Two mundane, day to day things are getting my goat at the moment. The first is the mislabeled “cross examination” many Home Office Presenting Officers are trained into and allowed to get away with at court. The other is Presenting Officer failure to put points to witnesses that are then used in closing submissions. This is also tolerated by immigration judges and I for one have given up objecting.
Both of these are basic fair hearing issues.
This isn’t the first time I’ve gone on about this. See Cross Examination from 2010 and a more recent 2013 post on Role of the Advocate at Trial. I’ve just had to sit through another turgid example of it this week, though (how do judges manage?) and thus return to the point.
The experienced HOPO simply asked my client a series of memory test questions. When did x occur? How many times did y happen? When did z occur? My client had been diagnosed with Post Traumatic Stress Disorder and was visibly distressed. She was crumpled up and kneading her forehead, mumbling until eventually unable to answer even basic questions or, towards the end, speak. A break was permitted but didn’t much help.
It was never put to my client that she was lying or making it up. No question along the lines of “You can’t tell us now because it never happened, did it?” was ever put. Perhaps, ironically, the Presenting Officer thought that would be cruel. Nevertheless, in closing submissions it was argued that my client’s ‘credibility’ (a spade is never a spade and this euphemism is used to insinuate rather than confront) was damaged on the basis of a minor inconsistency between her ability to answer questions in court now and during the six hour full asylum interview that had already taken place. Of course, this was never put to my client, who had no opportunity to react to this suggestion while giving evidence.
It is however equally unfair to an individual witness to postpone criticism of his conduct until closing submissions are made to the jury, not least because if given the opportunity, the witness whose behaviour is impugned may have a complete or partial answer to the criticism. All this is elementary. (R v Farooqi & Ors  EWCA Crim 1649)
Appeal allowed there and then, happily. But justice and the tribunal are not well served when witnesses are not properly tested in cross examination and have no opportunity to react to the case against them. I don’t think appellants are well served either – many would welcome the opportunity to respond to the Home Office case and it would be instructive for judges to be able to see and hear their reactions.