T v Secretary of State for Justice

In judicial review proceedings, cross-examination is exceptional and should be permitted only where it will materially assist the court. Evidence concerning an individual’s condition should not be cross-examined where the relevant facts are accepted and oral evidence would add nothing. A proposed challenge requiring the court to assess policy evidence and the proportionality of a statutory prohibition raises a substantive constitutional issue, rather than ordinary case management. That issue should be determined as a preliminary issue before directions are given for any wider evidential hearing.

T sought a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 concerning the prohibition on assisted suicide in section 2(1) of the Suicide Act 1961. Permission for judicial review had been granted. Following the decision in Conway v Secretary of State for Justice [2017] EWHC 2447 (Admin), T applied for directions permitting cross-examination of the Secretary of State’s palliative-care and policy witnesses.

The application raised whether the court should hear primary policy evidence and assess for itself the necessity and proportionality of the statutory prohibition, or whether that assessment was constitutionally for Parliament. The court also considered whether cross-examination was necessary on evidence concerning T’s individual condition.

1. Disposition. The application to cross-examine Baroness Finlay was adjourned pending determination of a preliminary issue. The application concerning the palliative-care experts was refused.
2. The discretion to permit cross-examination in judicial review exists but is to be exercised sparingly and only in exceptional cases. The ordinary position is that the court determines the issues on the written evidence.
3. Cross-examination was unnecessary concerning T’s capacity, wishes, suffering, prognosis and available palliative-care options. Those matters were accepted or undisputed. Oral evidence would not assist the court in explaining why T did not find the available options acceptable.
4. The proposed cross-examination of Baroness Finlay concerned wider policy evidence about vulnerability, safeguards, palliative care, doctor-patient relationships, public trust and the ethical principle of the sanctity of life. The application therefore went to the substance of the claim and could materially alter the evidential and procedural shape of the case.
5. The central issue was whether it was constitutionally appropriate for the court to hear primary policy evidence when assessing the proportionality of section 2 of the Suicide Act 1961, or whether that assessment was properly for Parliament. That issue required full and focused argument and was best determined as a preliminary issue before deciding whether wider oral evidence should be heard.
6. The claimant was invited to identify more precisely the matters on which cross-examination was said to assist. The preliminary issue was to be listed before a Divisional Court, with a suggested estimate of two days.