Haw, R (on the application of) v Southwark Crown Court & Ors

In managing a judicial review application, the court may direct disclosure and evidence necessary for the fair determination of the issues, while refusing requests that are speculative, disproportionate or irrelevant. Legal professional privilege provides a proper basis for resisting disclosure of legal advice. The court should not make an interim order whose practical effect would place a claimant in breach of the law, particularly where the relief sought can be achieved lawfully by an alternative arrangement. Questions concerning the scope of cross-examination are ordinarily best determined by the court hearing the substantive application.

The claimant sought numerous directions in pending judicial review proceedings concerning the seizure of demonstration property. The requests included disclosure, transcripts, recordings, interim restoration of the property, and the exclusion or cross-examination of evidence. The Commissioner responded to the requests, asserting privilege over legal advice and offering to return the property at a location other than Parliament Square.

The Divisional Court determined the directions sought and considered whether the requested procedural steps were necessary for the fair disposal of the substantive application.

1. Directions and disclosure. The court ordered or recorded disclosure where the material was potentially relevant and necessary, including the Commissioner’s bundle, rebuttal material, a video, a transcript of the Crown Court hearing, and any existing debriefing note. It declined speculative requests for investigations into communications with No 10 Downing Street and related recordings, because there was no evidential basis for them.
2. Privilege and evidence. The Commissioner was entitled to resist disclosure of legal advice on the basis of legal professional privilege. The evidence of DAC Allison was not inadmissible: it had been served within the permitted period and was not irrelevant. The Interested Party was entitled to cross-examine her on her claimed belief that the seizure was lawful, although the permissible scope of cross-examination would be determined at the substantive hearing.
3. Transcripts and reasons. The court refused to order transcripts of hearings where they could not assist with the issues, including a hearing concerning interim relief. A proposed direction requiring a judge to give reasons for refusing interim relief was beyond the court’s power and inappropriate.
4. Interim restoration. The court refused to order the immediate return of the property to Parliament Square. Under the revised conditions, the demonstration there would be unauthorised, and an order requiring the police to return the property there would therefore facilitate a breach of the law. Since the Commissioner offered return elsewhere, the requested interim order was inappropriate.

• Southwark Crown Court: The claimant referred to proceedings before HH Judge Rivlin QC in October 2007.
• Administrative Court: A hearing before Lord Phillips of Worth Matravers CJ is referred to as [2007] EWHC 1931 (Admin).
• Administrative Court: The present Divisional Court determined directions in the pending judicial review and refused interim restoration of the property to Parliament Square.