by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
Not calling the appellant when credibility is disputed
30.1 It is your client's case, and assuming she is capable of giving instructions, she may instruct you to call her, whatever you think of the idea. But part of your job is to offer advice on this question based on your experience.
30.2 Your client may have given a full account in her asylum interview and a statement submitted to the Home Office. The refusal letter may not have challenged her credibility, but instead alleged that on the basis of her account, her expulsion will not engage the UK's obligations. If her credibility has not been put in issue, and she has nothing material to add to the interview notes and written statements which were before the Home Office, then there may be little point in calling her.
30.3 It may also lead to unnecessary problems. Some HOPOs appear to regard it as their job to cross-examine if given the opportunity, regardless of its relevance to the matters in issue. To call your client when credibility has not been challenged may simply prompt an aimless fishing expedition by the HOPO in which he will require your client to regurgitate evidence she gave long ago in the apparent hope that with the passing of time, the evidence will not come out exactly the same. It could also result in an adverse credibility finding by the Tribunal, based on an assessment of demeanour or mannerisms which are in fact explained by cultural differences or simply personality. If credibility is not challenged, then there is nowhere to go on credibility except downhill.
30.4 If you serve a witness statement for the appeal which contains new information (or even repeats old information in different form), the HOPO may use the new witness statement to suggest that matters have moved on from the decision letter, credibility is now in issue, and he wishes to cross-examine on the fresh statement. If a satisfactory statement was submitted to the Home Office in support of the initial claim and there is no need to provide further information to update it or address the refusal letter, you can simply adopt the initial statement rather than serving a redrafted witness statement.
30.5 Obviously, if further evidence is needed from the appellant about her history in order to counter the Home Office's arguments on risk, a new statement will be required. But if the Home Office did not challenge an initial statement, it can often do more harm than good to serve a new witness statement simply repeating the original information in more polished form.
30.6 If you are not calling your client to give oral evidence because credibility has not been put in issue, you should explain this at the outset of the hearing. This will give the judge the opportunity to indicate if he has developed his own concerns about credibility on the material before him, so that you have a proper opportunity to deal with these (although see para 30.7 below). Depending on the nature of any concerns, you may need to reconsider whether to call the appellant.
30.6A The Joint Presidential Guidance Note (No 2 of 2010) on Child, vulnerable adult and sensitive appellants advises judges to review at the start of the substantive hearing whether oral evidence is required (para 8) and that:
Agreement between the parties in advance of oral evidence as to the matters agreed or in dispute enables questioning to be focussed, sensitive and minimises potential trauma. (para 9).
30.7 Note that where the HOPO concedes that credibility is not in issue (as opposed to the refusal letter not having challenged it), the Tribunal is not entitled to go behind that concession regardless of what concerns he may express (Carcabuk & Bla v SSHD (00/TH/01426)). The refusal letter seldom expressly accepts credibility. Whether it is worth trying to elicit that confirmation from the HOPO will depend on the strength of the case and on the HOPO. If credibility is not challenged in the refusal letter, it is normally worth trying to establish at the CMRH that credibility is not in issue. Sometimes, when raised at the start of the full hearing, the question appears to so discomfort the HOPO that he starts attempting to formulate grounds for putting credibility in issue, despite the fact that no point was taken by the Home Office.
30.8 If the HOPO does attempt to put credibility in issue at the start of the hearing, you should question his justification for doing so, especially if it was established at the CMRH that the Home Office had no amendment that it wished to make to the refusal letter. You should also seek an indication of which parts of the evidence the Home Office is now said to dispute and why, so that you can consider your position. Occasionally, the HOPO refuses even to indicate on what ground he now claims that credibility is in issue. You then have to decide whether to tender your client for cross-examination merely so that the HOPO can embark on a fishing expedition of indeterminate length in the hope of finding something he can offer as a reason for disputing credibility.
30.9 Despite the inappropriateness of such practices, you should be wary of not calling your client in such a situation. The danger is that the Tribunal may reach an adverse credibility finding upon matters which were not aired in evidence at the hearing. The best course might be to indicate your willingness to tender your client for cross-examination but also indicate your concerns about doing so when the HOPO purports to dispute credibility without notice, and without offering any grounds for doing so. Given that "The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly", and that this includes "avoiding delay, so far as compatible with proper consideration of the issues" (Procedure Rules, r.2(1) and r.(2)(e)), the Tribunal may agree that lengthy but irrelevant cross-examination is an abuse of court time (see para 36.31).
30.9A For guidance on the correct approach where your client has been removed before the appeal hearing, pursuant to a "clearly unfounded" certificate under s94 of the 2002 Act or in an Article 8 appeal certified under s94B, see the discussion in chapter 3.
30.10 If credibility is put in issue in the refusal letter, most representatives will choose at least to tender their client for cross-examination, however flimsy the basis upon which credibility has been disputed. If, however, your client is disturbed, incoherent, or repeatedly inconsistent, she may have psychological problems which would render it inappropriate for you to tender her. In such a situation, you should obviously arrange for a medical report and, if appropriate, treatment (see chapter 26).
30.11 If the medical examination indicates that your client has psychological problems such that she cannot be expected to give accurate and consistent evidence, or that to have her cross-examined would pose significant risks to her mental well-being, then you will be justified in not calling your client. A medical report should be submitted explaining the position. In Y and Z (Sri Lanka) v SSHD  EWCA Civ 362, the expert evidence was that giving evidence would be retraumatising and undermine the appellants' treatment. Sedley LJ observed:
With all possible respect, I do not understand how an advocate with such a report in his or her hands could responsibly tender an appellant for examination and cross-examination in proceedings in which the genuineness and intensity of their fear was an issue. (para 25)
30.12 If a medical examination does not disclose any recognised condition but you nevertheless think that there is little prospect that your client will do herself justice in cross-examination, then the decision whether or not to call her is far more difficult. Carnwath LJ has observed that 'From a human point of view, appearing in front of a tribunal in support of an asylum claim must be a gruelling experience at the best of times': (HF (Algeria) v SSHD  EWCA Civ 445, para 26). You have to ask yourself how you think you are advancing your client's case by calling her in circumstances where your best assessment is that oral evidence is more likely to harm than assist your case. A judge is not entitled to base an adverse credibility finding on the fact that the appellant was not tendered for cross-examination (see e.g. Kaleem Ahmed, SM (credibility issues-absence of appellant) Iraq  UKIAT 00279). But the absence of oral evidence does not preclude an adverse credibility finding, and there is a risk that the judge may take points which might have been explained had oral evidence been given. It may also make the judge suspicious of your client, even though he is not entitled to rely on that suspicion.
30.13 If you decide not to tender the appellant for cross-examination, you are still entitled and obliged by the standard directions to submit a written witness statement. The Tribunal is obliged to reach a proper assessment of the credibility of that evidence. It is all the more important in those circumstances that the statement should pre-empt foreseeable challenges (para 12.53). You should also invite the Tribunal to raise any points of concern so that you can deal with these in submissions. The Administrative Court has held that there is no general rule against admitting statements from a witness who is not called to give oral evidence (although depending on the nature of the dispute, the tribunal would be expected "to take into account the fact that the evidence had not been tested by cross-examination" ; Kataria v Essex Strategic Health HA  EWHC 641  3 All ER 572). However, you cannot call your client to give any oral evidence without her being available for cross-examination: GY (refusal to allow cross-examination) Iran  UKIAT 00264
30.14 It is open to the HOPO to apply for a witness summons to compel your client to give evidence. In SSHD v Prendi (01/LS/00060), the IAT stated that:
Proceedings before the Appellate Authority are civil proceedings and (save where special provision is made) must be regarded as governed by the ordinary principles and practice relating to civil proceedings... [P]arties to civil litigation are competent and compellable... There is... no doubt in our view that the Home Office Presenting Officer was entitled to call the claimant as a witness if she chose to do so.
30.15 However, the same rule will apply to the HOPO as would apply to you if you sought a witness summons. The appellant will be the HOPO's witness, so he may not cross-examine (see para 9.43). Though the Tribunal has power to summons a witness of its own motion, it should not do so simply to avoid that rule. The IAT stated in Prendi (01/LS/00060) that:
What [the HOPO] could not do, of course, was call [the appellant] in order only to cross-examine him; because a party cannot generally speaking cross-examine his own witness. We do not think it would be right for the Adjudicator (or the Tribunal) to call a party as a witness with the sole aim of enabling cross-examination to take place and so assisting that other party to win.
30.16 It is highly unlikely that the HOPO will apply for a witness summons against the appellant. But though he is entitled to apply for one, the dicta in Prendi (01/LS/00060) should not be understood as indicating that the Tribunal is obliged to grant it. Clearly, if medical evidence indicates that it would be inappropriate for your client to give evidence, you would oppose the HOPO's application, and it is unlikely that the Tribunal could reasonably grant it.
30.17 If your client is a child, particular considerations apply to deciding whether or not to call her. Further, note that the Senior President of Tribunals' Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses provides that:
A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so. (para 2)
See paras 6.23-6.23A and 6.27 for seeking directions where you intend to call a vulnerable appellant (or other witness) and 11.22-11.32 for further advice on representing vulnerable appellants and those who may lack capacity to give you instructions.
30.18 The same sort of considerations as are discussed in this chapter can apply when deciding to call oral evidence from witnesses other than the appellant. This is discussed further in chapter 15.
30.18A The Tribunal considered the lead cases on adverse inferences from absence or silence in the civil context in AB (preserved FtT findings; Wisniewski principles) Iraq  UKUT 00268 (IAC):
65. The leading authority in the drawing of adverse inferences in the civil context is Wisniewski v Central Manchester Health Authority  LI Rep Med 223;  PIQR P324. Having considered the authorities on the question, Brooke LJ set out the following principles in the context of the present case:-
"(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."
66. Although Brooke LJ's Principle (3) does not refer to the need for there to be a prima facie case, that was the expression used by the Court in McQueen v Great Western Railway Company (1875) L.R. 10 Q.B. 569, one of the authorities considered by him in arriving at his five principles. Similarly, in O'Donnell v Reichard  V.R. 916, another such authority, Gillard J, conducting a review of earlier English and Australian cases, spoke of "any party upon whom the burden of proof on any issue is imposed must always adduce a prima facie case on such issue to go to the jury". Furthermore, in Wisniewski itself, Brooke LJ found that the plaintiff "had established a prima facie, if weak, case".
67. Applying Wisniewski, the Court of Appeal in Jaffray v Society of Lloyds  EWCA Civ 1101 said:-
"It seems to us that on aspects where the evidence points in a direction against Lloyd's in an area which could have been dealt with by Mr Randall the judge should have drawn an adverse inference from Lloyd's failure to call Mr Randall to deal with it. This does not mean that any allegation that the names make against Mr Randall must be accepted because he did not give evidence. It simply means that where the evidence points in a certain direction an adverse inference can be drawn from a failure to call the witness to deal with it." (paragraph 406) – Waller LJ
The requirement that "the evidence points in a certain direction" is, we consider, another way of saying that there needs to be a prima facie case.
68. In Magdeev v Tsvetkov  EWHC 887 (Comm), Cockerill J dealt with the matter as follows:-
"151. … it was suggested for Mr Magdeev in reliance upon Jaffray v Society of Lloyd's  EWCA Civ 1101 that I was effectively bound to draw such inferences, at the risk of perpetrating a legal wrong.
152. As I noted in the course of legal submissions, this line of argument neglects to take account of the recent Court of Appeal decision in Manzi v King's College Hospital NHS Foundation Trust  EWCA Civ 1882, where Sir Ernest Ryder SPT said:
"Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. "the court is entitled [emphasis added] to draw adverse inferences"
153. He also made clear that such matters as proportionality may give rise to a valid reason for a witness's absence.
154. In my judgment the point can be dealt with relatively briefly thus:
i) This evidential "rule" is, as I have indicated above, a fairly narrow one. As I have noted previously ( EWHC 1768 (Comm) at ), the drawing of such inferences is not something to be lightly undertaken.
ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the "missing" witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue.
iii) The Court then has a discretion and will exercise it not just in the light of those principles, but also in the light of:
a) the overriding objective; and
b) an understanding that it arises against the background of an evidential world which shifts - both as to burden and as to the development of the case - during trial.
iv) In this case, save as to one very narrow issue with which I will deal at the appropriate point below, the exercise required of the parties relying on this principle has not really been done.
30.18B Applying those principles to the case before it (which related to exclusion from refugee protection), the Tribunal said:
69. There are several points to make about the Wisniewski principles. The first is the obvious but nonetheless important fact that they are not to be confused with the situation where a party who bears the legal burden of proving something adduces sufficient evidence, so as to place an evidential burden on the other party. In such a situation, the other party has to adduce some evidence; otherwise, he will lose.
70. The second point is that the question of what amounts to a prima facie case sufficient to bring the principles into play depends upon the nature of the case that the party in question has to meet. The present proceedings are not analogous to an "ordinary" civil claim, where a matter needs to be established on the balance of probabilities. We are concerned with an evaluative assessment of whether there are "serious reasons for considering that" the appellant is complicit in a crime against humanity, falling within Article 1F(a) of the Refugee Convention. As the Supreme Court held in Al-Sirri v Secretary of State for the Home Department  UKSC 54, this "requires an individualised consideration of the facts of the case, which will include an assessment of the person's involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility". Article 1F requires "clear and credible evidence of the offending conduct and the overall evaluative judgement involved the application of a standard higher than suspicion or belief" (Al-Sirri  UKUT 00448 (IAC). Whether a prima facie case is established in Article 1F proceedings needs to be considered with these statements in mind.
71. Third, even where a prima facie case exists, it does not automatically follow that the failure of a person to give evidence will result in material weight being given to that failure, in favour of the other party: see Brooke LJ's Principle (4) at paragraph 65 above. As Hickinbottom LJ held more recently in R (Kuzmin) v GMC  EWHC 2129 (Admin), there may be a reasonable explanation for the fact that the individual has not given evidence; and there may be other circumstances which would make it unfair to draw such an inference. Although Cockerill J in Magdeev expressed the court's role in terms of its discretion, it is perhaps more a matter of the court having to apply the "rule" unless it is satisfied there is a reason not to do so.
30.18B The decision not to call your client (or other witness), therefore, is one to be considered carefully. A medical report stating the damage that would be done to your client's mental health were she to be subjected to cross examination is highly likely to be a reasonable explanation for not calling her. Be wary of not calling her in the absence of evidence or reasonable explanation to support your decision.