[2024] UKUT 190 (AAC)

The factual background to the hearing on 5 December 2022 [sic] was that the responsible clinician, having until then supported the Applicant receiving a conditional discharge (albeit considering that such discharge may need to be deferred), changed position and issued an updated report opposing conditional discharge just days before the hearing.

The thrust of Mr Pezzani’s submissions was that the Decision involved procedural unfairness because the Applicant was denied the opportunity to arm himself with expert evidence to support his case for conditional discharge by the First-tier Tribunal’s refusal of both his, and the Responsible Authority’s, applications for adjournment.

Mr Pezzani says that it was wholly appropriate for the Applicant to choose not to instruct his own expert when the responsible clinician and the other witnesses for the Responsible Authority supported conditional discharge, but it was equally reasonable for him to want to instruct his own expert when the responsible clinician’s position changed. His representative acted with all expedition but the First-tier Tribunal’s decision to go ahead and determine the appeal without adjourning to allow the Applicant to obtain his own expert evidence, or indeed to give his representative an opportunity to challenge the expert evidence of the forensic clinical psychiatrist (who was not present to be questioned at the hearing) upon whom the responsible clinician relied denied him a fair hearing and ran counter to the principle of parity inter partes in matters of forensic science. He also submitted that the First-tier Tribunal’s reasons for refusing the adjournment applications were inadequate.

I am persuaded by Mr Pezzani’s arguments that it is arguable with a realistic (as opposed to fanciful) prospect of success that the First-tier Tribunal erred in law and that this error may have been material.”