THE UPPER TRIBUNAL Case No: CSJSA/494/12

 

ADMINISTRATIVE APPEALS CHAMBER

 

Appellant: Miss Janet McIntyre

 

Respondent: Secretary of State

 

Date of Decision:  13 December 2012

 

 

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

SIR CRISPIN AGNEW OF LOCHNAW Bt QC

JUDGE OF THE UPPER TRIBUNAL

 

 

 

 

 

 

 

ON APPEAL FROM: First-tier Tribunal (Social Entitlement Chamber)

 

Tribunal Case No: SC091/11/05460

Tribunal Venue: Edinburgh

Hearing Date: 9 May 2012

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal is allowed.

 

The decision of the tribunal given at Edinburgh on 9 May 2012 is set aside.

 

The case is referred to the First tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

 

REASONS FOR DECISION

 

Background

 

1.               There are two related appeals. On 28 April 2011 a decision was made that the appellant was not entitled to JSA from 11 August 2011 because she was living as husband and wife with a man and a decision dated 24 may 2011 that there was a recoverable overpayment of JSA of £5856.40 for the period 11 August 2009 to 2 May 2011. The appeals were conjoined before the tribunal which issues one Statement of Reasons for both decisions.

 

2.               This decision relates to the entitlement decision [Tribunal decision SC091/11/05460]. However, like the tribunal, apart from this heading “Background” and the necessary changes to references, the reasons for my decision are identical in both appeals.

 

Decision

 

3.               I allow the appeal. I hold that the tribunal erred in law. I remit to a differently constituted tribunal to rehear the appeal.

 

Ground of Appeal 6 – anonymous witness and redacted documents & waiver

 

Ground of Appeal 6

 

4.               The Grounds of Appeal raise a number of issues relating to this particular appeal and a Ground of Appeal of more general importance. In Ground of Appeal 6 “Public Acknowledgement” the claimant’s representative refers to the fact that a number of documents have been redacted to exclude information recorded in those documents. For example, in the Fraud Investigator’s statement he states that he has obtained one signed witness statement, but then quotes from it without giving the witnesses’ name and a sentence is redacted. In the Fraud Investigator’s Observation Log substantial passages are redacted. Other documents have information redacted such as the signature and email addresses of the person otherwise named in the email or in a letter the addressee, the signature and the name of the writer. The claimant’s representative submits that this is a breach of natural justice. The Secretary of State has not dealt with this issue in his Submission, which do not support the appeal on the merits.

5.               I accept that Ground of Appeal 6 raises an important matter of general importance. I consider that there has been a breach of natural justice and a right to a fair hearing under Article 6.1 of the European Convention of Human Rights. I therefore allow the appeal on this ground and remit back to a differently constituted tribunal to rehear the appeal.

Waiver

 

6.               I have considered whether I should reject this ground of appeal on the basis that it might be argued that as the point was not taken at the original hearing, the claimant should be taken as having waived the right to raise this point on appeal to the Upper Tribunal. Had the claimant been represented by a lawyer at the hearing there might have been validity in such an approach, but where there is lay representation I consider that it can be accepted that a lay person might not immediately recognise the importance of objecting to the anonymity of a witness or to the redaction in documents. In Millar v Dickson 2002 SC (PC) 30; [2002] 1 WLR 1615 Lord Bingham of Cornhill said:

 

“31 In most litigious situations the expression ‘waiver’ is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium, where the applicant's failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (para 54, p 465 ). In Pfeifer and Plankl v Austria there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked (para 38, p 713 ). In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified.”

 

The argument for the Crown was that as nothing had been said at the trial in objection, that the accused had tacitly waived his right to object to the fairness of the trial. Lord Bingham considered this at length and went on to say that the test was:

 

“But the point is whether the agents on behalf of the accused made a voluntary, informed and unequivocal election not to claim trial before an independent and impartial tribunal and not to object to the respective temporary sheriffs as a tribunal not meeting the requirements of art 6(1) . They could only have done this if they appreciated, or must be taken to have appreciated, the effect of the eventual decision in Stars or the real possibility of a decision to that or similar effect.”

 

7.               I consider that in the circumstances of this case where the claimant had lay representation, a pointed noted in the first passage quoted, and where it is within my general knowledge and the Secretary of State often uses redacted material in the papers submitted to a tribunal that a lay representative cannot be taken to have immediately appreciated the importance of objecting to the anonymous witness and redacted material. I therefore am not prepared to hold that the claimant waived the right to take this point on appeal to the Upper Tribunal.

 

Anonymous witness

 

8.               I consider that different issues arise in relation to the evidence of an anonymous witness and redacted documents.

 

9.               I am of the opinion that it is not lawful for the Secretary of State to rely on the evidence of an anonymous witness without the express consent of the tribunal, which should only be given in exceptional circumstances.

 

10.            In the present case the evidence relied upon was a Witness Statement from the Fraud Investigator, who gave evidence at the hearing. His witness statement states:

 

“As part of my investigations, I made enquiries with neighbours to find out who lived at 3/2 South house Drive. I obtained one signed witness statement and enclose details of the statement below.”

 

There then follows a quotation from the Statement where one sentence has been redacted. There is no information as to who the neighbour was who signed the statement; there is no information as to whether what is quoted is the whole statement or only part of the statement, although “details of the statement below” might be taken to indicate it is the whole statement.

 

11.            I accept that hearsay evidence is admissible; ie for the Fraud Investigator to report what has been said to him, but I consider that it is only admissible if the person who made the statement is named. It is a fundamental principle of a fair hearing and natural justice that a person is entitled to know the name of their accuser, so that they can properly challenge the evidence by raising issues as to the credibility or reliability of the particular witness – there may be animosity with a particular neighbour that might colour the reliability of their evidence.

 

12.            Although it is a criminal case, R v Davies [2008] 1 AC 1128, which cites some civil cases, considers the circumstances in which a witness may be granted anonymity and concludes that this is permissible only in exceptional circumstances. Lord Bingham also referred to the civil case of Duke of Dorset v Girdler (1720) Prec Ch 531, 532, that “the other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth”. This case shows that the principle that witnesses should not be allowed to be anonymous in civil matters also has a long tradition. Davies also cites Scott v Scott [1913] AC 417, a civil case, in which the principle of open justice was emphasised although it was recognised that there can be special circumstances in which courts may in the interests of justice sit in private, in particular where the administration of justice would otherwise be rendered impracticable or prejudiced.

 

13.            I consider that the Scott ratio could be applied to allowing a witness in a civil case to be anonymous, if there were special circumstances. I consider that the special circumstances in which to allow a witness to be anonymous would be stronger that the special circumstances that might allow a case to be heard in private. It is of note that the Lord Chancellor said at 437 that waiving the rule as to justice being done in public was not a matter of discretion but has to be treated as one of principle that could only yield on necessity - see:

 

“As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”

 

14.            Having regard to Lord Mance’s summary of the convention jurisprudence, the convention test would appear to be whether in the whole circumstances, if a witness is allowed to be anonymous whether the hearing has been a fair hearing. This links to the whole circumstances of the hearing and an important factor is the importance of the particular witness to the whole proceedings. However, I consider it is clear from the convention jurisprudence that this has to be seen in the context of the important principle that generally a witness may not be anonymous, unless there are special circumstances requiring anonymity in which case the fairness of the hearing is brought into focus.

 

15.            I therefore consider that a tribunal chairman does not have a mere discretion to allow a witness to be anonymous, but has to consider that as a matter of principle the witness’s name should be revealed unless it can be shown that as a matter of necessity the witness should be allowed to remain anonymous.

 

16.            In the present case, if the witness’s statement was to be admitted in its anonymous state, I consider that the tribunal ought to have been very cautious as to the weight to be given to it. It was hearsay; the tribunal had not seen the witness and the claimant had had no opportunity to challenge the credibility or reliability of the witness or to explain why the statement might not be credible or reliable. It is clear that the tribunal relied on this evidence without considering what weight to give to it; in paragraph 5 they record they had regard to the papers including the Fraud Investigator’s statement which recorded this witnesses evidence; in paragraph 10 they record that “A neighbour who has known them for four or five years believes them to live at the same address” which is clearly a reference to that evidence. If nothing else, I consider it was an error of law not to consider the circumstances of this evidence and to consider what weight to give to it in the circumstances of the appeal.

 

Redacted documents

 

17.            I consider that different issues arise in relation to redacted documents. I am of the opinion that it is legitimate for the Secretary of State to provided documents to the tribunal for inclusion in the papers to be provided to the claimant. In those circumstances I consider that the Secretary of State should provide unredacted copies of the documents in a sealed envelope to be available to the chairman of the tribunal. It is then for the claimant’s representative to object to the redaction or ask for information about what is redacted if the claimant considers that what is covered by the redaction may be important for his case. The Chairman will then have available to tribunal a copy of the unredacted document upon which the tribunal can then make an informed decision on whether or not the redacted part should be made known to the claimant or perhaps made known to the claimant’s representative in confidence. It is not enough for a witness to explain what has been redacted if the claimant raises an issue as to what is under the redacted parts.

 

18.            I am aware from my own practice that it is not uncommon for documents to be lodged with redactions on the grounds e.g. of commercial confidentiality or other sensitivities, with an unredacted copy provided for the court if the redactions have not been agreed with the other party. Two Scottish examples are Amey LG Ltd v Scottish Ministers [2012] CSOH 181 where no objection taken to a redaction on grounds of commerciality and Scottish Ministers v Stirton [2012] CSOH 181 where objection was taken to some redactions on which the court then ruled.

 

19.            In saying that it is legitimate for the Secretary of State to lodge redacted documents, I consider that the Secretary of State or his representatives should be careful about what is redacted and not use it as a matter of course. In the present case large tracts of the Fraud Investigator’s Observation Log are redacted and that immediately raised a concern that about what is being excluded and whether or not it might be of value to the defence. I would expect a representative to ask to see that material and I would expect the Chairman of a tribunal to scrutinise with care the redacted parts and be careful only to exclude those that it was necessary to exclude.

 

Grounds of Appeal 1 to 5

 

20.            Although I consider the prime error to be that identified in Ground of Appeal 6, I would also allow the appeal having regard to Grounds of Appeal 1 to 5. I agree with the Grounds of Appeal that the tribunal has given inadequate reasons for their decision in relation to the findings that they have made. On the evidence they have referred to namely the neighbour’s statement and the Fraud Investigator’s report it is not clear to me what evidence the tribunal might be purporting to found upon that for the whole time period in question that the claimant and the man were living together as husband and wife. If there is not sufficient evidence to cover the whole period, then the tribunal ought to have made finds as to which over which periods there was the relevant cohabitation, unless they considered that such evidence as there was was sufficient to link for the whole period.

 

21.            The lack of reasoning referred to above links in with the question of whether or not the burden of proof which was on the Secretary of State has been over come.

 

22.            However, as I am referring the matter back to the FtT for a rehearing, I will not comment further on these other grounds of appeal as the whole matter is open again for the next tribunal rehearing the appeal.

 

Directions

 

23.            I remit the appeal to a differently constituted tribunal to rehear the appeal subject to the following directions:

·        It is open to the Secretary of State to decide that the evidence of the anonymous neighbour should not be part of the papers presented to the next hearing and if that decision is made, page 23 should be removed from the file of papers before it goes before the tribunal rehearing the appeal;

 

·        If the Secretary of State wishes the evidence of the anonymous neighbour to be considered then the tribunal should not admitted the statement relating to the evidence of the neighbour [page 23], unless on special cause shown the Secretary of State satisfies the tribunal that the witness should be entitled to anonymity. The tribunal should have regard to what I say about special circumstances under the heading “Anonymous witness”;

 

·        Prior to the hearing, the Secretary of State is to lodge with the tribunal in a sealed envelope containing copies of the redacted documents in the papers without the redactions to be available to the tribunal if the claimant’s representative objects to the redactions.

 

·        As the onus of proof is on the Secretary of State the tribunal will have to make adequate finding in fact on the important issues that need to be determined in a case such as the present on as set out in R(SB) 17/18.

 

 

 

 

 

(Signed)

SIR CRISPIN AGNEW OF LOCHNAW Bt

Judge of the Upper Tribunal

Date: 13 December 2012