Summary
The duty of candour in judicial review is distinct from standard disclosure. Where a material primary document should be before the court, its gist, summary or selected quotations cannot substitute for the document itself, subject to proper redaction. A permission-stage assurance may safeguard the duty concerning unpleaded grounds. Under the Equality Act 2010, public sector equality duty compliance is judged by substance, not form. A reasoned analysis can supply due regard if it identifies differential impacts, assesses the chosen response and considers whether those impacts should be eliminated or mitigated. An equality impact assessment may follow at implementation.
Factual background
The Association sought judicial review of a recommendation by the Police Remuneration Review Body for a uniform £1,900 pay increase for all police officers and of the Home Secretary’s decision to accept it. It alleged breaches of the public sector equality duty under the Equality Act 2010 and unreasonableness. It also sought specific disclosure of ministerial submissions withheld by the Home Secretary. The court considered the duty of candour, permission-stage assurances, delay, the Review Body’s public-function status, and whether the recommendation and acceptance had adequately addressed the age-related differential impact of the pay award.
Held
The single judgment dismissed the applications for permission for judicial review and for specific disclosure. The Association was ordered to pay £8,000 of the Review Body’s costs.
- Candour and disclosure. Judicial review does not generally require standard disclosure. However, the duty of candour requires full and fair disclosure of relevant material. Where a significant primary document is material, the best evidence is the document itself. A gist, summary, description or selected quotation cannot replace it, subject to lawful redaction. R (Gardner) v SSHSC [2021] EWHC 2422 (Admin) and R (JM) v SSHD [2021] EWHC 2514 (Admin) did not provide general guidance endorsing secondary evidence. The approach in National Association of Health Stores v Secretary of State for Health [2005] EWCA Civ 154 and Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 was followed.
- Permission stage. Where permission is resisted, counsel may give a Permission-Stage Assurance after reviewing undisclosed material, confirming that nothing assists the claim or gives rise to another ground. That is an appropriate safeguard for the unpleaded-grounds aspect of candour.
- PSED. Compliance with the public sector equality duty is a matter of substance, not form. An express reference to the duty is not essential. The decision-maker must recognise relevant equality impacts, grapple with whether the proposed course is appropriate despite them, and consider alternatives that might eliminate or mitigate them. The Report’s evidence and analysis made the percentage and age-related effects of the flat award patent and well understood. The Ministerial Submissions also showed that the Home Secretary had been directed to consider the duty and the age-related impact. The later equality impact assessment reinforced, but was not a prerequisite to, compliance. The duty was therefore complied with.
- Other objections. The absence of representations supporting the recommendation did not make it unreasonable. The delay objection and the Review Body’s public-function objections would not have prevented permission, although the public-function issue was addressed only at the arguability threshold. The court did not resolve the separate question concerning when time began to run for the report.
- Specific disclosure. Despite the error in the Home Secretary’s disclosure approach, disclosure was declined because the court was left in no doubt that the claim had no viable prospect, the quoted material had not been taken out of context, and the Permission-Stage Assurance addressed wider grounds. That refusal did not vindicate the disclosure approach.
The court’s approach to earlier authorities
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Key cases cited
25 authorities cited.
- R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35
- Dennis Graham v Police Service Commission and the Attorney General of Trinidad & Tobago (Trinidad and Tobago) [2011] UKPC 46
- R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33
- Tweed v Parades Commission for Northern Ireland [2006] UKHL 53
- Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6
- Regina v. Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant). [2003] UKHL 36
- End Violence Against Women Coalition, R (On the Application Of) v Director of Public Prosecutions [2021] EWCA Civ 350
- Bridges, R (On the Application Of) v South Wales Police [2020] EWCA Civ 1058
- Citizens UK, R (On the Application Of) v Secretary of State for the Home Department [2018] EWCA Civ 1812
- Trust Special Administrator Appointed To South London Healthcare NHS Trust & Anor v London Borough of Lewisham & Anor [2013] EWCA Civ 1409
- Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 345
- Eisai Ltd, R (on the application of) v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438
- Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2008] EWCA Civ 141
- Taylor v Lancashire County Council & Anor [2005] EWCA Civ 284
- National Association of Health Stores & Anor, R (on the application of) v Department of Health [2005] EWCA Civ 154
- Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd. [2002] EWCA Civ 1409
- R (JM) v Secretary of State for the Home Department [2021] EWHC 2514 (Admin)
- Tthe Motherhood Plan & Anor, R (On the Application Of) v & Anor [2021] EWHC 309 (Admin)
- R (Gardner) v SSHSC [2021] EWHC 2422 (Admin)
- R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin)
- Hoareau, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin)
- K & Ors v The Secretary of State for Defence & Anor [2014] EWHC 4343 (Admin)
- Sky Blue Sports & Leisure Ltd & Ors v Coventry City Council & Ors [2013] EWHC 3366 (Admin)
- Re Downes’ Application for Judicial Review [2006] NIQB 77
- R v Lancashire County Court, ex p. Huddleston [1986] 2 All ER 941
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Cases citing this case
7 later cases · 4 positive · 3 caution
Most senior citing decisions:
- Derek Murcott, R (on the application of ) v The Secretary of State for Justice [2026] EWCA Civ 436 explained
- Jaqueline Casey & Ors v Environment Agency [2026] EWHC 178 (KB) applied
- Jordi Carulla Font v The Commissioners for HMRC [2025] EWHC 3057 (Admin) distinguished
- CIT, R (on the application of) v The Financial Conduct Authority (No.1) [2025] EWHC 2614 (Admin)
- Sarvar Ismailov v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 863 (Admin)
- Ejowhokoghene Ubiribo v Notting Hill Genesis [2025] EWHC 132 (KB)
- Michael Chiswick, R (on the application of) v Secretary of State for Justice & Anor [2024] EWHC 1223 (Admin)
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