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Paul_Treloar_CPAG
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1964 - 10 November 2015 06:39 PM

I’m with Past Caring on this.  To me, it doesn’t feel so very different to jurors surreptitiously Googling the accused. The potential for a skewed outcome is immense. It really doesn’t sit well with me.

this /\/\/\

John Birks
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past caring - 10 November 2015 05:17 PM

Am not quite sure why anyone might think that I’m somehow arguing against a ‘the right result is the right result’ position.

In nearly 20 years of doing this job I can think of no more than three clients who I was certain were trying to pull the wool over my eyes and where I had hard evidence of this. I didn’t allow those cases to get as far as tribunal (at least not with me as rep) but there’s always a possibility that someone will succeed in deceiving me - and I’d have been mortified had I been repping the golfer.

I’m simply worried by the potential for unfairness and injustice that this kind of thing might give rise to.

I’ll feel a lot more comfortable about it when I hear of a decision where the results of such a search are given by a tribunal as at least part of the reason for an appeal being allowed.

2 things.

1. Your experience is your experience - no one can take that away from you or say it is wrong. Likewise my experience.

2. If there is promotion of ‘potential’ ‘injustice’ it is certainly not by me. Something has been misunderstood.

 

Mike Hughes
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John Birks - 10 November 2015 04:41 PM

Where is the like button?

It’ll be busy collecting your data John :)

http://www.cnet.com/news/facebook-like-button-draws-privacy-scrutiny

This site is getting very poor at spotting ironies :)

John Birks
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Mike Hughes - 11 November 2015 10:24 AM
John Birks - 10 November 2015 04:41 PM

Where is the like button?

It’ll be busy collecting your data John :)

http://www.cnet.com/news/facebook-like-button-draws-privacy-scrutiny

This site is getting very poor at spotting ironies :)

A site is only as good as it’s users ... ;-)

John Birks
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Welfare Rights and Debt Advice - Stockport Council

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its

nevip
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1964 - 10 November 2015 06:39 PM

I’m with Past Caring on this.  To me, it doesn’t feel so very different to jurors surreptitiously Googling the accused. The potential for a skewed outcome is immense. It really doesn’t sit well with me.

I sympathise with the feeling and it does have an air of discomfort about it but the comparison with jurors is not a fair one.  The situation is far different for jurors in a criminal trial.  Criminal trial proceedings are adversarial and have to be decided only on the evidence put to the court by the prosecution and rebuttal evidence put by the defence, with the prosecution having to prove its case beyond reasonable doubt.  Jurors are not allowed to cross examine witnesses or put points to them for clarification. 

Defence lawyers cannot know what is in the mind of the jury and must be confident that jurors are not relying on evidence that they cannot examine.  Thus jurors must rely on evidence that is directly before the court, known to and challengeable by the defence, and nothing else.  Hence the sub judice rule.  Otherwise there is a real risk of the accused not getting a fair trial, and the Court of Appeal would grind to a standstill hearing case after case of potentially unsafe convictions.

The message is clear.  Be careful what you put on social media.  As for RIPA, I remember railing against this at the Bill stage, particularly the provision allowing a minister to amend or repeal primary legislation.  Thankfully that provision was dropped.  However, if people think RIPA gives unwarranted authority to public authorities then look at its twin, the Data Retention and Investigatory Powers Act 2014.

edited for grammar

[ Edited: 11 Nov 2015 at 01:13 pm by nevip ]
Pete C
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John Birks - 10 November 2015 03:27 PM

...and there was me thinking this was all about what was right and not how things look.

In the golfing story i doubt very much that the panel member randomly ‘googled’ a random appellant. More likely that the name was familiar - not that the appellant was known to? - and hard facts are in the public domain.

Either that or the suggestion is that tribunals have far too much time and resources on their hands.

This then leads to the question that if one has prior knowledge - either observed at/outside the venue or on ‘unsocial media’ then how, why and what makes it justice to dismiss the same?

IMO it would be better to have all the evidence (Facebook et al) before a tribunal to enable a correct decision and not the bits you like to enable a decision that you ‘like.’

I don’t think it was random search as the appeal papers contained a number of references to golf - along the lines of ‘used to play a lot of golf but not any longer able to do so with any regularity due to…..........................’ .

 

 

John Birks
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Seems the tribunal were very much put on notice by the appellant.

From a case law aspect the following two decisions are helpful to the tribunals approach imo.

CDLA/3182/2009 AP-H v Secretary of State for Work and Pensions (DLA) [2010] UKUT 183 (AAC)

a. the tribunal has a discretion to consider issues that are not raised by the appeal;

b. it does not matter whether the discretion arises under section 12(8)(a) of the Social Security Act 1998 or independently;

c. the tribunal must exercise the discretion judicially;

d. the points made by Mr Commissioner Rowland are relevant to that exercise, as is the public interest. I would add this point. If an award is removed by the Secretary of State, the claimant has the right to appeal on fact to the First-tier Tribunal. But if it is removed by the First-tier Tribunal, there is no right of appeal on fact. Tribunals should bear that in mind;

e. if the tribunal decides to consider other issues, the parties are entitled to a fair hearing;

f. it is always good practice to explain why the tribunal exercised its discretion;

g. an explanation may be required as a matter of adequacy of reasons.

HI v Secretary of State for Work and Pensions [2014] UKUT 0238 (AAC) CE/0146/2014

16. There are, however, limits to the inquisitorial function of tribunals. It is one thing for a tribunal to instigate inquiries as part of its inquisitorial role (in contradistinction to the adversarial approach traditionally, but less so today, associated with the courts). It is quite another thing for one member of a tribunal actively to collect evidence relating to the appeal, which moreover was presumably not heard directly by the medical member of the tribunal. The chairman in this case stepped over the line – she stopped being a judge and became both an investigator and a witness.

20. The function of tribunals is therefore to decide the appeals on the evidence put before them, not on the evidence collected by them on the day of the hearing and not put to the claimant. In the present case the failure to put the evidence gathered from the GP’s surgery by telephone to the appellant for comment compounded the tribunal chairman’s error. The case was being decided, in part at least, on evidence that had simply not been disclosed to the appellant. …

If those that disagree and would wish to make a case of ‘it’ would kindly point out the justice interest element, I’d be much obliged.

Daphne
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Links to decisions here

CDLA/3182/2009

CE/146/2014

Colin Hannon
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I am glad to report that the case was set aside and successfully appealed this week

Just shows that you should never give up , support and advice from the Welfare Rights community helps us prevail .

Keep up the fight folks

Paul_Treloar_AgeUK
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Colin Hannon - 08 April 2016 09:36 PM

I am glad to report that the case was set aside and successfully appealed this week

Just shows that you should never give up , support and advice from the Welfare Rights community helps us prevail .

Keep up the fight folks

good work, well done.

Colin Hannon
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many thanks Paul , much appreciated

Colin

ClairemHodgson
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relatedly, i came across this the other day

http://www.americanbar.org/publications/blt/2014/01/02_dibianca.html

Whilst it is of course American, my view was that the thinking is highly relevant in the UK .  people put an awful lot of stuff out there than can come back and bite them on the bum (especially when taken out of context by people with an agenda!)

Mike Hughes
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Very good and relevant read.

The point that resonated with me was “private” not being the same as “not public”.  Can think of a few staff that needed explaining to over the years.