Otobo, R (on the application of) v Slough Borough Council

A public authority investigating suspected benefit fraud may invite a person to a voluntary interview without first disclosing all evidence underlying the suspicion. The absence of advance disclosure at that investigative stage does not, without more, breach Article 6 of the European Convention on Human Rights, disclosure rules, other cited Convention rights, or Article 47 of the Charter of Fundamental Rights of the European Union. Any issue concerning the use of interview material must be considered if criminal proceedings and a trial later occur. The procedure is fair where the person is told the substance of the allegation, may consult or have a lawyer present, and is not compelled to attend.

Slough Borough Council invited Mr Otobo to a voluntary interview concerning suspected fraud in his housing benefit and council tax claims. The council said that the interview would be tape-recorded and conducted under the Police and Criminal Evidence Act 1984, and that he could consult a solicitor and have one present. Mr Otobo sought disclosure of the evidence before attending, relying on Article 6, disclosure rules, other Convention provisions and Article 47 of the EU Charter.

HHJ Anthony Thornton QC, sitting as a Deputy High Court Judge, refused permission on the papers. The renewed application required the court to decide whether the proposed interview procedure involved an arguable breach of those rights or any unfairness.

1. Application dismissed. The renewed application for permission to apply for judicial review was dismissed. No order for the defendant’s costs was made because the court dealt with the matter solely on the claimant’s materials and submissions.
2. The council was entitled to invite the claimant to a voluntary interview while investigating whether suspected benefit fraud justified prosecution. The claimant had no obligation to attend, and the council was not legally required to provide advance disclosure of all documents said to give rise to the suspicion.
3. The process did not involve an arguable breach of Article 6. At this investigative stage no trial or legal proceedings had begun. The position could be reconsidered if an interview occurred and the claimant was later prosecuted: the use of interview material would then fall to be considered as part of the trial.
4. The procedure was not unfair. The claimant was to be told the details of the allegation at interview, could answer questions if he wished, could consult a solicitor, and could have legal representation present. The investigating officer could also decide what disclosure, if any, should be given before the interview.
5. The same reasoning disposed of the alleged breaches of the other cited ECHR articles, disclosure rules and Article 47 of the EU Charter. The court also held that the council’s failure to provide its skeleton argument before the hearing did not prevent a fair determination, since it was unnecessary to rely on that material.

High Court (Administrative Court): HHJ Anthony Thornton QC, sitting as a Deputy High Court Judge, refused permission to apply for judicial review on the papers. On renewal, the Administrative Court dismissed the application for permission.