I have a case going to Commissioners where the chair recorded the proceedings on his personal computer and then took it home. I complained at the time after requesting the RoP and getting nothing back saying clerk has duty to maintain under Reg 55(2) D&A Regs. Regional chairman said not very good. Other grounds for appeal as well, but I really want to try and attack chairmen doing RoPs anyway. Does anyone have any domestic or Article 6 kind of caselaw on the validity of a judicial member creating their own record of a hearing?

Any contributions or thoughts gratefully received.

I may have misunderstood your post but I can't see why there would be grounds to challenge a chair for making a record of an oral hearing. The duty to make a record of proceedings is on the chair/single member. The clerk then has a duty to 'preserve'the record when its been made.

REG 55(1)D&A REGS provides that "A record of proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by thwe chairman...in such medium as he may direct"

In your case the failure seems to be that the chair has not made available the record made of the hearing. Not sure what tAS policy on confidentiality etc is, but panel members are routinely sent appeal papers to their homes. If confidential information is recorded on a lap top and then this is lost then there is a privacy issue. Perhaps you could ask tAS for a copy of any guidance they have on use of information panel members gain through appeal hearings etc to see if you could lodge a complaint if the chair went against policy.

Hope I haven't missed the point.

Thanks Kate I've probably just badly explained it. The specific point here was that the chairman took the record home. If handwritten the clerk would take it home and any subsequent sight of it the chair would have would be of the copy not of the original. By taking it home he had an opportunity to do what he wanted to it before sending it in.

But my general point was that the whole practice of chairs keeping the only record of a tribunal is very poor, and so is there an article 6 attack possible here on the D&A Regs?

The reason for that was not only this case but a general feeling with my colleague who advises in employment matters that the practice of chairs making the record can lead to a feeling of procedural invulnerability which can lead to bad decision making.

Speaking to Liberty they couldn't find any case law on the matter but suggested a possible Article 6 attack if there was a disputed part of the record central to a higher appeal irreconcilable between a chair's and a rep's noted of the hearing. The only way to split the difference would be by way of a transcript of a verbatim record, and surely verbatim records are the only way of getting a fair hearing anyway.

Anyone at all interested the decision is CDLA/581/2004 by Commissioner Fellner and goes actually maybe a bit further than I expected, saying inter alia, albeit properly obiter:

"Where there is representation, there is nothing to stop the representative keeping his or her own record, which in the event of a dispute could be put before the chairman or commissioner. When faced with the chairman's written record against what are only recollections, we often prefer the former, but this is by no means axiomatic, and every case will be considered on its merits. Having two records to compare could make our task easier."

Any chance of a copy...

note to the editor... as I might not be the only person asking, what about making it available on Rightsnet...

I'll send a copy in but the quote I did is probably over optimistic editing and rather out of context of the decision as a whole, as well as being obiter (yeah, but hey, it was the best bit). I quoted it as an incentive for people to make their own notes at hearings and not to be completely afraid of questioning a chair's version of events on the day.

I agree with the original contentions how do we know if the notes have been interfered with, at least with the hand written you are aware of the crossing out etc I will level this question at our next TUGs meeting in June.

Having now looked at Reg 55, section 2 clearly says the records should be preserved by the clerk not chairman. But does not state at what point.I would contend it should be striaght after hearing. Will feed back after the TUGS meeting in June.

Thu 27-May-04 03:37 PM by ken

Thanks to Andrew sending a copy in, a pdf version of CDLA/581/2004 is now available on rightsnet.