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TB [2009] UKUT 170 (AAC) (24 August 2009)
Tribunal procedure and practice (including UT)
evidence

 


THE UPPER TRIBUNAL Appeal No. CAF 26 2009

ADMINISTRATIVE APPEALS CHAMBER

Appellant: TB

Respondent: Secretary of State for Defence

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

1 The decision of Foskett J in AB and others and the Ministry of Defence, [2009] EWHC 1225 (QB) is to be added to the papers.

2 The appeal is to be referred to the Chamber President of the tribunal below for case management directions by him or such judge as the Chamber President nominates for retaking the decision under appeal.

REASONS FOR DECISION

1. I granted permission to appeal to the appellant (TB) after an oral hearing at which he attended with a representative and at which the Secretary of State was represented by counsel instructed by the Treasury Solicitor. Following that hearing I granted permission to appeal on 16 04 2009. I issued full reasons with the grant of permission indicating, subject to responses from the parties, I provisionally intended to allow the appeal for those reasons and to direct that the tribunal below retake the decision. I also indicated the directions I was minded to make to that tribunal.
2. I have now received responses from both parties. Both parties agree that the appeal should be allowed and the decision retaken by a new tribunal below. The parties do not agree either on my proposed reasons and directions or with each other on issues related to that hearing. They made a number of comments about those reasons and directions. I have reconsidered my provisional reasons and proposed directions in the light of those responses. I set out below my considered reasons for allowing the appeal. I have not made any specific direction for the rehearing save that in the next paragraph, Instead, I refer the matter to the Chamber President or his nominee to make appropriate directions in the light of this decision.
3. Since the application hearing issues similar to some of the issues in this appeal were considered in the High Court in the decision of Foskett J issued on 5 06 2009 in AB and others v Ministry of Defence [2009] EWHC 1225 (QB). I direct that a copy of that decision be added to the papers. I have not invited any comments on the relevance of that decision to this decision and leave that for the tribunal below.

The decision under appeal

4. The appellant is appealing against two linked decisions of what is now the First-tier Tribunal about whether specific identified conditions were caused or made worse by service. The service which the appellant argued was causative of his current problems was service in the Royal Engineers on what was then known as Christmas Island from 30 December 1957 to 9 December 1958 at or near the sites of the series of nuclear test explosions carried out by the United Kingdom there at that time. The more important of those decisions is that his condition of immune system dysfunction was not caused nor made worse by service. That decision was made on 17 07 2007.
5. The appeals were consolidated by a tribunal on 4 03 2008. It directed both parties to produce several additional items of evidence. In particular, it directed the Secretary of State to produce a new statement of case for the hearing. It also asked for a medical appendix on immune system dysfunction. Both parties responded to that direction, although the Secretary of State acknowledged that there was no medical appendix on that condition. The statement of case made it clear that the appellant was, in the opinion of the Secretary of State, "not exposed to ionising radiation as a result of service".

Grounds of appeal

6. The grounds of appeal put forward by the appellant are not all points of law. For example, the factual error about the appellant being in the Territorial Army is not material to the decision taken by the tribunal. I am not concerned with the detail of the decision taken for the Secretary of State. The operative decision is that of the tribunal. I am concerned only in this decision with issues that are errors of law in the way the tribunal handled the appeal.
7. As I explained to the appellant at the application hearing, I cannot consider new evidence. A tribunal must decide the question before it on the evidence available to it at that time, subject to any enquiry it makes itself about evidence. In this case the tribunal took the step of seeking further evidence from both parties before it conducted its hearing. That put the parties on notice to produce the evidence they wished to produce. I do not accept that this tribunal can be criticised with regard to evidence that might have been presented but which was not presented.
8. I declined to consider further evidence at the application hearing, and do not take if into account in this decision. The new hearing at the First-tier Tribunal will give both the parties an opportunity to bring any further relevant evidence to the attention of the tribunal. The appellant has done so in part in his response to my grant of permission to appeal. I draw the attention of the Chamber President or his nominee to that point.
9. In his application for permission to appeal, the appellant argued a series of points about the evidence put to the tribunal:

- his own evidence about where he was on Christmas Island had been misrepresented

- the tribunal was not fair in the way it ignored a DVD of a Dispatches programme

- the tribunal was not fair in the way it produced internet reports at the hearing

- the way in which other evidence he put forward was ignored was unfair.

The appellant's own evidence

10. The appellant's case is that he had been on Christmas Island after and during nuclear weapons tests that occurred there during 1957 and 1958. Details in the papers show a test some weeks before he arrived and five tests while he was there. They varied in delivery size from a few kilotons to several megatons. The appellant did not claim to have been in the immediate area of any test when it occurred. But he gave evidence that he and his squad were there shortly afterwards. I state that because the appellant had the strong view that his evidence about where he was on the island "has been completely misrepresented". In particular he took issue with the finding of the tribunal that "there is no evidence to support Mr Butler's view that he was one of the personnel" who was "significantly more exposed to radiation" than was generally the case on the island at the time. He made the point that his own evidence was that he was, as compared with others on the island, in the area immediately after some of the tests and that was evidence of an additional level of exposure. I agree. The reasons of the tribunal can be taken to imply, as the appellant himself argued, that his evidence (not his "view") was either ignored or discounted as of no evidential value. If that was the view of the tribunal, the tribunal failed to explain why.

The DVD of the television programme

11. I also agree with the appellant's objections to the way the evidence in the form of the copy of the television programme was dismissed by the tribunal without any specific finding or comment. The reasoning of the tribunal was:

"We did not feel able to place any weight on the information set out in the programme because we considered it had been made to support a particular point of view and did not contain any up to date comment from any official body."

12. It is not clear to me on what basis in law the tribunal relied in its decision not to put any weight on any of the factual statements recorded by it from the DVD in its record of proceedings. If the tribunal was in effect excluding "information" (as against opinion or assertion) only because "it did not contain any up to date comment from any official body" then this was plainly an error of law. If what it meant was that the Secretary of State, as represented at the tribunal, did not comment on the programme, then that was a matter for the Secretary of State. If it meant that the Secretary of State had not been given adequate notice of the recorded programme and its contents being put in evidence and of the tribunal's invitation to comment, then that is a matter of procedural fairness to be addressed by the tribunal in its procedural directions and in making the decision, not by selectively ignoring evidence. If the tribunal took the view that the evidence was not relevant to its decision, then it failed to say so. The fact that evidence is assembled "to support a particular point of view" is not a basis for excluding anything from consideration by a tribunal that has no formal rules of evidence. That potentially applies to much of the evidence supplied in a case such as this. The tribunal clearly failed adequately to identify a rule or principle of law to explain on what basis it ignored this evidence entirely that was consistent with the tribunal's duty to consider all evidence and its duty to ensure fairness and an "equality of arms".
13. I emphasise that no copy of the programme was in the appeal file before me, and I have no personal knowledge of the contents of the DVD save that noted by tribunal members in the record of proceedings. The Treasury Solicitor, in responding to my provisional directions, indicated that the Secretary of State did not object to the production of the DVD at a new hearing but asked that the comments made for the Secretary of State on the DVD and submitted to the Upper Tribunal be put before the tribunal. The appellant informed me that he supplied the DVD to the tribunal and it was not returned to him. It is therefore for the tribunal to provide that evidence. I draw those points to the attention of the Chamber President or nominee with reference to any appropriate case management directions.

The documentary evidence

14. In my judgment the procedure of the tribunal was unfair in the way that what it termed "Internet Reports obtained by the Medical Member" on which the tribunal "felt able to rely" were introduced. It is not the task of a tribunal to produce evidence, as against asking for it, in a case such as this. The Secretary of State is fully capable of producing his own evidence.
15. Further, having introduced the new evidence, the tribunal did not deal with it fairly.

According to the record of proceedings the tribunal adjourned at 11.15 until 11.40 to allow the appellant and representative to look at papers produced at that time. What were produced were two summaries of papers that were, according to the usual details on documents downloaded from the Internet, downloaded that day. (I note that the service member's note of the hearing indicated that the medical member found the papers "previously", but the downloads do not confirm that.) One is a 16 line summary of a paper from the International Journal of Low Radiation published in 2006 and called "Improved health from Chernobyl". The other is an abstract from the 2004 issue of the International Journal of Radiation Biology running to 23 lines. The latter is highly technical. Both are clearly brief summaries of longer papers. I have considerable reservations about the production of these papers. There is no way of judging from what databases these two summaries of papers were downloaded or whether they represented the scientific literature selectively or unselectively. They are not presented in the context of a general literature search of the effects of low level radiation. Nor are there any details of peer reviews or comments in other literature. That raises questions about whether the tribunal, in presenting its own evidence in this way, appeared properly to be acting equally as between the parties. And there is no way that a party can check the peer group status of such papers, or the journals in which they appear, at such short notice and in a tribunal setting. The papers appear to have been given to the parties part way through the proceedings. How were they supposed to evaluate the relevance and substantive content of a scientific paper from a short summary produced part way through a tribunal hearing from a secondary source to the original?

16. The appellant's reaction as a non-expert with a non-expert representative was that the papers were not relevant to his case. He was given no opportunity to deal with that concern properly. If the tribunal felt it right that the parties consider the paper, then it should have provided both parties with full copies of the papers ahead of the hearing and invited their comments. Or it should have given the parties an opportunity to make further comments after the hearing and before it reached its decision. That gives a party an opportunity to do any necessary literature or citation search against the article and its authors and to make representations about the place that that article has in the relevant literature.
17. The Treasury Solicitor has informed me that his client does not seek to rely on either of these papers. The appellant has however copied the summaries back into the papers, apparently because he thought they had gone missing and he was trying to supply a full set of the papers. I direct that also to the attention of the Chamber President or nominee for appropriate directions.

The use of unattributed documents

18. I also have a more general concern of an appearance that the tribunal dealt with the documents put in evidence inconsistently. That arose from another ground of appeal by the appellant. He put in evidence extracts from two books, Deadly Deceit and Wolves of Water. The tribunal ignored this evidence because:

"We could not put any weight on the information in the extract because Mr Butler could not tell us the author or the source."

In fairness to the tribunal, Mr Butler accepted before me that it was not so much that he could not name the author of one of the two extracts (there were two extracts, not one), but that he would not. If he would not do so, then the tribunal may have had good grounds to treat the evidence as it did. Turning to the second extract, I was told by the appellant that he did identify the source. I am unable to check that against the records of proceedings because I can see nothing in either the chairman's or the member's record of proceedings about the book extracts beyond a comment that they were found in a library as there was nothing on the Internet.

19. The details of both books, including their contents and the qualifications of both authors them, are readily accessible on the Internet using standard search engines. One is Deadly Deceit: low level radiation, high-level cover-up, by JM Gould and BA Goldman, published in 1990 under ISBN 978 0941423359. The other is Wolves of Water by Dr C Busby, published in 2007 under ISBN 1 897761 26 0. It took me no longer, when checking the evidence for availability to the public on the Internet, to establish those details than it did to check the two extracts that the medical member produced and on which I have commented above. If the medical member was investigating the evidence for this appeal as he did, it may be asked why he did not check those two extracts. The title of one suggests it may be directly relevant to the issues on which he did produce papers. In my view that illustrates the danger of a tribunal starting to introduce its own evidence.
20. Names of a number of authors of documents in evidence produced by the Secretary of State have also been withheld. It is not clear why the tribunal dismissed some of the evidence because a party "could not tell us the author or the source" while not noting that significant parts of the rest of the evidence also had no identified author.
21. Redaction of names on evidence produced by the Secretary of State has, I understand, been the practice for some time before the pensions appeal tribunal. It is not clear that authority continues to exist for that practice now that the tribunal is governed by the 2007 Act and the new Tribunal Procedure Rules. I can see no ready basis on which any party giving evidence before the First-tier Tribunal or the Upper Tribunal can withhold any relevant part of any document it puts in evidence to the tribunal unless either it has clear authority to do that (as with medical evidence that may harm an individual if released to him or her or addresses of parties in matrimonial and child disputes) or the tribunal judge, exercising an appropriate power, accepts redacted evidence.
22. I do not consider that of itself to be a ground of appeal against the decision of this tribunal as it decided the matter under the old rules and practice and as no specific point was taken on it by the other side. I did not raise it in connection with the applications hearing.
23. Given that the tribunal took a view about part of the evidenced as unsourced, the matter must be considered by a new tribunal. I therefore invited the submissions of both parties on the issue. The appellant responded that he had no objection to any papers named or unnamed if they were relevant. The Treasury Solicitor did not respond to the general point but stated instead that his client did not intend to rely on any redacted material or any material in respect of which names have been withheld at the fresh hearing.
24. While the course of action indicated by the Treasury Solicitor is a matter for the Solicitor and his client, this may have a more extensive effect on the appeal papers that the Treasury Solicitor's response initially suggests. If that is carried forward systematically, it involves removing considerable amounts of the evidence currently in the official submission to the tribunal. For example it includes the removal from the official submission of the medical examination report on release or discharge of the appellant, the 1990 reports from the Atomic Weapons Establishment (AWE), and documents from Leeds General Infirmary and Hull Royal Infirmary from 1970 to 1996 as well as the AWE letter of 2 04 2008. That is again a matter to be considered in directions for the new hearing, and I draw it to the attention of the Chamber President or nominee.

General

25. I allow the appeal. But I warn the appellant that he should not take this as an indication that he will also succeed in his appeal before the new tribunal. That is a matter for the new tribunal. The appellant may wish to consider again whether he should seek help from one of the service organisations or a citizens advice bureau or solicitor or other expert adviser that may be able to assist him at the new hearing.

David Williams

Judge of the Upper Tribunal

24 08 2009

[Signed on the original on the date stated]