Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Cross-examination in judicial review proceedings is exceptional, but the court may order it where it is necessary for the claim to be determined, and seen to be determined, fairly and justly. That need may arise where there is conflicting evidence about an alleged improper purpose and the dispute cannot fairly be resolved from documents alone. Material obtained unlawfully may nevertheless be considered where it is before the court and no claim of public interest immunity or equivalent exclusion has been made. The court must assess whether the material is genuine and what evidential weight it should receive.

The claimant sought judicial review of the decision to establish a Marine Protected Area around the British Indian Ocean Territory. He alleged that the decision was made, at least in part, to prevent the resettlement of Chagossian Islanders and was therefore taken for an improper purpose.

The claimant relied principally on documents published through Wikileaks, including an alleged record of a meeting attended by two of the defendant’s witnesses. The witnesses’ recollections differed from the account in the documents, and the defendant had not disclosed a note of the meeting. The issue was whether the claimant should be permitted to cross-examine the witnesses at the substantive hearing.

1. The application was granted. The claimant was permitted to cross-examine Colin Roberts and Joanne Yeadon at the substantive hearing.

2. Cross-examination is unusual in judicial review because primary facts are often undisputed and public authorities will normally disclose relevant documents in fulfilment of their duty of candour. The court nevertheless retains a discretion to order or permit cross-examination where it is necessary for the claim to be determined, and seen to be determined, fairly and justly.

3. The alleged improper purpose was a legally material issue. If the creation of the Marine Protected Area was intended, in whole or in part, to make resettlement more difficult or impracticable, that purpose would be extraneous to the purposes for which the power was conferred and could render the decision liable to be set aside.

4. The court could consider the Wikileaks documents. Although they appeared to have been obtained unlawfully, they had been widely published, were before the court, and no claim had been made that they were excluded by public interest immunity or a similar doctrine. The court would determine whether they were genuine copies of the documents they purported to be and assess their evidential significance.

5. The alleged meeting was recorded in sufficient detail to provide a proper basis for cross-examination. The conflicting evidence, together with the absence of a contemporaneous departmental note and the importance of resolving the alleged purpose of the decision, meant that oral evidence, including cross-examination, was necessary for a fair determination.

Not stated in the judgment.