Otobo, R (on the application of) v Slough Borough Council

THE DEPUTY JUDGE: This is a renewed application by Mr Otobo for permission to apply for judicial review. More accurately, it is a request to reconsider a decision of HHJ Thornton Q.C. sitting as a Deputy High Court Judge, whereby he refused permission.

By way of background, the council wished to interview Mr Otobo in connection with his housing benefit and council tax claims, because they had reason to believe that they may be fraudulent. The council said it would provide him with full details about the allegations when he attended the interview, and they said that the interview would be tape recorded and would be conducted under the provisions of the Police and Criminal Evidence Act 1984; it said he could consult a solicitor and that the solicitor could discuss the purpose of the interview with the investigating officer. That was set out in the letter of 4 December 2009 and repeated in the letter of 16 December 2009 to which Mr Otobo took me this morning. I should also explain that the interview is a voluntary interview, there is no obligation on Mr Otobo to attend. It was stated, however, that it was important that he attended and that failure to attend would not of itself prevent criminal proceedings being taken if the council thought that was appropriate.

Mr Otobo has repeatedly said that he should have disclosure of the evidence which has triggered this investigation before he attends an interview, and he says this is in line with Article 6 of the European Convention on Human Rights and with rules on disclosure. There has been further correspondence between the council and Mr Otobo on this matter. One of the most recent letters is actually 6 January 2010 and the council explains in that letter that the amount of pre-interview disclosure given is at the discretion of the investigating officer and that he will be given full details about the allegation when he attended. They said this was an investigation, advance disclosure does not apply at this stage, and the letter also said that if Mr Otobo had a solicitor who wished to discuss the purpose of the interview then he or she could contact the investigation officer and the council could decide what disclosure, if any, to give to the legal representative immediately before the scheduled interview. The letter dealt with Article 6 and said:

An interview did take place on 13 January 2010. Mr Otobo this morning has criticised the quality of the transcript. He thinks there are gaps and he believes that if he had legal representation a transcript would have been obtained and he would have been able to make even more comments.

It seems to me that the gist of the interview is the same as the gist of the previous correspondence, and indeed the gist of Mr Otobo's claim for judicial review. He says there is a duty, because of Article 6 of the European Convention and rules of disclosure, to provide the evidence to him in advance of the interview; the council says that they are not under such an obligation.

A claim for judicial review was made by Mr Otobo. That was dealt with on the papers by HHJ Anthony Thornton QC, sitting as a Deputy High Court Judge, and he refused permission and gave reasons running to approximately a page and a half. HHJ Thornton noted that the claimant, Mr Otobo, was seeking judicial review of the decision to invite him for an interview and that the claimant was declining to be interviewed until he was provided with copies of all documents that the defendant relied on as giving rise to the suspicion. HHJ Anthony Thornton set out in detail the reasons why there was no right to disclosure at this stage. He pointed out that the defendant council was undertaking an investigation as a prelude to deciding whether or not to prosecute the claimant. He noted that the defendant has no right to insist that the claimant attends for interview, and the defendant is not required in law to give prior notification of the basis of the suspicion. Equally, the defendant could proceed with this investigation and, if it considered it appropriate, prosecute the claimant, even if he has refused to be interviewed. The judge concluded that, if the defendant decides to prosecute the claim, the content of his interview may only be adduced in evidence if the interview is carried out under caution and subject to PACE. The judge further notes that Article 6 was not applicable as the interview was not at that stage part of any trial or legal proceedings, since no trial or legal proceedings had been begun. He considered that the proposed procedure was, in any event, fair and beyond reproach, and included an ability of the investigative officer to provide disclosure if he or she thought fit. The claimant could have a lawyer present during the interview.

Mr Otobo renews his application for permission and he has, this morning, made oral submissions very eloquently as to why the decision of HHJ Anthony Thornton refusing permission should be reconsidered.

In my judgment, the process of inviting Mr Otobo to a voluntary interview, telling him of the details of the allegation, and giving him the opportunity, if he wishes to avail himself of it, to answer questions does not involve a breach of Article 6, for the reasons summarised in the decision of HHJ Thornton. Nor does such a process give rise to any unfairness; nor is it a breach of any rules of disclosure; nor is it a breach of any of the numerous articles of the ECHR cited in the application to renew; nor is it a breach of Article 47 of the Charter of Human Rights of the European Union, to which the notice of renewal also refers. If there is an interview, and if there is a trial of the claimant, then the use that may be made of any such interview will fall to be considered as part of that trial but, at present, in my judgment, there has been no arguable breach of those articles.

I should add that Mr Otobo was concerned about a skeleton argument that the council had produced. The council, in error, did not send Mr Otobo a copy of that skeleton argument before this morning's hearing, and it had annexed to it certain decisions of the European Court of Human Rights. Mr Otobo was only provided with it this morning. In my judgment, it was right to proceed in any event and, if it had been necessary to call on Mr Mobbs, we could have looked at that skeleton argument and Mr Otobo would have had the opportunity to comment on it. As it happens, the decision of HHJ Thornton was clear and it was not necessary to consider the skeleton argument, and indeed it was not necessary for me to ask counsel for the council to make any submissions. I have been able to deal with this matter only on the documents produced by Mr Otobo and only on the oral arguments that he has made this morning.

I am confident that Mr Otobo has been able to put forward all his arguments today, and he has done so very articulately and very eloquently this morning. However, in my judgment, having heard his arguments and having read his documents, there is no arguable breach of Article 6 or of any rules of disclosure or of any of the other ECHR Articles or the EU Charter, and I therefore dismiss the application for permission.

MR OTOBO: Could I ask for a transcript to be made at public expense?

THE DEPUTY JUDGE: Not at public expense, no. You can apply for a transcript, I imagine, but it is a matter for you.

MR MOBBS: My Lord, there is an application for costs.

THE DEPUTY JUDGE: Costs are not normally awarded at an oral permission hearing and, as it happened, I did not need to rely on anything that you said or any documents you produced because I was able to deal with it solely on the basis of what Mr Otobo provided and said. So, in those circumstances, it would not, in my judgment, be correct or right to order Mr Otobo to pay you any costs and I do not do so.

Any other matters?

I am very grateful to Mr Otobo for his helpful submissions this morning. I am sorry we didn't need to read anything that you produced, Mr Mobbs. Thank you very much.

MR OTOBO: I would be grateful, my Lord, if those preparing the order can do so as soon as possible. I would wish to have a copy of the order made today, as soon as possible, my Lord.

THE DEPUTY JUDGE: Yes, that is not a matter for me. There is a procedure and you will have to make enquiries about that.