Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 2115 (Admin)

Case No CO/8588/2010[2012] EWHC 2115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/07/2012
Before
LORD JUSTICE STANLEY BURNTON
Between
The QueenClaimanton the application ofClaimantLouis Olivier BancoultClaimantThe Secretary of State for Foreign and Commonwealth AffairsDefendant
Nigel Pleming QC and Richard Wald (instructed by Clifford Chance LLP) for ClaimantSteven Kovats QC (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates: 4 July 2012
Judgment

The application

[1]This is an application by the Claimant for an order that he be at liberty to cross examine two of the Defendant’s witnesses, Colin Roberts, H.M. Commissioner for the British Indian Ocean Territory (“BIOT”) and Joanne Yeadon, a civil servant in the FCO, at the substantive hearing of his claim.

The claim

[2]The Claimant, the chair of the Chagos Refugees Group, seeks judicial review of the decision of the Secretary of State for Foreign and Commonwealth Affairs to create a Marine Protected Area (“MPA”) around the BIOT. The claim must be seen as part of the campaign of the Chagos Islanders, pursued by legal proceedings and politically, to return to the islands, now part of the BIOT, from which they or their families were removed by HM Government between 1965 and 1973 and from which they have since been excluded. There is a good summary of the history in the judgments of the Court of Appeal in Chagos Islanders v the Attorney General [2004] EWCA Civ 997, of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 [2009] AC 453and of the European Court of Human Rights in Chagos Islanders v the United Kingdom [2009] ECHR 410.[3]The MPA, if maintained, renders commercial fishing unlawful, and would make it more difficult for the Islanders to sustain themselves if they were to succeed in returning to the Islands.[4]Judicial review of the decision to create the MPA is sought on a number of grounds, of which the only one that is relevant to the present application is the allegation that the decision of the Secretary of State was made, at least in part, for an improper purpose. The allegation came to be made as a result of the publication by The Telegraph and The Guardian newspapers of what purport to be confidential and sensitive memoranda sent by the US Embassy in London to the State Department in Washington. The documents in question were passed to The Telegraph by Wikileaks, the notorious Internet organisation and site.[5]In essence, the Claimant’s allegation is that the decision to create the MPA was made in whole or in part to prevent the return of the Islanders, and that that purpose could not lawfully be taken into account, and renders the decision unlawful and liable to be quashed.

The evidence

[6]The Claimant relies principally but not solely on what appears to be a cable of 15 May 2009 purporting to set out in detail what was said in a meeting on 12 May 2009 with Mr Roberts, at which Ms Yeadon was present, which includes the following passages:
“7. …Roberts … asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”
[7]The Secretary of State denies that the decision to create the MPA was unlawful on any of the grounds alleged by the Claimant, and in particular that the decision was made or influenced by the purpose alleged by the Claimant. It is clearly at least arguable that if the purpose, or one of the, purposes, for the creation of the MPA was to render it more difficult or impracticable for the Chagossian Islanders to resettle on the Islands, that would have been an unlawful purpose, extraneous to those for which the power was conferred, and would render the decision to create the MPA liable to be set aside.[8]For reasons that are entirely understandable, it is not the policy of the Secretary of State to admit or to dispute that documents leaked by Wikileaks such as those relied upon in this case are or are not genuine. When this application was heard by me, Mr Roberts had addressed in his witness statement the meeting of 12 May 2009, but not the contents of the documents relied upon by the Claimant. Ms Yeadon’s witness statement did not refer to the meeting. The Secretary of State had not disclosed any note of the meeting. The Department’s contemporaneous documents, on which the Secretary of State relies, had not been provided to the Court. I gave leave for the Secretary of State to serve further witness statements of those witnesses, and he duly did so. In addition, I thought it right to consider the Department’s contemporaneous documents before deciding whether or not to make the order sought by the Claimant.[9]In his second witness statement, Mr Roberts confirms that no note had been made of the meeting of 12 May 2009. As a result, he states that he does not “recall the 12 May meeting in sufficient detail to be sure that any particular word or phrase was or was not used or, if so, by whom”. He says:
“My objective was to reassure the US so that they did not oppose the MPA. The questioning, and much of the talking, came from the US side. The primary US concern was military security, and it was in this context that they raised the question of whether an MPA would prevent resettlement, that is both legal and illegal resettlement. … I would have had no reason to say at the 12 May 2009 meeting anything to the effect that the MPA was motivated by a desire to prevent resettlement. That was not the UK position at any time, ….”
[10]Mr Roberts refers to contemporaneous documents of the Department, which I have considered, of which the more pertinent are the internal documents.[11]Ms Yeadon in her second witness statement states that her only recollection of the meeting of 12 May 2009 accords with that of Mr Roberts.

The contentions of the parties

[12]For the Claimant, Mr Pleming QC accepted that cross examination is unusual in judicial review proceedings. He submitted that the Wikileaks documents, which the Secretary of State had not alleged were not genuine, supported the Claimant’s case; there is a dispute as to what was said at the meeting of 12 May 2009, and as to whether there was indeed an irrelevant and improper motive for the creation of the MPA.[13]For the Secretary of State, Mr Kovats QC submitted that it would be wrong to order cross examination on the basis of documents that had been unlawfully obtained by Wikileaks. To do so would be to further Wikileaks improper purposes. Cross examination in judicial review proceedings is exceptional; the Secretary of State had disclosed the Department’s documents bearing on the issue of the purpose or purposes for which the MPA had been created. Cross examination is unnecessary.

Discussion

[14]I acknowledge that cross examination is exceptional in judicial review proceedings. This is largely because the primary facts are often not in dispute, or at least those asserted by the defendant public authority are undisputed. In addition, the defendant public authority may normally (but not invariably) be relied upon to disclose its relevant documents, thus fulfilling its duty of candour in relation to its documents. However, the Court retains a discretion to order or to permit cross examination, and it should do so if cross examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly.[15]I also acknowledge that the Wikileaks documents must have been obtained unlawfully, and in all probability by the commission of a criminal offence or offences under the law of the United States of America. I understand why it is the policy of HM Government neither to confirm nor to deny the genuineness of leaked documents, save in exceptional circumstances, particularly where, as here, the documents in question are not those produced or received by the UK Government.[16]However, the documents in question have been leaked, and indeed widely published. No claim has been made to the effect that the documents should not be considered by the Court on the grounds of public interest immunity or the like. They are before the Court. The Court will have to decide whether or not they are genuine documents, that they are copies of what they purport to be. The memorandum of the meeting of 12 May 2009, in particular, appears to be a detailed record, which could fairly be the basis of cross examination.[17]I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the Claimant, based on the Wikileaks documents, as to what transpired at the meeting of 12 May 2009, and more widely whether at least one of the motives for the creation of the MPA was the desire to prevent resettlement. Given the conflicting evidence, in my judgment, in order to resolve the dispute, oral evidence will be necessary, including cross examination of Mr Roberts and Ms Yeadon.[18]It follows that I shall make the order sought by the Claimant.

Cited in 8 later judgments