COMMENT POSING AS CROSS-EXAMINATION: “INAPPROPRIATE AND IMPROPER”

When does cross-examination turn to comment? That is a question all working advocates have to consider, both in relation to their own cross-examination of witnesses, and responding  to their opponents. There are some important observations by Mr Justice McCloskey in Wagner -v- Secretary of State for the Home Department [2015] UKUT 655 (IAC).

“…mere comments by representatives under the guise of questioning of a party or witness are not appropriate. They are forbidden by the most elementary principles and rules of advocacy. Swift disapproval by presiding judges can only enhance both fairness and advocacy standards, thereby emphasising the authority of the Tribunal.”

THE CASE

The appellant was seeking leave to remain in the UK on the grounds of his wife’s health. He appears to have represented himself.  Medical evidence was adduced from a GP. During the course of cross-examination Mrs Wagner the presenting officer asked
[a] ” …. It is strange that you do not know the name of the antidepressant even though you take it every day“.
[b] ” The Honourable Judge intervened and mentioned that the doctor stated she is on ‘appropriate’ medication.
This, per the Appellant’s letter, was followed by a question from the PO:
[c] ” Why are the names of any medication not mentioned?
Next, the letter complains that, with reference to the Appellant’s condition of DVT, the PO stated:
[d] ” That’s not a problem.
THE JUDGMENT IN RELATION TO THE CROSS-EXAMINATION
  1. The ultimate question is whether the conduct of the hearing blighted the Appellant’s ability to put forward his case or to respond to the challenge made to his case. I have concluded, on balance, that there was no such impairment. However, I would add that, as highlighted in the recently reported decision of Alubankudi (Appearance of bias) [2015] UKUT 54, the interaction of most litigants and witnesses with the judicial system is a transient one. Indeed, it is normally confined to a single litigation experience. I repeat what was said in Alubankudi at [14]:
The interface between the judiciary and society is of greater importance nowadays than it has ever been. In both the conduct of hearings and the compilation of judgments, Judges must have their antennae tuned to the immediate and wider audiences … it is of seminal importance that the fairness, impartiality and detached objectivity of the judicial office holder are manifest from beginning to end.
To this I would add that the importance of appearances, impression and perceptions must never be underestimated.
  1. I would, however, hold unequivocally that questions and comments of the kind detailed at [2](a),(c) and (d) above are improper. As regards the second of these two matters, it was plainly inappropriate to ask the Appellant or his spouse why the medical expert who had compiled the report in question had not detailed the relevant medication. The Judge, of course, could not have prevented this question from being asked. However, the intervention which he had made immediately beforehand suffices to indicate that he was discharging his duty of fairness to both parties. As regards the first and third of these matters, fairness did not necessarily dictate any particular intervention or ruling on the part of the Judge, given the margin of appreciation available to him. However, the judge should have appreciated that the comment was perceived to be demeaning and insulting and a suitable intervention would have been appropriate.
  1. To this I would add that mere comments by representatives under the guise of questioning of a party or witness are not appropriate. They are forbidden by the most elementary principles and rules of advocacy. Swift disapproval by presiding judges can only enhance both fairness and advocacy standards, thereby emphasising the authority of the Tribunal and enhancing its status of fair and impartial adjudicator. My final observation on this issue is that the role of the advocate does not properly encompass either aggressive questioning or confrontation: where either occurs, a boundary has been crossed and the presiding Judge should intervene. Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair.

THE RESULT: THE DECISION WAS OVERTURNED

  1. Very properly, it forms no part of the Respondent’s case to challenge the medical evidence which has been assembled. Having no reason to doubt or question this evidence, I accept it. Considered in its totality, it makes a potent case for the Appellant and his spouse under Article 8. I find without hesitation that the Appellant’s spouse is heavily dependent upon him, increasingly so and is of deteriorating health. In contrast with the Judge, I decline to speculate about the availability of assistance from relatives or publicly funded interventions. There is absolutely no evidence relating to either of these measures. Furthermore, it is not in dispute that they have not had to resort to the latter.
  1. Given the very particular and highly fact sensitive nature of this case, it is unsurprising that it has no specific prescription within the Article 8 regime in the Immigration Rules. Finally, I weigh in the balance the implicit acceptance on the part of the Respondent that if the Appellant were to return to South Africa, his settlement application would be decided within a period of some three months and, further, would have a positive outcome. This means that the Chikwamba principle is engaged.
  1. The findings, analysis and assessment above impel to the clear conclusion that this is one of those comparatively rare cases out with the framework of the Immigration Rules in which a disproportionate interference with the Article 8 rights of those concerned has been demonstrated. In the balancing exercise, the facts and considerations on the Appellant’s side of the scales combine to outweigh the public interest in play. I remake the decision by allowing the appeal.

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