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Interventions from the judge

Chapter number: 
The Hearing
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

38.1. The caselaw establishes that the judge should not embark on questioning of the appellant (or other witness) aimed at developing his own theory of the case as distinct from adjudicating between the submissions of the parties.

38.2. In JK (Conduct of Hearing) Côte d'Ivoire [2004] UKIAT 00061, the Tribunal said that

42... It is proper ... to intervene during examination-in-chief and cross-examination for the purposes of moving the proceedings along, so long as that is done in a fair manner. It is necessary and proper for an Adjudicator to point out that a line of questioning is irrelevant or valueless or repetitious or is going nowhere. It will, of course, be necessary to consider any response made by a representative to such an approach...

43 ... If there are inconsistencies between documents and oral evidence or between answers which have been given already, it is nearly always best to wait until after cross-examination and re-examination to see what matters are put. However, it is wholly legitimate for the Adjudicator to ask his or her own questions on issues of inconsistency, points raised in the refusal letter or matters which trouble the Adjudicator whether or not they are raised by the other party. What is important, however, in relation to those matters is that the Adjudicator should not develop a different case from that being presented by the other party or pursue his or her own theory of the case.

44. The manner in which any intervention is undertaken is also important. It should not be done in any hostile manner or in a manner which suggests that the Adjudicator's mind has been made up. Questions should not be leading questions or ones which conceal the purpose for which they are asked, but instead should be direct and open-ended questions. It is perfectly proper for the Adjudicator to ask, after questions have been put in cross-examination and re-examination has taken place, why a witness has said x when earlier that or another witness has said y, or how document x can be reconciled with document or oral evidence y. An Adjudicator is entitled to follow the logical train of answers to see how they fit with the case if that is regarded as potentially significant for an issue in the case. It is also important, however, that an Adjudicator should keep a sense of proportion about the questions which he or she asks. It is not for the Adjudicator to take over conduct of the case either by the number of questions asked or the development of his or her own theories. The interventions may or may not assist one or other party. They are not unfair merely because one or other party may derive assistance from them.

38.3. In XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro [2005] UKIAT 00093, it said that

31... An Adjudicator is entitled to raise issues which trouble him. However, where there is a Home Office Presenting Officer, who does cross-examine, an Adjudicator should sense warning bells ringing over what he then does.

32. The questions should be asked after cross-examination has concluded except for clarification. Otherwise, there is an appearance of a dual cross-examination. It may be otherwise if there is no Home Office Presenting Officer and an issue arises unexpectedly in evidence in chief...

33. The questions should not be too long. There is no precise permissible ratio, but asking significantly more questions than the Home Office Presenting Officer is again an indication of apparently excessive intervention with the attendant risk of apparent bias.

34. We accept that the tone of the questions was hostile, leading and repetitive and contained expressions of disbelief... The Adjudicator simply did not believe the Appellant, and repeated the questions in a disbelieving manner. There was no need for that in order to resolve a vagueness...

35... the Adjudicator ... was developing his own theory of the case. This was very different from the Secretary of State's refusal letter or the Home Office Presenting Officer questions. Again, no absolute rule can be laid down; an obvious issue may have been omitted; credibility may be at issue but a facet not otherwise explicitly identified may call for examination. However, in what remains an essentially adversarial system, for an Adjudicator to develop a hostile theory, in addition to the Secretary of State's different opposition can create a real possibility of the Adjudicator appearing biased. Warning bells should be sounding.

38.4. The judge should not be discouraged from raising his concerns at the hearing: on the contrary, fairness may well require this. But he should not himself embark on a series of questions resembling a cross-examination. In the past, judges have been known to conduct a quasi cross-examination themselves even where the HOPO has declined to cross-examine the witness at all. It is particularly inappropriate of the judge to make any intervention that suggests that he has already formed a view on credibility.

38.5. If you are concerned about the judge's interventions, you should object politely. A failure to do so may prejudice a subsequent appeal. You should also note your concerns at the time, and the response to any objections you make.