[2024] UKUT 22 (AAC)

James Strathearn and Hana Simpson were not parties to the 22/23 PI but witnesses. They appear to have been provided with some, if not all, of the documents in the PI brief, including statements by the second and third appellants and, possibly, the fourth appellant. For the purposes of this appeal, we shall assume that they were provided with all the documents in the brief and all of the appellants’ statements.

We reject the submissions made on behalf of the first three appellants’ that disclosure of this material to these witnesses resulted in unfairness, a breach of natural justice and a contravention of the first three appellant’s rights under Article 6(1) of the ECHR.

The PI before the DTC was an inquisitorial process. However, even in an adversarial process, the presence of a witness in court while an opposing party gives evidence, or access by a party to an opposing party’s witness statements and productions before giving evidence, does not necessarily lead to unfairness. Indeed, it may promote a fairer outcome. This is recognised by the court approved or imposed practices of exchange of witness statements and the lodging of documents or productions to be founded upon in advance of a proof or trial (Footnote: ¹⁷). What is prohibited is the coaching of a witness with a view to influencing or altering the witness’s evidence.

Both James Strathearn and Hana Simpson provided statements before those given by Johanna Dunne and Gordon Dunne (see pages 71 and 1683) and before either James Strathearn and Hana Simpson had sight of those statements. Those statements therefore could not have been influenced by the statements given by Johanna Dunne and Gordon Dunne.

In any event, it is clear from the transcript of the PI, that James Strathearn and Hana Simpson had had access to the statements and documents before they gave their evidence (page 1270, transcript of Hana Simpson’s evidence) and that this was known to the appellants. If the first three appellants had concerns that oral evidence of James Strathearn and Hana Simpson might be influenced by what they had read, then a submission could have been made to have their evidence ruled inadmissible. That was not done. Further, counsel for the first three appellants had the opportunity to cross examine James Strathearn and Hana Simpson on the question of tailoring their evidence. Finally, counsel for the first three appellants could have submitted to the DTC that Hana Simpson and James Strathearn’s evidence had been tailored and that it should be rejected for that reason. That does not appear to have been done as such a submission is not contained in the written submission to the DTC (pages 2201-2214), nor is such an argument referred to by the DTC in his decision.

We accept and agree with the submissions made for the respondent. There is no merit in this ground of appeal.