Absence of legal aid may breach fair hearing
A batch of new Upper Tribunal cases have been approved as safe for general consumption by the reporting committee. I posted up three of them yesterday as new short-form ‘link format’ posts with no real commentary, but I wanted to highlight the case of Farquharson (removal – proof of conduct)  UKUT 146 (IAC).
This was a human rights deportation appeal and the decision is signed by President Blake, who says:
“…it is important that legal representation should be available in such cases. The appellant told us that his reading ability is not great. He was able to read back parts of his statement to us to our satisfaction, but absorbing the detail in the CRIS reports would undoubtedly have been a challenge without professional assistance. The appellant will also have been disadvantaged by a long period of pre-appeal detention. We hope that legal aid is granted readily in such cases whatever the apparent weight of the case against him. Without it there is a very real risk that his common law right to a fair hearing will be undermined.”
As a class of case, legal aid was ended for such appeals last week. There is a possibility exceptional funding but the prospects of that being granted are very uncertain. If not, the President makes clear that the common law right to a fair hearing will be in jeopardy if no alternative legal representation can be found. Some organisations and chambers have been meeting to discuss provision of pro bono representation in these cases, but many are concerned that this merely props up a fundamentally unjust system and is akin to offering a sticking plaster for a serious flesh wound. I myself had favoured setting up something like BID but for Article 8 and deportation cases but I am starting to wonder.
A further point of interest arises from the nature of the error of law, which from the determination of the Upper Tribunal seems to have been a blatantly unfair hearing conducted by First-tier Judge Clayton in which all sorts of new evidence from the Home Office was admitted with no notice on the day of the hearing against an unrepresented litigant in person who had difficulty reading. The Home Office made no attempt to argue that there was no error of law. There will of course be many more litigants in person in the coming months and years and judges need to accept that hearings need to be conducted differently in such cases.
The case concerns allegations of bad behaviour that fall short of criminal convictions or even criminal behaviour. The Home Office / police evidence was problematic in places as it was based on assertions and hearsay rather than sources or evidence. The headnote reads thus:
(1) Where the respondent relies on allegations of conduct in proceedings for removal, the same principles apply as to proof of conduct and the assessment of risk to the public, as in deportation cases: Bah  UKUT 196 (IAC) etc applicable.
(2) A criminal charge that has not resulted in a conviction is not a criminal record; but the acts that led to the charge may be established as conduct.
(3) If the respondent seeks to establish the conduct by reference to the contents of police CRIS reports, the relevant documents should be produced, rather than a bare witness statement referring to them.
(4) The material relied on must be supplied to the appellant in good time to prepare for the appeal.
(5) The judge has a duty to ensure a fair hearing is obtained by affording the appellant sufficient time to study the documents and respond.
(6) Where the appellant is in detention and faces a serious allegation of conduct, it is in the interests of justice that legal aid is made available.