Secretary of State for the Home Department v KIB

KIB is a paraplegic wheelchair user with complex care needs. There is an anonymity order restricting publication of information likely to identify him. Whether that order should continue to apply will be decided separately after considering submissions from representatives of the media and the parties.

On 25 November 2024, Johnson J gave permission to the Home Secretary to impose a Terrorism Prevention and Investigation Measure (“TPIM”) on him, to coincide with his release from prison on the following day. The Home Secretary served a TPIM notice. Effective immediately, this imposed obligations enforceable by criminal sanction, including the obligation to reside at a designated address in a rural village far from where his family live. It soon became clear that his disabilities made the accommodation unsuitable for him. He was moved after two nights, but contends that, while there, he suffered treatment that violated his right under Article 3 ECHR not to suffer inhuman and degrading treatment.

KIB challenges the imposition and extension of the TPIM. Formally, there are two processes before the court: a review under s. 9 of the of the Terrorism Prevention and Investigation Measures Act 2011 (“the 2011 Act”) of the Home Secretary’s decision to impose the TPIM; and an appeal under s. 16 of the 2011 Act against her decision to extend the TPIM. The substantive hearing of both is listed with a time estimate of 8 days in the weeks commencing 15 and 22 June 2026.

The present judgment is not concerned with the substance of the review or appeal. It arises in the context of a separate issue, which is to be determined at the same time: whether the Home Secretary complied with her duty of candour when she made the initial application to Johnson J for permission to impose a TPIM.

The issue for resolution today is whether, in deciding that question, the court should receive oral evidence from Mr Matthew Willis, upon whose evidence the Home Secretary relies on the candour issue, and permit KIB’s representatives to cross-examine him.

TPIMs can involve serious restrictions on the liberty of the subject. Executive powers to impose such restrictions are unusual. In recognition of that fact, the 2011 Act provides that, before imposing a TPIM, the Home Secretary must secure the permission of the High Court (save in urgent cases, where the case must be referred to the High Court immediately after imposition): see ss. 6 and 7 of the 2011 Act.

Section 6(4) allows the court to consider the application for permission to impose a TPIM on an individual in the absence of that individual, without his having been notified of the application and (if he was notified) without his having been given the opportunity to make representations. Typically, such applications are considered on the papers.

When deciding whether to give permission, the court applies a “light touch” review. Applying the principles applicable on an application for judicial review, it confines itself to asking whether the Home Secretary’s decision that the statutory conditions for the imposition of a TPIM were met was “obviously flawed”. If not, it must grant permission: see s. 6(6)-(8).

The quid pro quo for this “light touch” review (generally conducted on the papers without hearing much, if anything, from the individual concerned) is that the Home Secretary must comply strictly with her duty of candour and cooperation with the court. The incidents of this duty are set out in the Administrative Court Judicial Review Guide §15.3. The Home Secretary must take reasonable steps to ensure that the information she gives is accurate and adequate. She must not be selective in what she discloses, nor mislead by omission.

The 2011 Act provides for a statutory closed material procedure. That procedure is governed by CPR Pt 80. The duty of candour and co-operation with the court is reflected in CPR 80.4(b), which requires that an application by the Secretary of State for permission to impose a TPIM must include “any relevant material of which the Secretary of State is aware at that stage”.

CPR 80.22 disapplies Parts 31 (disclosure and inspection of documents), 32 (evidence) and 33 (miscellaneous rules about evidence). It continues materially as follows:

The procedure adopted in TPIM proceedings typically involves the court hearing oral evidence from witnesses called on behalf of the Home Secretary to address the national security case against the individual and the satisfaction of the statutory criteria for the imposition of a TPIM. Oral evidence is also typically given by the individual or other witnesses called by him or her. Witnesses who give evidence orally are cross-examined. The procedure in TPIM litigation is therefore different from that which ordinarily applies in judicial review proceedings, where oral evidence is received only exceptionally: see §11.2.2 of the Administrative Court Judicial Review Guide and the authorities referred to there.

Helen Law KC for the respondent submitted that oral evidence is expressly envisaged by CPR 80.22(5) and is a “routine part” of TPIM proceedings. She noted that the High Court has permitted cross-examination when deciding whether there was a material non-disclosure in a previous application for a court order: see e.g. Dar Al Arkan Real Estate v Al-Sayed Bader Hashim Al Refai [2012] EWHC 3539 (Comm); Boreh v Republic of Djibouti [2015] EWHC 769 (Comm), [2015] 3 All ER 577.

Neil Sheldon KC for the Home Secretary submitted that the principles governing oral evidence in judicial review proceedings before the Administrative Court provide a more relevant framework for determining the application. He noted that, in previous cases where the court had considered whether there had been compliance with the duty of candour in judicial review proceedings, cross-examination had not been considered necessary: see e.g. R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin); R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812, [2018] 4 WLR 123; and R (HM) v Secretary of State for the Home Department [2022] EWHC 2729 (Admin).

I begin by noting that it is not unusual for the procedure applicable in statutory reviews or appeals, even in cases where as a matter of substance the court applies judicial review principles, to differ from that applicable in judicial review at common law: see e.g. U3 v Secretary of State for the Home Department, SC/153/2018 & SC/153/2021, 4 March 2022 (SIAC), [31]-[33], endorsed in this respect by the Supreme Court: [2025] UKSC 19, [2025] AC 1510, [83] (Lord Reed).

In proceedings to which CPR 32 applies, CPR 32.2(1) lays down a general rule that facts are to be proved (a) at trial, by oral evidence and (b) at any other hearing, in writing. The general rule is subject to contrary provision in the CPR and Practice Directions or in any order of the court. CPR Part 32 is expressly disapplied in TPIM proceedings. CPR 80.22(2) makes clear that there is no equivalent presumption in TPIM proceedings. The obvious inference is that it is for the court to decide, in the exercise of its power to control its own procedure, whether evidence on a particular point should be given orally or in writing. It makes sense that the rules should preserve maximum flexibility for the court, because TPIM proceedings are likely to involve a variety of different kinds of evidence. This is reflected in CPR 80.22(3) and (4).

Against this background, CPR 80.22(5) and (6) cannot mean that a party, or the special advocate, is entitled to adduce oral evidence whenever he or she wishes, still less that he or she can insist on cross-examining every witness whose written evidence is relied upon by his or her opponent. That would confer a stronger entitlement than applies in ordinary proceedings to which CPR Part 32 applies. The better reading of CPR 80.22(5) and (6) is that the entitlement referred to is subject to the court’s power to control its own procedure and that, in the case of parties, the entitlement applies only to those hearings from which the party and his legal representative are not excluded.

The decision whether evidence on a particular point should be given orally will depend on a range of circumstances. The focus should be on whether oral evidence is likely to assist the court in reaching its decision and on whether fairness requires that the deponent be given the opportunity to answer criticisms made of him or her. The court should start by identifying the substantive issue to which the evidence is said to be relevant and the legal test to be applied. Next, it should consider the ultimate source of the deponent’s knowledge (is the deponent giving evidence of matters within his or her personal knowledge or simply conveying an institutional view based on reading documents from others?) and the criticisms made of it (is it said that the deponent has deliberately misrepresented the position or was personally at fault in some other way, or merely that the institutional view is not justified by the underlying documents?).

In my judgment, these general principles apply as much where the court has to consider an alleged breach of the duty of candour as in any other case.

The candour issue arose in the following way. The material before Johnson J when he granted permission for the TPIM on 25 November 2024 included witness statements from Mr Willis, who was then Head of Domestic Pursue Policy in the Counter-Terrorism Pursue Unit of the Homeland Security Group at the Home Office. Mr Willis’ fifth witness statement contained certain assurances about the care plan that had been agreed to assist KIB at the property and about the physical adaptations that had been made to the property to make it suitable to meet his needs.

At a hearing on 22 January 2025, I identified three issues on which there was an arguable breach of the duty of candour in the documents before Johnson J: (1) the viability of the care package to be provided to KIB; (2) the content of that care package; and (3) the suitability of the toilet at the property. I gave directions for the Home Secretary to file further evidence addressing whether there had been a breach of the duty of candour in respect of those issues and for a further hearing, which will now take place at the time of the substantive hearing.

Mr Willis has now filed a seventh witness statement addressing those issues in detail, by reference to the contemporaneous documents, including emails and minutes of relevant meetings, some of which were attended by Mr Willis himself. Reference was also made to his previous witness statements. Mr Willis explains in that statement that he does not consider that he misled the court as to the viability or content of KIB’s care plan or as to the suitability of the toilet.

Ms Law for KIB submitted that Mr Willis’s seventh witness statement wrongly minimises the difference between what had been promised in his fifth statement (twice daily care visits) and what was actually provided (visits by the Rethink Mental Illness team, which were not intended to provide the same kind of care). Ms Law says that, given the note of a meeting which Mr Willis personally attended, he could not have properly stated in his fifth statement that there would be twice daily care visits. It will have to be explored in cross-examination whether this misstatement was deliberate. At this stage, that cannot be ruled out.

Mr Sheldon for the Home Secretary submitted that the issue for the court will be whether the evidence put before the Court in November 2024 was adequate to comply with the duty of candour. That is not a hard-edged question of fact of the type that, exceptionally, justifies the calling of oral evidence in Administrative Court proceedings, but rather involves an evaluative judgment.

In my judgment, it is not necessary or appropriate for the court to hear oral evidence from Mr Willis to resolve the question whether the Home Secretary breached her duty of candour. Mr Willis is not, and did not ever claim to be, an expert in medicine or care or in adapting property for the needs of disabled persons. When he gave evidence about what support KIB needed and would be offered, he was relaying the views of others, as he understood them. Although Mr Willis was present at some of the key meetings at which KIB’s support package was discussed, the views of the relevant health and care professionals were contemporaneously recorded in documents which are now exhibited to his seventh statement. The views expressed in that statement are based primarily on the documents, rather than on his recollection of what took place at these meetings.

In these circumstances, the court will be well-placed to decide for itself whether what Mr Willis said in his fifth statement fully and fairly reflected the documents available to him at the time when he signed that statement. It will be able do so by comparing the text of his statement with the text of the documents. I do not consider that the court will be materially assisted by hearing Mr Willis’s oral evidence on that topic. This is not a case where there is any appreciable prospect of the court finding that Mr Willis’s account was deliberately (as opposed to negligently) inaccurate, so fairness to Mr Willis himself does not dictate any different result.

In these circumstances, I do not consider that it would be appropriate to permit cross-examination of Mr Willis on the candour issues.

For these reasons, the application to cross-examine Mr Willis is refused.