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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2007] UKSSCSC CDLA_1576_2007 (19 November 2007) URL: http://www.bailii.org/uk/cases/UKSSCSC/2007/CDLA_1576_2007.html Cite as: [2007] UKSSCSC CDLA_1576_2007 |
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Decision
Reasons
Introduction
The appellant and the claim for disability living allowance
The witness statements
'1. All matters stated within this statement are within my own knowledge unless stated otherwise, and where stated otherwise, I state the source of my information and belief.
2. I have read [the appellant's] notes regarding the events and circumstances that he described, which occurred between December 2005 and July 2006.
3. I confirm that to the best of my knowledge the described events and circumstances are a true and accurate representation of the facts relating to that period.
4. I believe that the facts stated in this witness statement are true.'
'14. There were three statements in common form from Mr S, Mr M and Ms H. In each case the statements purported to confirm that to the best of the maker's knowledge the events described in the Claimant's notes were true and accurate. Unfortunately statements such as these are known to the legal profession by the pejorative term of "oath helping". Despite the best intentions of the makers there is no way of telling which of the Claimant's comments the maker of each statement knew to be true from their own knowledge and which the statement maker believed to be true simply because they know and trust the Claimant. Statements such as this are of no evidential value.'
The grounds of appeal
'The tribunal have failed properly to apply the Law concerning the disregard of any distance walked whilst in severe discomfort.
The Tribunal has indulged in conjecture, prejudiced assumptions, and groundless accusations insulting my own integrity, and that of witnesses to the facts.
The Tribunal has insulted my GP's personal and professional integrity.
The tribunal has rejected valid evidence favourable to my case, and been very selective in the evidence it has accepted and the way they have chosen to interpret it.'
Reasons for setting aside the tribunal's decision
Oath-helping
'An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. …
… Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the defendant was likely to have been provoked. The same reasoning applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance they could put upon the defendant's evidence. He had to be judged as someone who was not mentally disordered. This is what juries are empanelled to do. The law assumes they can perform their duties properly. The jury in this case did not need, and should not have been offered, the evidence of a psychiatrist to help them decide whether the defendant's evidence was truthful.'
The law in Scotland is similar, see HM Advocate v. Grimmond 2002 S.L.T. 508 at 512, although the rule there exists as a particular instance of the general rule that evidence of facts affecting the credibility of a witness are inadmissible unless they also relate directly to the issues in the trial.
'the Crown cannot call a witness of fact and then, without more, call a psychologist or psychiatrist to give reasons why the jury should regard that witness as reliable. …
… if the defence propose to call an expert witness to say that a witness of fact for the Crown should be regarded as unreliable due to some mental abnormality outwith the jury's experience, then, depending on the precise issue, it may be open to the Crown to call an expert in rebuttal, or even (anticipating the defence expert) as part of the prosecution case. It may even be open to the Crown to rebut by expert evidence, a case put only in cross-examination that a prosecution witness is unreliable in a particular respect arising from mental abnormality. Much may depend upon the nature of the abnormality and of the cross-examination. If such evidence is admitted, great care would need to be taken to restrict the expert opinion to meeting the specific challenge and not to allow it to extend to "oath-helping."
However, here … no specific case was put in cross-examination that the complainant was peculiarly suggestible or given to fantasise as a result of her mental impairment. There was evidence of questioning by the mother and by the policewoman constable of the complainant and the limited extent of the cross-examination about that has been summarised above. No evidence was to be called for the defence impugning the complainant's reliability. In those circumstances, we consider that [the educational psychologist's] evidence should not have been admitted.'
(a) As the above cases make clear, the prohibition forms part of the rules about the admissibility of evidence. As Commissioners and the Courts have consistently held for over 50 years, appeal tribunals are not bound by the rules of evidence that apply in adversarial proceedings (see, for example, CDLA/2014/2004 and the list of cases cited in paragraph 10 of that decision). Before an appeal tribunal, if evidence is relevant then it is admissible. The tribunal's task is not to decide whether to consider relevant evidence but rather to decide how much, or how little, weight should be attached to it.
(b) It is no coincidence that the cases discussed above involved criminal trials before a jury. In such proceedings it is possible to ensure that the jury never hears the inadmissible evidence. But in an appeal tribunal, there is no neither a jury nor any equivalent division between the judge of law and the judge of fact. Although they will bring different experiences and expertise to their task, all three members of the tribunal in a disability living allowance appeal are equal judges of all disputed issues, both law and fact. If oath-helping evidence were to be excluded, all the members of the tribunal would nevertheless have to consider the disputed evidence in order to determine whether it should properly be so categorized. By doing so, they would inevitably become aware of that evidence. Even if they formed the view that it was oath-helping, it would be too late to exclude it. Adjournment would not solve the problem. If the same tribunal heard the restored appeal, then nothing would have been gained from the adjournment. But if the second tribunal were differently constituted, it would not be bound by the first tribunal's decision about the nature of the evidence and would have to conduct a complete re-hearing of all the issues, including that one. That, in turn, would involve all the members of the second tribunal considering the disputed evidence and so on, potentially ad infinitum.
(a) Unlike juries, tribunals are not composed of lay people. Tribunal members hold judicial office. They can therefore be trusted not to allow their role to be usurped by any particular witness.
(b) The perceived risk that, if a tribunal were to receive oath-helping evidence, it might allow itself to be sidetracked by collateral issues of credibility is not real. Oath-helping evidence is a sub-category of evidence that relates solely to credibility. For the reasons, given above, all such evidence is admissible so long as it is relevant to the issues before the tribunal. Experience shows that this does not in practice lead to judicial time being devoted unnecessarily to collateral issues. The expertise of the tribunal chairman (taken together with the need for the tribunal to get through its list) normally prevents that.
(a) The fact that evidence is oath-helping does not mean that it is untrue or irrelevant (which is why the tribunal was not insulting the appellant's witnesses by so describing their statements). Oath-helping evidence is inadmissible in adversarial proceedings despite the fact that it is relevant and irrespective of its veracity.
(b) The role of an appeal tribunal is not merely to decide between two or more competing versions of events. So far as is practical, it must seek to arrive at the correct decision so that:
i) those claimants who are entitled to benefit receive it at the correct rate and for the correct periods; and
ii) those claimants who are not entitled to benefit do not receive it.
That task is often a difficult one and the complexity of social security law means that the tribunal will often receive little help from the parties. In those circumstances, it is not sensible arbitrarily to exclude evidence that is relevant to the issues the tribunal has to decide. Once the oath-helping evidence has been heard, it must still be evaluated and—if it is appropriate to do so in a particular case—the tribunal remains entitled to attach little or no weight to it. In other cases, however, the tribunal may find that oath-helping evidence assists it with its task. In those cases, it would not be helpful to deny the tribunal that assistance.
The tribunal's decision
Reasons for the Commissioner's substituted decision
Conclusion
(Signed on the original) | Richard Poynter Deputy Commissioner 19 November 2007 |