Written and recorded by Dean Kingham, Swain
Hello. I'm Dean Kingdom of swinging co solicitors, and I had the Public Law Prison law on criminal departments. Today I'm going to be talking to you about the duty of candle on how to get disclosure to assist your judicial review application before lodging in the higher court. One of the key ways of doing this is the Freed Information Act. So I'm going to focus on this act and how to best friend questions in order to get the answers you want. For instance, part of my work usually involves bringing proceedings against the sexier estate. So I often focus on key questions to get information from them, which is helpful in assist in the court, with the matter to be determined, obviously, in respect of the duty of candle, this applies equally to both parties in a judicial review matter. Now we, of course, know that judicial review is generally concerned with a review of the legality of decision measure or failure to act in relation to the exercise of a public function. Generally speaking, in fact, not even in dispute who provide the background to the decision under challenged is only a small minority of cases generally, certainly from my experience where factual issues arise on, such as a disputed fact in the context of alleged violations of the rights within a human right, for instance, as such, for those reasons, disclosure of documents is generally not required unless, unless specifically ordered, you can, of course, look at paragraph 12.1 of the practice Direction 54 a or the case of Tweed versus Perata's Commission of Northern Ireland 2006 UK Hate Shell 50 free. However, the courts have recognized that once permission to apply for judicial review is being granted, they need to know what the reason. It's a decision maker. WAAS on what, if any, relevant facts there are enabled to review the lawfulness off the decision on the challenge in Our versus Lincolnshire County Council. Ex parte eight Huddleston, 1980 six to a well e r know him, for one. The course of appeal considered that he defended with need to provide some explanation of what it done on. The reason so far is necessary to deal with the claim. Having set that background, I'm now going to look at the scope of the duty of candor and the consequences of non compliant. The precise scope. The duty of candle has not been the subject of detailed analysis by the court. However, the following issues do arise. Number one. What is the scope of the duty number two? What are the consequences for noncompliance? Number free Does or should the duty extend to the provision of documents as well as information, and four. Does the duty for should the duty apply only after permission is granted or does or should it apply at the pre action protocol stage of proceedings or the acknowledgement of service stage? Looking at the scope of the duty, there is an obligation to make candid disclosure of the decision making process. The lane before the court, the relevant facts and the reasoning behind the decision Challenge that's established law by tweed versus Paradise Commissions Been over an island referred to earlier. There is a duty to assist the court with four inaccurate explanations of all the facts relevant to the issues in which the court must decide as per the case of Quark versus the Secretary of State for the Foreign and Commonwealth Affairs number 1 2002 pwc a sieve 1409 from the side cases, it's relatively clear that in the majority of cases, the minimum necessary is that the defendant one identifies the facts relevant to the particular decision making process on the challenge and two sets out the reasons underlying the decision. What are the consequences for noncompliance? The court can, in appropriate circumstances, draw inferences. There's no if there is no adequate identification of the reason underlying the decision. The court may infer that no adequate or valid reasons exist. Furthermore, the absence of an adequate explanation of decision making process may result in applications being made and granted for specific disclosure of particular documents to enable the court to identify the basis of the decision under challenge. Certainly from my experience, I found that in cases where we've specifically requested disclosure of documents, the courts have been loathed. Teoh order such disclosure and in one particular case there was adverse costs, um, against us doing so, which we found particular heart particularly difficult, given that the disclosure of the documents would have assisted our claim in assessing when the duty of candle replies, it could be said that it's applicable soon as the department under challenges aware that someone is likely to test a decision now when there's contested facts, for instance, one should be looking at once. Permission is granted. Details of grounds and evidence will be filed and served. This enables the parties to no one. What the facts, the defendant says. A relevant number. Two. What the reasons for the decision is said to be and free What documents the defendant has disclosed in light of that party's can consider whether further directions and necessary and if so, on application to the court for specific directions following the service off detailed grounds and evidence when looking at whether you want to make a specific request for disclosure, the claim and under an obligation to identify it. I What factors said to be in dispute as opposed to arguments is still illegal. Relevance of undisputed facts be why those factor said to be relevant to the issues in the claimed while they need to be resolved by the Courtenay Jr plane. See, while information provided is not adequate to enable the court to resolve the issues that arise and d the specific direction sort. Alternatively, what specific issues in the claim are alleged to require further specific disclosure. Particular documents, while I use issues of relevant why it is continued, contended that the information provided by the defendant is no adequate to enable the court to resolve the specific issues that arise in the claim. Andi, the specific directions sort. Let's look at the Freedom of Information Act now. The Freed Information Act was introduced in 2000 and it provided a general right of access to information held by all public authorities. Any person making a request for information to public authorities entire tooled A to be informed in writing by the public all pharmacy wherever it holds information of the description specified in the request. Andi be if that is the case, to have that information communicated to them. The F A. Why request is often a valuable tour in obtaining useful information? Certainly, from my experience, it's important to draft the questions deliberately and slightly seeking smooth pieces of information because if it's too broad, the public, all Foresti will, from my experience, even try to say we don't hold information or use one of the exemption to suggest that they do me right now. Looking at the exemptions there are a number of absolute exemptions. These are set out in Section 21 which is in respect of information being accessible by other means. Section 20 Free which relates to a body Denham of Security Matters, Section 32 which relates to a documenting called record or custody intended for use in an inquiry, and Section 34 which pertains to parliamentary Section 40 Personal Data Section 41. Breach of Confidence Section 44. Disclosure prevented by the enactment or you obligation or punishable by contempt Conception 36. Information held by the House of Lords, all the houses of Parliament and where disclosure would inhibit the free and frank provision of advice or exchange of views within the houses or otherwise prejudice the conduct off public affairs. There's also a number off qualified exemptions which, in a nutshell, relate to national security. International reasons, commercial reasons, good governance, legal after proceedings, personal or individual data on time in for publication to give an example off commercial reasons, we sorts detailed information as to the provision of offending behaviour programmes within the prison estates. At the time, the Secretary of State for Justice was Chris Grayling on and they were looking at selling the provision of thes offending behaviour programmes to Saudi Arabia and they would not provide us with detailed information on some of them. Questions asked. You too, relying on the commercial exemption in respect of Saudi Arabia Now, more often than not, the Section 12 is implemented to suggest it's too costly to respond to the application. The if an application is shown to cost more than £450 for public authorities, or £600 for central government, parliament and the armed forces them, the authority can refuse to provide the relevant information. This is based on a £25 hourly right and can take into account time for deciding whether the exemptions apply. Adapting exempt information or carrying out the public interest test doesn't count towards this, but routinely you'll see authorities trying to refuse providing information based on this. Now, as I've said, the effort wise a key piece of armory in any public lawyers toolbox because more often than not, you can get some very useful information from it. You'll also see members of the public submitting fo I requests and often are not an often you'll find published on tweeted on Twitter Section 14 of the F. R. Y. A. Related to vexatious requests. ANDI. A vexatious request is said to be in manifestly unjustified, inappropriate or improper use of a formal procedure. Number of factors that are often routinely considered as to whether a request it's vexatious is burden imposing. Answering the request, the motive of the request of harassment or distressed calls to staff, the value or serious purpose of the request. Abusive or aggressive language. Unreasonable Persistence. Unfounded accusations in in transition. If a public all fraud city refuses to provide you information, then you would have to consider whether or not to go to the information commissioner's office to challenge once you've gone through the written appeal route. Certainly what we're finding at the moment is that the authorities are not providing information that we know they have. An example of this within my area of law, pertained Teoh. The category A prisoner. Andel, now the secretary of state, keeps a detailed recordist in a number of category A prisoners, obviously because they are said to be some of the most dangerous prisoners, and we asked for information as to that number of category A prisoners downgraded each year, including number granted hearings on a recent request. This information was said not to be held, Um, where I knew that it clearly waas as previously made applications, asking exactly the same questions. So bringing this webinar together, it is clear that disclosure utilizing the Freedom Information Act is a key part off judicial review pre action. What I would consider is that you really have to have due regard is to when suppose these points to the public authority, because it may be that you want to take it at such an early stage to assist you build your pre action protocol letter or it may be that wants permission that permission has been granted or proceedings have been issued that you decide. Actually, I need to know the answer to cries it, and you want to use that first. Of course, if they refused to provide it while they say they don't hold it, then that may aid any application under the duty of candle. Thank you
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