Rule 14 non-disclosure and fair hearings

Quite often we receive documents requesting non-disclosure for flimsy reasons that don’t meet the test in R14.

These often result in the author of the report requesting to withdraw or no longer rely on that information once they realise it can’t be witheld from the patient.

Has anyone successfully argued that the patient can’t have a fair hearing because the Tribunal whilst not ‘considering’ it as part of the evidence have seen and read the information?

In this case it’s a police disclosure, essentially what would be contained in pre-interview disclosure in a PACE interview.

Ages ago I wondered about the tribunal saying it will ignore evidence it has heard. I think I decided that the tribunal would fall somewhere between a jury and a judge in how much it would be trusted. I’m not aware of any cases on the point.

There is some material on the internet about how judges and juries are often unable to ignore inadmissible evidence. But unless it’s a really clear case I guess the judiciary would instinctively close ranks, and say that even the non-legal tribunal members were able to ignore the evidence.

In a different context, in JG v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 187 (AAC), the tribunal judge did private internet research that would have got a juror in trouble but got away with it.

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