[2024] UKUT 277 (AAC)

HA attended the hearing, as did Ms Hartley representing DBS. We are grateful to them both, for presenting their respective arguments clearly.

HA, representing himself, also gave evidence at the hearing, including via cross examination and answering questions from the panel. Two of HA’s witnesses, as referred to in the permission decision, also attended, gave evidence, made themselves available for cross examination, and answered questions from the panel: JRL and GLW. HA told us at the start of the hearing that RK, the third such witness, was unable to attend in person. The panel decided that RK could give evidence by video link, if she was able to at the point in the hearing when it made sense to hear her evidence; but fairness and justice would not support adjourning, or otherwise disrupting the natural flow and order of, the hearing, to enable RK to provide evidence; this was because the case management directions prior to the hearing had given HA a fair and just opportunity to arrange for his witnesses to provide evidence at the hearing, in an orderly way. In the event, RK was unavailable, or unable, to join the hearing by video link at the point at which her evidence would otherwise have been heard; and so we did not, in the end, hear oral evidence from RK.

At the start of the hearing, the panel were provided with a 7-page undated document entitled ‘HA’s witness statement’; although HA said that he had attempted to send this to the Upper Tribunal prior to the hearing, it appeared not to have been received (this may have been connected to HA’s hospitalisation shortly before the hearing – see the next paragraph); at the hearing, we accepted that this document could be submitted (there was no objection by DBS, who appeared to have already received it); there was a short adjournment at the start of the hearing to allow the panel to read it.

At the hearing, HA explained that, unfortunately, he had had a mild asthma attack (of which he had a history) and had to be hospitalised over the weekend preceding the hearing (which was on a Tuesday); he had been discharged from hospital on Monday morning i.e. 24 hours prior to the hearing. On behalf of the panel, Judge Citron explained to HA that, if there was any significant risk of the hearing aggravating his condition, or of the condition meaning that he could not fairly and justly present his case, the panel would consider whether to the adjourn the hearing. In response, HA assured the panel that carrying on with the hearing would not adversely affect his health in any material way, and that he was able to present his case and his evidence satisfactorily (and indeed was keen to proceed with the hearing). In all the circumstances, we decided it was fair and just to proceed with the hearing.