by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
38.1 The caselaw establishes that the judge should not embark on questioning of the appellant (or other witness) aimed at developing his own theory of the case as distinct from adjudicating between the submissions of the parties.
38.2 In JK (Conduct of Hearing) Côte d'Ivoire  UKIAT 00061, the Tribunal said that
42... It is proper ... to intervene during examination-in-chief and cross-examination for the purposes of moving the proceedings along, so long as that is done in a fair manner. It is necessary and proper for an Adjudicator to point out that a line of questioning is irrelevant or valueless or repetitious or is going nowhere. It will, of course, be necessary to consider any response made by a representative to such an approach...
43 ... If there are inconsistencies between documents and oral evidence or between answers which have been given already, it is nearly always best to wait until after cross-examination and re-examination to see what matters are put. However, it is wholly legitimate for the Adjudicator to ask his or her own questions on issues of inconsistency, points raised in the refusal letter or matters which trouble the Adjudicator whether or not they are raised by the other party. What is important, however, in relation to those matters is that the Adjudicator should not develop a different case from that being presented by the other party or pursue his or her own theory of the case.
44. The manner in which any intervention is undertaken is also important. It should not be done in any hostile manner or in a manner which suggests that the Adjudicator's mind has been made up. Questions should not be leading questions or ones which conceal the purpose for which they are asked, but instead should be direct and open-ended questions. It is perfectly proper for the Adjudicator to ask, after questions have been put in cross-examination and re-examination has taken place, why a witness has said x when earlier that or another witness has said y, or how document x can be reconciled with document or oral evidence y. An Adjudicator is entitled to follow the logical train of answers to see how they fit with the case if that is regarded as potentially significant for an issue in the case. It is also important, however, that an Adjudicator should keep a sense of proportion about the questions which he or she asks. It is not for the Adjudicator to take over conduct of the case either by the number of questions asked or the development of his or her own theories. The interventions may or may not assist one or other party. They are not unfair merely because one or other party may derive assistance from them.
38.3 In XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro  UKIAT 00093, it said that
31... An Adjudicator is entitled to raise issues which trouble him. However, where there is a Home Office Presenting Officer, who does cross-examine, an Adjudicator should sense warning bells ringing over what he then does.
32. The questions should be asked after cross-examination has concluded except for clarification. Otherwise, there is an appearance of a dual cross-examination. It may be otherwise if there is no Home Office Presenting Officer and an issue arises unexpectedly in evidence in chief...
33. The questions should not be too long. There is no precise permissible ratio, but asking significantly more questions than the Home Office Presenting Officer is again an indication of apparently excessive intervention with the attendant risk of apparent bias.
34. We accept that the tone of the questions was hostile, leading and repetitive and contained expressions of disbelief... The Adjudicator simply did not believe the Appellant, and repeated the questions in a disbelieving manner. There was no need for that in order to resolve a vagueness...
35... the Adjudicator ... was developing his own theory of the case. This was very different from the Secretary of State's refusal letter or the Home Office Presenting Officer questions. Again, no absolute rule can be laid down; an obvious issue may have been omitted; credibility may be at issue but a facet not otherwise explicitly identified may call for examination. However, in what remains an essentially adversarial system, for an Adjudicator to develop a hostile theory, in addition to the Secretary of State's different opposition can create a real possibility of the Adjudicator appearing biased. Warning bells should be sounding.
38.4 The judge should not be discouraged from raising his concerns at the hearing: on the contrary, fairness may well require this. But he should not himself embark on a series of questions resembling a cross-examination. In the past, judges have been known to conduct a quasi cross-examination themselves even where the HOPO has declined to cross-examine the witness at all. It is particularly inappropriate of the judge to make any intervention that suggests that he has already formed a view on credibility.
38.5 If you are concerned about the judge's interventions, you should object politely. A failure to do so may prejudice a subsequent appeal. You should also note your concerns at the time, and the response to any objections you make. In PA (protection claim: respondent's enquiries; bias) Bangladesh  UKUT 0337 (IAC), the Tribunal held that an appellate court or tribunal would be entitled to take into account the failure to raise a complaint at the hearing or at least before receipt of the judge's decision.
38.5A As noted above, however, in certain circumstances a judge may be required to intervene to prevent improper conduct on the part of an advocate and failure to do so may lead to a hearing being unfair. This obligation on judges to restrain inappropriate questioning was stressed by the Upper Tribunal in Wagner (advocates' conduct – fair hearing)  UKUT 655 (IAC) which noted that '[s]wift disapproval by presiding judges can only enhance both fairness and advocacy standards, thereby emphasising the authority of the Tribunal and enhancing its status of fair and impartial adjudicator.'
38.5B In AM (Fair hearing) Sudan  UKUT 656 (IAC), the Upper Tribunal gave guidance on the boundaries of judicial intervention:
(i) Independent judicial research is inappropriate. It is not for the judge to assemble evidence. Rather, it is the duty of the judge to decide each case on the basis of the evidence presented by the parties, duly infused, where appropriate, by the doctrine of judicial notice.
(ii) If a judge is cognisant of certain evidence which does not form part of either party's case, for example as a result of having adjudicated in another case or cases, or having been alerted to something in the news media, the judge must proactively bring this evidence to the attention of the parties at the earliest possible stage, unless satisfied that it has no conceivable bearing on any of the issues to be decided. If the matter is borderline, disclosure should be made. This duty may extend beyond the date of hearing, in certain contexts.
(iii) The assiduous judge who has invested time and effort in reading all of the documentary materials in advance of the hearing is entitled to form provisional views. Provided that such views are provisional only and the judge conscientiously maintains an open mind, no unfairness arises.
(iv) Footnotes to decisions of the Secretary of State are an integral part of the decision and, hence, may legitimately be considered and accessed by Tribunals.
(v) If a judge has concerns or reservations about the evidence adduced by either party which have not been ventilated by the parties or their representatives, these may require to be ventilated in fulfilment of the "audi alteram partem" duty, namely the obligation to ensure that each party has a reasonable opportunity to put its case fully. This duty may extend beyond the date of hearing, in certain contexts. In this respect, the decision in Secretary for the Home Department v Maheshwaran  EWCA Civ 173, at  –  especially, on which the Secretary of State relied in argument, does not purport to be either prescriptive or exhaustive of the requirements of a procedurally fair hearing. Furthermore, it contains no acknowledgement of the public law dimension and the absence of any lis inter-partes (para 7).
38.5BA In WA (Role and duties of judge) Egypt  UKUT 00127 (IAC), the Upper Tribunal criticised a First-tier judge who intervened to adjourn proceedings whilst cross examination was taking place and possibly of his own motion, to permit the appellant to respond and produce further evidence where questioning in cross examination had extended beyond what was in the appellant's witness statement. The Upper Tribunal, finding that there had been procedural unfairness, said:
5. The principal ground of appeal by the Secretary of State is that the resulting decision, allowing the appeal, after a series of further events which we shall set out in due course, was unfair. The judge, without any apparent reason for doing so, gave the claimant an opportunity to improve his case at a point where questions and cross-examination were getting difficult. The claimant's response, made by Mr Dixon in writing and orally, is that the judge considered that the questions about the claimant's activity appeared to extend beyond what was in his witness statement. We do not think that that is right or that it would give any good reason for granting the adjournment.
6. 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. When both sides have finished their examination, he may ask questions of his own by way of clarification; if he does, he should give both sides an opportunity to ask any further questions arising from his. If there are any questions which are manifestly unfair, he might simply direct that they be not asked, or if already asked, not answered. It is not, however, easy to see how a relevant question about the claimant's own life and activities could be unfair. If a new issue is raised and is thought to be of importance, it may possibly be necessary to supplement evidence by some means: but that in itself would not be a reason for adjourning during the course of taking evidence.
7. If something exceptional happens during a hearing, causing a disruption of the normal course of events, such as the continuous taking of evidence, it is essential that the judge should record exactly what happened and why; who said what, and what decision the judge made and on what basis. In that way any subsequent challenge to the judge's action on the grounds of fairness or appropriateness can be properly dealt with.
8. In this case we have no basis for saying that the judge acted properly in taking the extraordinary step of granting, possibly of his own motion, an adjournment to allow the claimant to supplement his evidence during the course of a cross-examination challenging his credibility. Without an explanation or justification, his action has to be seen as an error of law in breaching procedural expectations and inducing a sense of unfairness. To that extent, it appears to us that his decision was affected by error of law.
38.5C Whilst a judge may properly express provisional views on the case, provided he retains an open mind (see para 39.18), in certain circumstances, judicial interventions may be suggestive of bias where the judge conveys an unwillingness to be persuaded whatever the evidence may be. The Tribunal in Alubankudi (Appearance of bias)  UKUT 542 (IAC) emphasised the importance of the appearance of justice being done:
'The interface between the judiciary and society is of greater importance nowadays than it has ever been. In both the conduct of hearings and the compilation of judgments, Judges must have their antennae tuned to the immediate and wider audiences … it is of seminal importance that the fairness, impartiality and detached objectivity of the judicial office holder are manifest from beginning to end' (para 14).
38.5D The Tribunal has stressed the seriousness of an allegation of bias against a judge and the expectation that all proper steps are taken by the person making it: PA (protection claim: respondent's enquiries; bias) Bangladesh  UKUT 0337 (IAC). In circumstances in which you are concerned that the judge had breached his duty of impartiality towards your client, it is important to follow the guidance set out by the Tribunal in BW (Witness statements by advocates)  UKUT 568 (IAC), Sivapatham (Appearance of Bias)  UKUT 00293 (IAC) and Ortega (remittal; bias; parental relationship)  UKUT 00298 (IAC). In these circumstances you are likely to become a witness in the case (on onward appeal) and you should no longer represent your client as an advocate. The Tribunal has held that it is good practice for there to be a contemporaneous note of the hearing in such circumstances and that each concern should be detailed in a witness statement from the advocate. Sometimes, the appellant and anyone else who witnessed the judicial behaviour under challenge may also be approached to provide a witness statement, although the Tribunal has noted that "the views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal" (PA (protection claim: respondent's enquiries; bias) Bangladesh  UKUT 0337 (IAC). Where witness statements are sought some time after the events complained of, however, care should be taken to ensure that potential witnesses have a sufficiently detailed recall of what happened. The Tribunal has also indicated that materials criticising the judge's conduct of the appeal should be forwarded to him to enable him to respond.