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Judge rebuked for adjourning case during cross-examination

Judge rebuked for adjourning case during cross-examination

The Upper Tribunal has reprimanded an immigration judge for granting an adjournment during the cross-examination of an appellant. In WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC), the President and Vice President of the Upper Tribunal provide guidance on how tribunal judges should manage hearings:

During the course of taking evidence, a judge’s role has to be merely supervisory. In dealing with representatives, and in assessing their submissions, the judge is entitled to take a role as interventionist and active as he considers appropriate. But while evidence is being taken, he should limit himself to making sure that the evidence is given as well as may be. He should be alert to the witness’s welfare; he should check that there are no obvious problems with interpretation. He will ensure that there are no undue interventions from the other side, reminding representatives, if necessary, that they will have an opportunity in due course to ask their questions. … If there are any questions which are manifestly unfair, he might simply direct that they be not asked, or if already asked, not answered.

This judge-splaining explanation of the judicial function was triggered by First-tier Tribunal judge Peter Hollingworth deciding to adjourn a hearing during the cross-examination of the appellant to allow the appellant to prepare a new witness statement dealing with the Presenting Officer’s questions. The circumstances in which the adjournment decision came to be made are unclear; the judge recorded that the appellant’s lawyer had applied for one, but this was denied by counsel before the Upper Tribunal.

The Home Office argued that the adjournment “gave the claimant an opportunity to improve his case at a point where questions and cross-examination were getting difficult”.

Having reviewed the case, the Upper Tribunal concluded that the adjournment was inappropriate and unnecessary. The Presenting Officer was simply asking the appellant to clarify an aspect of his account in the usual way. The tribunal also identified an error of law in the determination itself, and for that reason remitted the appeal to the First-tier Tribunal.

The official headnote

1. During the taking of evidence a judge’s role is merely supervisory.

2. If something happens during a hearing that disrupts the normal course of taking evidence it is essential that the judge records what happened and why; who said what; and what decision the judge made and on what basis.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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