14 August 2012 SJ 156/32 21 www.solicitorsjournal.com

workshop public law

Cross-examination is unusual in ju-dicial review proceedings. That proposition was accepted by counsel for the claimant in the recent case of R (Ban-coult) v Foreign Secretary [2012] EWHC 2115 (Admin) where Lord Justice Stanley Burn-ton acknowledged that it is exceptional. But the judge nonetheless ordered cross-exami-nation 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 litiga-tion 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 mak-ing it more difficult for them to sustain them-selves if they returned.

Wikileaks had revealed a confidential and sensitive memorandum from the US Em-bassy to the State Department in Washing-ton 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 suf-ficient detail to say what was said but ex-plained that the quote did not reflect the UK’s position at the time.

Fair and justAt 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 Sec-retary submitted that, as relevant documen-tation 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 neces-sary 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 posi-tion on cross-examination in judicial review in the following way. Cross-examination is exceptional because the primary facts are of-ten 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 pursu-ant to its duty of candour. But, he said, the court retains a discretion to permit cross-ex-amination and should do so if it is necessary for the claim to be, and be seen to be, deter-mined fairly and justly.

Slight relaxationThis view could perhaps signal a slight re-laxation in the approach previously taken by the courts, where cross-examination was al-lowed 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 applica-tion for cross-examination because it was not “necessary for the just and proper disposal of the case”.

The formulation adopted by Stanley Bur-ton LJ in Bancoult reflects the test set out by Lord Bingham in Tweed v Parades Commission NI [2007] AC 650 for disclosure in judicial re-view 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 rea-son 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-exam-ination. 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 Ban-coult 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 applica-tion can be said to be likely to succeed.

As an exceptional step in judicial review proceedings, an application for cross-examination must show it is necessary for the claim to be determined fairly and justly, says Richard Honey

Cross-examination in judicial review proceedings

Richard Honey is a barrister at Francis Taylor Building (www.ftb.eu.com)

Chagos islanders dispute decision process

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