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Hearsay in disciplinary proceedings: ten things to remember

Razzaq v Financial Services Authority [2014] EWCA Civ 770, Lord Justice Vos (on appeal from the Upper Tribunal (Tax and Chancery Chamber)Following a recent series of judgments outlining the boundaries Razzaq v Financial Services Authority [2014] EWCA Civ 770, Lord Justice Vos (on appeal from the Upper Tribunal (Tax and Chancery Chamber)

Following a recent series of judgments outlining the boundaries of the admissibility of hearsay evidence in disciplinary proceedings, the Court of Appeal has provided a useful practical illustration of where hearsay evidence may be admissible.  The case can be considered alongside other recent decisions in helping practitioners and regulators to assess whether hearsay evidence may be admissible in the circumstances of an individual case.

The Upper Tribunal found that Mr Razzaq acted as an insurance intermediary when he had no permission from the FSA to do so.  The Tribunal made a prohibition order against him prohibiting him from carrying out further regulated activity.  Mr Razzaq appealed on the basis that, inter alia, the Tribunal had admitted hearsay evidence from witnesses whom he had no opportunity to cross-examine.  The Court of Appeal rejected this ground of appeal since (i) the evidence of the witnesses did not play a material role in the Tribunal's deliberations, and (ii) Mr Razzaq did not challenge the evidence of those witnesses.

The Court of Appeal's decision sits alongside a number of recent decisions of the High Court and Court of Appeal on the issue of the admissibility of hearsay evidence in disciplinary proceedings (namely Ogbonna v NMC, Bonhoeffer v GMC, White v NMC and Thorneycroft v NMC).  The following ten principles emerge:

  • The admissibility of evidence is subject to the general common law requirements of relevance and fairness;

  • There is no absolute rule under Article 6 of the ECHR or at common law entitling a person facing disciplinary proceedings to cross-examine a witness (Bonhoeffer);

  • What is fair is fact sensitive and will depend on the circumstances in an individual case, particularly the nature and subject matter of the proceedings (Bonhoeffer);

  • In deciding whether or not to admit hearsay evidence, a committee is entitled to take into account the fact that it can gave less weight to the evidence than if the maker of the statement was available to be cross-examined (Thorneycroft);

  • The existence of a good and cogent reason for the non-attendance of the witness is an important factor.  However, the absence of a good reason will not automatically result in the exclusion of the evidence (Thorneycroft);

  • In serious cases, there need to be compelling reasons to prevent a registrant from cross-examining a witness whose evidence is critical to establishing an allegation if there are no problems associated with securing the witness's attendance (Bonhoeffer, Ogbonna);

  • The courts have been reluctant to uphold decisions to admit hearsay evidence where (i) the evidence was not admitted, and (ii) the hearsay evidence in question was the sole or decisive evidence in relation to an allegation (Bonhoeffer, Ogbonna);

  • The courts have been even more reluctant to uphold such decisions where the evidence is anonymous (White);

  • The courts have been far less reluctant to uphold such decisions where (i) the hearsay evidence is ancillary to other evidence in the case and (ii) it is not challenged (Razzaq);attend

  • The fact that the registrant does not attend does not dilute the requirement for a disciplinary tribunal to observe the standards of fairness and to scrutinise applications to admit material hearsay evidence closely (Thorneycroft).

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