POs rights at a hearing

Recent epiphany or ‘event’ - Telephone appeal - minus appellant.

Tribunal opined they would go ahead on the papers - PO demanded a full hearing as dept has a right to ask questions of the appellant at a hearing.

Suggested otherwise and seeing as tribunal had decided to adjourn requested directions for questions to be submitted in writing before next tribunal.

“but I have follow up questions, that depend upon her answers ” says PO

So…..... Is cross examination by the PO allowed? Can the PO do a Columbo “Just one more thing….”?

DMG suggests yes and refusal could lead to PTA to UT - I note no evidence or law is relied upon for this opinion/guidance….

see 06438 and more in attached

A lot of work has been done on vulnerable witnesses and access to justice in other fields.

“...how the courts treat those who are exposed and weak is a barometer of our moral worth as a
society. Many of those we encounter in the criminal and family courts are from troubled backgrounds and have suffered a lifetime of disadvantage, prejudice and abuse.” *

*Addressing Vulnerability in Justice Systems; The Advocate’s Gateway (Wildy, Simmons and Hill); Introduction.

https://www.judiciary.uk/wp-content/uploads/2020/02/VulnerableWitnessesandPartiesFINALFeb2020-1.pdf

There’s also the attached practice direction - I have used this in the past - to be read with the act itself (attached.)

Now I’m not suggesting the PO can’t ask questions or draw attention to inconsistencies in evidence or help the tribunal in any other way, but in the vast majority of cases I do feel the correct procedure would be that the PO addresses the tribunal and if required they address the appellant/representative.

Can’t help thinking we’ve been doing it wrong for years…...?

It’s an interesting question. The PO is surely entitled to ask questions of the appellant if they are present at the hearing. I don’t think it is right to describe this as ‘cross-examination’ as such, but the SSWP has a right to a fair hearing as well and this surely extends to putting relevant questions to a witness.

The question for the Tribunal was whether it was in the interests of justice to proceed in the absence of a party as under rule 31. I suppose there is an argument that it may be in the interests of justice to adjourn if at the resumed hearing the appellant would turn up and give evidence and the tribunal would then get the benefit of hearing both their oral evidence and their responses to the questions the PO might have. Of course this argument is blunted significantly if your client is not going to attend any further hearing, as they are not obliged to do unless there is an order under rule 16.

I suspect that the PO has a rather inflated view of their own talents as an advocate if they think this is going to make much of a difference. As we know, overwhelmingly, if the appellant turns up to a hearing this will have the net effect of enhancing rather than detracting from their credibility. I would have thought that, strategically, it would have been better for the PO to have said that they should proceed but should treat your client’s evidence with caution as they have not turned up to the hearing to support it and, in fact, the PO had a number of pertinent questions about issues x, y and z which have gone unanswered due to their absence.

Of course we all know that when the case ultimately gets relisted, DWP either won’t send a PO or will send someone else who will ask no questions…

Hmm. Stretching very close to suggesting a tribunal ought to be an adversarial event. Also struggling to see why, if these questions are so pertinent, they could not be raised as outstanding issues as part of the DWP sub. I personally wouldn’t tolerate this at all in any circumstances. This is not a game or a circus. The PO is effectively withholding from the tribunal and it should, in my view, be approached from that perspective.

One might add in for good effect that the percentage of POs who fail to attend when so directed is likely considerably higher and with less good reason than appellants.

Oh dear - I wrote quite a bit on this and thought it had been posted - but no…. it’s not there…

Thrust was I agree with Mike. Thanks for your input.

Elliott thanks for your input - I can’t find the ‘rules’ the DJT relies on in their directions as requested.

The attached decision 6 - 10 should help.

The DWP isn’t human so can’t rely on that protection.

The DWP has a right to be heard under natural justice - that isn’t the same as facing your accuser.

A cross examination comes at the point of putting ‘things’ to the appellant. Not even tribunals can do that.

What’s a PO do? Present their case. Otherwise they’d be a DO or something…..

The PO is there to assist the tribunal but not to ask questions of the appellant - why did we let that happen? Is it right? Why? Other fields of law have moved to protect witnesses from questioning because of the relationship between the parties. Not sure why we allow it?

I am still convinced we’ve been doing this wrong - but it was like that when I got here….