by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
Examination in chief
Cross-examination and re-examination
General advice on giving evidence
31.1 A pre-hearing conference is an essential part of the appeal preparation. This should not take place on the day of the hearing itself. Given the gravity and complexity of the issues, it is unacceptable to brief an advocate to conduct the hearing without arranging such a conference. The pre-hearing conference should take place before the witness statement is finalised in case it needs to be amended in light of the issues that arise at the conference. It should be attended by a representative of the instructing solicitors (preferably the person with conduct of the case). This will enable difficult issues to be worked through more effectively and efficiently at the conference. It is also important that the instructing solicitors have an independent record of their client's instructions on what are likely to be the most sensitive and problematic areas of the case (quite possibly areas in which the client has given conflicting instructions in the past). It is not appropriate to ask the interpreter to try to combine his own role with that of the solicitor's representative at the conference. Interpreting is a distinct and demanding job. It is not practical to expect the interpreter even to take a note of the conference.
31.2 Your client should have been provided with a translation of any statement already submitted and of the Home Office interview record if the latter raises any credibility issues. She should be reminded to bring these to the conference.
31.3 The conference should begin with a detailed explanation of what will happen at the hearing. That should include what the hearing room will look like, who will be there, what their roles are, and in what order things will happen. An appellant may worry about the most seemingly innocuous details, like whether she stands or sits and how she addresses the judge. It is particularly important to explain the role of the court interpreter (see chapter 34).
31.4 Explain that the Tribunal will have been provided with her witness statement, and that your first questions after establishing her name and address will be whether she is familiar with its contents and whether it is true. (She may otherwise become worried or confused by these first questions, particularly when in a heightened state of nervousness at the very start of her evidence.)
31.5 If you are going to ask supplementary questions, you should normally tell her what areas they will cover. Do not give her an exact list of questions that will constitute your examination in chief: this could be interpreted as rehearsing the witness. There is undoubtedly a risk that a nervous client with little else to think about will fixate upon these questions and how she is going to respond so that the answers ultimately sound both rehearsed and contrived.
31.6 You must, however, make sure during the pre-hearing conference that she is capable of answering the questions confidently: ask your questions from different angles so as to satisfy yourself of the answers you will get to your examination in chief.
31.7 The majority of the appellant's oral evidence is likely to be spent dealing with cross-examination. She needs to be aware of this. She needs to understand that cross-examination represents her main opportunity to put her case personally to the Tribunal. She must listen to the questions and make sure that she answers them (or else explains why she cannot answer). But impress on her that answering the point is not the same as agreeing with the point: this is her opportunity to explain to the Tribunal why the Home Office is wrong. Do not assume that she will understand this. Contradicting a state official in a formal setting may not come naturally to your client and may have very different consequences in her home country.
31.8 You are not permitted to rehearse, practise, or coach a witness. Your role is to probe potential weaknesses in her evidence and assess how real these are. Your ability to re-examine effectively is entirely dependent on how thoroughly you have done this. You should find out what the answer will be to any follow up question you may ask in response to foreseeable lines of cross-examination. Apparent weaknesses may turn out on investigation to have arisen from omissions, misunderstandings or ambiguities in the draft witness statement. If so, it should be amended. Other responses may also be incorporated naturally into the narrative of the witness statement, thereby avoiding unnecessary cross-examination and court time. If they do not fit naturally within the narrative, they may be best left for re-examination if needs be.
31.9 You may well have to question your client robustly. The first time your client is asked a difficult question should not be by the HOPO in front of the Tribunal. The pre-hearing conference serves a different purpose from the interviews at which the statement was taken. Your purpose when taking the statement was to elicit all information relevant to her case and to ensure that you understood it before including it in the statement. You would allow her to speak about what she thought was important, regardless of its direct relevance to the question, and then come back to the question if necessary later.
31.10 However, you must now accustomise your client to the strictures which will govern her oral evidence. She will not be permitted to give evidence in that style at the hearing, particularly in cross-examination. She will have to learn to focus on and deal with the questions which are put. You need to tell her if she is not answering the question, and explain why she is not answering the question. She needs to understand the distinction between disagreeing with a point and failing to address it. It does her no service to give her free rein in the conference only for her to face constant interruptions from the Tribunal when she behaves in the same way in the hearing.
31.11 You should also explain common techniques of cross-examination such as leading questions. She should not allow the HOPO to force her into a 'yes' or 'no' answer where it is not as simple as that. (Conversely, she should not elaborate where the question can be dealt with by a single word.) She should not be put off by an aggressive or disbelieving tone on the part of the HOPO: he is not making the decision. Warn your client that those questions which are asked most aggressively may be those with the least justification. If she does not understand a question she should always say so rather than guess the answer. The same applies if she does not know an answer or cannot remember. Explain that you may object if you consider a question to be unclear or unfair and a discussion may follow: the important thing for her is to concentrate on the question that is ultimately put.
31.12 Explain that you will be offered an opportunity to ask further questions in re-examination, but you may not need to do so (see chapter 37).
31.13 Your client will be concerned about giving her evidence in a manner which convinces the Tribunal. The IAT and the High Court have emphasised the dangers of making adverse credibility findings based on an assessment of oral evidence of a witness who speaks in a foreign language and is of a wholly different culture and background from the Tribunal. Given the difficulties in envisaging any safe method by which the Tribunal could dismiss oral evidence on the basis of demeanour, mannerisms, pattern of speech, or tone of voice, it is not possible - nor is it permissible - to give detailed guidelines on how to give evidence in a manner that will convince the Tribunal.
31.14 Rather than attempt to second guess the basis upon which the Tribunal may dismiss oral evidence, it is better to concentrate on assisting your client to give her evidence as confidently as possible. She should remember that she is talking to the Tribunal and putting her case. She should not pretend the judge is not there. If he puts a question to her, she should pay particular attention. He will be asking because he needs to know the answer, not as a means of supporting the case against her.
31.15 If your client is giving evidence in English, warn her that she may be interrupted if she starts speaking too quickly as everyone has to make a proper note. If she is using another language, explain the role of the court interpreter. She should always say if she has difficulty understanding him, either at the outset or at any point during her evidence. The court interpreter may interrupt if her answer is too long to interpret in one go.
31.16 Most judges do not ask witnesses to give evidence on oath. However, if the witness wishes to do so, this should be permitted (Nakhuda (9269)). Ask her beforehand if she wants to give evidence on oath, and if so ensure that the Tribunal will have any necessary book available in the hearing room.
31.17 You should check, if you think this is an appropriate case, whether she wishes to apply have the public excluded from the hearing, or steps taken to protect her identity (see chapter 32). Also consider whether your client has any vulnerability that would make it appropriate to request other steps in relation to the conduct of the hearing (para 6.23-6.23A). If the response to directions has already been submitted, then you should write to the FTT as soon as possible in advance of the hearing explaining what you submit is required.
31.18 If your client's hearing will be heard remotely, via the Tribunal's internet-based video meeting service, Cloud Video Platform ('CVP'), you will need to prepare her with that technology in mind. The Tribunal will send a CVP Joining Notice containing a link and password, usually a day or two in advance of the hearing. The Joining Notice will indicate a time at which the link will be functional, usually 30 minutes in advance of the hearing start time. Since the link does not work before that time, it will not be possible for your client to familiarise herself with CVP itself in advance of the hearing. You could, however, familiarise her with other video conferencing software, such as Skype or Zoom. HMCTS has also made a video tutorial on joining a CVP hearing, which is available online.
31.19 You should ensure that your client will be able to give evidence from a place that is free from disruptions and has a stable internet connection. You will also need to ensure that she has the latest version of one of the internet browsers that supports CVP – which include Google Chrome, Apple Safari and Microsoft Edge (it will not work, however, from Internet Explorer). Giving evidence from a mobile phone (which your client would need to hold in front of her) should certainly be avoided as this is likely to be distracting and the sound and picture quality may not be sufficient to enable your client to participate fully in the hearing. Your client may also need her mobile phone to be in contact with you and any barrister involved in the case. In many – if not most – protection cases, you should be wary of your client giving evidence from home. In some cases, you may be able to facilitate the client giving evidence from your offices. However, in many protection cases, you will need to request a face-to-face hearing, or a hybrid hearing, which would permit your client to the Tribunal attend the hearing centre to give evidence, with the possibility of other parties attending remotely. See the guidance in chapter 7.
31.20 The Tribunal User Guide contains guidance for participants in CVP hearings. You should remind your client that the hearing, although via a video link, remains a court hearing and that she should behave in the same way as if she were physically in the court room. This includes dressing suitably, ensuring mobile phones and other devices that could interfere with the hearing are switched off or on silent, and not eating or drinking anything other than water. You should ensure that your client has a copy of the Appellant's and Respondent's bundles in front of her at the hearing, either digitally – if she is able to access documents digitally – or in hard copy. You should also satisfy yourself before the hearing that she is able to navigate those documents effectively by herself. If not, a remote hearing is unlikely to be suitable for your client.
31.21 If you are not physically in the same room as your client whilst she is giving evidence, you will need to ensure a means of effective communication between her, yourself and any barrister representing her at the hearing, and if necessary, your interpreter. You should decide in advance the best way of communication, this is most likely to be by telephone – in which case you need to remind your client that it must be on silent. It is imperative that your client knows that she should tell you at the hearing if she is having any difficulties with the remote technology or with comprehension. Vital to that is ensuring an effective communication link between you, any necessary interpreter, and her (and her advocate) during the hearing.