The Divisional Court has now published its judgment addressing the Home Office’s breach of the duty of candour in the mobile phone seizures case. It is reported as R (HM, MA & KH) v SSHD [2022] EWHC 2729 (Admin). Earlier posts address the Divisional Court’s main judgment and order.

Edis LJ said there had been a “failure of governance” which allowed an unlawful blanket policy of seizing mobile phones from people arriving by small boat. When the policy was challenged, the officials responsible for it failed to explain it to government lawyers and the barristers they instructed. This led to inaccurate information being provided in “excessively robust” responses to pre-action correspondence and pleadings placed before the court. There were serious breaches of the duty of candour.

The duty of candour is explained in the Administrative Court: Judicial Review Guide. The duty requires parties to a case to “ensure that all relevant information and all material facts are put before the court”. They must disclose any information or material facts which either support or undermine their case. 

This judgment contains a detailed account of the facts that led to the breaches of candour. There had been a blanket policy of seizing all mobile phones from people arriving in the UK by small boat. It is not known when exactly the policy started, but it is said that it came to an end sometime in November 2020. In June 2020, following the publication of a report by the Information Commissioner’s Office, there was a change in approach to the extraction of data from mobile phones seized. There was no change at that time in the approach to the seizure of phones, which continued on a blanket basis.

The claimants in this case are HM, MA and KH. HM’s solicitors sent a pre-action letter challenging the policy at the end of November 2020. Government lawyers instructed counsel to advise and assist with the response. HM requested further information and documents and a conference was set up between the parties. Officials did not provide clear information about the policy or provide copies of the requested documents. Instead, counsel drafted documents based on incomplete information and on the mistaken understanding that the blanket policy of seizing mobile phones had ceased in June 2020. The documents also did not admit the existence or knowledge of the blanket seizure policy before June 2020.

Counsel raised their concerns to the instructing government department, but robust denials about the existence of such a policy were repeated in summary grounds of defence. Detailed grounds of defence served in April 2021 did not “volunteer the full extent of the situation in… clear terms”. It was only after this, and following written advice from counsel, that in June 2021 government lawyers wrote a clear admission about the policy’s existence.

MA and KH’s solicitors separately commenced judicial review proceedings in early 2021. The mobile phone seizures in these cases had occurred before June 2020 and therefore a time government lawyers were aware that there had been a blanket seizure policy. Nevertheless, they applied for and obtained stays of MA and KH’s claims on the basis that the issues in their cases would be dealt with in the hearing of HM’s case. This gave the false impression that mobile phones were seized at a time when there was no blanket policy. This too breached the duty of candour. Edis LJ stated:

“…this was a collective rather than an individual failure; everyone was involved. Although the Government Legal Department and counsel were asking for information, they never received any response from those who had first-hand knowledge of the policies to say that the factual basis on which these documents were being prepared was wrong…”

Earlier in his judgment, he explained why the duty of candour is so important in judicial review proceedings:

“…It enables the court to adjudicate on issues involving the state without deciding facts or engaging in disclosure processes. That is because the court assumes that it will be supplied with all the information necessary to determine a case accurately. That assumption is made because the law imposes on the state a positive duty to ensure that this happens…”

The court also helpfully approved the following extract from the 2010 Treasury Solicitors Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings as accurately reflecting the law:

“The duty of candour applies as soon as the Department is aware that someone is likely to test a decision or action affecting them. It applies to every stage of the proceedings, including letters of response, under the pre-action protocol, summary grounds of resistance, detailed grounds of resistance, witness statements and counsel’s written and oral submissions.”

This is far from the first time that the Home Office has been found to have breached the duty of candour. The Court of Appeal found a serious breach in R (Citizens UK) v SSHD [2018] EWCA Civ 1812. The relevant material in that case only came to light by chance in unrelated legal proceedings. And without permission to appeal being granted, the court would not have learnt the true position in the case. The High Court had been “materially misled” in finding against the claimant organisation in the original proceedings.

This and other cases suggest the Home Office has a very real problem with compliance with the duty of candour. Whether or not deliberate, and whether or not it reflects a wider cultural problem with respect for the rule of law within the department, this has clear implications for the conduct of lawyers representing the department in judicial review proceedings. They must insist on answers to questions and documents being provided before claims are responded to. And the courts should be slow to accept what the Home Office says at face value. When failings are uncovered, where appropriate, they should hold lawyers accountable by taking robust action, as it has when failings by claimant lawyers are uncovered through the court’s Hamid hearings.