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Interim Guidance from the Health, Education and Social Care Chamber: taking oral evidence from abroad

INTRODUCTION

  1. This guidance is issued to draw to the attention of judicial office holders and parties in proceedings in the Health, Education and Social Care Chamber the decision of the Upper Tribunal in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC) (external link, opens in a new tab)) and the procedure to be followed when a party to a case wishes to rely upon oral evidence given by video or telephone by a person (including the party themselves) who is in the territory of a nation state other than the United Kingdom.

PERMISSION IS NEEDED IF A PARTY PROPOSES TO GIVE ORAL EVIDENCE FROM ABROAD

  1. The decision in Agbabiaka sets out the following:

“There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest.” (para 12.)

“Whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom […] what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom’s diplomatic relationship with the other country.” (para 19.)

“[…] it is not for this (or any other) tribunal to form its own view of what may, or may not, damage the United Kingdom’s relations with a foreign State.” (para 23.)

  1. The decision underlines that the giving of oral evidence from another nation state requires the permission of that State. Permission is not needed for written evidence, or for submissions (whether oral or written), although submissions are considered below.

CAN A PARTY MAKE SUBMISSIONS FROM ABROAD, RATHER THAN GIVE EVIDENCE?

  1. Bearing in mind the nature of the proceedings in the Health, Education and Social Care Chamber (‘HESC’), and the jurisdictions it covers, the decision has been taken that there is too much risk that a litigant in person making oral submissions may stray into the giving of evidence. Therefore permission must be sought as a precaution by any party wishing to make submissions from abroad. The process is set out below.

REPRESENTATIVES

  1. If a party is being represented by a legal representative abroad, that representative should apply for permission to appear before the Tribunal from abroad. The Tribunal will want assurances that the privacy of the proceedings will be protected and details of the arrangements that are in place. Further, representatives should include an explanation for why it is not possible or practicable for the matter to be dealt with by a representative in the United Kingdom. The process is set out below.

OBSERVERS

  1. The majority of the hearings in HESC are heard in private. This means they are closed to the public. If an observer wishes to attend from abroad, they must set out their reasons and ask for the tribunal’s permission.
  2. The usual reporting restrictions are likely to apply. The Tribunal will want assurances that the privacy of the proceedings will be protected. Observers should therefore provide information that goes to maintaining the privacy of the hearing as part of their request and why they cannot attend from the United Kingdom.
  3. If the Tribunal is satisfied and the party (or patient) agrees to the individual observing, then permission may be given.

SEEKING PERMISSION TO GIVE ORAL EVIDENCE OR MAKE SUBMISSIONS

  1. On 29 November 2021, the Foreign, Commonwealth & Development Office (‘FCDO’) established a new Taking of Evidence Unit (‘ToE’). The ToE will ascertain the stance of different overseas governments to the taking of oral evidence from individuals within their territory. The response of the ToE about the stance of a particular overseas government will be final.
  2. The position relating to whether a particular government objects to the taking of oral evidence from an individual within their jurisdiction is fluid and permission is required for every case and in every hearing affected.
  3. The decision in Agbabiaka places the emphasis on the requestor. The judgement states that any party wishing to rely on oral evidence from a witness in a nation state other than the UK must contact the ToE:

(Headnote) “3. Henceforth, it will be for the party to proceedings before the First-tier Tribunal who is seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory”.

THE PROCESS TO BE FOLLOWED

  1. HESC has determined the following process:
  • Any party, person or witnesses wishing to join a hearing from abroad must notify the relevant Tribunal of that intention as soon as possible, together with a brief explanation for why it is not possible or practicable for the person to give evidence, attend or make submissions from within the jurisdiction.
  • As part of the above, the party or interested person who wants to give evidence from abroad should email their evidence and application for permission to the Tribunal as soon as possible.
  • If the issue is giving evidence from abroad and this cannot be given in writing, the requestor, usually a party to the proceedings or their representative, should then send a request to the FCDO by email (TOE.Enquiries@fcdo.gov.uk) asking if the FCDO is aware of any diplomatic or other objection from the authorities in ‘country X’ to them providing evidence by video link to an administrative tribunal in the UK.
  • Once a reply has been received from the FCDO/TOE, the relevant party must forward it to the Tribunal administration (HMCTS) as soon as possible for permission to be given.
  • It will be for the requestor to ensure that the information and relevant permission is expedited and is forwarded to HMCTS administration. The Tribunal can take no responsibility for this. The information must be received by the Tribunal in a timely fashion in order to give a judge sufficient opportunity to consider.
  1. At present, it will not be possible to authorise the giving of oral evidence without the permission of TofE having been granted. The date of the hearing may therefore have to be changed, written evidence submitted, or the case heard without oral evidence, bearing in mind any delay to the final decision.
  2. PLEASE NOTE: HESC understands there is a fee of £150.00 that must be paid and there may be considerable delay with some foreign jurisdictions. In this situation, written evidence sent to HMCTS by way of email may be the best way to proceed.

DELAY

  1. It will always be a matter for judicial discretion, with reference to the overriding objective, to determine whether the listing of a case should be delayed to allow such enquiries to proceed (or should continue to be further delayed to allow such enquiries to be concluded). This is of particular importance in Mental Health, where the liberty of the patient is often under consideration.
  2. If delay becomes an issue, the Tribunal may need to consider alternatives to oral evidence being given from the foreign country. This may include probing the rationale for that evidence; and considering whether the evidence could be given in writing (including by reference to written questions put by the other party); and whether the witness can travel either to the UK or to a third country where it is known there are no diplomatic objections to the giving of oral evidence. These matters would also need to be considered by the Tribunal in the event that permission is refused by the foreign country.
  3. This position may change in the future if HMCTS are able to offer a link to the ToE. While those enquiries are underway, this interim guidance shall have effect. Judicial office holders and users will be notified of any further changes as soon as they become effective.

The Chamber President’s Office

Health, Education and Social Care Chamber

9 May 2022

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