R (on the application of HM & Ors.) v Secretary of State for the Home Department

Public authorities defending judicial review proceedings owe a positive duty of candour from the point at which they know that a decision or action is likely to be challenged. The duty applies to pre-action correspondence as well as to documents filed after proceedings begin.

Where the authority’s real case depends on a factual qualification, it must state that case accurately, even if it believes the underlying challenge is weak. It must not use robust denials which create a misleading impression. A collective failure of governance, poor communication or pressure may explain a breach but does not excuse it. The court may address a serious breach through a public judgment, appropriate costs orders and directions to inform persons affected by unlawful state action.

The judgment concerns consequential issues arising from an earlier decision in two judicial review claims concerning the seizure and retention of mobile-phone data from migrants arriving in small boats.

The Secretary of State had accepted that an unlawful blanket policy of phone seizure had operated. The court was required to determine the consequences of an admitted failure by those acting for the Secretary of State to comply with the duty of candour, including whether the failure affected the presentation and progress of the claims, and what relief and costs orders should follow.

The court also considered the form of declarations and notification measures required in light of the earlier findings concerning the scope of Immigration Act 2016 section 48.

1. Duty of candour. The duty of candour in judicial review is a positive duty imposed on public authorities and their representatives. It exists because the court ordinarily determines public-law disputes without fact-finding or disclosure processes, on the assumption that the authority will provide all information necessary for an accurate decision. The duty applies from the time the authority becomes aware that its decision or action is likely to be challenged, including during pre-action correspondence.
2. Application to JR1. The legal team knew that a blanket policy of seizure existed but mistakenly believed that it had ended in June 2020. The duty required the Secretary of State’s case to acknowledge the policy and state that the team believed it had ended before the relevant seizure. Instead, the responses robustly suggested that the allegation of a blanket policy was fanciful. That approach was misleading and delayed the proper resolution of the claim.
3. Application to JR2. The court was invited to stay the second claim on the basis that its issues were the same as those in the first claim, although the second claim concerned a seizure during the period of the blanket policy. The true position should have been volunteered. The stay was therefore made on an inadequate factual basis.
4. The failures were collective governance failures. The court made no finding of dishonesty or bad faith and did not apportion blame between individuals. Pressure, complexity and rapidly changing events explained the failures but did not excuse them.
5. The public judgment was sufficient action in response to the candour failures. The Secretary of State agreed to pay part of the claimants’ costs on an indemnity basis, a course the court considered appropriate. The court also approved declarations concerning the scope of section 48 and required proportionate steps to inform persons potentially affected by the unlawful policy, including publication of the order on the Home Office website for at least 12 months.

The judgment records consequential proceedings following the court’s substantive judgment in the same litigation, handed down on 25 March 2022, [2022] EWHC 695 (Admin). The present court determined the candour issue and the form of relief and consequential orders.