By its very nature, section 24 effectively followed the information whichever disclosure regime was used because disclosure of protected information would remain a criminal offence. Consequently, refusing access under FOIA risked rendering CFI’s Article 10 right merely theoretical rather than practical and effective. The combined effect of section 44 FOIA and section 24 ASPA was therefore an interference with CFI’s Article 10 rights. 

(5) Was that interference justified under Article 10(2)?

The Upper Tribunal accepted that protecting commercial confidentiality and intellectual property, the effective operation of the licensing system, and the safety of people involved with animal experimentation were legitimate aims capable of justifying an interference under Article 10(2). In this case, however, it concluded that the blanket prohibition provided under section 24 ASPA and section 44 FOIA was disproportionate. 

Section 24 protects all information within its scope irrespective of its actual sensitivity. It contains no exemptions even for trivial information or for material whose supplier may later consent to its disclosure. Additionally, the section contains no public-interest balancing mechanism and so the importance of the request, the identity of the requester, the possibility of redaction and the absence of actual prejudice cannot be weighed. The Tribunal held that this was particularly problematic where information is being sought by a public watchdog about the exercise of public power.

The Upper Tribunal also recognised that meaningful scrutiny of the animal licensing regime required more than the non-technical summaries the Home Office already published. Although the summaries provided some transparency, they did not disclose the Home Office’s evaluative reasoning or explain how the harm-benefit assessment was conducted. Without access to the requested material, meaningful scrutiny of whether the relevant ethical and legal safeguards were properly observed was substantially impaired.

The Upper Tribunal therefore found that the regime failed to strike a fair balance and that the interference with CFI’s Article 10 rights was not justified. 

(6) Could s 24 ASPA be “read down” under s 3 HRA to cure the violation?

The Upper Tribunal held that BUAV remained binding authority on the ordinary meaning of section 24 ASPA. However, because the Court of Appeal in BUAV had not considered Convention rights, it did not prevent the Upper Tribunal from considering whether section 3 HRA required a different, Convention-compliant interpretation.

Section 3 HRA requires the Upper Tribunal to read section 24 ASPA, so far as possible, compatibly with the Convention rights. CFI effectively asked the Tribunal to do this by introducing a public-interest qualification or defence to the section 24 prohibition. The Tribunal, however, held that because section 24 was a criminal provision, carrying potential imprisonment, and it contained no existing public-interest, lawful-excuse or proportionality defence, reading one into it would significantly alter Parliament's statutory scheme. The Tribunal held that this would cross the boundary between statutory interpretation and impermissible judicial legislation. The Upper Tribunal therefore concluded that it was not able to cure the incompatibility of section 24 ASPA using section 3 HRA. Accordingly, the ordinary interpretation of section 24 established in BUAV continued to apply.

Outcome 

CFI prevailed on all the issues save for the section 3 HRA remedy. Although the First-tier Tribunal had been technically correct to follow Moss, which was binding upon it, the Upper Tribunal held that the relevant reasoning in Moss was wrong. The First-tier Tribunal’s decision therefore involved an error of law in failing to apply Magyar. CFI did have an Article 10 right and this was breached when the Home Office withheld the information they sought. The Upper Tribunal therefore set aside the First-tier Tribunal’s decision. This said, the Upper Tribunal decided it could not read section 24 ASPA compatibly under section 3 HRA and it did not have the power to grant a formal declaration of incompatibility under section 4 HRA. The Tribunal therefore re-made the First-tier Tribunal’s decision but ultimately refused CFI’s underlying appeal against the Commissioner’s decision. Consequently, the information sought by CFI was not ordered to be disclosed. 

CFI is seeking permission to appeal the section 3 decision to the Court of Appeal and the Commissioner and the Home Office are seeking permission to appeal the issues they lost.

Commentary 

The judgment in Cruelty Free International v Information Commissioner and Home Office [2026] identified a serious human-rights problem with the blanket confidentiality regime under section 24 ASPA and section 44 FOIA. The combined operation of section 24 ASPA and section 44 FOIA may, in circumstances in which the Magyar right is engaged and the interference cannot be justified, violate Article 10. The Tribunal also recognised that animal-protection NGOs are capable of being public watchdogs.

The judgment removed, at Upper Tribunal level, the supposed domestic-law obstacle to the Magyar principle. This is a potentially significant development beyond animal law for NGOs, journalists or other watchdogs seeking State-held information necessary for public-interest expression. In practice, Magyar is only likely to be relevant where the public authority relies on an absolute exemption and no public interest is therefore possible.

On the other hand, the case also highlighted an important limitation. There is no general right to obtain government information (CFI had not argued that there was). Claimants must satisfy the Magyar criteria, and even if they do, an interference with their Article 10 rights may still be justified under Article 10(2) of the Convention. Additionally, as was the case here, even if a breach of Article 10 is found, the Upper Tribunal lacks the remedial power necessary to overcome primary legislation prohibiting disclosure if it decides that it cannot use the section 3 HRA interpretive obligation to cure incompatibility with the Convention. 

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