In the case of R (on the application of Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) Mr Justice Garnham ordered the release of a detained Zimbabwean foreign criminal. In the process, he was corruscating critical of the conduct of Government lawyers acting for the Secretary of State for the Home Department.

The case has received press coverage because Mr Babbage is still considered a risk to the British public; the press reports fail to mention that there was simply no prospect of removing Mr Babbage from the UK and therefore there is no power to detain him.

• Zimbabwean criminal Andre Babbage freed despite ‘significant risk’ to public – The Telegraph
• Violent migrant drug dealer CAN’T be deported – because he WANTS to stay in UK –  The Express
• Judge orders release of Zimbabwean criminal who cannot be deported – The Guardian

The fact is that the Zimbabwean authorities will not accept return of a claimed Zimbabwean national who does not possess a passport and who is not willing to return voluntarily:

The Zimbabwean authorities’ position has been made clear over a prolonged period; they will not accept the return of those who do not hold a current passport other than from those willing to go back. There is nothing to suggest that stance is likely to change in the foreseeable future.

Mr Babbage did not have a passport and was not willing to return voluntarily to Zimbabwe, therefore there was no prospect of his being returned to Zimbabwe, therefore his detention was not lawful. He had been detained for two years and two months at the point at which he was released. A claim for damages for unlawful dentention seems almost inevitable.

The judge is extremely critical of the conduct of the Government lawyers responsible for handling the litigation, specifically Ms Sarah Kelly. The civil servants responsible for handling the case had disclosed the relevant documents in full to the Government Legal Service, formerly known as the Treasury Solicitors. The Government Legal Service had then decided not to disclose those documents to the court or the claimant or had redacted them.

Ms Kelly’s thinking was that it was for the Government lawyers, specifically her, to decide what was relevant and what was not. She was summoned to appear before the judge and on reflection decided that she had been wrong. The judge agrees and rehearses the proper approach:

19. She was indeed wrong. It is wholly unacceptable for those acting for the Secretary of State to ignore or disregard the orders of the Court. Furthermore, once a Judge of this Court has identified specific documents which are required to be disclosed, there is no basis for the exercise of any discretion by the Secretary of State’s advisers. If the document falls within the class covered by the Order, it must be disclosed.

20. In particular, it is not open to the Secretary of State, or her advisers, to decide that some of the documents falling within the category made subject to the Order ought to be redacted to protect some interest of the Home Office or because they do not appear, to the Secretary of State, to be relevant to the issues in the case. The Order of the Court determines relevance and disclosability.

21. If it is thought that there are grounds on which material covered by the Court Order should be redacted before it is disclosed to the other party (or, conceivably, even to the Court) then a proper application should be made for the Order to be varied to accommodate that concern. What must never happen is that those acting for the Secretary of State (or any other party) decide, off their own bat, not to disclose material subject to an order of the court because they judge it irrelevant.

The judge observes that the Secretary of State was thereby repeatedly in breach of repeated orders of the court. The judge stated that he was “extremely concerned about the attitude of the Secretary of State, or alternatively her advisers, towards the supply of documents necessary for the resolution of this case.”

Counsel for the Secretary of State, Mr Skinner, is not criticised. He had prepared a lengthy skeleton argument. It is unknown whether or not he had advised on disclosure.

Following the hearing, which occurred in December 2015, a more senior lawyer than Ms Kelly at the Government Legal Department had written a “fulsome” apology to the court and stated that training in duties of disclosure had been provided to those responsible for cases such as this (which clearly had not been very effective training), and indicated that “a review of disclosure in all claims where detention within [the relevant] team which challenge use of the power of detention” had been initiated.

Legal Tweeters have expressed their disquiet:

https://twitter.com/DinahRoseQC/status/694269166002573312

Here is Mr Justice Garnham’s full judgment in the Zimbabwean detention case – paragraph 5 onwards is eye-watering https://t.co/ugl3MNMO6k

— Adam Wagner (@AdamWagner1) February 2, 2016

Coruscating criticism of SSHD disclosure failures in the first 25 paragraphs of Garnham J's judgment. Worth a read – https://t.co/ohL92GWiUM

— DoughtyStPublic (@DoughtyStPublic) February 1, 2016

What on earth were the GLD / Sec State up to? Crumbs! https://t.co/4csUsR4NrR

— Lucy Reed (@Familoo) February 2, 2016

No referral to the SRA is suggested or made by the judge and no dire warning is given of such measures being taken in future. This contrasts somewhat with the repeated expressions of judicial wrath directed at claimant lawyers in recent years.