The Upper Tribunal’s ‘Presidential Guidance Note No 1 2020: Arrangements During The COVID-19 Pandemic’ envisages moving, in immigration and asylum cases, to a system where the UT may decide certain matters on the papers and without a hearing.  At the moment these are limited to (i) whether the First-tier Tribunal made an error of law and (ii) if it did, whether its decision should be set aside.

These decisions are surely the bread and butter of the UT, in its appellate role: its primary functions as the supervisory tier over the FTT.  The UT is required to take account of the parties’ views on whether there should be an oral hearing of these questions (a hearing presumably to be conducted remotely), but only if it has already reached its own provisional view that there should not be a hearing.  

No guidance is given on when the UT will reach such a provisional view, but §14 of the Guidance Note implies that it would decide to hold a hearing where ‘oral evidence and/or findings of fact’ are needed (that could for instance be where there is a dispute over some procedural irregularity before the FTT) or where there are ‘particularly complex or novel/important issues of law’.

Despite what the UT has suggested in its Guidance Note and in correspondence with ILPA, this represents a departure from the previous practice whereby the UT would almost invariably hold an oral hearing to decide ‘error of law’ matters, unless (sometimes) the parties were agreed on the outcome.

But is this fair or appropriate, even in the difficult circumstances we now face?

I’m not concerned here with whether there ought to be an oral hearing for the purposes of receiving evidence and making findings on disputed primary facts.  That seems to me to be obvious, and as far as I know it isn’t proposed by either tier of the tribunal to do that on the papers.  How effective such an exercise is by remote means is a different matter, but I don’t think anyone is in doubt that we need some sort of hearing for that purpose, or why.

Why, however, do we need an oral hearing where the facts are not in dispute and where the question is a pure point of law and the hearing will consist only of legal submissions?  Is it really unfair not to hold a hearing, even remotely, in such circumstances?

The requirements of fairness are famously flexible and fact-specific, and they don’t always include holding an oral hearing.  But our legal tradition places great store on oral argument, and not without reason.  

It’s perhaps fitting, in the week in which he sadly passed away in the pandemic, that we turn first to the wisdom of Laws LJ on the topic of ‘the central place accorded to oral argument in our common law adversarial system’, in Sengupta v Holmes [2002] EWCA Civ 1104 at [38]: 

‘oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. […] It is a commonplace for a hearing to start with a clear expression of view by the judge or judges, which may strongly favour one side; […] [that means that the advocate] knows where he [sic] is, and the position he has to meet. He often meets it.’

This is in the context of Laws LJ explaining why he should not have to recuse himself from a full Court of Appeal hearing, despite having initially refused permission to appeal on the papers.  He went on at [47] to refer to:

‘the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument.’

Many practitioners will indeed recognise this from their own experience and observation.  Similarly, the fact that permission applications in judicial review can usually be renewed to an oral hearing caused the Court of Appeal in Wasif v SSHD [2016] EWCA Civ 82 (when addressing the enthusiasm of the UT for issuing “totally without merit” certificates, thus precluding oral permission hearings) to comment at [16] on the fact that ‘oral argument may on occasion persuade a court that a claim for which the judge has refused permission on the papers does in fact have a realistic chance of success' and on ‘the value which the common law tradition attaches to oral argument’.  

The Court added at [17(3)] that: 

‘The potential value of an oral renewal hearing does not lie only in the power of oral advocacy. It is also an opportunity for the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers […].’

That last comment points to some of the reasons why an oral hearing may be necessary as part of a fair process.  Many of the cases dealing with this issue concern the Parole Board, which was for many years resistant to the idea of holding oral hearings at all, rather than the immigration context, in which, as I’ve said, hearings have very much been the norm.

In Smith v Parole Board [2005] UKHL 1, Lord Bingham cited a US decision of Brennan J in Goldberg v Kelly 397 US 254, 269 (1970): 

‘Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue, […] written submissions are a wholly unsatisfactory basis for decision. [...]’

Lord Bingham added (in his own words) at [35]:

‘Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.’

Lord Slynn took a similar view at [48]:

‘If the decision is taken on the basis of a misunderstanding of the law or of a failure to appreciate the facts relied on there can be a very serious interference with the prisoner's liberty albeit that liberty is a conditional right. There is a risk that if only written representations are looked at a decision may be taken without a full appreciation of what really matters.’

Oral hearings in parole cases were very much the exception to the rule, as statistics before the House of Lords showed, leading to what Lord Hope at [66] called a risk ‘that cases will be dealt with instead by making assumptions. Assumptions based on general knowledge and experience tend to favour the official version as against that which the prisoner wishes to put forward. Denying the prisoner of the opportunity to put forward his own case may lead to a lack of focus on him as an individual.’

In R (H) v Secretary of State for Justice [2008] EWHC 2590 (Admin), a case concerning the categorisation of a prisoner, Cranston J summarised the legal position in respect of oral hearings at [1]: 

‘Procedural fairness sometimes demands an oral hearing. There can be greater confidence with an oral hearing that the relevant standards have been properly applied and that the facts on which the decision is based are accurate. The oral hearing also gives the person affected by the decision the opportunity to tailor the arguments to the concerns of the decision maker.’

So, paraphrasing somewhat, there appear to be at least four (somewhat overlapping) themes running through these judgments:

1. Above all, the importance of flexibility and dialogue between judge and advocates: the need for the advocates to be able to respond to the issues troubling the judge, which may not at all resemble the issues which either or both advocates think are important; and conversely, the need for the judge to understand ‘what really matters’ in the case: what the important evidence is, what the relevant points of law are, what the authorities actually decide.

2. A risk of decisions being made on the basis of a mistake as to the facts and/or the law, which could have been corrected if apparent at a hearing.

3. A risk of decisions being based on ‘assumptions’ which favour the status quo and do not leave sufficient space for fact-sensitive assessment.

4. A risk of ‘a lack of focus on [the appellant] as an individual’.

All these relate to the quality of the final decision (and as I've said, I'm leaving to one side the importance of hearing oral evidence, as opposed to oral argument).  

But there are other, related but distinct, reasons for holding oral hearings, in addition to the prospect that they will provide better decisions. One relates to ‘the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result’: SSHD v AF (No 3) [2009] UKHL 28 (a control order case). Of course, that may partly be mitigated by a process whereby the parties are able to have written influence on the result, although not if an adverse decision is reached on the basis of matters which were not predicted or addressed in written submissions.  But there is also the matter of respect for the court and the judicial process, which itself depends on the court having respect for the individual concerned and for their perceptions of the process.  In Osborn v Parole Board [2013] UKSC 61, Lord Reed referred at [68] to the principle that: 

justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken.’  

Another reason is the importance of a public hearing.  ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial’, said Jeremy Bentham, as quoted by Lord Dunfermline in Scott v Scott [1913] AC 417.  Most UT decisions are eventually published on the UT’s website, but it is not obvious that that is sufficient: the context in Scott v Scott was the Lords’ distaste for an in camera hearing, of which even a transcript of proceedings was potentially being suppressed (‘the whole proceeding shocks me […] exactly the same result which would have been achieved under, and have accorded with, the genius and practice of despotism’).  What could be more in camera than a process which involves no hearing at all, even if the end result is eventually published?

It is not obvious that the process currently envisaged by the UT demonstrates sufficient respect for appellants, and the centrality of the appeals process to their lives, their families and their general well-being, by relegating their input to written submissions alone.  It is not obvious that it conforms to the necessary high standards of fairness and the centrality of oral argument to those standards.  It is far from clear that it is consistent with the need for public scrutiny of the judicial process.  

It’s to be hoped that the UT can be persuaded to reconsider its general position; alternatively, it may be that individual judges can be persuaded of the importance of oral argument on a case-by-case basis.