Record of proceedings
8.130An accurate record is essential to sound decision-making. It is unwise to rely on memory, which can be incomplete, inaccurate and even inventive.
1Scott Plous, The Psychology of Judgment and Decision Making (1993, McGraw Hill), chapter 3, ‘Memory and Hindsight Biases’, p37. If the proceedings are recorded, there is no right to a copy of the recording under the Freedom of Information Act 2000, as it is a document created for the purposes of the proceedings.
2Edem v Information Commissioner and the Ministry of Justice [2015] UKUT 0210 (AAC). The position under the Data Protection Act 1998 is undecided.
The duty to make a record
8.131The rules of procedure under TCEA make no provision for a record of proceedings. Nonetheless, a presiding judge is under a duty to take a note of the evidence.
3R(I) 81/51 at 23; R(I) 42/59 at [35]; Houston v Lightwater Farms Ltd [1990] ICR 502; R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin) at [18]–[20]. Nowadays, the record may take the form of a recording of the proceedings. The duty derives from the judge’s judicial status. The record of evidence may be needed by the Upper Tribunal in order to investigate whether a finding of fact or decision was perverse.
4Piggott Brothers & Co Ltd v Jackson [1992] ICR 85. The record is distinct from any personal notes that the members may make to assist them in making a decision. As the court explained in
R (McIntyre) v Parole Board:
5[2013] EWHC 1969 (Admin) at [23].The notes constituting the record are quite distinct from notes taken by the chair for his or her own use or notes made by a judge or chair where there is an audio or visual recording of the proceedings. Such notes do not constitute the record. Nor do they constitute personal data. They are made by the judge or chair or panel member solely for the purpose of assisting in and in preparation for the reaching of the reasoned decision; they are not a record of the proceedings. Their absolute confidentiality is integral to the independent and impartial decision making function of a judge or tribunal or panel member and the proper administration of justice. They are in effect notes made for the preparation of the judgment. They are no different to a preliminary draft of a judgment. If such notes are held by an administrative officer or on a computer system operated by an administrative body for the judge, tribunal or panel member, they are held on behalf of the judge, tribunal or panel member and remain under the sole control of the judge, tribunal or panel member. No person has a right of access to them. They must never be disclosed or provided to any person.
Under TCEA: the Senior President’s Practice Statement
8.132The Senior President has issued a practice statement on Record of Proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber:
1.In this Practice Statement ‘social security and child support case’ has the meaning given in rule 1(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
6The definition reads: ‘“social security and child support case” means any case allocated to the Social Entitlement Chamber except an asylum support case or a criminal injuries compensation case’. 2.A record of the proceedings at a hearing must be made by the presiding member, or in the case of a Tribunal composed of only one member, by that member.
3.The record must be sufficient to indicate any evidence taken and submissions made and any procedural applications, and may be in such medium as the member may determine.
4.The Tribunal must preserve–
a.the record of proceedings;
b.the decision notice; and
c.any written reasons for the Tribunal’s decision for the period specified in paragraph 5.
5.The specified period is six months from the date of–
a.the decision made by the Tribunal;
b.any written reasons for the Tribunal’s decision;
c.any correction under Rule 36 of the above Rules;
d.any refusal to set aside a decision under Rule 37; or
e.any determination of an application for permission to appeal against the decision, or until the date on which those documents are sent to the Upper Tribunal in connection with an appeal against the decision or an application for permission to appeal, if that occurs within the six months.
6.Any party to the proceedings may within the time specified in paragraph 5 apply in writing for a copy of the record of proceedings and a copy must be supplied to him.
8.133This repeats regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (now revoked). However, its status as a practice statement is unclear.
7See the discussion in chapter 3.The contents of the record
8.134This has to be considered at two stages: at the hearing and on appeal. At the hearing, the importance of the content lies primarily in the need to refer to the evidence when deliberating on the decision and writing the reasons. On appeal, the importance of the content depends on whether the tribunal is exercising a factual jurisdiction. If it is not, it needs sufficient to decide whether or not the tribunal made an error of law. If it is, it may need more detail. This may arise in two circumstances. First, if an appeal lies on any ground and is not limited to issues of law. Second, if an appeal may only be allowed on an error of law, but the tribunal may re-make the decision rather than remit the case for rehearing. If the tribunal is to exercise that jurisdiction, it will need a complete note of the relevant evidence.
8R(I) 81/51 at [23]; R(U) 16/60 at [5]. In other circumstances, this may not be needed.
9CSSB/0212/1987 at [3]; CIS/12032/1996 at [7].8.135Ideally, the presiding judge should keep a record of proceedings that contains everything that the tribunal needs in order to make its decision as well as everything that might be needed if the case goes on appeal. Every procedural step should be recorded. Every question asked should be set out along with who asked it and of whom. Every answer should be recorded and the witness identified. Every argument put should be set out and attributed. All additional documentary evidence presented at the hearing should be noted along with the person who presented it. Finally, any relevant observations made of the parties or witnesses during the hearing should be noted.
8.136In practice, this is not attainable and may distract the judge from hearing the case. There is, however, a minimum that is required of any record of proceedings. It should record:
•all documentary evidence submitted at the hearing and by whom;
•the essence of the relevant parts of the oral evidence, identifying who gave it;
10R(SB) 8/84 at [25]. •the essence of any arguments put to the tribunal,
11R(DLA) 3/08 at [10]. identifying who made them;
•significant procedural events, such as an application for an adjournment;
•any relevant observations of, or conduct by, anyone present, such as the ability to walk without a stick.
8.137There is less need for a record of proceedings at a paper hearing. However, it may be useful to record the evidence that was before the tribunal and whether any procedural issues were considered.
Recording evidence
8.138There is a technique that can be used to record evidence without taking a verbatim record. The essence is to eliminate irrelevancies, to select the essence of what is relevant, and to concatenate questions and answers. The result is a continuous narrative of the relevant evidence. If the precise terms of the evidence are crucial, it can be recorded verbatim using quotation marks and perhaps with the accompanying question. References to and repetition of documentary evidence can be recorded merely by reference to the page and paragraph of the relevant document.
8.139Assume the following exchange:
1.Where was Mr W when you arrived in the office?
2.At his desk.
3.Did he remain at his desk?
4.No.
5.When did he leave it?
6.Let me see. It was in mid-afternoon, before the messenger came for the post. It couldn’t have been as late as 4, but it was after 3. Probably about quarter to 4 or so. No, I remember, it was almost exactly 3.30, because I heard the Town Hall clock strike. Yes, 3.30.
7.What did he do then?
8.You mean straightaway?
9.Yes.
10.He stood up, stretched and looked around the office.
11.What he did do then?
12.He picked up a paper knife from his desk.
13.Did you have a clear view?
14.Yes.
15.Did anyone or anything obstruct your view?
16.No.
17.What did he do with the knife?
18.He walked over to Miss X and stabbed her with it.
8.140One analysis of this exchange could be this. The answer at 10 can be omitted as irrelevant to the case. The answers at 14 and 16 can be omitted – they are either repetitious or confirmatory of the answer at 12. The exchange at 8 and 9 is also irrelevant – it is purely for clarification. The reasoning included in answer 6 can be omitted, leaving just the witness’s conclusion as to the time. That leaves the other answers which can be recorded compendiously with their questions:
At 3.30, I saw W leave his desk, take a paper knife and stab X.
8.141Of course, this is just one interpretation. According to the circumstances, a different summary might be required. For example: if the precise time was significant, the answer at 6 might be important and deserve to be recorded, perhaps verbatim. Or if the witness’s view of the incident was in doubt, the answers at 14 and 16 would be relevant. But whatever the requirements of a particular case, the principle is the same. Eliminate irrelevancies and summarise the essence of the questions and answers together, leaving verbatim quotations of the evidence for evidence of which the precise wording is important.
The form of the record
8.142If the record is kept in the form of a recording of the hearing, judges will for practical purposes still need to make a written record sufficient for the purposes of the tribunal’s deliberations and the writing of its reasons.
8.143Whether the record is kept in writing or otherwise, it must be intelligible or be capable of being rendered intelligible to those who use it.
12R(DLA) 3/08 at [13]–[14].Production of the record
8.144The First-tier Tribunal is under a duty to provide the record of proceedings on request by the Upper Tribunal.
13Houston v Lightwater Farms Ltd [1990] ICR 502. If it does not do so, the Upper Tribunal may order production under UTR r5(3)(n).
14As it did in R (AW) v First-tier Tribunal [2013] UKUT 0350 (AAC). 8.145The Court of Appeal only calls for a judge’s notes if there is a conflict of fact about what happened or what was said before the judge.
15Sedley LJ in McKee v Secretary of State for Work and Pensions [2004] EWCA Civ 334 at [12] (refusing an application for permission to appeal).Challenges to the record
8.146The Employment Appeal Tribunal adopts the practice that any dispute about the accuracy or completeness of the record must be put to the presiding judge and thereafter that record will be accepted as correct unless the parties agree otherwise.
16Dexine Rubber Co Ltd v Alker [1977] ICR 434; Aberdeen Steak Houses Group plc v Ibrahim [1988] ICR 550. And see the approach of the Court of Appeal in Hayman v Rowlands [1957] 1 WLR 317. A similar procedure was suggested by the Commissioners for social security cases,
17R(SB) 10/82 at [15]. but this was not adopted.
18CS/4537/1998 at [13]. The Commissioners did not operate a fixed procedure and were prepared to accept the claimant’s recollection of the evidence given.
19R(DLA) 3/08 at [24]. This was consistent with the approach taken by the Court of Appeal in
De Silva v Social Security Commissioner,
20[2001] EWCA Civ 539. in which there was a challenge to the accuracy of the record of the evidence.
Personal comments
8.147As evidence proceeds, a judge may wish to record impressions, comments, points to check or questions to ask later. As Lord Scott explained in the Privy Council in
Cobham v Frett:
21[2001] 1 WLR 1775.… every experienced judge … is likely to make notes as the trial progresses recording the impressions being made on him by the witnesses. Notes of this character would not, without the judge’s permission or special request being made to him, form part of the record of an appeal. They might be couched in language quite unsuitable for public record. In the present case delay, with a consequent dimming of the judge’s recollection of the evidence and of the witnesses demeanour, was not a ground of appeal.
22[2001] 1 WLR 1775 at 1783.8.148Such notes are not strictly part of the record of proceedings. If they are recorded, their provenance must be clear. Recording them on a separate piece of paper would ensure that they are kept apart from the record of proceedings and avoid any need for them to be disclosed to the parties or on appeal. However, this may be inconvenient in practice and runs the risk that they cannot later be related to the relevant witness or evidence. There are other ways in which they can be recorded but marked as separate from the evidence and the submissions of the parties. They may be recorded on the opposite of the page in the judge’s notebook, they may be ruled off from the evidence and submissions, or they may be recorded within the narrative but in brackets.
Deliberations
8.149A record of proceedings need not contain the tribunal’s deliberations that led to the decision.
23R(DLA) 3/08 at [26]. However, it may be convenient to make a note of these at the end of the record to assist recollection when writing reasons.
8.150Notes of legal analysis are not personal data for the purposes of the Data Protection Act 1998. They are merely information about how the tribunal assessed and applied the law to the party’s circumstances.
24YS v Minister voor Immigratie, Integratie en Asiel [2015] 1 WLR 609 at [40].