R (on the application of Al-Sweady and Others) v The Secretary of State for the Defence [2009] EWHC 2387 (Admin)

The Administrative Court has shown that it is ready to use its procedural powers under CPR r.8.6(3) to permit the cross-examination of witnesses who have given written evidence and that it expects proper and timely disclosure to be given to enable effective cross-examination to take place.

On 2nd October 2009, the Administrative Court felt compelled to provide case management and disclosure guidance to those involved in judicial review cases involving allegations of breaches of human rights.

The factual background of R (on the application of Al-Sweady and Others) v The Secretary of State for the Defence [2009] EWHC 2387 (Admin) was whether or not members of the British army killed or ill-treated Iraqis, whom they had taken prisoners on 14 May 2004, following a battle near to a permanent vehicle checkpoint known as Danny Boy, 5 kilometres north east of Majar al-Kabir on route 6 in Iraq. The Claimants sought an adequate and independent investigation into the alleged violations of their human rights under Articles 1, 2, 3 and 5.

The Administrative Court addressed the practical problem of how to resolve the factual disputes over infringement of human rights. At paragraph 19, Scott Baker LJ notes that the court was of the view that it was necessary to allow cross-examination of witness statement makers on “hard-edged questions where there is no room for legitimate disagreement.” He continued that,

19. …We envisage that such cross-examination might occur with increasing regularity in cases where there are crucial factual disputes between the parties relating to jurisdiction of the ECHR and the engagement of its Articles.

The Administrative Court acknowledged that an important consequence of the order for cross-examination was that it was critical that the public authority comply with its obligation to “make fresh disclosure to the court of the decision-making process”, and “to assist the court with full and accurate explanation of all the facts relevant to the issue the court must decide.” A failure to comply with this obligation impedes not only cross-examination, but greatly increases the costs of the administration of justice. At paragraph 23, the court accepts that this is a departure from the norm:

23. In practice, orders for disclosure in judicial review cases have usually been unnecessary, not only because the defendant normally complies with this well-recognised duty to make disclosure, but also because judicial review applications typically raise issues of law with the facts either not being in dispute or only being relevant to explain the context in which the issue of law arises.  The position is different in many human right cases brought under the ECHR because in Lord Bingham’s words, such cases :-
“tend to be very fact-specific and any judgment on the proportionality of a public authority’s interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts.  But even in these cases, disclosure should not be automatic.  The test will be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and accurately” (Tweed v Parades Commission for Northern Ireland ([2007] 1 AC 650, 654 [3]).

The approach to disclosure should be similar to ordinary Queen Bench disclosure where the court is involved in fact-finding on issues like allegations of breach of fundamental human rights (paragraph 27). Disclosure lists will be expected to comply with the parties’ disclosure obligations:
42. It must not be forgotten that Salmon J explained in Woods v Martins Bank [1959] 1 QB 55 at page 60 that “it cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court, to go through the documents disclosed by their client to make sure, as far as possible, that no relevant documents have been omitted from their client’s [list]”.  This duty requires a solicitor to take steps to ensure that their client knows what documents have to be disclosed.

The Administrative Court now expects parties to consider “at all times” whether an order for cross-examination and disclosure is necessary to assist with the resolution of crucial issues. Where agreement cannot be reached, a timely application must be made.

Morayo Fagborun Bennett