[2024] UKUT 190 (AAC)

It is clear from the Tribunal’s reasons that significant reliance was placed upon the evidence of Dr Brown and of Dr Baruah, both by the witnesses at the hearing who argued for OO’s continued detention (Dr Nyein and Mr Solarin), as well as the Tribunal itself. Indeed, reference is made not only to “reliance” but also to “deference”. In paragraph [11] of the Tribunal’s reasons it is stated:

Reliance was also placed on an email written by Dr Baruah to Dr Nyein on 7 November 2022. The only mention of Mr Solarin’s evidence in the FtT Decision is a reference to his having “relied upon views expressed by Dr Baruah” (see paragraph [13] of the Tribunal’s reasons).

However, neither Dr Brown nor Dr Baruah was present at the 29 November 2022 hearing.

Even putting to one side the question whether OO should have been given the opportunity to instruct an independent forensic psychiatrist so that he would enjoy “equality of arms” with the detaining authority, this raises the issue whether a hearing at which neither Dr Brown nor Dr Baruah were present and available for questioning gave OO an adequate opportunity to test the expert evidence that underpinned the decision to uphold his section.

Because Dr Nyein and Mr Solarin, the two witnesses who spoke in favour of continued detention, deferred to the evidence of other experts who were not present, the opportunity that the hearing gave for Mr Nicholas to probe their evidence was of limited value. What fairness required was for Mr Nicholas to have the opportunity to question Dr Brown and Dr Baruah, as their evidence underpinned the evidence of Dr Nyein and Mr Solarin. However, neither was made available. This meant OO was denied an effective opportunity to test the case for continued detention.