Fact Finding Approach in JR Proceedings
Adopting what he described as a common-sense approach to the evaluation of the evidence as a whole, Linden J applied the burden of proof and took into account that there had been no ‘live’ evidence or cross-examination in the judicial review proceedings before him: R on the application of NB & Ors v Secretary of State for the Home Department (Defendant) (1) Liberty & (2) Joint Council for the Welfare of Immigrants (Interveners) [2021] EWHC 1489 (Admin)
In the learned judge’s view, as part of the exercise, it was permissible to take into account the quality of the evidence on a given point, and whether that evidence was within the knowledge of the deponent and, if not, the source of the information.
In the case of exhibits, it was permissible to consider such evidence as the deponent provided to explain its contents and as to the source and reliability of the information which it contained. The Court adopted the approach of Cavanagh J (see below).
The process of fact finding had been more difficult than in typical JR proceedings because there were a number of points of detail and various facts were disputed or unclear, although there were areas of agreement.
The evidence on a number of points was vague or inconsistent and/or the documentation was complete or unexplained.
There had been no application by any of the parties for any witness to be called for the purposes of cross-examination which might have clarified the factual position.
There were various statements by the Claimants and their legal representatives and others, some of whom had visited the relevant premises and some who had not, and also expert medical and forensic psychiatric evidence.
Additionally, the Claimant asylum seekers who had been housed in military barracks managed by Clearsprings, derived considerable support from findings of the ICIBI/HMCIP[1] inspection team based on a two day visit during which they saw the situation for themselves, spoke to people on site and carried out a survey.
In the case of evidence submitted on behalf of the Defendant, the distinct impression given was that little attention had been paid at a senior level to what was happening at the barracks until the events of mid to late January 2021 occurred and litigation was threatened.
This accorded with the finding of the HMCIP that: “Home Office staff were rarely present at either site. There were fundamental failures of leadership and planning by the Home Office, which had led to dangerous shortcomings in the nature of the accommodation and poor experiences for the residents.”
In some instances, documents were not exhibited or commented on by a witness on behalf of the Defendant who might have been expected to do so. In others, a document was exhibited, apparently because it was considered that the duty of candour required that it be disclosed given that it assisted the Claimants’ case, but the document was not referred to by the witness, still less explained or put into context, as the duty of candour also required.[2]
Particularly on the issue of the Covid and fire safety of the Barracks, these omissions indicated to the Court that the Defendant’s witnesses found it difficult to defend aspects of the decisions which were taken whilst, at the same time, complying with their duties to the court and to the public.
This approach also affected the weight which could be given to some aspects of the Defendant’s evidence and it meant that in some instances there was no witness evidence to contextualise or contradict the story which certain documents appeared to tell.
There was also no witness statement from Clearsprings, PHE[3] or the CPFSI[4], organisations which had direct knowledge of important matters.
Where there was a specific or direct conflict of evidence, the applicable legal principles were those set out in McVey[5] where Silber J said:
“In my view, the proper approach to disputed evidence is that (i) the basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants’ evidence must be assumed to be correct; (ii) an exception to this rule arises where the documents show that the defendant’s evidence cannot be correct; and that (iii) the proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant’s evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies.”
That passage was approved by the Court of Appeal[6] where Nicola Davies LJ noted that the test in relation to (ii) was a high one.
This case, which was not a simple, factual binary situation was close to the sort of situation which arose before Cavanagh J[7] (although there was direct evidence from the contractor in charge) where he said:
“Faced with a number of disputes of fact, in these circumstances, I think that the correct approach is that summarised by the authors of Auburn, Moffett and Sharland, Judicial Review Principles and Procedures, 1st Ed, 2013, at para 27-98 … [the Court] will generally proceed on the basis of the facts as stated in the defendant’s written evidence.
“This is because, as the claimant bears the burden of proof, if there is no reason to doubt the defendant’s version of the facts, the claimant will have failed to discharge the burden on him or her. As the defendant’s witnesses will not have been cross-examined, there will be little basis for the court to reject their evidence.
“However, in certain cases there may be something about the defendant’s evidence (e.g. where it is internally contradictory, inherently implausible, or inconsistent with other incontrovertible evidence) which will lead the court not to accept it.”
[1] ICIBI = Independent Chief Inspector of Bordes and Immigration; HMCIP = Her Majesty’s Chief Inspector of Prisons
[2] R (Citizens UK) v Secretary of State for the Home Department [2018] 4 WLR 123
[3] Public Health England
[4] Crown Premises Fire Safety Inspectorate
[5] R (McVey & Ors) v Secretary of State for Health [2010] EWHC 437 (Admin)
[6] R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518
[7] R (Soltanty & Ors) v SSHD [2020] EWHC 2291