Admission and exclusion of evidencesub nom M and R (Child Abuse: Evidence) [1996] 2 FLR 195Re (1996) Times 25 MarchTimes 14 February
10.151This section is concerned with the evidence that the tribunal may or may not take into account. It also deals with the related issues of the evidence that the tribunal will allow to be presented and the manner in which it will receive it.
10.152These matters are distinct from the issue whether evidence that is taken into account may be withheld from one of the parties. That issue is dealt with separately.
1In para 10.176 onwards. The issues may, though, be connected, as it may be appropriate to exclude evidence that cannot be disclosed to a party.
The powers
10.153The tribunal’s control over the evidence that it may admit or exclude from its consideration is governed by paragraph 10 of Schedule 5 TCEA:
(1)Rules may make provision about evidence (including evidence on oath and the administration of oaths).
(2)Rules may modify any rules of evidence provided for elsewhere, so far as they would apply to proceedings before the First-tier Tribunal or Upper Tribunal.
10.154UTR r15(2) is illustrative of the rules made under that authority:
2See also: GRC Rules r15(2); HESC Rules r15(2); IAC Rules r14(2); Lands Rules r16(2);PC Rules r18(6); SEC Rules r15(2); Tax Rules r15(2); WPAFC Rules r15(2). CPR 32.1(2) deals with excluding otherwise admissible evidence.(2)The Upper Tribunal may–
(a)admit evidence whether or not–
(i)the evidence would be admissible in a civil trial in the United Kingdom; or(ii)the evidence was available to a previous decision-maker; or
(b)exclude evidence that would otherwise be admissible where–
(i)the evidence was not provided within the time allowed by a direction or a practice direction;(ii)the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or(iii)it would otherwise be unfair to admit the evidence.
Evidence
10.155The enabling power, and the rules made under it, apply only to evidence. They do not apply to material that is not part of the law of evidence. As explained above, the rules of procedure included the rules relating to disclosure of evidence, the attendance of witnesses and the manner of giving evidence are, but not the admissibility of evidence. That is subject to statutory authority to the contrary. Paragraph 10(1) of Schedule 5 to TCEA authorises rules to be made about evidence and paragraph 10(2) authorises the rules of evidence to be modified. Evidence is not defined; its scope is assumed. However, there is no bright-line that distinguishes evidence from other rules.
3For an academic discussion, see William Twining, ‘What is the Law of Evidence?’ in Rethinking Evidence, Northwestern, 1994. Authority may assist. For example: rules of policy, such as issue estoppel, are not evidence.
4Diplock LJ in Mills v Cooper [1967] 2 QB 459 at 469. On which, see chapter 2.Receiving evidence
10.156Admitting and excluding evidence is concerned with the evidence that a tribunal may take into account in making its decision. It is different from receiving evidence, which it may have to do in order to decide if it is admissible.
5The distinction is discussed at para 10.60 onwards.Admitting evidence
10.157The power to admit evidence that would not otherwise be admissible will only be relevant in practice to those tribunals in which the strict rules of evidence apply. If those rules do not apply, there is little scope for admitting other evidence. For example: if the key factor that determines admissibility is the relevance of the evidence, it is unlikely that a tribunal would wish to admit evidence that was not relevant.
10.158If the tribunal admits evidence that it would not otherwise be allowed to take into account, it will be necessary to justify doing so, including by reference to the overriding objective.
10.159The right to withhold evidence may be a constitutional or human right. In
R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax,
6[2003] 1 AC 563 at [7]–[8]. In R v Derby Megistrates’ Court ex p B [1996] AC 487 at 507, Lord Taylor described legal professional privilege as ‘a fundamental condition on which the administration of justice as a whole rests’. the House of Lords recognised that legal professional privilege was such a right and that, as such, it could can only be overridden expressly or by necessary implication.
Excluding evidence
10.160The power to exclude evidence that would otherwise be admissible will be relevant whether or not the strict rules of evidence apply. If those rules do not apply, there will be greater scope for excluding evidence.
10.161The power under r16(2) and its equivalents is additional to the power to exclude evidence that is clearly irrelevant, immaterial or repetitive.
7Wednesbury Corporation v Ministry of Housing and Local Government (No 2) [1966] 2 QB 275 at 302 and R(SB) 6/82 at [5].10.162Expert evidence to support the reliability of evidence given on oath is also usually excluded.
8R v Robinson (Raymond) [1994] 3 All ER 346. One exception relates to the reliability of a child’s evidence, although the evaluation of that evidence remains a matter for the tribunal.
9Re N (a Minor) (Child abuse: Evidence) (1996) Times 25 March, and Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195.10.163If the tribunal excludes evidence that it would otherwise be allowed to take into account, it will be necessary to justify doing so, including by reference to the overriding objective.
10.164In deciding whether or not to exclude evidence, it is always relevant to consider the effect. For example:
•if the effect is likely to have a significant impact on the outcome of the proceedings, it may be disproportionate to exclude it on the ground that it was submitted late;
•the decision-maker may be required to take the evidence into account and may have power to supersede the tribunal’s decision on the ground that it was wrong in fact, thereby rendering the tribunal’s decision irrelevant.
10.165Other relevant factors include: (i) the extent to which the evidence is controversial; (ii) its value in reaching correct conclusions on the facts; (iii) whether the evidence will focus disproportionately on collateral matters; (iv) any potential unfairness of taking the evidence into account; (v) the burden on the parties and the tribunal of producing and assessing the evidence. This last point is of particular relevance in a tribunal where the time available for a hearing is more curtailed than in court proceedings.
10.166In
O’Brien v Chief Constable of South Wales Police,
10[2005] 2 AC 534 at [5]–[6]. Lord Bingham discussed the competing factors that would be relevant in a case involving similar fact evidence:
The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge’s assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This is an argument which has long exercised the courts (see Metropolitan Asylum District Managers v Hill (1882) 47 LT 29, 31 per Lord O’Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections … But the present case vividly illustrates how real these burdens may be. In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.
Applying rule 15(2)
10.167Lord Carnwath commented on the effect of rule 15(2) in
MN (Somalia) v Secretary of State for the Home Department:
11[2014] 1 WLR 2064 at [24].Generally, therefore, the area of legitimate debate is about relevance and weight, not admissibility.
12For examples of an attempt at reasoning from first principles in respect of previous guilty pleas, although not framed in terms of rule 15(2), see AM v Secretary of State [2013] UKUT 094 (AAC) and Newcastle City Council v LW [2013] UKUT 0123 (AAC).The issue for the tribunal is not whether evidence can be admitted, it is whether it should be admitted.
13LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC) at [22]. Relevance is the key consideration, but it is also necessary to take account of the probative worth of the evidence if it were admitted
14LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC) at [23]–[24]. and fairness.
15Hoyle v Rogers [2014] 3 All ER 550. It is not permissible to use rule 15(2) to compel the production of privileged material.
16LM v London Borough of Lewisham [2009] UKUT 204 (AAC).Evidence that cannot be compelled
10.168The power to admit or exclude evidence that is not otherwise admissible will only be relevant if the evidence is available. A party or witness may be protected from disclosing evidence by the rules of procedure. UTR r16(3) is illustrative:
17See also: GRC Rules r16(3); HESC Rules r16(3); IAC Rules r15(3); Lands Rules r18(3); PC Rules r20(3); SEC Rules r16(3); Tax Rules r16(3); WPAFC Rules r16(3).(3)No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are due to be determined.
If the evidence of, or the document containing, the legal advice is not given, there is no scope for the tribunal to admit it.
10.169Judges are competent, but not compellable, witnesses in relation to their judicial function, although a judge would be expected to give evidence if it was vital.
18Warren v Warren [1997] QB 488.Controlling the evidence presented
10.170In addition to the tribunal’s control over the admission of evidence, it has power to control the evidence that that it will allow to be presented to it and the manner in which it is presented. UTR r15(1) is illustrative:
19See also: GRC Rules r15(1); HESC Rules r15(1); IAC Rules r14(1); Lands Rules r16(1); PC Rules r18(1); SEC Rules r15(1); Tax Rules r15(1); WPAFC Rules r15(1). CPR 32.1(1) deals with excluding otherwise admissible evidence.(1)Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Upper Tribunal may give directions as to–
(a)issues on which it requires evidence or submissions;
(b)the nature of the evidence or submissions it requires;
(c)whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;
(d)any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;
(e)the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given–
(i)orally at a hearing; or(ii)by written submissions or witness statement; and
(f)the time at which any evidence or submissions are to be provided.
Limiting the number of witnesses
10.171Under UTR r15(1)(d) and its equivalents, the tribunal may limit the number of witness to be called. The circumstances in which that power might be used were discussed by Geoffrey Lane LJ in
R v Board of Visitors of Hull Prison ex p St Germain (No 2):
20[1979] 1 WLR 1401.Clearly in the proper exercise of his discretion a chairman may limit the number of witnesses, either on the basis that he has good reason for considering that the total number sought to be called is an attempt by the prisoner to render the hearing of the charge virtually impracticable or where quite simply it would be quite unnecessary to call so many witnesses to establish the point at issue. But mere administrative difficulties, simpliciter, are not in our view enough. Convenience and justice are often not on speaking terms: see
per Lord Atkin in
General Medical Council v Spackman [1943] AC 627, 638.
21[1979] 1 WLR 1401 at 1406.Control of questioning
10.172In addition to its powers under UTR r15(1), the tribunal must ensure that their time is used efficiently for the benefit of their users as a whole. This entitles it to prevent repetition, prolixity, discursiveness, irrelevance and the oppression of witnesses.
22R v Whybrow (1994) Times 14 February.Evidence on oath or affirmation
10.173The rules of procedure under TCEA authorise the tribunal to allow or require evidence to be given on oath. UTR r15(3) is illustrative.
23See also: GRC Rules r15(3); HESC Rules r15(3); IAC Rules r14(3); PC Rules r18(7); SEC Rules r15(3); Tax Rules r15(3); WPAFC Rules r15(3).(3)The Upper Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.
10.174The rules of procedure make no mention of an affirmation. However, section 5 of, and Schedule 1 to, the Interpretation Act 1978 provide that references to oath include affirmation.
10.175Even without an express provision, Lord Atkin considered that tribunals may have power to administer an oath under section 16 of the Evidence Act 1851:
24General Medical Council v Spackman [1943] AC 627 at 638.Every court, judge, justice, officer, commissioner, arbitrator, or other person, now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively.
10.176If a witness refuses to take an oath before the First-tier Tribunal, the matter may be referred to the Upper Tribunal.
25See: GRC Rules r7(3)(c); HESC Rules r7(3)(c); PC Rules r8(5)(c); SEC Rules r7(3)(c); Tax Rules r7(3)(c); WPAFC Rules r7(3)(c).10.177Whether or not evidence was given on oath or affirmation is relevant to its probative worth.
26Viscount Simon LC in General Medical Council v Spackman [1953] AC 627 at 636–637.