Workshop: Public law: cross-examination in judicial review proceedings

Cross-examination is unusual in judicial review proceedings. That proposition was accepted by counsel for the claimant in the recent case of R (Bancoult) v Foreign Secretary [2012] EWHC 2115 (Admin) where Lord Justice Stanley Burnton acknowledged that it is exceptional. But the judge nonetheless ordered cross-examination of HM Commissioner for the British Indian Ocean Territory and a civil servant at the FCO in that case.

The case is part of the long-running litigation by the Chagos Islanders, who had been removed by the government between 1965 and 1973 and since been excluded. It is a judicial review of a decision by the Foreign Secretary to declare a marine protected area around the islands which would prevent commercial fishing. The allegation is that the decision was made improperly, in order to hamper the return of the islanders by making it more difficult for them to sustain themselves if they returned.

Wikileaks had revealed a confidential and sensitive memorandum from the US Embassy to the State Department in Washington apparently recording a meeting with the commissioner in which it was stated that the commissioner had said that the protected area would 'put paid to resettlement claims of the archipelago's former residents'. The FCO did not admit or dispute whether the memo was genuine. The two witnesses said that they did not recall the meeting in sufficient detail to say what was said but explained that the quote did not reflect the UK's position at the time.

Fair and just

At the hearing of the application, before the substantive hearing, the claimant argued that there was a dispute as to what was said at the meeting which ought to be resolved by way of cross-examination. The Foreign Secretary submitted that, as relevant documentation had been disclosed, cross-examination was unnecessary '“ and also that it would be wrong to order cross-examination on the basis of documents unlawfully obtained by Wikileaks.

Stanley Burnton LJ accepted that the memo must have been obtained unlawfully. He went on to say, however, that, as it was before the court, the court would have to consider it at the substantive hearing. He concluded that the judicial review could not be fairly or justly determined without resolving the dispute about what happened at the meeting and whether the memo was a genuine record of the meeting '“ and that oral evidence and cross-examination was necessary in order to resolve that dispute. He therefore ordered that the commissioner and the civil servant should be subject to cross-examination.

The judge summarised the general position on cross-examination in judicial review in the following way. Cross-examination is exceptional because the primary facts are often not in dispute, or at least those asserted by the defendant authority are undisputed, and the authority may normally be relied upon to disclose relevant documents pursuant to its duty of candour. But, he said, the court retains a discretion to permit cross-examination and should do so if it is necessary for the claim to be, and be seen to be, determined fairly and justly.

Slight relaxation

This view could perhaps signal a slight relaxation in the approach previously taken by the courts, where cross-examination was allowed only where required by the interests of justice on a critical factual issue '“ and in practice has been permitted only extremely rarely. In Ghadami v Harlow DC [2004] EWHC 1883 (Admin) Richards J refused an application for cross-examination because it was not 'necessary for the just and proper disposal of the case'.

The formulation adopted by Stanley Burton LJ in Bancoult reflects the test set out by Lord Bingham in Tweed v Parades Commission NI [2007] AC 650 for disclosure in judicial review cases '“ a closely-related issue '“ namely whether it appears to be necessary in order to resolve the matter fairly and justly.

There have, however, been other cases where cross-examination has been allowed where there was an issue as to the real reason why a decision was taken (see e.g. R v Waltham Forest LBC, ex p Baxter [1988] QB 419; R v Derbyshire CC, ex p Times Supplements [1991] COD 129). There will be cases where justice simply cannot be done unless cross-examination is allowed.

Just because there is a dispute of fact does not mean that there should be cross-examination. The court can resolve the dispute based on the documents before it, where one account is more probable than the other. If the position is not clear-cut, the benefit of the doubt should be given to the defendant, and its version of events accepted, as the onus of proof is on the claimant.

Therefore, despite the decision in Bancoult a claimant seeking permission to cross-examine a defendant's witness in a judicial review will need particularly cogent reasons for wanting so to do before such an application can be said to be likely to succeed.