Upper Tribunal (Administrative Appeals Chamber)

In the Upper Tribunal

(Administrative Appeals Chamber)

case no: JR/2627/2009

His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal

Decision: The decision of the First Tier Tribunal is quashed. The case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted Tribunal.

REASONS FOR DECISION

1.     By Order dated 7^th January 2010, Judge Rowland granted permission to apply for judicial review of the decision of the First Tier Tribunal (Social Entitlement Chamber, Criminal Injuries Compensation) dated 14^th July 2009 which dismissed the Applicant’s appeal from the Interested Party’s refusal of compensation on the basis of paragraph 13(d) of the Scheme.

2. At the hearing before me, Mr M Vinall of Counsel appeared on behalf of the Applicant, and Mr J Waite of Counsel appeared on behalf of the Interested Party.
3. The Applicant’s skeleton argument sets out a summary of the facts, which are not in dispute: “The Applicant applied for compensation for the murder of her son, Fabian, who was shot on 17^th April 2006. Three men, including one Terry Clarke, were charged with his murder, but were acquitted on the direction of the Judge on the basis of a failure properly to eliminate a fourth suspect. On 29^th July 2007, the Interested Party refused to pay compensation on the basis of Fabian’s conduct on the day of his death (paragraph 13(d) of the Scheme), in particular that Fabian ‘was armed with a knife and stabbed Terry Clarke’ and ‘the deceased’s mother confirmed that the knife used matched a knife missing from her kitchen.’ “
4. Prior to the hearing at the First Tier Tribunal, the Interested Party provided a Summary of the case. This summary was written and signed by DS Audrey Teodorini. It details the events that led to the fatal shooting of Fabian and the criminal proceedings subsequent to his death. The Summary states that three men were arrested and charged with murder. On 16^th May 2007, the Judge directed that all three defendants should be found not guilty. Paragraph 11 states: ‘A motive put forward for the murder, was that Fabian had stabbed Terry Clarke during the altercation at the bus stop. Terry Clarke had been stabbed in the neck…The injury was not life threatening and he did not report the stabbing to the police.’
5. Paragraphs 12 and 13 of the Report are significant. They read as follows: ‘ Para 12. A black handled knife was found in the grass behind the railings, near the bus stop. It was forensically examined and there was blood staining on the blade, a DNA profile matched that of Terry Clarke. Mrs Ricketts confirmed that the knife matched a knife missing from a set of knives, which she had in her kitchen. She was aware her son had armed himself with a knife in the past, for his own protection, but that she had told him not to. Para 13. There was no evidence that Fabian started the initial altercation, or that he went to the scene with intent to cause any trouble. However, it was accepted by the prosecution that Fabian was armed with a knife, and stabbed Terry Clarke, once the altercation had started.’
6. The Applicant disputed in her evidence before the Tribunal that she had confirmed that the knife found at the scene matched the knife that was missing from her kitchen, and she disputed further that she had told the police that she was aware that Fabian had armed himself with a knife for his own protection but had told him not to. The Applicant submitted before the Tribunal that “[there] appears to be no written record of [my] saying either of these things.”
7. It would appear that after the Applicant gave her evidence, DC Carroll was called as a witness on behalf of the Authority. The Applicant’s reply to the Detailed Grounds for Opposing the Claim states that in the course of his evidence, DC Carroll stated that (a) a number of witnesses had told the police that Fabian had a knife in his possession; (b) Terry Clarke’s brother had made a monitored telephone call from prison confirming that the person shot had stabbed Terry Clarke; and (c) the Applicant had signed a witness statement to the effect that Fabian had carried a knife and that the knife found at the scene matched a knife missing from her kitchen.
8. It is agreed between Counsel, that DC Carroll did not have with him any of the documents that he was referring to, and therefore the Applicant’s representative requested an adjournment to allow the documents to be produced.
9. I have seen a letter from the Applicant’s legal representative dated 22^nd March 2010 to Treasury Solicitor that has asked the Treasury Solicitor to confirm three matters. First, that the Authority’s representative at the hearing did not make any opening remarks indicating that the Authority would be relying on additional evidence; secondly, that it was not put to the Applicant in cross-examination that she had signed a witness statement; and thirdly, that the Tribunal had not explored why DC Carroll had not followed the instructions in a letter dated 28^th May 2009 from the Tribunal about the production of any Statements obtained in connection with the incident. There has been no reply to the letter from the Applicant’s legal representative, and Counsel for the Interested Party is not in a position to disagree with any of these matters.
10. The application for the Adjournment was refused. The Written Reasons do not refer to an application for an adjournment or the reasons for refusing it. However, it is stated in the Applicant’s Statement of Grounds that the application for an adjournment was made on the basis that it was in the interests of fairness for the Applicant to see copies of the evidence which DC Carroll summarised in his oral evidence, and on which he relied, so that she might test its veracity and be able to argue her case fully. The Statement of Grounds states that the Tribunal refused the application and gave as it reasons that it was not in the habit of adjourning for this reason, that it was not bound by any rules of evidence, and that it was not prepared to hear any further submissions from the Applicant’s representative on the matter.
11. Counsel for the Interested Party conceded before me that these were the reasons why the application for the adjournment had been refused. He submitted however that the decision not to adjourn was fully in accordance with the principles of the overriding objective as set out in Rule 2(2) of the Rules. The Detailed Grounds for Opposition state that the burden is on the Appellant to establish that an award should not be withheld on the grounds of the deceased’s conduct, that nothing new had arisen which merited the grant of an adjournment, and that the production of the documents would not make a difference.
12. Counsel for the Applicant challenged this approach by pointing out that the Tribunal clearly relied on the evidence of DC Carroll in its final decision. DC Carroll stated in evidence that the Statement was in existence. The Applicant said in evidence that she made no such statement.
13. The Tribunal states at paragraph 10(f) “The fourth piece of evidence is what the Appellant told the police. She signed a statement which she gave to the Police at page 22, which was to the effect that her son had carried a knife in the past for his own protection and that the knife found at the locus matched the knife missing from her set of knives in the kitchen. The Tribunal did not accept the Appellant’s evidence that she did not identify the knife or her denial that she had told the police that her son had carried a knife in the past for his own protection.”
14. Counsel drew my attention to a series of cases from a range of jurisdictions which have set out principles which should guide Tribunals and Courts when considering, within the exercise of their discretion, to grant or not to grant an adjournment. It would seem to me that the correct approach to be taken by a Court or Tribunal when faced with a judicial review of a decision not to adjourn is that it should ask itself the question: “was the decision of the tribunal not to adjourn within the legitimate scope of the Tribunal’s judicial discretion in dealing with procedural applications and was it not unfair?” (Laws LJ in Carpenter v Secretary of State reported as R(IB)6/03).
15. This Tribunal considered the question in MA v Secretary of State for Work and Pensions [2009] UKUT 211 (AAC) where the Tribunal said that the consideration of an adjournment should focus on three questions (a) what would be the benefit of an adjournment? (b) why was the party not ready to proceed? and (c) what impact will an adjournment have on the other party and the operation of the Tribunal system?
16. I agree that these questions are the relevant questions for a Tribunal to consider within the context of the overriding objective to deal with cases fairly and justly.
17. In this case, so far as the first question is concerned, the benefit of an adjournment is obvious. It would have provided the Applicant, and the Tribunal, with the answer to the dispute between the parties as to whether or not the Applicant had made a statement to the police. As to the second question, the Applicant was ready to proceed at the beginning of the hearing, and it was only when DC Carroll gave his evidence that the existence of certain documents was drawn to the attention of the Tribunal. As to the third issue, a short adjournment would hardly have been to the prejudice of the Authority, who after all have a duty, together with the Applicant, to co-operate with the Tribunal generally (Rule 2(4)). This would have aided rather than hindered a busy jurisdiction with many cases waiting to be heard.
18. I agree with Counsel for the Applicant that fairness demanded that there should have been a brief adjournment to enable the Authority to seek to obtain the relevant document. This is particularly relevant in this case, because by letter from the Tribunal dated 28^th May 2009, the Tribunal had expressly requested the Officer to bring to the hearing, amongst other documents, statements obtained in connection with the incident. No application had been made for any such statements not to be produced. It is a fundamental principle that if a party is relying on the existence of a document, then both the other party and the Tribunal are entitled to see it for themselves or be told why it cannot be produced.
19. It is my finding, therefore, that in refusing an adjournment in this case, and on the facts of this case, the Tribunal fell into an error that amounts to an error of law, in that it was a decision that fell outside the legitimate scope of its judicial discretion and was unfair.
20. I need to turn to consider what remedy I should grant. Counsel for the Applicant asked me, as an alternative to remitting the matter, to substitute a decision allowing the appeal on the basis that no reasonable Tribunal on the basis of the evidence before the Tribunal and in the absence of an explanation for the failure to produce the documents, could have preferred the secondary evidence of DC Carroll to the direct evidence of the Applicant.
21. I am not able to agree to this approach. I have not heard any evidence. I have seen an unsigned Statement dated 15^th September 2006, and this document may or may not be of importance. But I have not had the benefit of any submissions on this document. In addition, the reference to “p 22” in the Tribunal’s Reasons at paragraph 10(f) may be of significance, but I have not seen the document which is being referred to.


22. The correct approach is to quash the decision and remit it to be heard as soon as possible before a differently constituted Tribunal. It will a matter for the First Tier Tribunal to case manage the appeal and to issue Directions, but I strongly recommend that the Authority be directed to serve on the Tribunal and on the Applicant, the documents referred to in the letter dated 28^th May 2009, and if there are no such documents to explain why they cannot be produced.

ORDER ACCORDINGLY

His Honour Judge David Pearl

Sitting as a Judge of the Upper Tribunal

21^st May 2010