The Upper Tribunal has set aside a decision of the First-tier Tribunal after finding the hearing was unfair because of the conduct of the judge and the failure to adjourn the case when the Home Office Presenting Officer raised concerns over her personal safety. The Upper Tribunal in MS (judicial interventions, complaints, safety concerns) [2023] UKUT 00114 found that this was an error in law.

Background

This was an asylum appeal that had been listed before the First-tier Tribunal for two days, a Friday and Monday, as well as a prior reading day. There appears to have been an issue (not the fault of the appellant’s representative) with the bundle making its way to the judge, and the hearing only started after lunch on the Friday.

On Monday morning, the Home Office Presenting Officer withdrew from the case after the judge failed to adjourn the hearing when she raised issues of her personal safety. The appellant was informed that his appeal was allowed.

The Secretary of State appealed that decision on the grounds that the First-tier Tribunal “erred in permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings”. It was argued that the hearing was unfair due to the conduct of the judge, and the failure to adjourn where the Presenting Officer had raised issues of her personal safety. It appears that a complaint about the judge had also been made, which was appended to the grounds of appeal, a decision described by the judge granting permission as “highly questionable”, and by the Upper Tribunal in this decision as “a practice which is to be deprecated”.

The initial hearing was recorded so the Upper Tribunal was satisfied that there was no need to contact the First-tier Tribunal judge for her comments, concluding that “[t]he disagreement in the case concerned whether the judge’s conduct meant that the hearing was conducted unfairly, and this could be judged from listening to the recording”. Having listened to the recording, they found that there were “very many causes for concern” and held that there had been both apparent bias and procedural unfairness.

Bias

In relation to bias the case of Magill was applied: could a fair-minded and informed observer be given the impression of bias. The tribunal said that the recording revealed that the conduct of the judge was “overbearing and intimidatory” towards the Presenting Officer. Several examples are given in the decision, the judge at one point telling the Presenting Officer “not to bother” taking instructions as the only way to address the deficiencies of the refusal letter would be to withdraw it. This was prior to the judge rising to consider the appellant’s updated bundle. The Judges conduct indicated that her mind was closed as to the outcome of the appeal and that she had intended to allow it regardless, and that this amounted to an error of law.

The judge referred on more than one occasion to the Presenting Officer’s professional qualifications and duties, and at one point “slowly read detailed extracts from both the code of conduct relating to the [Presenting Officer’s] professional body as well as the Home Office Code of Conduct for Presenting Staff.” The judge invited the appellant’s representative to submit further evidence, and when the Presenting Officer objected and requested permission to submit evidence in response the judge again referred to her professional duties and made references to time wasting. The tribunal considered these references were unnecessary and done in a bullying manner, and that this led to unfairness.

Procedural unfairness

In relation to procedural unfairness, the tribunal refers to the judge’s response to several applications made by the Presenting Officer, though the details of just one of these are provided. The appellant was part-way through his evidence when the hearing finished on Friday. He was due to finish on Monday. Over the weekend, the appellant viewed the Presenting Officer’s LinkedIn profile and someone who had attended the hearing with the appellant sent her an invitation to connect on LinkedIn. The Presenting Officer was concerned by this and discussed it with a Senior Case Worker who advised her to tell the judge, ask for an adjournment, and withdraw from the case if this was refused. The tribunal described the judge’s response as “dismissive, engaged in victim-blaming and did not address the concerns raised by the [Presenting Officer]”.

The Presenting Officer withdrew from the case which meant that the evidence of the witnesses went untested. The tribunal concluded that “the failure of the judge to adequately investigate and consider the personal safety issues raised by the HOPO was procedurally unfair and amounts to a further material error of law which had a material effect on the outcome of the appeal”.

The tribunal expressly applied the cases of AEB and Begum in deciding to remit the appeal, so as not to deprive either party of the two-tier decision-making process.

The headnote to this judgment provides a useful reminder of conduct in hearings and judicial intervention.

1. Regardless of the appropriateness of judicial interventions, overbearing and intimidatory conduct, directed at a representative, could result in an unfair hearing as well as give the impression of bias to a fair-minded and informed observer, applying Porter v Magill [2001] UKHL 67.
2. Whilst it is, of course, always necessary for the judge to retain control of proceedings, so as to ensure that they remain focussed, effective, and efficient, it is also a key part of the judge’s role to conduct the hearing to ensure that they get the best out of all the participants appearing before them. This approach should enable the judge to do justice to the case and help to reach a high-quality decision for the parties. The task involves listening as well as guiding, and patience tempered by the need to steer the parties in the direction of the issues that the tribunal needs to decide. However carefully constructed or well-reasoned, a decision which is founded on an unfair hearing cannot stand.
3. In the event a representative raises a concern as to personal safety, this must be explored promptly, in sufficient detail and with sensitivity.
4. The inclusion of a copy of a formal complaint made about a judge with the notice of appeal is a practice which is to be deprecated. The two processes should operate separately from one another. No recourse is to be had to either the existence of or the content of a complaint against the judge in reaching a decision as to the presence of an error of law in the decision and reasons of the First-tier Tribunal.

It should be noted that the system for judicial complaints is currently under review, in the meantime the process can be found here.