The Administrative Court has emphasised the importance of the duty of candour in judicial review proceedings, and found a breach of that duty by the Secretary of State in R. (on the application of HM) v Secretary of State for the Home Department  EWHC 2729 (Admin). The two joined claims concerned the Home Office’s unpublished and unlawful blanket policy in relation to the seizing of all mobile phones from migrants crossing in small boats.
- The court emphasised that the duty of candour imposes on the state “a positive duty” to provide accurate information.
- This requires both clear and accurate instructions to legal teams and proper engagement with the preparation of evidence and submissions in judicial review proceedings.
- Despite acknowledging the challenging wider circumstances presented by the pandemic amongst other factors, the court held that this was no excuse for unlawful conduct and lack of candour.
At the outset of the proceedings, the Home Office’s legal team understood that the unlawful policy (which had been the subject of the original judicial review claims) had been discontinued in June 2020 and replaced with a lawful policy of targeted seizing. This understanding was incorrect. Although the policy did undergo changes in the months following June 2020, aspects of it remained unlawful until November 2020. As the first of the two judicial review claims concerned a seizure which took place after June 2020 but before November 2020, the legal team erroneously believed that the claimant’s phone had been seized pursuant to a lawful policy. Holding this view, the legal team decided that it was appropriate not to disclose that an unlawful policy of blanket seizure had existed at any time, and robustly defended the case suggesting that the allegation of a blanket policy was fanciful.
Turning to the legal background, the court emphasised the fundamental importance of the duty of candour in judicial review proceedings, which imposes “a positive duty” to ensure that the court is “supplied with all the information necessary to determine a case accurately.” This is so that the court can “adjudicate on issues involving the state without deciding facts or engaging in disclosure processes” which, considering the nature of public law, would be onerous and time-consuming were they to be required.
Whilst the principal legal authorities on the duty of candour are well-established, the court also referred to the guidance published by Treasury Solicitors Department in January 2010 (see here) as a source of “sound advice” on the subject. In particular, the court highlighted the section confirming that the duty of candour “applies to every stage of the proceedings”, including before the permission stage.
The court found that the principal failure in relation to the duty of candour was the decision not to disclose that there had been an unlawful policy, about which the legal team knew, thereby failing to provide an accurate and complete picture of the case to the claimants and the court. This was a “collective error of judgment“. Furthermore, the court suggested that had an accurate case been put forward, any misunderstanding in relation to the facts of the case would have been resolved much earlier.
The court commented that it was the “surprising failure to provide accurate factual instructions to the legal team” which was the origin of the subsequent failures of those acting on behalf of the Secretary of State. In particular, the court noted its surprise, given that when the challenge was brought, the government lawyers were in direct contact with the officers who were “at almost exactly the same time” involved in discussions about necessary changes to the policy. Recounting the chronology of events, the court noted a number of missed opportunities for the confusion to be resolved in which they were not. This was due to a consistent and widespread absence of clear instructions to the legal team, and a less than rigorous engagement on the part of the Home Office with the draft documents and updates being circulated by the legal team.
The court recognised the various contextual factors which may have contributed to the failings, including the great pressure the participants were under due to the migrant crisis, and the related need for events to move quickly. Furthermore, opportunities to meet face-to-face continued to be restricted by the pandemic. Under these circumstances, there was “a failure to take appropriate steps to ensure that what was done [i.e. the creation and implementation of policy] was being done lawfully, and thereafter […] to conduct rigorous enquiries to establish before making statements in the proceedings what the truth was.” In summary, whilst the court agreed that these factors offered an explanation for the origin of the unlawful conduct and lack of candour, it did not consider that they offered an excuse.
As a consequence of the breach of the duty of candour, and following an apology from the Secretary of State, the parties reached an agreement that the Secretary of State must pay some of the claimants’ costs for the linked judicial review claims on an indemnity basis.
In keeping with a line of post-pandemic judicial reviews, the court has again maintained that exceptional circumstances such as the pandemic or political crisis do not necessarily permit public bodies to dispense with rigorous internal checks and the proper following of processes. The strongly worded judgment acts as a reminder to legal teams and instructing parties alike of the importance of clear and accurate instructions and the need to stay actively and critically engaged throughout the proceedings.