The Citizens UK case  EWCA CIV 1812 raises interesting issues about government lawyers and their political masters, but more so, for me having read the judgment, about how judges deal with potential misconduct by litigants and, perhaps, their lawyers.
The case arises out of Frances’ decision to close the Calais camp known as the Jungle. Several hundred unaccompanied minors, many with links to UK residents that might entitle them to come to the UK, resided there. In difficult, high-pressure circumstances (both practically perhaps and certainly politically) UK and French authorities cooperated on a process of expediting consideration of the children’s eligibility to be transferred to the UK. As part of this process, the UK provided a spreadsheet summarising the decision, usually using one or two words. The French authorities could then use that summary to convey the decision to the children. Unsurprisingly, those summaries were often inadequate as a vehicle for conveying the actual basis of the decision.
This process was judicially reviewed and prior to coming to the Court of Appeal evidence was disclosed that, in the eyes of the judges hearing the appeal, revealed “fundamental unfairness in the expedited process.” Crucially for this blog the Secretary of State (the Home Secretary, but essentially the civil servants working under her) was also found to have breached her duty of candour and cooperation with the courts in judicial review proceedings.
At first instance, the judge understood that (in holding that the process was lawful) not giving reasons as to why children would not be transferred to the UK was, “a requirement of the French authorities; and the terse spreadsheet information was a consequence of that requirement and of the pressures of the operation” (per Singh LJ, who gave the leading judgment of the Court of Appeal).
This was a patent falsehood, or at best a half-truth, “…in fact it was not the French authorities who insisted that there should be only sparse reasons. They requested that more reasons be provided to the children who had not been accepted for transfer initially but it was officials of the Secretary of State who insisted that no more reasons should be given and they did so in part because that would create the risk of legal challenge.” And, there were more detailed reasons recorded in the departments paperwork, which could have been conveyed to the French but were not so time pressure did not inhibit giving better reasons.
As Singh LJ puts it:
The important point for present purposes is …that it was not impossible or even difficult for some brief reasons …to be conveyed to the children affected at the relevant time. If they had been, it might have been possible for someone to make a meaningful response, for example correcting some inaccuracy in the information. Conversely, if the reasoning was wholly accurate, it would have stopped them making a futile application for reconsideration [for asylum under a more formal route than the expedited procedure].
In considering the duty of candour and co-operation Singh LJ points out:
(1) Disclosure — in the sense of disclosure of documents — is not automatic in judicial review proceedings. …
(2) One of the reasons …is that there is a different and very important duty which is imposed on public authorities: the duty of candour and co-operation with the court. This is a “self-policing duty”. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court in ensuring that these high duties on public authorities are fulfilled.
(3) The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. As I said in Hoareau at para. 20
“… It is the function of the public authority itself to draw the Court’s attention to relevant matters; as Mr Beal [leading counsel for the Secretary of State in that case] put it at the hearing before us, to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”
(4) The witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. There can be no place in this context for “spin”.
(5) The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.
As an example, the evidence filed on behalf of the Secretary of State in the High Court included,
“a witness statement by [the]…acting head of the European Intake Unit….
…[She] noted that criticism had been made that individual written decisions were not given to the children affected; and that the decisions were often boiled down to one word or phrase. She responded in the following way, at para. 85
“As I have explained the SSHD was working under extreme pressure to try and process as many children as she could. In these circumstances I do not see how the Claimant [Citizens UK] could have expected the SSHD’s officials to provide detailed decision letters in respect of each child. In any event I would say that in some of the cases she mentions a one word reason or phrase would suffice to explain the position. For example she criticises the refusal of cases using one word `cousin’. As I have explained above, where a child only has a cousin or more distant relative in the UK this does not suffice under the Dublin III Regulation to determine the UK as the relevant Member State with responsibility for examining the child’s asylum claim. I do not understand why any further elaboration would be needed.”
It is worth noting also that, “…no contemporaneous materials relating to the development or operation of the expedited process[es]… were disclosed with the Secretary of State’s witness evidence in the cases before that Tribunal. [The appellants claim]…requests for disclosure of contemporaneous records, communications and notes were repeatedly made by [those challenging the SOS in the proceedings being appealed].” And were declined.
That further evidence when it was disclosed revealed in particular that the French authorities requested reasons for decisions. These indicated clear reasons for doing so that anyone, and particularly anyone of the sophistication of senior civil servants, would have no difficulty at all in understanding. And that the real reason for not disclosing more detailed reasons to the French was the risk of legal challenge that these might provoke. Part of the reason for this is explained in evidence to the Court of Appeal by Head of the EU and International Asylum Policy at the Home Office at the relevant times:
“It is true to say that the French expressed concern about the level of detail provided in the reasons once they had considered this. … In my view, this was a change of position from earlier discussions …
…An important objective for the SSHD in supporting the French-led operation to clear the Calais camp was to not undermine wider asylum policy. As set out in my first witness statement, this was a one-off operation, from which the SSHD envisaged no ongoing obligations beyond those she was already party to.”
…In sending officials to assess individuals in France in such unique circumstances, the SSHD sought legal advice from her in-house legal advisers.”
Stressing a desire not to waive legal professional privilege he provides this gnomic response:
“… I can say it concerned whether there would be risks to the SSHD’s wider asylum policy in giving detailed reasons to individuals who were outside the United Kingdom and who had not made an application under the Immigration Rules or UK legislation to enter the United Kingdom.” “I hope this explains in more detail why the SSHD took the decision to keep the level of detail to a minimum….”
In responding to a predicted, concern “that the SSHD did not make the above sufficiently clear in her evidence before the Administrative Court ….The SSHD’s officials were under very tight time constraints to prepare the SSHD’s evidence in these proceedings at approximately the same time as having to deal with ….”the Dubs amendment”) … The challenge made by Citizens UK was very wide-ranging and indeed changed substantially in nature by the time they were granted permission by the Court …. I do recognise however that, notwithstanding the above, the SSHD should have made the position that she had received legal advice on the issue of the level of detail to provide the French authorities clear and I do so now with apologies to the Court.” The acting head of the EU Intake Unit in a separate statement says, “I am content my account of events is accurate.”
What is not explained is why a misleading explanation was given. One might also wonder if it is, itself, candid.
Relevant email correspondence (not disclosed at first instance) between a fourth government witness (a Mr Bryson) and the French indicates a rather more lucidly what went on:
152. On 8 December 2016 at 15.20 an email was sent by Mr Bryson to various officials at the Home Office summarising what M. Valat had conveyed to him
“… With regard to those minors that are going to remain in France, Valat said that it was important that they were able to explain to each and every minor why they were not going to the UK. He therefore asked for a list of rejections, by CAOMI with the reasons for refusal, to enable the French authorities to try to explain to the minors what their next steps might be. They did not want anything detailed and suggested something as straightforward as: age assessment (I suggest we clarify where there has been a self-declared over 18); unable to contact family in UK; family unable to receive the minor (e.g. doesn’t meet the conditions); family doesn’t want to receive the minor; and, no UK family. …”
154. [When challenging the terse spreadsheet reasons given by the UK] M. Valat said to Mr Bryson
“To be clear, these lists are of no use to us. They only confirm that you have not accepted the young people who were not transferred. Everyone had already understood that
What we need is the precise reason for the rejections, in particular for those who indicated that they could be transferred to the UK under Dublin
We made this request last week, and it seems to me that we had agreed on that basis
If there are grounds for these refusals, we have a collective interest in reporting them to the young people without delay. That will prevent futile requests for re-examination
Otherwise, the young people especially will not understand, we will not be able to explain it to them and the situation will quickly become unmanageable for you as well as for us
Therefore, I insist, we really need the complete lists by tomorrow morning.”
Some of the correspondence which ensued was copied to the senior civil servants who’s evidence is discussed above, and the implication is (although this is not absolutely clear exactly who knew precisely what from the judgment) that everyone is aware that the reason for not giving reasons is. To underline it, from another email: “Given what the lawyers have said, we are unlikely to be able to say more than the following: Dublin ‘the case of X was not accepted because we were unable to verify the claimed family connection.’ … Anything more could open us up to legal challenge. …”
Another part of the reason was emailed as follows, “We do not want to see all the children we previously identified as ineligible being referred to us again.” Part of the practical intent was therefore to prevent children making legitimate (although not necessarily ultimately successful) applications for asylum under the formal procedure. Suggesting the French wanted no reasons or that more detailed reasons could not be given for practical reasons is, on the face of this, misleading.
As Singh LH concludes:
168. In my view, there was a serious breach of the duty of candour and co-operation in the present proceedings. An incomplete picture was left in the mind of the reasonable reader, including Soole J, as a result of the evidence that was filed below. I dare say this was not deliberate. I note in this context that Ms Farman did file further evidence relating to the filter process in the Upper Tribunal in the case of FH, which suggests that there was no deliberate attempt to suppress these matters. There is no reason to think that there was bad faith. Nevertheless, the effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court
169. Although one of the reasons which has been given to explain this is that there was time pressure, I note that at no time, either before Soole J gave judgment in September 2017 (having heard the case in May) or subsequently until May 2018 was there any attempt made on behalf of the Secretary of State to file further evidence. That had to be done with only a few weeks to go before the hearing of these appeals in the middle of June. It also seems to have been done only once certain matters had become known (by chance it would seem) in an unrelated case: FH in the Upper Tribunal in early May 2018. In that sense it is purely by chance that this Court has now come to learn of these important matters, including what was said in contemporaneous emails in December 2016 and January 2017
170. The most serious omission, in my view, was the failure by those presenting evidence on behalf of the Secretary of State to inform the High Court that the reason why the reasons for an adverse decision in the expedited process were “sparse” (to use Soole J’s phrase) was not because of the urgency nor because the French authorities demanded that (as he thought and said in his judgment) but because the British authorities did not wish to give more reasons and that this was because of a perceived risk of legal challenge to the decisions
On the reading of the facts as they are set out in the judgment, at least following my rudimentary analysis, it may be that the failure to disclose was not done in bad faith but there is plenty to suggest it may (I emphasise may) have been done with an intention to knowingly or recklessly mislead the court. There is enough evidence to suggest that this merits proper investigation either as misconduct by the civil servants involved or as professional misconduct by the lawyers. Truth in public life and in the administration of justice and government is important. The lawyers must not knowingly or recklessly mislead the court and they must protect the rule of law and administration of justice. Whilst the lawyers advising on the expedited process and those handling the challenge may well be separate it seems unlikely that those handling the challenge were unaware of the fact that legal advice was inhibiting disclosure of reasons to the French. They may well have been on notice that this was the real, main, or an important reason why the French were not getting better reasons. If they were not, they should have been. They do not need to disclose such advice to prevent the court being misled; and privilege is not an excuse for misleading the court if they are aware of the risk.
On the other hand, it may be that the civil servants and lawyers simply misunderstood the basis of the decisions that were made as regards the French. But we should not foreclose further scrutiny on the basis that there was a cock-up rather than a conspiracy (particularly as both the lawyers and civil servants would be wise to learn from their own cock-ups). I should note also that Singh LJ was not sufficiently worried by the conduct of the Secretary of State to award costs on indemnity basis. And, Lady Justice Asplin, says, “I too consider the breach of the duty of candour in this case, whilst not deliberate, to have been very serious.” Serious but accidental breaches of the duty of candour may raise issues of professional competence and capacity too. Lord Justice Hickinbottom is a little more circumspect. He says, “Whilst on the evidence I am not satisfied that the breach here was deliberate, in my view it was nevertheless a serious breach.”
It is perhaps not surprising that the Court of Appeal is unwilling to go further. Whether the conduct was knowing or reckless is not their primary concern, and evidence by affidavit is not the best vehicle to pursue the issue. That said, rather more than a timely reminder from the Court of Appeal to take disclosure seriously, however, might well be needed.