“The issues before me are firstly whether the appellant used deception in an application for leave to remain dated29 August 2014 . Secondly, whether he meets the requirements of paragraph 276 ADE of the Immigration Rules in respect of his private life. Thirdly, whether his removal would breach his rights underArticle 8 ECHR .”
“A careful reading of the transcript shows that the Judge did ask many questions, but there is no indication that she did so in an aggressive manner”
“Q. And when did you find out about the allegation of deception? A. At 2014.”
“Do you have any evidence that you paid for the test? Do you have a receipt? A. No, I don’t have anything. Q. Why do you not have the receipt? A. Because I paid by cash. Q. Well you still get a receipt whether you paid by cash or not, so where is the receipt? A. Receipt, truly I lost it. I didn’t think I need to come like this position, so I didn’t keep it. They give me small receipt but I didn’t keep it.”
“Q. And were you with the appellant when he found out about the allegation of deception? A. I hear it, I was not with him, but I hear later on that this is what happened. Q. And do you know whether he contacted – sorry, did somebody say something? Do you know whether he contacted Queensway College after he found out about the deception allegation? A. I’m not sure Ma’am exactly. Q. Have you never asked him? A. I asked him to contact ETS, not Queensway College. Q. When did you tell him to contact ETS? A. It was around 2018/19, I’m not sure exact date. Q. Why did you advise him so late in the day.”
“the careful and cogently written judgment cannot redeem a hearing in which the judge had intervened to the extent … of prejudicing the exploration of the evidence”
“Fairly evaluating the relevant evidence, particularly the totality of the transcript of the hearing before her, the FTTJ departed from her supervisory role, and thus risked her ability to properly evaluate the evidence and arguments. The hearing before her was therefore unfair”
“A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict.”
“took the examination-in-chief largely out of the hands of Mr. Edmund Davies. He took the points of criticism made against the defendants, went through them with the witness, and appeared to accept his explanations. Mr. Mars-Jones cross-examined the witness, but after a while the judge disclosed much impatience with him and he brought it to a close.”
“Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, and the above observations (made, in the case of Lord Denning M.R., almost 50 years ago, and, in the case of Lord Greene M.R., more than 60 years ago) must be read in that context. That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel’s submissions) must inevitably carry the risk so graphically described by Lord Greene M.R. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.”
“the judge’s constant (and frequently contentious) interruptions during the oral evidence, examples of which we have given earlier in this judgment, served to cloud his vision and his judgment to the point where he was unable to subject the oral evidence to proper scrutiny and evaluation.” (my emphasis) And, at [148]: “In our judgment, therefore, the manner in which the judge conducted the trial led to a failure on his part to discharge his judicial function.”
“The ultimate question, however, is whether the Judge’s interventions made the trial unfair. I have already indicated that the Judge intervened more often than was appropriate. He should have attempted to postpone his questioning of Mr Keane until after Ms Anderson had conducted her cross-examination, save when it was necessary to clarify the evidence being given. Judicial self-restraint is required to avoid the consequences referred to above and to ensure that the trial process is fair to all involved. That said, I do not consider that the interventions either prevented the appellants from fully presenting their case at trial or impaired the Judge’s decision-making. There was a fair trial and Ms Anderson did not really suggest otherwise in her submissions to us. While the Judge may have intervened more than was appropriate, his conduct was nothing like that which led to appeals being allowed in Kofi-Adu and Serafin v Malkiewicz and, “look[ing] carefully at what were the real issues in the case and how the judge’s conduct impacted on them”, I am in no doubt that the trial remained fair.”
“Patten LJ, with whom Vos C agreed, considered that “the judge’s interventions, whilst always courteous, were … excessive and … he should have attempted to postpone his questioning, particularly of the witnesses of fact, until after counsel had conducted his cross-examination except when it was necessary to ask the witness to clarify an answer so that the judge could understand the evidence that was being given” (paragraph 45), but “reached the conclusion that there was still a fair trial and a proper judicial determination of the main issues” (paragraph 46). “The allegation of unfairness,”
“During the taking of evidence a judge’s role is merely supervisory”
“In order to conduct a fair hearing, cross-examination should be facilitated by the judge without undue interruption”; see also [70]. It was noted, at [36], that “[o]ne facet of a fair trial is the exercise of judicial restraint during the taking of evidence”
“In summary, interventions that stray beyond the merely supervisory role of a judge during the taking of evidence risk a judge descending into the arena and so clouding their vision by the dust of conflict”
“primarily because of the limits he placed on Mr Fazli’s cross-examination, the extent to which he intervened during cross-examination and the consequential, and unfair, impact that had on the Secretary of State’s ability to advance her case. The judge’s interventions during the appellant’s cross-examination strayed significantly beyond the merely supervisory role that judges have during the taking of evidence.”
“Even where the parties are both represented, it is still relevant for questions to be put by the Adjudicator to a witness if they raise matters which trouble the Adjudicator if they have not been raised or dealt with by the opposing advocate. This is especially so if the Adjudicator is concerned by the point and it is something which may affect the decision or indeed should affect the decision, but cannot fairly do so without the relevant witness being given the opportunity to deal with it. The comments made in this respect by the Adjudicator in paragraph 60 are entirely right.”
“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.”
“Given the judicial nature of the tribunal’s function, it is generally inappropriate for it to become involved in challenging the evidence placed before it. As Moses J observed in R v Special Adjudicator, ex p Demeter (p 430): ‘The appeal should be, and is, adversarial. It is important that the special adjudicator should avoid, if possible, giving any appearance of entering into the arena by challenging the account that the applicant gives himself.’ There are, however, circumstances where, as a matter of fairness, the tribunal cannot remain silent in the face of the evidence presented to it.”
“there is no presumption that the procedure will necessarily follow the adversarial model which (for the time being at least) is the hallmark of civil court procedures. In a specialist tribunal, particularly where parties are not represented, there is more scope, and often more need, for the judges to adopt an inquisitorial approach. This has long been accepted in respect of social security benefits (see Kerr v Department for Social Development[2004] 1WLR 1372 , paras 61-63, where Baroness Hale spoke of the process of benefits adjudication as “inquisitorial rather than adversarial . . . a co-operative process of investigation in which both the claimant and the department play their part”). However, there is no single approach suitable for all tribunals. For example, in a major case in the tax or lands tribunals, the sums may be as great, and the issues as complex, as in any case in the High Court, and the procedure will be modelled accordingly.”
“4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge. (5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge’s decision.”
“[81] Members of the Bar are expected to put their clients’ cases fearlessly. As a general matter, if Counsel concludes during a hearing that the judge is behaving in an inappropriate manner, Counsel has a duty to raise that matter with the judge, there and then. In this way, the issue will, at the very least, be recorded in the judge’s record of proceedings and, ideally, in the record of Counsel and/or his or her instructing solicitor. [82] The fact that an allegation of bias is not made until an application is filed for permission to appeal is not, of course, determinative of the issue. Each case must turn on its own facts and circumstances. The appellate court of tribunal may, nevertheless, be entitled to have regard to the absence of any challenge at the hearing, or at least before receipt of the decision, in determining the allegation.”
“the risk is that the judge’s descent into the arena (to adopt Lord Greene M.R.’s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and mayfor that reason render the trial unfair.” (my underlining)”