Judgment leaves claimants ‘hacked off’
11 December 2018
Katie Ayres is a barrister at 1 Chancery Lane.
R (on the Application of Jefferies and Others) v (1) Secretary of State for the Home Department (2) Secretary of State for Digital, Culture, Media and Sport  EWCH 3239 (Admin)
By Judgment handed down on 29 November 2018 Lord Justice Davis and Mr Justice Ouseley dismissed the Claimants claims for Judicial Review of the Government’s decision to not embark on ‘Part 2’ of the Leveson Inquiry.
The decision provides clarification of the ‘legitimate expectation’ ground for Judicial Review and gives a warning to not overlook the fundamental principles of public law.
The Claim was brought by four Claimants:
(1) Christopher Jefferies, suspect in the Joanna Yeates murder investigation who was ‘“monstered’ by the press”, and subsequently successful in libel actions against eight tabloid newspapers. He was the subject of a BBC docudrama (now available on Netflix) called “The Lost Honour of Christopher Jefferies”.
(2) Gary and (3) Kate McCann, who due to the sad disappearance of their daughter Madelaine and their valiant campaigning ever since, need little introduction.
(4) Jacqui Hames, a former Metropolitan Police officer who was subjected to harassment from the News of the World after her husband, DCS Cook, made an appeal on ‘Crimewatch’ for information about the unsolved 1987 murder of a private investigator called Daniel Morgan (see here for the excellent ‘True Crime’ Podcast about the murder).
The Court started out by recording that the
claimants in these judicial review proceedings have in the past variously been the victims of outrageous and unlawful treatment on the part of certain elements of the press. The distress to them has been immeasurable.
Each of the Claimants was categorised as a Core Participant in the Leveson Inquiry. The Inquiry was announced by David Cameron’s statement to the House of Commons on 13 July 2011. It was to fall into two parts:
Part 1 was to inquire into the culture, practices and ethics of the press, to make recommendations for a more effective regulatory regime and to inquire as to the conduct of relations between politicians and the press and between the police and the press. This part of the inquiry cost approx. £5m and the findings were published on 29 November 2012.
Part 2 would involve a factual investigation into the alleged unlawful and improper conduct of the various media investigations: i.e. “who did what, to whom, when?”. It was due to commence after any criminal proceedings had concluded.
It is easy to see how Part 2 would have been eagerly anticipated by the Claimants.
In various statements in the House of Commons on 29 November 2012, Prime Minister David Cameron and Deputy Prime Minister Nick Clegg made it clear that it was intended at that time that Part 2 would go ahead. The Claimants did not, however, rely upon these statements for the claim. Instead, they relied on statements made by David Cameron at a private meeting with the Claimants and representatives from the organisation ‘Hacked Off’ on 21 November 2012.
In somewhat dubious circumstances there came to be a recording of the 21 November meeting (which had been described as being a “what is said in the room stays in the room” discussion) that the Court then ordered to be transcribed.
It can, I think, fairly be said that the strong impression given to the Claimants at the 21 November meeting was that it was the intention of the, then, Government to proceed with Part 2. It can also be said that there was no explicit assurance of this specifically provided in clear terms.
Throughout 2015 and 2016 the Government, latterly under the leadership of Theresa May, presented an increasingly equivocal stance in respect of pursuing Part 2. On 1 November 2016 the Government announced a public consultation on the issue. The Conservative party manifesto for the 2017 election then stated that a Conservative Government would not proceed with Part 2.
The final decision to not pursue Part 2 was made in March 2018. The Government stated in a letter to Sir Brian that continuing with the Inquiry
is no longer appropriate, proportionate or in the public interest, not least thanks to the changes we have seen since, and as a result of, your Inquiry.
It is this March 2018 decision that was challenged in this Judicial Review.
Helen Mountfield QC, for the Claimants, put their case as follows:
- The claim was founded on what was said at the meeting of 21 November 2012, as giving rise to a legitimate expectation recognisable in law, set in the context of what had gone before and what happened thereafter.
- In making the decision of 1 March 2018, the Defendants had failed to take into account a material consideration: that is, that a promise giving rise to a legitimate expectation had been made to the victims by Mr Cameron.
The remedy sought was not an order requiring continuation of Part 2 of the Inquiry. Rather, the Claimants sought merely an order quashing the decision of 1 March 2018 and requiring a reconsideration of the decision to terminate the Inquiry.
Legitimate Expectation: A Developing Ground for Judicial Review
A legitimate expectation claim is based on the assumption that, where a public body states that it will or will not do something, a person who has reasonably relied on that statement should be entitled to enforce it.
The ‘ingredients’ of such a claim are set out in a developing body of case law:
- The public body’s statement “must be clear, unambiguous and devoid of relevant qualification” (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  AC 453 at paragraph 60).
- In order to ascertain whether (1) is met, the statement should be “objectively assessed by reference to how it would have been reasonably understood by those to whom it was made” (Paponette v Attorney-General of Trinidad and Tobago  1 AC 1 at paragraph 30).
- A legitimate expectation can arise for expectations as to procedure but also for substantive decisions but, ordinarily, the beneficiaries of a legitimate expectation will be an individual or a small, defined, group (R v North and East Devon Health Authority, ex p. Coughlan  1 QB 213).
- The public authority ought to recognise that there had been a promise or representation and, where it is considering reneging on such a promise, this ought to be taken into account in the decision making process (R (Bibi) v Newham London Borough Council  1 WLR 237).
- It is generally accepted that the more a decision lies in the “macro-political” field the less intrusive will be the court’s supervision (R v Secretary of State for Education, ex p. Begbie  1 WLR 1110 at p. 1131; R (Wheeler) v Office of the Prime Minister  EWHC 936 (Admin)).
- The claimant must ordinarily but not necessarily demonstrate detrimental reliance on the statement (ex p. Begbie at p.1124A-B).
Application to the Claim
The Claimants were unable to rely, and did not rely, on the 29 November statements made in the House of Commons as these were
statements of intent, made in an intensely political context and made not to a small or defined class but in effect to the public at large.
However, Lord Justice Davis found it
decidedly odd, indeed decidedly unattractive, that no reliance is placed on the considered public statements made by Mr Cameron in the House of Commons on 29 November 2012 as creating a legitimate expectation; but reliance is placed on his statements made at a private meeting a few days earlier, on the self-same subject-matter, as creating a legitimate expectation.
Davis LJ went on to criticise the claim on the basis that it was based on statements made in a “what is said in this room stays in this room” meeting.
The roots of a claim for legitimate expectation lie in the administration of fairness (in a public law sense) and to permit reliance on a private statement in such circumstances would, to his mind, have been profoundly unfair. On this basis alone the claim failed.
However, Davis LJ went on to eviscerate the claim further. In particular, he bemoaned the “inherent dangers” of relying on oral assurances made several years earlier when, once the recording had come to light, turned out to be demonstrably inaccurate.
As to oral assurances generally he commented that whilst it is not impossible for an oral assurance to give rise to a legitimate expectation,
the very fact that a postulated assurance is given orally may of itself be revealing of there being no intention, objectively or subjectively, that an expectation would or should be engendered.
It was also considered that the class of persons affected was not a small, identifiable group. The context to the comments at the 21 November meeting was clearly “macro-political” and the decision not to pursue Part 2 was “intensely political”; a factor militating strongly against the finding of a legitimate expectation. The statements themselves could not be said, viewed objectively, to bind the Government in terms of creating a legitimate expectation.
Finally, although not legally conclusive to the issue, there was no detrimental reliance by any of the Claimants.
The decision, although in many respects a relatively ‘standard’ run through and application of the principles of a challenge based on legitimate expectation, also highlights the importance of not overlooking the overarching principle of ‘fairness’ in public law challenges.