Secretary of State for the Home Department v KIB

In statutory review or appeal proceedings governed by a bespoke procedural code, the court must determine whether evidence should be given orally in the exercise of its procedural-control powers. A rule permitting parties to adduce evidence and cross-examine witnesses does not create an unrestricted right to oral evidence or cross-examination. The court should identify the substantive issue and legal test, assess whether oral evidence is likely to assist, and consider whether fairness requires the deponent to answer criticisms personally. Where the issue can be resolved by comparing a witness statement with contemporaneous documents, and there is no appreciable prospect of deliberate inaccuracy, oral evidence and cross-examination may properly be refused.

The Secretary of State imposed a Terrorism Prevention and Investigation Measure on KIB after obtaining High Court permission. KIB later challenged the imposition and extension of the measure and alleged a breach of the duty of candour in the material placed before the judge who granted permission.

The candour issue concerned the viability and content of his care package and the suitability of the toilet at the designated property. KIB sought permission to call Mr Matthew Willis, whose evidence addressed those matters, and to cross-examine him. The issue was whether oral evidence was necessary or appropriate to determine compliance with the duty of candour.

1. Application refused. Permission to call and cross-examine Mr Willis on the candour issues was refused.
2. The statutory TPIM procedure differs materially from ordinary judicial review. The Terrorism Prevention and Investigation Measures Act 2011 requires High Court permission before a TPIM is imposed. The initial review is conducted on a light-touch basis, making the Home Secretary’s duty of candour particularly important.
3. CPR Part 80 provides procedural flexibility. Because CPR Part 32 is disapplied, CPR 80.22 does not establish an equivalent presumption that facts must be proved orally at trial or in writing at other hearings. CPR 80.22(5) and (6) therefore confer no unrestricted entitlement to adduce oral evidence or cross-examine every witness. They remain subject to the court’s power to control its own procedure.
4. The court should identify the substantive issue and legal test, consider the ultimate source of the deponent’s knowledge, and examine the nature of the criticisms. Oral evidence may be appropriate where it is likely to assist the court or fairness requires the deponent to answer criticisms made personally against him or her.
5. Mr Willis was not an expert in care, medicine or adapting property for disabled people. His evidence principally conveyed views recorded in contemporaneous documents. The court could decide whether his earlier statement fairly reflected those documents by comparing the statement with them. There was no appreciable prospect of a finding of deliberate inaccuracy, so fairness did not require cross-examination.