R v. Secretary of State for the Home Department, Ex parte Singh

IN THE SUPREME COURT OF JUSTICE

COURT OF APPEAL

CIVIL DIVISION

APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW

3rd April 1998

Before:

LORD JUSTICE PETER GIBSON

LORD JUSTICE PILL

SIR PATRICK RUSSELL

REGINA - v - SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte SINGH

MR R SCANNELL (Instructed by Haroon Storey & Co of Chapel Allerton, Leeds) appeared on behalf of the Applicant

The Respondent was not represented and did not attend

JUDGMENT

SIR PATRICK RUSSELL:

This is a renewed application for leave to move for judicial review after refusal by the single judge, first on a paper application and later after an oral hearing.

The applicant is an asylum seeker. He sought asylum in this country in 1996, contending that he had a well founded fear of persecution in India from whence he had hailed by virtue of his experiences there in the way of harassment, wrongful imprisonment

and assault, allegedly occasioned by the appellant's lawful activities which did not find favour with the authorities in India. By letter dated 24th September 1996 the Secretary of State, having considered the circumstances of the applicant's individual case, concluded that he did not qualify for asylum status and he refused the application.

The applicant exercised his right of appeal to a special adjudicator. His statements in support of his appeal are before the court. They are very lengthy documents. When the case came to the attention of the special adjudicator he made certain directions on 29th April 1997. Amongst those directions was the following:

"Any statements filed in pursuance of earlier directions shall, together with the appellant's replies at interview constitute the evidence-in-chief at the hearing."

This application has as its purpose the ultimate challenge of that direction. To complete the history, when the matter was brought to the attention of the special adjudicator conducting the hearing, it was decided that the hearing should be adjourned pending this application being made.

The source and foundation of the direction made by the special adjudicator is to be found in rules entitled Asylum Appeals Procedure Rules 1996 made by the Lord Chancellor and laid before Parliament in August 1986. Part V of the Rules, under the heading General Procedure, provides, so far as is material to this application, as follows:

"Conduct of appeal

23

(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed at hearings.

(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the authority may give directions which control the preparation for, and conduct of, any hearing.

(4) Directions given under this rule may - (e) limit

(iii) the time allowed for examination and cross-examination of witnesses by, for example, allowing a witness statement to stand as evidence in chief."

It is that particular rule, whereby the special adjudicator sought to limit the time allowed for examination of the applicant, by allowing his witness statement to stand as evidence-in-chief, which forms the kernel of this application.

Mr Scannell submits that the terms of the rule mean that the adjudicator cannot require the applicant's witness statement to stand as evidence-in-chief without his, the applicant's, permission.

For my part, I am satisfied that that is not a proper interpretation of the rule and does not bear examination. It runs counter to the terms of the rule and its purpose, namely to enable the adjudicator to exercise control over the proceedings in which he is presiding and to ensure that appeals of this kind are disposed of both fairly and expeditiously. In my judgment, there is vested in the adjudicator at all times a discretion as to how proceedings in the end are to be conducted. He is at liberty, if he thinks the case is an appropriate one as he did in this case, to lay down a direction that a witness statement - in this case the statement of the applicant - should stand as evidence-in-chief. 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. Everything depends upon the way in which the adjudicator exercises his discretion to conduct the inquiry before him.

In my view, as I have already indicated, being firmly of the opinion there is nothing in the point made by Mr Scannell which requires the authority of the applicant before the statement can be used, there is nothing further in this application and it is unarguable. I cannot improve on the words used by the single judge, Jowitt J, when he refused the application at the conclusion of the oral hearing. He said:

"In my judgment, since the obvious thrust of Rule 23 is to cut out what is unnecessary and approach the hearing in a practical way so as:

`to secure the just, timely and effective disposal of appeals ..... '

then it would indeed be surprising if sub-rule (4) (e) were to be read in the way suggested by Mr Scannell."

I agree with that.

For my part, I would refuse the application.

LORD JUSTICE PILL:

I agree. Under the rules the special adjudicator may direct that the witness statement stands as evidence-in-chief. However, the adjudicator has a duty to give a fair hearing. In some exceptional cases, the nature of which it is unnecessary to define upon this application, that duty might require, before cross-examination, some oral explanation to be given of material in the written statement. That, however, is not this case where the complaint is that the applicant was considerably disadvantaged by not being allowed to give all evidence-in-chief orally.

I too would refuse the application.

LORD JUSTICE PETER GIBSON:

Despite Mr Scannell's clear and forceful arguments, I too am of the view that this application should be refused.

I was not persuaded by Mr Scannell on two points which he advanced. The first was that the consent of the party whose evidence is sought to be adduced is needed to comply with the rule. The second is a submission that in limiting the time allowed for examination and cross-examination what must be done is to stipulate a time limit, such as an hour or 30 minutes. Neither point, to my mind, is correct.

On the first point it cannot be right that with the overriding objective of the conduct of the appeal being as specified in Rule 23 (2), that is to say, to secure the just, timely and effective disposal of appeals, it could be left to the party adducing evidence to determine whether or not there should be a full oral examination, notwithstanding that a witness statement has been put in. The word "allow" to my mind imports the fact that the ordinary rule is that evidence is to be given orally, with all the dangers of witnesses not coming up to proof, and, therefore, it is for the benefit of the party who is wanting to put in that evidence that the witness statement should stand as the evidence-in-chief. In my judgment, the rule enables the adjudicator to require that the witness statement should stand as evidence-in-chief.

The second point as to time was argued in this way. Mr Scannell gave as an example of a proper direction: "In the exercise of my powers under Rule 23 (4) (e) (iii) I hereby limit the time allowed for examination and cross-examination of witnesses as follows: in the case of the appellant, 30 minutes and 1 hour respectively, in the case of any other, 15 minutes and 30 minutes respectively. To this end I shall allow witness statements to stand as evidence-in-chief." In my judgment, it is not necessary, though it is of course possible, to give a direction of that sort. I say that because the rule itself contemplates that there can be a limiting of the time allowed for examination and cross-examination simply by allowing a witness statement to stand as evidence-in-chief. On the plain language of the rule, that is a sufficient way of limiting the time allowed without stipulating a period of time.

In my judgment, therefore, neither of those two points can be right. But 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.

For these reasons, as well as the reasons given by my Lords, I too would dismiss this application.

Order:

Application dismissed