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DWP duty to trace evidence - update to guidance
I agree 100% with Martin
I have not been before any Judge so far who has invoked Rule 14 in such a way…..
There was no mention of rule 14 in the direction, the justification for it appears to have been based on a paragraph in the DWP’s response about data protection which stated -
‘This means that the Kerr principle cannot apply as it is not data that is freely available to the DWP (due to Data Protection Act restrictions).
There is one exception to the above - if a court order has been issued by the Tribunal Judge, then we can share information with the judge “for their attention only”.’
No legal citations or any other justification given. This case had already dragged on for over two years so I wasn’t going to challenge the direction in advance of the hearing as it would only delay it further. I didn’t need to challenge it at the hearing as the Judge said that the DWP had ignored the direction anyway.
It feels a bit silly to talk about this in terms of rule 14 as though it is just to overlook some dull point of procedure.
If we are imagining a hypothetical where the information has been shared only between one of the two parties and the judge and then the Judge proceeds to rely on that secret evidence to decide the case against the party who has not seen it, then there is virtually inevitably a massive article 6 breach.
Secret evidence just isn’t allowed. Even in SIAC, the special tribunal dealing with accused terrorists and such and dealing with evidence which - if made public - would jeopardise national security, parties who are not allowed to see the evidence themselves are able to appoint “special advocates” to look at it and make submissions on their behalf.
I suppose the DWP might feel better if they were to send the material to a judge in a brown envelope so that it is then a judicial decision to circulate it further. That might at least make them feel that they have sufficiently insulated themselves from any data “breach”.
[ Edited: 11 Nov 2019 at 09:48 pm by Elliot Kent ]The DWP response is clearly nonsense for the reasons I set out in that interlocutory submission. (briefly the exceptions are wider than those posited by the DWP)
In my opinion the Judge was similarly equally wrong to follow the DWP’s “advice”
This was meant to be posted on thread
[ Edited: 3 Feb 2020 at 04:36 pm by Stainsby ]