In R (Al-Sweady and Others) v Secretary of State for Defence [2009] EWHC 2387 (Admin), the High Court found that where the outcome of a judicial review application might depend on the determination of a factual dispute, the court should give urgent consideration to ordering disclosure and cross-examination. The court's comments (Lord Justice Scott Baker giving the judgment) are significant because generally in judicial review cases there is no formal disclosure process and no oral evidence.

Key points

  • Where there are "hard-edged" questions of fact in issue, the correct approach for the court may be to order disclosure of documents and cross-examination of witnesses to ensure that the truth of the matter in issue is established.
  • This approach constitutes an important exception to the usual rule that, in an application for judicial review, facts in dispute are resolved (often in favour of the defendant) with no recourse to oral evidence.
  • Such an approach is likely to be most frequently encountered in human rights cases, due to their often fact-specific nature, and the importance of assessing alleged interferences with such rights by reference to a careful evaluation of the relevant facts. The court envisaged that cross-examination of witnesses might occur "with increasing regularity" in cases involving crucial factual disputes between the parties relating to jurisdiction of the ECHR and the engagement of its Articles.
  • The court made an award of indemnity costs against the Secretary of State to reflect the "persistent and repeated" failures to comply with his duties of disclosure. Although the circumstances of this case were unusual, it should serve as a reminder to defendants in judicial review cases of the importance of the duty of candour.

Background

Six Iraqi nationals sought an investigation into alleged breaches of their rights under the European Convention on Human Rights ("ECHR") by British troops in Iraq in 2004. The first claimant (Al-Sweady) contended that his nephew had been murdered while detained, in breach of Article 2 ECHR. The second to sixth claimants contended that they had been mistreated, in breach of their Article 3 rights, whilst being detained, and that their continued detention breached Article 5. Finally they contended that there had been no proper investigation of their claims.

The court considered that there were five important factual issues in dispute, the determination of which was bound to be crucial in deciding which party was to be successful. The first was whether Mr Al-Sweady had died on the battlefield (as the Secretary of State contended) or had been murdered whilst under British detention; it was only if the latter was the case that the ECHR could be invoked. The second issue was whether the other claimants had in fact been mistreated such that their rights under Article 3 had been breached. The third was whether their detention was unjustified and so a breach of Article 5. The fourth was whether the subsequent transfer of the claimants to the Iraqi authorities constituted a further breach of Article 3 in that there were substantial reasons for believing the claimants would be subjected to mistreatment by those authorities. The final issue was whether the claims had been properly investigated.

The main relief sought by the claimants in the judicial review proceedings was for the court to order an adequate and independent investigation into the alleged violations of Articles 2 and 3 ECHR. The Secretary of State contended that there had been no breaches of human rights, and that in any case there had been a proper investigation by the Royal Military Police, or alternatively that the hearing of the judicial review application itself constituted such investigation.

Factual disputes in judicial review

The court noted that the importance of the factual issues in this case presented a difficulty, given that usually in judicial review cases there is no oral evidence, and, insofar as there are factual disputes between the parties, the court is ordinarily obliged to resolve them in favour of the defendant. The court found that if this approach had been taken in Al-Sweady, the Secretary of State would have succeeded. Furthermore, the court noted that this would have had the more far-reaching effect that a defendant would always succeed if sued for an infringement of human rights which was disputed. A different approach was needed in a case such as this where there were "hard-edged" questions of fact in issue. In such circumstances it was necessary to allow cross-examination of makers of witness statements on those questions of fact.

A consequence of the orders for cross-examination was that disclosure was needed for effective and proper cross-examination to take place. Otherwise the evidence of the witnesses could not be properly challenged. This represented a further departure from the general rule in judicial review cases, where there is no formal disclosure process. In cases such as this, the court noted that the approach to disclosure should be similar to that in an ordinary Queen's Bench action.

Judicial review and human rights

The court took the view that this approach to cross-examination and disclosure might occur with increasing regularity in human rights-related judicial review cases. This is because human rights cases tend to be very fact-specific. Regular readers of this e-bulletin may recall the House of Lords' decision in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, in which it was held that disclosure may be required in human rights cases because any judgment on the proportionality of an interference with a Convention right is likely to call for a careful and accurate evaluation of the facts.

By contrast, most other judicial review applications typically raise issues of law, with the facts not being in dispute. In the case of Al-Sweady, the importance of cross-examination and disclosure was heightened because the allegations concerned some of the most important and basic rights under the ECHR.

The Secretary of State's failure to disclose

The Secretary of State was strongly criticised for his "lamentable" approach to disclosure. In normal circumstances, orders for disclosure in judicial review cases have been largely unnecessary, mainly because public body defendants are aware of their well-recognised duty to make disclosure. The Secretary of State was found to have failed in this duty. Following a series of requests for disclosure by the claimant's solicitors, four days prior to the adjourned hearing the Secretary of State informed the court that the searches conducted had not been effective and that he could not assure the court that all material documents had been disclosed. In the light of this, the proceedings had to be stayed and the claimants were granted their relief.

Comment

Al-Sweady demonstrates circumstances in which there may be exceptions to the general rules against disclosure and cross-examination of witnesses in judicial review proceedings. The court expressed the view that the parties and the court should always scrutinise with care the stance of parties in judicial review claims, particularly those involving ECHR issues, to ascertain whether there is any critical factual issue which requires orders for cross-examination or disclosure. It also recommended that courts should not be reluctant to make such orders in suitable cases, which are especially likely to arise in human rights-based claims. Particularly coming as it does after the House of Lords comments in Tweed, this decision is an important reminder that in exercising its case management powers in judicial review cases, the court has flexibility and can and should depart from the general procedure where this is necessary in order to resolve a case fairly and accurately.