Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 170 (AAC)

Fecha: 25-Abr-2024

The First-tier Tribunal’s approach to making findings on the basis of its own knowledge

44.

Mr Rawlinson’s core submission, in effect, was that the FTT had put its own experience ahead of the Appellant’s evidence in circumstances where the Appellant’s evidence about conditions in Afghanistan properly outweighed the panel’s experience and knowledge, some of which was based on what had been seen on TV. This approach involved an error of law, he argued, as like was not being fairly compared with like – the evidential basis for the experience of the FTT panel, and in particular of the Judge, who had also served in Afghanistan, was not the same as the evidential basis for the Appellant’s experience. In this respect particular objection was taken to the following exchange, as recorded in the FTT hearing transcript (at p.49), which dealt with the type of clothing worn by service personnel in Afghanistan and their ability to seek shelter from the intense sunlight:

JUDGE: Just a few questions from me Colonel C. I think it is fair to let you know that I was deployed to Afghanistan in August 2009 for a six month tour and I spent two months in Lashkar Gah and the rest of the time in Kandahar. Obviously I was not as active out on the ground as you were but did helicopter submitting so out to some of the FOBs and to Kabul and in fact spent a week in [inaudible]. So probably was issued with very much the same kit as you were. Certainly I was issued with two pairs of shorts, I never wore them. They have only been worn when I have been gardening here at home. And in fact everywhere I never saw anyone else wearing shorts. Certain not in Lashkar Gah when soldiers were having their downtime. So I will just make that comment. Also I went to all the daily briefings where I saw lots of photographs of what was happening out in the FOBs and the PD. So absolutely understand what you are talking about. So a few comments from me is that a lot of people were being moved around in helicopters when there were any available and vehicles such as and so forth. As you said Helmand is a green zone and a green zone for a reason although I appreciate that a lot of the FOBs would be sort of out in the desert area, places like [inaudible] and Kabul and Kajaki. But when we did go out on patrol obviously they were wearing full kit. Your statement in one place said that you didn’t have any long sleeved shirts issued to you but I am sure that is not correct. I am looking at paragraph 42, we didn’t have these in place [inaudible]. So you would be wearing full kit, long trousers, long sleeves, body armour, helmets and so forth. So very much when you were out on patrol the only part of you that was exposed was your face. Entirely accept having seen all the photos of soldiers firing water and things at handles and sorts and so I accept all that. So I accept all that. Just another comment that whilst I was out there night vision goggles had come in and quite a lot of soldiers went out at night not only because it was cooler but because there was not the opportunity …

APPELLANT: If I may interrupt ma’am I mean all I would say is that many of us, thousands of us served in Helmand and passed through it. My experience and yours have much in common and also much in diversions with each other. And you know we served at the same time in many of the same places but I recognise what you are describing but all I would say that is not necessarily my experience.

JUDGE: OK well just to comment on the FOBs that I did go to as you say they were compounds and they threw the hospo barriers around them and created a FOB and helicopter landing strips and all the rest of it. But my recollection is that they did actually have buildings there in the FOBs, I don’t know about TB.

APPELLANT: Of course there were buildings there. You know I have sort of made that clear and we used cover wherever possible. My point is that we conducted significant mobile operations over large periods of time operating with things like the brigade, reconnaissance, force and others and lived tactically in the desert in order to avoid contact with the enemy. That was part of a reconnaissance process.

45.

In the course of his oral submissions Mr Rawlinson acknowledged that it was perfectly proper for the Judge to set out her own experience when posted to Afghanistan and to invite the Appellant’s comments. However, he submitted that the FTT had both failed to analyse the partly overlapping but still substantially differing experiences of the Judge and the Appellant on their respective tours of duty and had also failed to give the Appellant a proper opportunity to comment on other matters on which the panel had relied in making its findings (e.g. social media and TV coverage). This submission is unpersuasive for two main reasons, both of which were identified by Mr Hays.

46.

The first reason, and the starting point, is that a specialist tribunal such as the FTT in the WPAFCC is entitled to take into account its own experience in reaching findings of fact. There are, however, safeguards, as recognised by the Lands Tribunal in Arrowdell Ltd v Coniston Court (North) Hove Ltd [2007] RVR 39 at [23]:

… It is entirely appropriate that, as an expert tribunal, an LVT should use its knowledge and experience to test, and if necessary to reject, evidence that is before it. But there are three inescapable requirements. Firstly, as a tribunal deciding issues between the parties, it must reach its decision on the basis of evidence that is before it. Secondly, it must not reach a conclusion on the basis of evidence that has not been exposed to the parties for comment. Thirdly, it must give reasons for its decision.

47.

Those requirements were set out in the context of the leasehold valuation tribunal, but they apply across the board to specialist tribunals and indeed are echoed in the war pensions case law. Thus, it follows that what the tribunal cannot do is to rely on its own specialist knowledge without putting the point to the affected party (Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin)). Likewise, the FTT cannot undertake its own research about an issue that is material to the outcome of the appeal without giving the parties the opportunity to comment (see Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin)). The FTT in the present case was plainly alive to the importance of this principle, as illustrated by the following comment made by the Judge in the course of the FTT hearing (transcript at p.50):

JUDGE: Right Miss Skander the position is this when the panel retires we consider the matter, they will bring their expertise as we are required to do because that is why this panel has been constituted with a service member, a medical member and a legal member. And if because of my own experience and expertise I know that certain facts exist then it would be entirely wrong for me to use that knowledge, expertise and experience in discussion with my panel members without giving Colonel C the opportunity to comment on it. So it would be even worse if in our discussions as a panel I said to my colleague that I know for certain X, Y and Z because that is what my experiences are. If I haven’t explained that to Colonel C that would be an even greater transgression.

48.

The second reason is that it is important to distinguish between (a) what took place at the FTT hearing (in terms of the panel testing the evidence) and (b) what subsequently appeared in the FTT’s reasoned decision (in terms of the panel’s fact-finding). As Mr Hays submitted, it is only the latter that ultimately matters, whereas Mr Rawlinson’s submissions were principally directed towards the former. It can only be said that the FTT erred in law if its reasoned decision demonstrates that it improperly relied, in making its findings of fact, on its own undisclosed specialist experience and knowledge rather than on the evidence before it. The reality, however, was that the FTT broadly accepted the Appellant’s own evidence as to both service clothing and the ability to seek shelter in Afghanistan:

14.4

We accept Mr C’s evidence that as part of his role, he would travel out to the Forward Operating Bases (a smaller and more rudimentary replica of the MOB) in order to liaise with the troops on regular patrol, to better understand the situation on the ground. We also accept that on occasions, he would go out on patrol with the troops, sometimes from Patrol Bases, an even more rudimentary replica of a FOB. However, what we do not accept is, as his Counsel encouraged us to find, that he was out in the heat and sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts.

14.5

This was an exceptionally kinetic time for UK troops in Helmand with considerable casualties and deaths. It attracted significant media attention with many reports in the press and documentaries from the front line from reporters embedded with units. From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress, with body armour, and with legs and arms fully covered. We also accept that in periods of ‘downtime’ soldiers would wear their issued shorts and t-shirts, but had the flexibility to shelter in the shade and only exercise in the cooler/less sunny times of the day which would also protect from the dangers of heat exhaustion.

49.

The fact of the matter is that these findings by the FTT broadly reflected the Appellant’s own evidence. For example, the Appellant agreed with the service member’s observation that “you wouldn’t be wearing [shorts] when you went out on the recces with the patrols”. Likewise, the Appellant himself acknowledged that “I would emphasise nobody would be foolish enough to go on patrol wearing shorts” (hearing transcript p.39). Thus, the FTT’s finding that “From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress” was in accord with the Appellant’s own evidence, so resort to the FTT’s wider knowledge cannot properly be characterised as unfair in any material way. Furthermore, the FTT’s acceptance that shorts were sometimes worn off-duty (contrary to the Judge’s comment that she had herself never seen anyone in shorts during her tour) fundamentally undermines the argument that the Judge (and by extension the panel) rejected the Appellant’s evidence on the basis of her own experience.