Yarwood v The Information Commissioner (IC) [2026] UKFTT 7 (GRC)

[2026] UKFTT 00007 (GRC)

Case Reference: FT/EA/2025/0255

First-tier Tribunal

(General Regulatory Chamber)

Date 6 January 2026

Information Rights

Before

JUDGE HUGHES

MEMBER CHAFER

MEMBER TAYLOR

Between

YARWOOODAppellant

– and –

Between

[1] THE INFORMATION COMMISSIONER (IC)Respondent

The appeal is dismissed

REASONS

[1]On 27 September 2024 the Appellant made a multi-part request for information from the Crown Prosecution Service about fraud and a specific prosecution: FOI Questions: 1. As the FSMA 2000 legislation refers to authorisation (S31) and Rules (S150) how do Prosecutors apply the Fraud Act 2006 Legal Guidance to establish the borderline between criminal and civil liability, and caveat emptor? 2. What do Prosecutors interpret by ‘caveat emptor’? 3. In a case where both brokers and lender are authorised and regulated, what steps does the Prosecutor take to ensure their statutory regulatory duties have been complied with and the impact on the borderline between criminal and civil liability and caveat emptor? 4. In a case where the criminal complainant is not authorised to act on Regulated Activities, yet have provided evidence referring to FSA Regulated Mortgage# Products (a regulated activity-which the CPS can check with the Financial Conduct Authority), what steps does the Prosecutor take to ensure the correct legal entity and authorised firm have complied with their statutory regulatory duties? 5. What do the CPS understand by ‘consumer protection’ as referred to by the Financial Conduct Authority, Protecting consumers | FCA, “How we protect consumers from harm caused by bad conduct in financial services.”, Fair treatment of customers (fca.org.uk) “Regulatory responsibilities. Firms are responsible for making sure customers are treated fairly. Our principles (PRIN) include explicit and implicit guidance on the fair treatment of customers. Principle 6 says: ‘A firm must pay due regard to the interests of its customers and treat them fairly’, but other principles also apply to this area of business behaviour. 6. Why did the CPS fail to apply Financial Services and Markets Act [FSMA] 2000 legislation in R v [name redacted] and inform the Court of Appeal that the legislation was ‘irrelevant’, a claim which was false as ‘consumer protection’ applied to FSA Regulated Mortgage Products? 7. Why do the CPS consider an unauthorised and unregulated brand name with no legal status, Lloyds Banking Group, can claim compensation, when the original claim on 10 August 2012, appears itself to breach the Fraud Act 2006 through a false representation that an employee of Lloyds Banking Group PLC was acting lawfully on behalf of Bank of Scotland PLC, when BoS were unaware, and the criminal complaint was speculative not based on factual information contained in Bank of Scotland PLC records, and did not disclose Bank of Scotland PLC had been the subject of an FSA Public Censure dated 9 March 2012 (as shown on the Financial Services Register) covering a period 2006-2008? 8. Are the CPS aware that by informing the Court of Appeal, that FSMA 2000 legislation and FSA (now FCA) Handbook Principles and Rules are irrelevant, this makes ‘consumer protection’ as referred to by the FCA as worthless?...”.

[2]On 25 October 2024 the CPS responded, making reference to previous similar requests:

“The Crown Prosecution Service (CPS) maintains the position regarding the S.17 [section 17 of FOIA] Refusal Notice in response to your previous FOI request referenced 12375. We also note that whilst you have rephrased parts of that request you have not sought to have that decision internally reviewed Turning to your further eight FOI requests, with regards to questions 1 to 5 and 8 we have covered these points in our previous responses referenced 10297 dated 3rd February 2022 and 12375 dated 24 September 2024 along with the S.17 Refusal Notice which I attach again for ease of reference. In those responses we address what material we do and do not hold, how we apply legal guidance, what training prosecutors undertake and how we deal with prosecutions on a case by-case basis in line with the Code for Crown Prosecutors. With regards to questions 6 and 7 these appear to be assertions on your behalf which again I believe we have covered in response 12375 outlining the point that ‘The Information Access Team (IAT) is not a legal advice mechanism, and we specifically deal with material or data held in a recorded format by the Crown Prosecution Service (CPS). The authority is not obliged to create new information or find the answer to a question where the information is not already in recorded format’. To that extent the CPS does not hold recorded information within the specific scope of these two questions.”

[3]The position of the CPS was therefore that parts 1-5 and 8 were repeat requests which had already been responded to and parts 6 and 7 appeared to be statements rather than requests for information which was held in recorded form which the CPS did not hold.

[4]On review the CPS explained its position on 17 December 2024 “I have reviewed the responses to each question you have posed in the course of making your requests under the FOIA. In each instance, where the data is held and able to be retrieved, it has been done so. Requests in relation to decision making in specific cases are covered by the s[section]31 Law Enforcement provisions as contained in the FOIA. This has been properly and accurately explained in previous correspondence. The decision making is clarified within a section 17 [of FOIA] notice. In that section 17 notice we have set out the reasoning behind the decision, specifically in the context of the public interest test. This includes the factors to be taken into account when making a decision as to the public interest in this FOIA context. As explained, it is a balance which needs to be struck. I understand that you disagree with the decision made in the CPS response, but in my view the decision to apply the exemption is justified. In my view a number of your requests amount to requests for hypothetical legal advice. The FOI regime is not a process designed to elicit information that is not already held. Legal advice, hypothetical or not, does not fall into this category.

[5]The CPS position was that it did not hold material falling within parts 1-7 and the material within part 8 was protected from disclosure by s31 FOIA, law enforcement.:

[6]The Appellant complained to the Information Commissioner on 21 December 2024. During the course of his investigation The CPS maintained its original position but ceased to rely on s31 but relied on s30(1)(c) “30 Investigations and proceedings conducted by public authorities. (1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of— (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained— (i) whether a person should be charged with an offence, or (ii) whether a person charged with an offence is guilty of it, (b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or (c) any criminal proceedings which the authority has power to conduct …

[7]On 1 July 2025 the IC issued his decision notice concluding that on the balance of probabilities the CPS did not hold information within 1-7, that s30(1)(c) applied to the information within scope of part 8 and on the public interest lay in not disclosing.

[8]The IC noted the information provided by the CPS on retention periods applied by the CPS for training materials (DN 30) The CPS Retention and Disposal Policy covers all information and records, irrespective of medium, applies to all digital and paper copy information as well as databases and social media. For prosecution guidance, the CPS replaces information as legislation changes. The CPS retains the previous version for seven years then deleted. The CPS retains legal course material for seven years and then reviewed. Where operationally relevant, the information is kept for a further seven years then reviewed. When no longer needed, material is immediately destroyed.

[9]DN paragraph 32 “CPS training is directed at the highest priority areas, no specific training is currently offered on the Financial Services and Markets Act 2000 (FSMA). Accordingly, no business purpose has been identified

[10]In the light of this the IC accepted the account of the CPS that such information covered by parts 1-7 of the request was not held.

[11]The IC concluded that (DN 46):

“Part 8 of the request in this case is for the information the CPS holds regarding the prosecution of a particular criminal case. The Commissioner is satisfied that it is information which is held in connection with criminal proceedings stemming from a specific investigation.”

[12]The IC then considered the public interest in disclosing or not disclosing the material relating to the case which was identified. He noted the specific arguments advanced by the Appellant in favour of accountability and transparency, but accepted the CPS position that these arguments had been tested in Crown Court and the Court of Appeal and found to be without merit. He noted the amount of material published by the CPS:

“The CPS already publishes a wide range of prosecution guidance relating to fraud and other offences”

. He noted the strong public interest in protecting the prosecution process (DN 52) To disclose the specific details of the case outside of the disclosure provisions associated with a criminal case would be entirely unfair to those witnesses, victims and complainant’s [sic] and could potentially deter them from showing such courage to make an allegation in the future.

[13]The IC upheld the CPS reliance on the exemption.

[14]In his appeal the Appellant provided considerable detail of the criminal proceedings which gave rise to his interest and advanced his view that more information should be provided. He argued “they should disclose as part of the FOIA response they have a duty to act in the public interest and failed in respect of 2006 and 2007 Mortgage Products authorised and regulated by the Financial Services Authority.”

[15]He considered that in relation to part 8 the public interest test should have favoured disclosure.

[16]In resisting the appeal the IC emphasised that whether information was held was a question to be determined on the balance of probabilities and the wording of these parts of the request and the explanation provided by the CPS were proper grounds for his conclusion that such information was not held. The IC emphasised the importance of upholding the exemption with its role in protecting witnesses and the integrity of the criminal justice process.

[17]In later submissions the Appellant argued: I ask the Tribunal to consider the responsibilities of the ICO to ensure the CPS act in the public interest and provide a full FOI response that accepts their failure to apply Financial Services and Markets Act 2000 legislation.

Consideration

[18]The Freedom of Information Act makes provision for the disclosure of information held in the records of public bodies; it does not require the production of new information. The appellant, in his prolix and impassioned statements, appears to have overlooked this.

[19]The focus of this information request is on how the CPS addresses the criminal law aspects of the Financial Services and Markets Act 2000. The questions imply the existence of guidance and training given to prosecutors on this area of law, it is clear however that CPS training is shaped by the development of legislation “For prosecution guidance, the CPS replaces information as legislation changes” and the “CPS training is directed at the highest priority areas, no specific training is currently offered on the Financial Services and Markets Act 2000 (FSMA). Accordingly, no business purpose has been identified”. The policy of record retention means that any material produced when FSMA was enacted has been destroyed. The IC’s decision is clearly correct, and there is no material held that matches the terms of the request. While the Appellant may have different priorities derived from his own personal interests those do not weigh significantly against the public interest in protecting the prosecution process.

[20]The Appellant implicitly acknowledges the weaknesses of his case when he argues that the CPS “provide a full FOI response that accepts their failure” however that is not the function of FOIA which is to supply information, not apologies – whether merited or not.

[21]This appeal is without merit and is dismissed. Signed Hughes Date: 29 December 2025