Sheelagh Casey-Hulme v The Information Commissioner & Anor [2026] UKUT 119 (AAC)

“The Secretary of State for the Environment, Food and Rural Affairs is requested to provide all information that he has with respect to Walley’s Quarry Landfill site, Cemetery Road, Silverdale, Newcastle-under-Lyme, including but not limited to all communications he has had with the Environment Agency relating to this Landfill site.”

“Determining whether the information is held, Locating the information, or a document which may contain the information, Retrieving the information, or a document which may contain the information and Extracting the information from a document containing it.”

“12 (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if – (a) An exception to disclosure applies under paragraphs (4) or (5); and (b) In all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. (2) A public authority shall apply a presumption in favour of disclosure. (3) […] (4) For the purposes of paragraph 1(a), a public authority my refuse to disclose information to the extent that – … (b) the request for information is manifestly unreasonable.”

“The starting point is that the EIR must be interpreted, as far as possible, in the light of the wording and the purpose of the Directive, which itself gives effect to international obligations arising under the Aarhus Convention. In Case C-297/12 Fish Legal v Information Commissioner [2014] QB 521, [2014] 2 CMLR 36 the CJEU stated: “35. First of all, it should be recalled that, by becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of EU law, a general principle of access to environmental information held by or for public authorities: see Ville de Lyon v Caisse des dépôts et consignations (Case C-524/09) [2010] ECR I-14115, para 36 and Flachglas Torgau GmbH v Federal Republic of Germany (Case C-204/09) [2013] QB 212, para 30. “35. First of all, it should be recalled that, by becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of EU law, a general principle of access to environmental information held by or for public authorities: see Ville de Lyon v Caisse des dépôts et consignations (Case C-524/09) [2010] ECR I-14115, para 36 and Flachglas Torgau GmbH v Federal Republic of Germany (Case C-204/09) [2013] QB 212, para 30. 36. As recital (5) in the Preamble to Directive 2003/4 confirms, in adopting that Directive the EU legislature intended to ensure the consistency of EU law with the Aarhus Convention with a view to its conclusion by the Community, by providing for a general scheme to ensure that any natural or legal person in a member state has a right of access to environmental information held by or on behalf of public authorities, without that person having to state an interest: see the Flachglas Torgau case, para 31. 37. It follows that, for the purposes of interpreting Directive 2003/4, account is to be taken of the wording and aim of the Aarhus Convention, which that Directive is designed to implement in EU law: see the Flachglas Torgau case, para 40.”

“80. With respect to the Appellant’s submissions concerning Articles 2 and 8 of the Human Rights Convention, we take the view that these Articles are irrelevant to the public interest test under EIR, which is intended to protect public interests and not private rights. Consequently, we have not factored them into our considerations.”

“49. Thirdly, the Judge found that there was a real and immediate risk to life in Mathew’s case as there was a substantial and significant risk of Mathew’s life expectancy being reduced by Mathew developing chronic obstructive pulmonary disease as a result of exposure to current levels of hydrogen sulphide (see paras 53—56 of the judgment). That is one of the necessary requirements that must be met as part of the process of establishing a breach of article 2 of the Convention. There is no appeal against this finding. 50 Fourthly, the Judge found that the levels of hydrogen sulphide gave rise to adverse environmental pollution that had a direct effect on Mathew’s home, and his family and private life and which attained the relevant minimum level of severity by reason of its intensity and duration and the physical and mental effects it caused (see para 57 of the judgment). These are necessary requirements which must be met as part of the process of establishing an interference within the meaning of article 8(1) of the Convention. There is no appeal against this finding.”

“89. The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 71 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life … 90. This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among these preventive measures, particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. The Grand Chamber agrees with the Chamber (see paragraph 84 of the Chamber judgment) that this right, which has already been recognised under Article 8 (see Guerra and Others, cited above, p. 228, § 60), may also, in principle, be relied on for the protection of the right to life, particularly as this interpretation is supported by current developments in European standards (see paragraph 62 above).”

“… [It] should also be noted that the right of access guaranteed by Directive 2003/4 applies only to the extent that the information requested satisfies the requirements for public access laid down by that directive, which means inter alia that the information must be ‘environmental information’ within the meaning of Article 2(1) of the directive, a matter which is for the referring tribunal to determine in the main proceedings (Flachglas Torgau, paragraph 32).”

“With respect to the Appellant’s submissions concerning Articles 2 and 8 of the Human Rights Convention, we take the view that these Articles are irrelevant to the public interest test under EIR, which is intended to protect public interests and not private rights. Consequently, we have not factored them into our considerations.”

“4. The Claimant now brings a further judicial review. It is submitted that the EA is in breach of its positive operational obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR) for the period January 2022-November 2024 when the Closure Notice (CN) was served. The remedies that the Claimant was seeking by the end of the hearing were: a. A declaration that the EA was in breach of its positive obligations under Articles 2 and 8 ECHR between January 2022-November 2024 (“the relevant period”); b. A declaration that EA owes positive obligations under Articles 2 and 8 ECHR to take reasonable and appropriate measures to reduce Hydrogen Sulphide (H₂S) emissions from the Site to accepted health guidance levels and must exercise its powers under Regulation 57 Environmental Protection Regulations 2016 (EPR) compatibly with those ongoing obligations.”

“Mathew’s life expectancy remains shortened due to ongoing exposure to pollution from Walley’s Quarry. His failure to achieve catch-up lung growth, demonstrated by his reduced lung function, keeps him on a trajectory to develop COPD at an early age … Although the major structural injury has already occurred, continued exposure to airborne pollutants from Walley’s Quarry would accelerate his lung function decline, worsening his long-term prognosis, and reducing his life expectancy.” 134. I do not in any way wish to minimise the impact of the Site emissions over the period in question on the Claimant’s quality of life and health, but it is important to maintain the distinctions between the duties that arise under different Articles in the ECHR. The Claimant’s case does not reach the threshold for engagement of Article 2 positive obligations as explained in Rabone and Richards (1). I appreciate that I am, to some degree, disagreeing with the conclusion reached by Fordham J, that was not expressly overruled by the Court of Appeal. However, I have Dr Sinha’s Addendum Report, the factual changes since 2021, and the legal tests set out by the Court of Appeal. 135. For these reasons I find that the positive obligation under Article 2 was not triggered in respect of the Claimant in the period from January 2022 until the closure of the Site in November 2024.” “Mathew’s life expectancy remains shortened due to ongoing exposure to pollution from Walley’s Quarry. His failure to achieve catch-up lung growth, demonstrated by his reduced lung function, keeps him on a trajectory to develop COPD at an early age … Although the major structural injury has already occurred, continued exposure to airborne pollutants from Walley’s Quarry would accelerate his lung function decline, worsening his long-term prognosis, and reducing his life expectancy.”

“136. There is no dispute that the EA’s positive obligations under Article 8 were engaged in the regulation of the Site. The impact on the Claimant’s (and many others’) private life is manifest. The number of complaints about this Site over a prolonged period is extremely striking. The figures of complaints, breaches of licence conditions, and the EA resources committed to the Site, all suggest that this was the most problematic Landfill Site in England. This was the only Landfill Site which fell within Band F (more than 150 non-compliance points) in every year between 2021-24. It also had by far the highest number of complaints of any site in England. 137. The test under Article 8 is whether the authorities, here the EA, have acted with due diligence, whilst ensuring that the Court respects the role of the regulator in choosing the means to apply and does not impose a disproportionate burden. In applying that test the effectiveness of the action that was taken is material. This is apparent from a number of the Strasbourg authorities, including Stoicescu and Kapa. The degree to which the efforts or diligence of the regulator is effective will necessarily go to whether or not those efforts amounted to “due” or sufficient diligence. However, there is no simple linear relationship between the fact that the regulatory efforts were ineffective, as was the case here by the summer of 2024, and there necessarily being a breach of Article 8. 138. In determining whether there was a breach of Article 8, some assistance can be drawn from applying the tests set out in in Bank Mellat v HM Treasury (No 2) [2014] AC 700 (at [20] (Lord Sumption JSC) and [74] (Lord Reed JSC)), on whether the requirements of proportionality under Article 8 have been met. There are four questions to be asked: (i) Is there a sufficiently important objective which the measure pursues? (ii) Is there a rational connection between the means chosen and that objective? (iii) Are there less intrusive means available? (iv) Is there a fair balance struck between the rights of the individual and the general interests of the community? 139. In deciding whether the EA has acted with due diligence it is, in my view, relevant to consider whether if the EA had taken more draconian action against the IP there would have been a valid argument that less intrusive means should have been employed; and whether a fair balance has been struck between the interests of the local residents, those of the operator, and the resource implications for the EA in terms of its overall regulatory functions. 140. Further, the determination of whether the EA acted with due diligence has to be applied to the evidence available to the EA at the time the actions were taken, rather than with the benefit of hindsight. That is, in my view, critical in this case. With the benefit of hindsight, it is apparent that the IP was (certainly by 2023/4) bringing large amounts of contaminated material onto the Site and was, in all likelihood, deliberately avoiding regulatory control, and that this new material was a primary cause of the emissions. The issue for the purpose of determining whether there was a breach of Article 8 is the degree to which the EA knew or ought to have realised the relationship between the breaches of regulatory control and the cause of the emissions, and therefore whether they acted with due diligence at the relevant times. 141. In my view, throughout the relevant period the EA knew or ought to have known that it was likely that significant quantities of waste contaminated with gypsum were being brought onto the Site. The evidence, not least that relied upon by Mr Lewis, points inexorably to that conclusion. 142. The Waste Producers Audit in April 2022 showed that waste operators using the Site were not conducting proper screening of the material that they were sending to the Site, and that the material was, or was likely to be, contaminated. The audits in respect of JJC are set out above, and they show a series of breaches of screening procedures in the first half of 2022 and a lack of effective action by the EA. As far as I can tell from the material, there was no reason to believe that by June 2022 JJC, as but one example, had effective screening processes in place. Mr Lewis submits that that showed contaminated material at the transfer sites and not the Site itself. But once the EA knew that the producers were not screening properly, then it logically followed that contaminated material was coming onto the Site in material amounts. 143. Quite apart from that evidence, the EA knew that the very nature of the material being handled on Site was of a type where there was a significant risk of contamination. 144. Next, the EA knew that the IP did not have effective screening processes at the Site gate to ensure that if contaminated material was sent by the producers it would not be allowed onto the Site. That was apparent from the Site Audits. 145. Further, the EA had the evidence of the whistleblower that the IP was an operator that was prepared to knowingly breach regulatory control, and to work with waste producers to avoid effective scrutiny. I do not accept that the fact that the whistleblower’s evidence did not directly relate to gypsum contamination changes that conclusion. The EA was on notice of the type of operator it was dealing with and therefore the obvious risk that serious breaches were occurring. 146. In terms of considering due diligence by the EA, there is no doubt that they put a great deal of regulatory resource into this Site. The evidence of Mr Hitchings suggests that a very significant proportion of enforcement and regulatory assets held by the EA in the relevant region were devoted to actions concerning the Site. In terms of the proportionality of the effort and resources devoted to the Site, I do not think the EA can be criticised. 147. Under both Grounds, the issue comes down to whether the lack of effectiveness, in other words the fact that by 2024 the emissions were little better than they had been in 2021, meant that the EA had failed to meet their positive obligation under Article 8(2). There are, in effect, two parts to the EA’s defence. 148. Firstly, Mr Lewis submits that the EA had good reason to believe that the actions it was taking, in terms of improving the capping and management of the Site, were being largely effective. This led them to believe that it was existing contamination on the Site that was the principal reason for the ongoing emissions problems. Having examined the monitoring results, the heat maps, and the overall state of knowledge, I consider this to have been a reasonable conclusion. The monitoring showed considerable improvements in terms of emissions until they spiked again in the winter of 2023/24. The heat maps, as I have explained above, seemed to indicate that the primary problem was not in the area of new deposits, again until the winter of 2023/24. 149. In my view the EA can be criticised for being too focused on there being one principal reason for the emissions and not taking more robust action in respect of new material. However, in circumstances where there was evidence suggesting that capping was being reasonably effective in reducing fugitive emissions, their actions were not unreasonable. 150. Although I am sure that from the residents’ perspective the time involved must have seemed interminable, if one judges the time periods in this case against those cases where the ECtHR has found a breach of Article 8, the delay in taking effective action here was significantly less. The Court of Appeal ruled in Richards (1) in January 2022, and the CN was ultimately served in November 2024. In that period the EA took multiple actions and in the period leading up to the summer of 2023 those actions appeared to have significantly improved the situation. 151. In respect of Ground One, it is particularly important not to judge the EA’s actions with the benefit of hindsight. It is now apparent that new contaminated material was being brought onto the Site, probably in large quantities, certainly by 2023. But during the period 2021-23 that was not apparent from the limited sampling that was done, and the evidence pointed to the primary cause being emissions from existing waste. 152. In respect of Ground Two, the failure to ensure proper capping of the Site, the EA took many regulatory steps to try to ensure that this was done. One might criticise, particularly with the benefit of hindsight, the focus of some of their efforts, but within the parameters of Article 8(2) they acted with due diligence. 153. With the benefit of hindsight it is easy to see that the EA should have moved more quickly to close the Site, to stop new material entering and to force the IP to properly cap. However, the duty on the EA was to act proportionately. On the evidence that they had before 2023 there was a significant risk that if they had served a CN, or taken other steps, to absolutely stop new material coming on Site, they would not have been successful on appeal. Applying Bank Mellat, the IP would inevitably have argued that there were less intrusive means open to the regulator and might well have been successful on the evidence. 154. For all those reasons I do not find that there has been a breach of Article 8(2) by the EA through the relevant period. 155. In terms of the declaration of on-going duties under Article 2, I do not consider it appropriate to grant such a declaration.”

“59. The case Mr Moss seeks to advance is one that depends on his Article 10(1) right being engaged precisely because he says that right includes the right of access to public information. He is not arguing for a right to receive or impart information but to gain access to information in order to receive and then impart it. As demonstrated above, Magyar has expanded the understanding of Article 10(1) so that as matter ECtHR law it now covers, albeit in limited circumstances, a right of access to information. This was not disputed before me. However, the view of five members the Supreme Court in Kennedy, as well as the Court of Appeal in Kennedy and two if not three members of the Supreme Court in Sugar (No.2), in my judgment, is that domestic law does not consider Article 10(1) extends to include a right of access information, and I consider myself bound by the rules of precedent to follow this view.”

“104. I turn therefore to the third aspect of the first ground of appeal arising from Magyar. This aspect of the first ground of appeal assumes, contrary to the above, that Magyar does apply in domestic law and that Mr Moss’s right to freedom of expression under Article 10(1) was engaged as that right had been interfered with because the information requested was ‘ready and available’. The argument here is whether it is section 12 of FOIA which causes this interference and thus may breach Mr Moss’s Article 10 rights (ignoring justification under Article 10(2)). 105. Both respondents argue section 12 does not have this role because FOIA is not the exclusive manifestation in domestic law of a right to access information. If Part 1 of FOIA is satisfied then it requires that the information be provided by the public authority. However, so the respondents argue, the dissatisfaction of Part 1 of FOIA because the exemption in section 12 of FOIA applies does not mean Kingston upon Thames was precluded as a matter of law, including under FOIA, from providing the information. Section 12 being satisfied simply meant that the Kingston on Thames was not required to provide the information under FOIA but it did not prohibit Kingston on Thames from choosing to provide it. 106. Moreover, even this is only the position under FOIA and section 78 of that Act expressly provides that nothing in FOIA may limit the powers of a public authority to disclose information under any other legal powers vested in it. The respondents argue that the ratio of the Supreme Court’s decision in Kennedy applies equally here and rely on the Localism Act 2011 as a source of a legal power under which the public authority could have been asked to disclose the information. 107. The headnote to Kennedy in the official law reports (see paragraph 48 above) supports the respondents’ arguments on this point about FOIA not being an exhaustive scheme for disclosure of information … … 109. Although the issue in Kennedy was concerned with an absolute exemption under section 32 of FOIA, I do not read its ratio as being confined to such cases. At this stage in the analysis in Mr Moss’s case (on the assumption it can be reached) his request for information under FOIA had been refused because of section 12 of FOIA and that was to the same effect as Mr Kennedy being denied information under section 32 of FOIA. The central ratio of Kennedy is that the structure of FOIA is not such that a refusal to provide information under it is exhaustively determinative of the right to the information in domestic law. As such FOIA alone cannot necessarily be said to breach any Article 10 rights. 110. I broadly accept the respondents’ arguments that this analysis applies in this case. It is for Mr Moss to show that it is section 12 of FOIA which interferes with his right under Article 10 of the ECHR. However, he is unable to do so because it has not been shown that FOIA provided Mr Moss with the sole legal basis for obtaining the information he was seeking. Kennedy is plainly authority that FOIA does not provide the exclusive and exhaustive legal means of accessing information in domestic law. Moreover, section 78 of FOIA makes clear that nothing in FOIA may limit a public authority from using other powers to disclose information held by it. Mr Moss’s case on this statutory appeal brought under FOIA is, and must be, that it is section 12 of FOIA alone which causes the interference with his right under Article 10(1). However, following and applying Kennedy, the argument ends at this point because he has failed to establish that this is the case. Put another way, section 12 of FOIA did not as matter of domestic law prohibit the information being provided to Mr Moss (it merely removed any obligation for it to be provided under FOIA), and so cannot be said to be the source or cause of the interference with any Article 10(1) rights of Mr Moss.”

“82 We decline to reach the conclusion that a right of access to information exists in English law. There is no binding domestic authority to that effect. We agree with the conclusion of Judge Wright in Moss and would gratefully adopt his reasoning which is detailed and thorough. We agree with Mr Knight that there would be no purpose in revisiting the reasoning in Moss which would amount to revisiting the reasoning in Kennedy [2015] AC 455 and Sugar [2012] 1 WLR 439 which followed full argument in the Supreme Court. We agree with Sir James that Mr Callus’s submissions in any event fail to deal with the qualified nature of article 10 rights and fail to deal with how the carefully calibrated scheme of FOIA yields any disproportionate interference with the rights in article 10(1) which would be a necessary condition of any infringement. We do not agree that anything in FOIA is capable of lessening (as opposed to enhancing) the right to information contained in sensitive material, and do not accept that the interpretation which we have reached is incompatible with the requester’s article 10 rights.”

“30. The Appellant refers to the substantial environmental and health issues surrounding the site and the resultant public law cases taken by residents. She refers to R (Richards) v Environment Agency [2022] Env LR 14 where the health impacts from the landfill emissions were set out. … 40. The quarry has been the subject of two applications for judicial review, which sought unsuccessfully to establish that the management of the situation by the EA and/or Defra was unlawful or in breach of the state’s positive obligations under Articles 2 and 8 of the Human Rights Convention (see R (Richards) v Environment Agency [2022] EWCA Civ 26; R (Lally) v Secretary of State for Environment, Food and Rural Affairs and the Environmental Agency (unreported, 27 October 2022).”

“76. We again took account of the factors set out under Ground 1, given the overlap of considerations. 77. Whilst we accept that the health and wellbeing issues are serious, taking account of what was already in the public domain at the time, we are unclear as to what benefit there would be to the public interest in disclosing the requested information. 78. On the other hand, diverting such significant public resources away from Defra to deal with the request would clearly not be in the public interest. 79. Balancing the two, we conclude that the public interest in maintaining the exception outweighs the public interest in disclosing the information.”

“The public interest test 30. Defra acknowledged the public interest in disclosure of information concerning the Walley’s Quarry Landfill site. It stated that this is why the EA prepares a weekly update to help the community of Newcastle under-Lyme and the wider area keep informed about developments concerning its regulation of the site. 31. It recognised that disclosure would contribute to the transparency of government and that releasing information in relation to this matter would aid public debate and aid the public to understand more closely the discussions that are taking place. 32. However, Defra considers the public interest rests in maintaining the exception despite the compelling arguments in favour of disclosure in this case. It said that the request is so broad, it incorporates a substantial amount of recorded information. The estimate detailed above is significant, yet it still does not identify and take account of all the potential recorded information it holds on the matter. Identifying, gathering information in scope, then reviewing it and carefully considering any potential exceptions under the EIR as a result on the current and ongoing EA investigation would place a substantial and manifestly unreasonable burden on Defra in terms of time and cost. It would need to consult the EA on the information too and considering the mass array of information in scope this would be a huge task. Defra argued that compliance would, therefore, disproportionately divert Defra’s resources away from the provision of other services and key functions. 33. Defra also said that there are regular updates on the EA’s website about the site and what is being done. The local authority also provides similar updates on its website. The EA are currently investigating matters at the site as well. It considers these actions go some way to meeting the public interest arguments identified. 34. The Commissioner considers there are very compelling arguments in favour of disclosure in this case, considering the concerns the complainant has raised in respect of the impact of the site on public health. Disclosure would enable the local community to understand more closely what is being done to mitigate the impacts of this site and further the public’s understanding in this area and debate around it. Where environmental information is concerned, the Commissioner expects public authorities to accept a higher level of burden in terms of complying with requests for information to those considered under FOIA due to nature of the information at hand. 35. However, the Commissioner considers this is a balancing exercise – weighing up the impact compliance would have on the public authority’s time and resources and the identified public interest arguments in favour of disclosure. There are clear and significant public interest arguments in favour of Defra complying with this request and disclosing what information it is able to. That being said there still remains weighty public interest arguments in favour of protecting the resources and time of a public authority where a request would be so burdensome, costly and time consuming to process. It is not in the public interest to divert resources away from the public authority’s other functions and services when compliance would take such a significant amount of time. 36. In this case, it has been shown that at a rate of two minutes per document (which is very conservative) it would take Defra 122 hours to collate and review the recorded information it has identified so far and this is not all the recorded information Defra potentially holds. This is significant and only goes to highlight just how much recorded information potentially falls within the broad nature of this request and what compliance would involve. Despite the clear public interest in the information, this would place an overwhelming burden upon Defra in terms of time and expense and despite its size and the resources available to it this cannot be justified. It would have to disproportionately divert a huge amount of time and resources away from other functions in order to comply and on this scale, the Commissioner is satisfied that this is not in the wider interests of the public. 37. For the above reasons, the Commissioner has decided that the public interest in favour of disclosure is outweighed by the public interest in favour of maintaining the exception.”

“2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled: i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. … 65. This appeal demonstrates many features of appeals against findings of fact: i) It seeks to retry the case afresh. ii) It rests on a selection of evidence rather than the whole of the evidence that the judge heard (what I have elsewhere called "island hopping"). iii) It seeks to persuade an appeal court to form its own evaluation of the reliability of witness evidence when that is the quintessential function of the trial judge who has seen and heard the witnesses. iv) It seeks to persuade the appeal court to reattribute weight to the different strands of evidence. v) It concentrates on particular verbal expressions that the judge used rather than engaging with the substance of his findings. 66. I re-emphasise the point that it is not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence. Whether we would have reached the same conclusion as the judge is not the point; although I am far from saying that I would not have done.”