Alemayehu, R (on the application of) v Secretary of State for the Home Department

Permission to cross-examine on material factual issues in judicial review is a matter for the court’s judicial discretion. It may be appropriate where the case is a lead case of wider importance and cross-examination could ensure that the issues are properly tested, even though it is unusual and its likely utility is uncertain.

Disclosure will not be ordered merely because a party infers that a policy document ought to exist. The court must assess whether further searches are reasonable, proportionate and necessary to determine the issues. Internal guidance on candour and disclosure remains guidance, and does not itself require a further search or disclosure statement.

The court dealt with interlocutory applications in three lead judicial review claims concerning the Secretary of State’s Legacy Programme. The claimants sought permission to cross-examine officials about the programme’s purpose, timescale and consequences. They also sought further searches and disclosure concerning an alleged policy of granting indefinite leave to remain.

The court had to decide whether cross-examination was necessary or proportionate, whether further disclosure should be ordered, and what consequential directions were required for the substantive hearing.

1. The application for cross-examination was granted. Cross-examination is not ordinarily permitted in judicial review, but the decision is discretionary. The relevant considerations included the factual issues identified, the importance of the claims as lead cases, their potential wider consequences, and the risk that the substantive hearing or a later appeal would proceed without those issues having been adequately tested. The court did not decide whether the evidence would assist the claimants.

2. The cross-examination was confined principally to alleged inconsistencies in official statements concerning what the Legacy Programme was intended to achieve, its timescale, and the consequences of decisions made under it. The court considered the opportunity to test those matters consistent with the justice of the case, despite doubts about its necessity, proportionality and likely practical benefit.

3. The application for further disclosure was refused. The court was not satisfied that the Secretary of State had failed in the duty of candour. An inference from evidence that guidance or policy might have existed did not establish that an undisclosed document existed or justify a further search.

4. The Treasury Solicitor’s internal guidance required records of searches and disclosure decisions, but it was guidance rather than a rule requiring an order in every case. The court declined to require further searches or a disclosure statement where the material already available was sufficient and the proposed exercise would be disproportionate.

5. The substantive hearing was vacated and adjourned to a fixed date, with a five-day estimate including a reading day and time for judgment writing. No order for disclosure was made.

The judgment records that Supperstone J gave directions for the substantive hearing on 15 January 2013. The present judgment determined interlocutory applications in the Administrative Court and adjourned the substantive claims.