IF FINDINGS OF DISHONESTY ARE TO BE MADE THEN WITNESSES HAVE TO BE HEARD
Two cases in two days have shown the difficulties that arise when findings of dishonesty are made by judges without hearing evidence. Here we look at the difficulties that arose when a judge held a trial without hearing evidence and made adverse findings of fact about the integrity and honesty of witnesses.
FINDINGS MADE ON PAPER
In The Queen (on the application of Patel) -v- Secretary of State for the Home Department  EWCA Civ 645 the Court of Appeal overturned an award of £150,000 against the Home Department.
- Although this case started as a judicial review action the issues of fact that remained made it unsuitable for a trial without witnesses being heard.
- The parties (particularly the defendant Secretary of State) were at fault for not addressing these issues and engaging in the case fully.
The claimant had been detained following an immigration check. She issued proceedings for judicial review. The claimant was reduced, however the claim included a claim for damages for false imprisonment and this proceeded. A “trial” took place in which no evidence was called. The judge delivered a 138 page judgment in which he found that the immigration officers had conspired to give a false account of the claimant’s evidence in the form of witness statements. The judge awarded substantial damages to the defendant.
Through a series of procedural errors the case stayed in the administrative court and a “trial” took place on paper.
Lord Justice Moore-Bick:
As a result of the determination of the First-tier Tribunal, the only aspect of the original claim for judicial review which remained live was Mrs. Patel’s claim for damages for false imprisonment. The trial was originally listed before His Honour Judge Gore Q.C. on 30th April 2013, but there was a dispute about disclosure and other preparatory matters and in the event the time allowed for the hearing was used for the purpose of giving directions. The judge expressed the view that the case should be transferred to the non-jury list of the Queen’s Bench Division, but the claimant resisted that suggestion and the Secretary of State appears to have expressed no positive view one way or the other. As a result, the case remained in the Administrative Court with no additional directions designed to ensure that witnesses gave evidence in person and were available for cross-examination.
In my view, this was the first of a number of unfortunate procedural errors. In the grounds filed in support of her application for permission to proceed with her claim for judicial review Mrs. Patel alleged that there was no reliable evidence to support the allegation that she had said that she would undertake work in the form of sewing curtains for sister. Her case was that she had been subjected to arbitrary and malicious treatment by the immigration officers of a kind that amounted to misfeasance in public office because they had acted with reckless indifference to the lawfulness of their actions. These allegations reflected the grounds put forward by Mrs. Patel’s solicitors on 18th October 2011 when renewing her application for permission to proceed with the claim. They also reflected an allegation made in the skeleton argument deployed before the First-tier Tribunal in support of Mrs. Patel’s case that the immigration officers had acted maliciously in refusing to allow her to enter the United Kingdom. If the Secretary of State had taken the trouble to read those documents and consider their implications, therefore, I do not think that she could have been in much doubt that the integrity of the immigration officers was in issue.
In those circumstances it was unfortunate, to say the least, that the claim was allowed to proceed to a hearing on the basis of documents alone in accordance with the ordinary procedure of the Administrative Court. This was a case which in my view could not properly be disposed of without hearing the protagonists give evidence in person and subjecting themselves to cross-examination. I find it astonishing that the Secretary of State, whose officers were being accused of acting dishonestly and maliciously, should have been willing to allow issues of that kind, which closely touched their reputations and their careers, to be determined without giving them a chance to be heard. With respect to Judge Gore, I think he should have followed his instincts and directed that the matter be transferred to the non-jury list of the Queen’s Bench Division, whether the parties wished it or not, or at least should have directed that the case continue in the Administrative Court as a Part 7 claim and given directions accordingly. Had that been done, it is probable that the judge conducting the trial would have seen and heard all the witnesses give evidence and would have had the benefit of seeing them cross-examined, both generally and by reference to the critical notes of interview. He would then have had a sound basis for reaching a decision which was likely to be of personal importance to all those involved.
However, the parties, rather than Judge Gore, must bear the blame for what in my view was a wholly unsatisfactory procedure. In particular, the Secretary of State appears to have taken an unaccountably cavalier attitude towards the proceedings. At the hearing on 30th April 2013 Judge Gore gave her liberty to file further evidence and give disclosure in relation to certain questions concerning the circumstances of the interviews and the identities of the signatories to various documents that had been raised by Mrs. Patel’s solicitors the day before. The questions were answered, but in the most perfunctory terms and although the judge had suggested that further evidence would be helpful, no attempt was made to deal with the substance of the case against her. The Secretary of State made no attempt to ensure that the officers in question were called to give evidence in person, speak to the documents and defend the challenges to their integrity.
There is then a detailed consideration of the evidence before the trial judge and came to the conclusion that the findings were “unbalanced and unsustainable”.
Lord Justice Underhill:
I agree that this appeal must be allowed. As the Vice-President has demonstrated, the Judge’s reasoning is profoundly unsatisfactory and unfair and does not come close to justifying the factual findings that he made. There are a few other comments that I would wish to add.
First, although this is a particularly striking example of a claim being decided on paper where live evidence was plainly required, it is not in my experience unique, and I believe that parties and the Court sometimes accept too unquestioningly that a case that has been started under CPR 54 should simply proceed to a trial on the papers. Where a claim for judicial review throws up substantial issues of primary fact about the events on which the claimant relies, careful consideration needs to be given to whether those issues can fairly be decided without a process which gives the opportunity for cross-examination of witnesses. Judge Gore, to his credit, saw the problem, but unfortunately he yielded to the advocacy of the claimant’s counsel unopposed by any contrary submissions from the Secretary of State.
Lord Justice Christopher Clarke
I agree with both judgments and, in particular, with the observations of my Lords about the obvious inappropriateness of having determined on paper a case involving an allegation (of which the Secretary of State had ample notice) of a fraudulent conspiracy the resolution of which was dependent on the evidence of Mrs Patel and the immigration officers concerned. I also agree that there were several other failings. These included the failure of the Secretary of State (a) to be represented or to adduce any evidence (not even a statement vouching the accuracy of the notes of interview) at the adjourned hearing before Judge Dineen; (b) to adduce any evidence at the judicial review hearing from Immigration Officers Reeves, Norris or Menon or any explanation as to why (if it was the case) their evidence was not available; (c) to arrange for any immigration officers to be available to give oral evidence and be cross examined; (d) to seek to cross examine Mrs Patel; (e) to produce a witness statement from the immigration officer concerned explaining who had compiled the two explanatory statements, as well as confirming that the statement that IO Newton had conducted the first interview was an error and explaining how the error came to be made; or (e) to produce a proper copy of the landing card.
I cannot tell whether the failure to call any officer arose because of an assumption leading to a force of habit that oral evidence was inappropriate for judicial review or a policy that individual officers should not be called to give evidence. As to the former, whilst it is true that historically oral evidence has been exceptional, the range of cases in which judicial review is sought is such that there will be cases which cry out for oral evidence and cross examination. This was one. As to the latter, if there is such a policy, it should be reviewed. The result in the present case was very unfair to the immigration officers concerned, whom the judge has found to have been dishonest without their ever having been heard. It made unnecessary difficulty for the judge and was not in the interests of Mrs Patel or the community as a whole.
It is not apparent to me (i) that anyone on the appellant’s side ever adequately engaged with the question as to how the case needed to be tried in the light of the allegations made and the issues to which they gave rise; (ii) why no statement was produced from Reeves, Norris or Menon; (iii) whether it ever dawned on anyone what the consequences might be of having no oral evidence; (iv) why in a case such as this there was no presenting officer before Judge Dineen; (v) why some of the Secretary of State’s responses were as perfunctory as they were.
In short I regard the preparation on the Secretary of State’s side as marked by lamentable errors. Whilst I agree with my Lords that it was not open to the judge to reach the findings that he did, there is an obvious risk that if the Secretary of State fails, in a case such as this, to call all the relevant witnesses, or, at least, the most relevant ones, a tribunal or court may (whether rightly or wrongly) view her case with deep suspicion and is quite likely to accept the evidence of someone who has been called (if apparently credible) for want of hearing from a contradictor. In addition, gaps in the evidence and discrepancies in documents, which could readily have been explained or dealt with by those involved, may, absent any witness who can be questioned about them, acquire a sinister significance which they do not truly possess . It would not have involved much time or effort to adduce the evidence needed in this case and to deal explicitly and fully with the allegations made. It would not have taken very long to hear oral evidence. Even if the hearing had been prolonged into a second day the availability of oral evidence might have avoided the delay between the hearing and the judgment and would, quite probably, have avoided an appeal. If oral evidence had been before Judge Dineen there might well have been no basis for a judicial review.”