“Oy Judge! Stop cross-examining my witness!”

Mon, 21 Apr 2014

Court hearings in the UK are generally conducted on an adversarial basis where each litigant presents his or her own case and attacks the other side’s case. The role of the Judge in such proceedings is as an impartial referee who ‘holds the ring’ and decides the case solely on the evidence and arguments presented by the parties.

Tribunal Hearings generally are however of a different nature. They are inquisitorial as opposed to adversarial. Here the Judge may assume a more proactive role in the proceedings, including identifying issues and relevant evidence and questioning witnesses. They may govern more closely the participation of the parties in the proceedings.

In Employment Tribunals this principle is enshrined in Rule 41 of the 2013 Rules which provides that

“the tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective”

Questions to witnesses

One area where there appears to be such a broad range of judicial approach is in the questioning of witnesses. Some Judges ask hardly any questions and leave the questioning of witnesses very much up to the parties or their representatives (reflecting the approach in adversarial proceedings). Some Judges will ask a question or two - either to clarify an earlier answer or check their understanding of some of the salient facts. Let us call this the soft inquisitorial approach. Other Judges (I observe often the newer ones) see their remit as much more wide-ranging and will ask a lot of questions. We might call this the fully inquisitorial approach.

Recently, I did a case where a new part-time Employment Judge in a misconduct dismissal questioned the dismissing officer for over 40 minutes. The case made me think about just how far an Employment Judge should be permitted to go in questioning a witness. To what extent does the inquisitorial nature of the proceedings give a Judge licence to question a witness as they like?’ Is it impermissible for a Judge to ask a question which suggests the answer the questioner is looking for, or to ask a question in such a way as to confront the witness with the apparent illogicality of the position they are adopting or to raise with the witness a point not taken by the unrepresented party? And if it is – when does the Judge overstep the mark?

Case law suggests that there are boundaries.

Relevant case law

There are passages in case law which tell use that:

·      Employment Judges can assist (where necessary) but that it is not the function of Employment Judge to (i) seek to make/prove the Claimant’s case for him (ii) introduce into the case issues which the Claimant has not sought to raise: Dimtsu v Westminster City Council 1991 IRLR 450

·      A Judge should only ask questions of witnesses only when necessary to clear up a point and not assume the role of advocate: Jones v National Coal Board 1953 J No.136

Even with litigants in person we told that there are limits to what a judge can and should do in order to assist them. 'It is for the litigant himself to decide what case to make and how to make it, and what evidence to adduce and how to adduce it. It is not for the judge to give directions or advice on such matters. It is not his function to step into the arena on the litigant's side and to help him make his case.' per Rimer LJ in Lemas v Williams [2009] EWCA Civ 360

In Muschett v HM Prison Service 2010 EWCA Civ 25 LJ Rimmer continued this dialogue (at para 31):

''… I consider that essentially the same considerations apply to employment judges. It is not their role to engage in the sort of inquisitorial function that [counsel for the appellant] suggests or, therefore, to engage in an investigation as to what further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law…It is not his function to step into the evidential and factual arena''

Applying the guidance in practice

The difficulty is that the guidance found in case law is quite general. It suggests there is a boundary and gives us some pointers but it leaves deciding the matter of when that boundary line has been crossed a difficult task. The generality of the guidance may of course reflect the broad range of approach by Employment Judges to questioning witnesses. The guidance appears clear that the Judge should not step into the evidential and factual arena but where one party is unrepresented an Employment Judge may feel - in furtherance of the overriding objective and duty to ensure equality of arms - that in order to be fair to the unrepresented party he or she ought to ask some questions, which at least in some way test the evidence put forward by the represented party.  

In the case to which I refer where the said Judge questioned the dismissing officer for 40 minutes, I took the view the Judge had gone too far both in the length and style of her questioning. I felt her questioning was right at the far edges of the fully inquisitorial approach. Whether consciously or not, she had picked up the mantle of cross-examiner. My first gentle objection was ignored. My second was dismissed out of hand. I decided to sleep on it overnight. I didn’t sleep too easily. The next morning, armed with the benefit of a good note, I took the Judge back through certain sections of her questioning and explained carefully and forcefully why she had overstepped the mark and how a fair trial was no longer possible. She did not agree. Whereas I was clear she had crossed a line – she was equally clear she had not. In hindsight, I think the real difficulty was our respective views of where the line was. The proceedings continued.

Conclusion

If it is not the function of Employment Judges to step into the evidential and factual arena per LJ Rimmer – it is the soft inquisitorial approach which is being permitted under Rule 41 of the ET Rules not the fully inquisitorial approach. It follows that in strict terms Judge shouldn’t be asking questions of a witness which suggest the answer sought, or ask questions in such a way as to confront the witness with the apparent illogicality of the position they are adopting. 

Postscript

A few months after applying to recuse the Judge, I found myself hosting a mock tribunal for a client playing the role of Judge. Afterwards my colleague, who had played counsel for one of the parties, came up to me and gently chided me for giving his witness a rough time during questioning. I smiled, said nothing, and thought of the Judge I had applied to recuse a few months earlier. Wherever the line is - maybe our view of it depends on whether we are dishing out the tough questions or are on the receiving end of them.

I won the case but was left wondering what the result would have been if I hadn’t applied to recuse the Judge. Who knows.

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