When I attend a Tribunal hearing, I usually bring my laptop and charger. And I type almost all the time, religiously. Where possible I aim for a verbatim record, although that can be hard when people speak quickly or quietly or both. The longest note I have is over 300-pages – the length of a short novel.
It's a good habit, drummed into me by my former supervisor. Having a contemporary note, even a rough one, can make all the difference many months later as appeals develop. A recent Court of Appeal judgment, Sarabjeet Singh v Secretary of State for the Home Department [2016] EWCA Civ 492, serves as a reminder to maintain good habits and have your ducks in a row.
In Singh, the absence of a contemporary note, among other things, was central to the outcome in an appeal based on apparently biased remarks made by an Immigration Judge. Lord Justice Davis explained, at paragraph 41, why a short witness statement from the advocate at the first hearing was not persuasive evidence of bias:
The statement was made some two weeks after the hearing. It will have been based on [the Advocate]'s recollection (he exhibits no contemporaneous note). He does not purport to set out the precise words which the FTTJ used; nor does he make clear if what was said was all said in one go or whether it was the product of an exchange.
42. In circumstances such as these the actual words used, just as much as the context and manner in which they are said, are all important.
For a detailed and informative analysis of this judgment, see Alice Muzira's post on the UK Immigration Justice Watch blog. Below is a summary of some of the key parts of the Court's decision.
- As is well-established, the legal test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (paragraph 30, which refers to Porter v Magill [2001] UKHL 67). The proceedings should be considered objectively and as a whole (paragraph 36)
- Judges should exercise caution when expressing their current thinking. The premature expression of a concluded view or the manifesting of a closed mind by the tribunal may amount to the appearance of bias. However, a strongly held view can be a provisional view where it is expressed appropriately by a Judge (paragraph 32 – citing Southwark London Borough Council v Jiminez [2003] EWCA Civ 502 at paragraphs 25 and 38).
- "a judge does not act amiss if, in relation to some feature of a party's case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual
- proposition whatever the evidence may be." (see Arab Monetary Fund v Hashim (1993) 6 Admin LR 348 at page 356). Such expressions may help the parties to focus their arguments and sometimes robust expressions are necessary to re-orient the parties on certain points (paragraphs 34 – 35).
- In this case, the Court noted that the Tribunal's written reasons did not support the allegation of bias, the advocate did not protest to the Judge or ask the Judge to recuse himself, nor was any application made for a re-hearing (paragraphs 45 to 46).
As a post-script, the Court of Appeal gave 7 points of general, non-exhaustive guidance (in the absence of any practice guidance from the Tribunal on the point):
- An allegation of bias or misconduct can only too easily be raised by a disgruntled litigant. It is therefore important that any application for permission to appeal, if based (in whole or part) on such a ground, is closely scrutinised when consideration is given as to whether permission to appeal should be granted. Such an allegation, if to be sufficient to merit the grant of permission at all, should ordinarily be expected to be properly particularised and appropriately evidenced.
- If an allegation of bias or misconduct is raised which is adjudged sufficient to merit the grant of permission to appeal then it should be normal practice for the Upper Tribunal thereafter to obtain the written comments of the judge concerned: both in fairness to the judge and to provide the Upper Tribunal with a fuller picture.
- Such written comments of the judge, where obtained, should be provided to the parties for the purposes of the appeal hearing in the Upper Tribunal. In addition, such written comments should be retained on the file pending any possible further appeal to the Court of Appeal.
- Proceedings in the First-tier Tribunal are not ordinarily recorded (it is not a court of record) and no transcript of the hearing will be available. There may be some cases where it may also be necessary to obtain the Tribunal Judge's own note or record of the entire hearing.
- It will normally be likely in such as the present cases to be of assistance to the Upper Tribunal to know what the advocate for the respondent has to say as to what happened or what was said before the First-tier Tribunal. In the present case neither the Upper Tribunal nor this court had the assistance of any such observations. It should be borne in mind that to provide such observations is the more likely to help produce a fuller and more accurate picture of what actually happened or was said in the First-tier Tribunal. There may be cases where the advocate concerned has no precise note or recollection. In that case, the Upper Tribunal at least can be so told.
- Whether oral evidence is needed at the hearing of the appeal on the issue of what happened or was said below should be carefully considered by the parties.
- It is likely to be important for the file to be reviewed and any directions given by an Upper Tribunal Judge in good time before the substantive appeal hearing.
The overall approach is summarised at paragraph 54, where the Court observed:
The general position remains that it is for a party alleging bias (whether actual or apparent) to place before the appeal tribunal the evidence and materials necessary to make good – if he can – such an allegation; and the outcome for each such case will depend on its own facts and circumstances.
It is never enough to simply allege (or imply) bias without providing any reasons as to why a Judge would depart from their oath of office to deal with cases "without fear or favour". The Secretary of State tried that approach in SM and Qadir (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) and was roundly rejected by the President of the Upper Tribunal (see Appendix 1, § 11 – 13 of that judgment).