by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2020 Updated Edition ~
Examination in chief of other factual witnesses
Examination in chief where there is no usable witness statement
35.2 The advantages of written witness statements are listed in chapter 12. The main disadvantage in having a statement stand as evidence in chief is the weight that some judges place upon an assessment of the appellant's performance in oral evidence. The HOPO is often permitted a free rein to conduct a lengthy cross-examination, repeating questions which have been dealt with in the witness statement, whereas your oral examination is restricted by the judge on the ground that it is wasting time to repeat matters contained in the statement. Most of the oral evidence is therefore conducted on the HOPO's rather than the appellant's terms, dwelling on the issues that the Home Office rather than the appellant considers important. If the appellant is denied the opportunity to put her case directly to the judge in chief, she may not be able to do herself justice answering narrow, negative questions in cross-examination. She will also have less opportunity to get into her stride before cross-examination starts.
35.3 You obviously need to lead oral evidence if material evidence is missing from the statement. Also, if the HOPO indicates that he will pursue different issues at the hearing from those raised in the refusal letter (and your objections are over-ruled), you may need to lead evidence on the new issues. Be wary, though, of turning your examination in chief into a mini cross-examination. This can be a particular risk if you feel it necessary to address potential discrepancies which were not dealt with in the witness statement. You should always ensure that any defensive questions on discrepancies are balanced by positive questions enabling the witness to argue her own case to the judge and gain some confidence. Even when putting discrepancies, your tone and the way in which you phrase the question should be appropriate to the fact that you are addressing your own witness and, if applicable, to the fact that the alleged discrepancy you are putting is of little weight. Discrepancies may well be apparent rather than real. If you did not have an opportunity to do so in the witness statement (para 12.56), you may now be able to lead further details in examination in chief which establish, without highlighting your concern, that there is no real discrepancy.
35.4 Examination in chief is not simply an opportunity to remedy any shortcomings in the witness statement. One purpose of examination in chief is to accustom the witness to the court room and to addressing the Tribunal before she is subjected to cross-examination. Another purpose may well be to put questions to the appellant that give her the opportunity 'to bring to life the witness statement' (see below).
35.5 You should not be prevented from conducting an oral examination in chief simply because you have complied with a direction to submit a witness statement. The Senior President's Practice Directions (para 7.7) states that:
Although in normal circumstances a witness statement should stand as evidence in chief, there may be cases where it will be appropriate for appellants or witnesses to have the opportunity of adding to or supplementing their witness statements.
35.6 The identical provision in the previous AIT's Practice Directions stated that 'Parties are referred to the judgment of the Court of Appeal in R v Secretary of State for the Home Department ex p Singh  INLR 608'. The applicant claimed in that case that he ought to be allowed to give all his evidence orally, despite a direction that witness statements stand as evidence in chief. The Court of Appeal rejected the submission but it also recognised that such a direction was not a basis to exclude reasonable supplementary oral examination. Sir Patrick Russell stated:
That does not mean that at the hearing the applicant or his representative should not have the opportunity of adding to the witness statement anything that is necessarily supplementary to it. It may well be – indeed the papers in this case demonstrate it to be the case – that in the future conduct of this particular inquiry the adjudicator will permit some supplementary answers to be given in order to bring to life the witness statement which as a whole should stand as the evidence-in-chief.
I too would emphasise that there is a discretion in the adjudicator conducting the hearing whether to allow some oral evidence, notwithstanding a direction in the form in which it has been given in this case. Such discretion may in an appropriate case be one which he ought to exercise in the interests of justice.
35.8 You should not be prevented from supplementing the witness statement through oral examination, even where the HOPO indicates that he does not intend to cross-examine (Petre (12998)). The IAT held that it was 'fundamentally flawed' for the adjudicator to effectively hand the HOPO a 'veto' over whether or not the appellant could lead oral evidence, 'particularly' when he then went on to make an adverse credibility finding.
35.8A In Sivapatham (Appearance of Bias)  UKUT 00293 (IAC) the Tribunal held that it was 'prima facie unlawful' for the FTT to 'adopt the stance that parties to an appeal require the permission of the tribunal to give evidence in support of their case.' The Tribunal added the following caveat,
I do not exclude the possibility that in certain circumstances it may be appropriate for a judge to refuse evidence to be adduced from a particular person. The ethos of tribunal litigation clearly recognises the validity of transparent and productive communication between the presiding judge and a party or his representative concerning the presentation of any given appeal, the calling of witnesses, the relevance and/or likely potency of certain proposed evidence and kindred issues. Furthermore, the presiding judge is the guardian against misuse of the tribunal's process. None of this is unfair or improper. All of it forms part of the legitimate judicial function and is harmonious with the overriding objective.
35.8A In SA (Clarificatory questions from IJs - best practice) Iran  UKAIT 00017, the Tribunal said that while it was acceptable for a judge to criticise unnecessarily lengthy oral examination in chief, 'it is not good practice to justify [asking the advocate to move on] by referring to the weight of the list or to an apparent wish to curtail the length of the hearing' (para 27).
35.9 The ideal examination in chief allows the facts to unfold through a natural flow of question and answer. This is never easy to do in a court room under rules of evidence and gets much more difficult when using an interpreter. Particular vocabulary or phrases which you might use to put an English speaker at ease and to encourage spontaneity or a particular tone or mood may not survive translation, even with a properly qualified interpreter (see chapter 34).
35.10 Those questions which allow your client to put her case effectively to the Tribunal are also likely to be those questions which give her confidence. But you might want to start by dealing with uncontentious background details. Even going through her name and address can help.
35.11 Your client may be better talking about some things than others. It may be that your client is nervous and uncertain about dates but confident in describing details of particular detentions. If so, you may wish to take her to a particular detention in a way which will clearly identify it to her (not by date) and then let her recount events in some detail. Having been given an opportunity to tell the Tribunal about something she remembers well, she may be more relaxed about admitting confusion about something she does not remember. If the written witness statement does not deal with the reasons for refusal, you may well wish to address aspects in examination in chief (see para 12.45). The aim should be to take advantage of the opportunity to address the Tribunal personally and, in the words of Singh  INLR 608, 'to bring to life the witness statement'.
35.12 There are no formal rules of evidence. The judge is responsible for his own procedure so long as he acts fairly but he will usually prevent you from leading your own witness on contentious issues. Though you will be permitted to lead on non-contentious issues, you may choose not to lead in order to allow your witness an initial opportunity to offer more than a one word response to a question that is not too demanding.
35.13 Leading questions are those which lead the witness towards a particular answer or which assume facts that are in dispute (or which the witness has not yet established in evidence). They can often be answered yes or no. Non-leading questions are those which do not suggest a particular answer and cannot usually be answered yes or no. Non-leading questions will usually start 'Who. . . ', 'What. . . ', 'Where. .', 'Why. . . ' or 'When. . . '. If the question begins with 'Did. . . ', then it may well be a leading question.
35.14 Leading is a relative term. The degree to which a question leads depends upon the extent to which it suggests an answer and the extent to which any facts which it assumes are disputed. 'Did you escape by bribing the security guard?' obviously suggests how the witness escaped. 'How were you able to escape?' does not suggest the method. But you are still leading (suggesting) the fact that she escaped unless the witness has already stated this. Even 'How did your detention end?' leads the fact that the witness' detention ended. However, this fact is pretty obvious, as the witness is now sitting in front of you. Whether a question is 'too leading' is a matter of common sense and fairness. Ideally, the more contentious a fact is (or the more uncertain it appears that the witness will give that fact), the more important it is that the question does not assume or suggest that fact. Tribunal judges vary in how much leading they accept, but it is not only to prevent the HOPO or the judge interrupting that you avoid leading. Open questions will also give the witness the best opportunity to put her case to the Tribunal. The more the question leads a contentious answer, the less impressive the answer may appear. But be flexible. If your witness is nervous and inarticulate, some leading (so long as the Tribunal allows it) may ease her into her evidence and help her to focus to the ultimate benefit of the court.
35.15 You do not lead when you repeat a fact which the witness has already stated (or 'piggy-back' on her answers). This can help keep control of the evidence where you are pursuing a particular narrative but the witness is not sticking to the question. You repeat back the part of the witness' answer which you want to develop as a prelude to your next question, for example:
Q: What did the soldiers do when they got to your house?
A: They broke the door down because you see we have no rights and have had none since 1963 and will have none until they are deposed.
Q: After they broke down the door to your house, what did they do next?
This brings the witness back to the particular point you are developing, without criticising the witness for straying from the question, or provoking the Tribunal into criticising the witness.
35.16 Fixed choice questions, where you ask which of the offered alternatives are correct, are not leading as long as they do not suggest which alternative the witness should choose, e.g. 'Did you obey or disobey the order?' These can also be useful where you want to control the witness and avoid expansive answers.
35.17 You are normally allowed to lead against your case. You lead against your case by asking a leading question which suggests an answer which is prejudicial to you, for example 'Did you make these detentions up?' Some advocates do this because they believe that putting the allegation in chief will deprive the HOPO's cross-examination of its impact. Sometimes a witness is at her best dealing with a direct allegation, and as discussed in the following chapter, HOPOs are notorious for not putting their case properly in cross-examination. It can certainly produce an engaging exchange with your witness.
35.18 However, there are important provisos. Firstly, you must ensure beforehand that your witness is aware of and comfortable with the tactic. Secondly, be careful that you do not unnecessarily emphasise a potential weakness by putting the allegation to your client. Thirdly, remember it is not your job to do the HOPO's job properly for him. Fairness may require that an allegation is put to the witness if the HOPO is going to rely on it in closing, particularly if it is not made in the refusal letter. It will often be ill-advised for you to help the HOPO by putting the point to your witness for him.
35.19 Never allow yourself to appear impatient because you are not getting the answer you are looking for. This will only damage your client's confidence, and will give the Tribunal a bad impression of you and potentially (and more importantly) your client.
35.20 If you are not getting the answers you are looking for, think about how your phrasing of the question might have led your witness to misunderstand the information she was being asked to give. Explain the topic you are dealing with as far as you can without too much leading. If you have asked a non-leading open question, consider a fixed choice question or a question which leads against your case. If you are not getting the answer you were expecting and cannot think of a way of rephrasing it which will explain the misunderstanding, then it is unlikely that simply repeating the question will solve rather than exacerbate the problem. If the answer is not essential then leave it. If the answer is essential then it may be that you can come back to the point once you have elicited further evidence which can then be used to explain the answer you are seeking without leading. As a last resort, you can try again in re-examination if the subject has been tackled in cross-examination.
35.21 The difficulties in controlling the witness are increased through the necessity to use interpreters. A question which may be adequately clear in English may not be adequately clear by the time it has been translated. Be particularly careful to avoid long questions, compound questions, and those involving double negatives. For example, instead of 'Why did you not flee until Easter even though you were arrested at Christmas?' try, 'You were arrested at Christmas, but you fled at Easter. Why did you wait until Easter?' Let the interpreter translate the statement before asking the question. As well as making the question clearer, this will give the witness more time to consider the issue before having to answer.
35.22 If you are asking more than a couple of questions, both control of the witness and comprehension by the Tribunal will be aided if you indicate the structure of your examination in chief and signpost each group of questions as you come to them. This will help your client and the Tribunal (and yourself) to understand where you are going and what you are trying to do. You can use the written witness statement as a framework and refer to it in guiding the witness to the issues with which you wish to deal.
35.23 You ought to be able to assume facts established in the written statement for the purposes of your oral examination, even if they are disputed by the Home Office, just as disputed facts can be assumed in your questioning once the witness has established them in her oral evidence: for example, 'You describe in your statement how you were arrested at the demonstration. How many people were arrested with you?'
35.24 Some HOPOs and judges may wrongly object to you referring to facts contained in the witness statement in this way. However (and as you should point out in the face of such an objection), a judge might more validly object if you ask questions to elicit facts already established in the witness statement.
35.25 When you are supplementing a statement in this way, there is a danger that it may appear disjointed and difficult to follow – both to the Tribunal and your witness – if you jump about between different parts of the case. This may also make it less memorable. It is not usual for a statement to be read out in asylum/human rights appeals, but you should paraphrase or read enough of the statement to put your questions into context, and give some indication of what you are intending to add to the statement by each group of supplemental questions.
35.26 Much of the above discussion will apply both to the appellant's examination in chief and to other factual witnesses. In getting the evidence in chief underway and in controlling it thereafter, you should make clear by signposting and by the way in which you phrase your questions how the evidence is adding to or corroborating that of the appellant. If you are careful to focus the witness upon the matters that she is establishing rather than straying into more general issues, you will be on stronger ground objecting if the HOPO pursues irrelevant matters in cross-examination.
35.27 If no statement from the witness was submitted in support of the initial claim to the Home Office, and the HOPO has served no skeleton argument, you may have no prior notice of the Home Office's response to the witness statement. It will usually be unfair for the HOPO to raise a challenge in closing submissions that he had not (at least) put to the witness in cross-examination. You need not relieve him of that responsibility by putting every potential allegation to the witness in examination in chief.
35.28 If you are proposing to conduct a full examination in chief (i.e. taking the appellant or another witness through her entire account), it will be because something has gone wrong. It should only happen when you are instructed at the last minute (including being briefed as advocate at the last minute) and you find that there is either no witness statement or, upon taking instructions, that the witness statement is unusable.
35.28A The appellant should not be stopped from giving evidence because a written witness statement has not been served, and given that it will normally be unfair to prevent the appellant giving evidence, it serves no purpose to exclude a written statement however late it is submitted. In MA (rule 51(4) - not oral evidence) Somalia  UKAIT 00079, the Tribunal held that
15. As can immediately be seen, there is a significant difference between rule 51(4) and former rule 48(5). Rule 51(4) purports to preclude the Tribunal from considering written evidence, which has not been served in time, unless satisfied that there are good reasons. The difference in wording between the two rules is plainly deliberate. It has the effect that, in a case such as the present one, where a party or a witness wishes to give oral evidence before the Tribunal but a witness statement has not been lodged within the required timescale before the hearing, the person concerned cannot be precluded by rule 51(4) from giving oral evidence. Although it is theoretically possible for the Tribunal, by way of directions under rule 45, to restrict the oral evidence it hears, both the overriding objective in rule 4 of securing that the proceedings are handled as fairly, quickly and efficiently as possible and the general administrative law requirement that Tribunal proceedings should be fair, will make it extremely rare for the Tribunal to be able to refuse to hear a witness who has ostensibly relevant evidence to give. Where the person concerned is the appellant it is even harder to envisage circumstances in which such a course would be valid.
16. The fact that rule 51(4) is confined to written evidence in practice means that there will rarely be any point in the Tribunal excluding a witness statement of a person who is to give oral evidence. Such a course of action would merely serve to extend the proceedings, by requiring a representative to ask questions in examination-in-chief, which might otherwise have been dealt with by asking the witness to adopt his or her statement.
Rule 51(4) of the 2005 Procedure Rules has no equivalent in the 2014 Rules. Rule 14(1) allows the Tribunal to give directions as to the manner in which evidence is given, including requiring it to be given in a written statement. However, the principles in MA (Somalia)  UKAIT 00079 still apply, and it remains the case that it would be very rare for the Tribunal to be able, consistently with the requirements of fairness, to prevent a witness who has relevant evidence to give from doing so.
If that adjournment is refused, and you feel you have sufficient instructions to lead evidence, the Tribunal may urge you to allow the Home Office record of the asylum interview to stand as evidence in chief. The HOPO may put allegedly inconsistent statements in the interview notes to your client during cross-examination, whether or not they have been adopted in evidence in chief. However, if you have mistakenly agreed to the adoption of inaccurate interview notes, you will have unfairly prejudiced your client.
35.30 The Home Office has abandoned its previous practice of reading its interview notes back to the claimant to check their accuracy. You should not agree to the interview notes standing as evidence in chief unless you have both taken sufficient instructions from your client on her claim, and gone through the interview notes with her line by line. The Tribunal cannot force you to adopt the interview record.
35.30A Some judges may insist that you prepare a handwritten witness statement at the hearing. You will obviously not be able to do this if the witness needs an interpreter and you have none available. You should in any event decline to do so unless you are given enough time to take instructions, draft and read back the witness statement. Never take the risk of submitting a written statement if you have not had adequate time to deal with all relevant matters in the statement. It will generally be undesirable to agree to taking a statement at the hearing from the appellant as it is unlikely that you will be able to adequately prepare such a statement at court, and you should always press for an adjournment in such cases unless the judge is prepared to let you conduct a full examination in chief. However, where you are asked to take a statement at the hearing from another witness of fact, particularly where their relevant evidence is relatively limited, this may be more reasonable and even be preferable to conducting a full examination in chief of an unconfident witness.
35.31 If you have sufficient instructions, you can offer to conduct a full oral examination in chief. If you do not have sufficient instructions, and you are not in a position to adopt the Home Office interview notes (or a previous statement), and especially if the appellant is personally at fault, you will have no choice but to seek an adjournment. The Tribunal will otherwise lack the necessary factual evidence upon which to determine the appeal.
35.32 It is far more difficult to conduct a full examination in chief of your client than it is to examine witnesses in other jurisdictions. It is particularly difficult to get the examination in chief underway without leading. If you are examining the defendant in a criminal trial, all the relevant facts may have occurred on the one day, and you can start by asking the witness if she remembers any particular incident on that day. The material facts in an asylum/human rights appeal may be spread over many years or even the appellant's lifetime. They may involve not just her own experiences over those years but those of her family, community, and comrades.
35.33 Carefully work out the structure of your examination in chief, referring to the discussion on the structure of witness statements in chapter 12. Controlling the structure will be assisted by identifying the broad issues to which the questions will be directed. It will also help relax the witness, by making sure she always knows what is coming up: for example, 'I want to start with your upbringing and background ... Now I'm going to ask some questions about your political activities ... I'd like to ask some questions about the experiences of your family... Can I move on to ask you some questions about how you came to leave your country... Now I want to deal with events since you arrived in Britain...'
Signposting in this fashion should not be criticised as leading. It is obvious that she was born and brought up; it is presumably accepted that she had a family; it must be accepted that she left the country and that she is now in Britain. It might not be accepted that she had any political involvement, but if her claim is based on political involvement, then it is so obvious that she will give evidence of political involvement that you are unlikely to be criticised for leading into your questions. It would be different if you were to introduce your questions with 'I am now going to deal with your various responsibilities as the organiser for three branches of the IPK.'
35.34 Open questions may enable the witness to develop her own story without further interruption, but to what extent this is practical and desirable depends on the witness. Will she keep to the point or digress? Will she give the right amount of detail or too little or too much? Will she go at a reasonable speed for the Tribunal? Does she have the presence to keep the Tribunal's attention during a long monologue without the interjection of a question? Is she articulate and confident?
35.35 If she is nervous, inarticulate, has a poor memory, or the evidence is complicated, then it is probably a good idea to limit open questions and keep tight control of the evidence. Short questions and answers can also be easier to follow and more engaging than a monologue.