Decision Making in the Context of the Administrative Sanctions Procedure

1. Decision Making in the Context of the Administrative Sanctions Procedure A programme for Inquiry Members of the Financial Service Regulatory Authority 19 and 26 May, 2007 G Brian Hutchinson, BCL LLM DAL FCIArb BL Vice Dean, School of Law

2. Hearings I. Contentious issues prior to hearing • Notice • Notice Content • Documentation • Format of Hearing • Adjournments

3. Hearings • Contentious issues during the hearing • Controlling the hearing. • Burden and Standard of Proof. • Oath and giving evidence. • Evidence: • Examination in Chief (Direct) • Cross Examination • Redirecting • Refreshing memory • Hearsay • Documentary evidence • Expert • Evidence after the hearing

4. Hearings before the Tribunal • Contentious issues after the hearing • Providing reasons

5. Contentious issues during hearing • Controlling the hearing: • Represented parties generally pose no difficulty. • Unrepresented parties can pose difficulties and disrupt the hearing. Suggestions to control hearing: • Outline nature, format and sequence of hearing. • Ask parties do they understand how hearing will proceed. • Request co-operation in the hearing of the case by adhering to the nature, format and sequence of the hearing.

6. Contentious issues during hearing cont’d • The burden (legal and evidential) and standard of proof. • Burden lies with party alleging the claim brought. • Where a defence is raised to the claim alleged, the burden lies with party raising the defence. • Exception where • Proof the claim lies peculiarly or exclusively within the knowledge of the respondent • Interests of justice require respondent to disprove the claim made

7. Contentious issues during hearing cont’d The standard of proof- “if the evidence is such that the tribunal can say `we think it more probable than not`, the burden is discharged, but if the probabilities are equal it is not” Denning J. Miller v. Minister for Pensions

8. Contentious issues during hearing cont’d 3. The oath and giving evidence. • Only a competent or compellable witness can evidence. • Competent witness is one who understands the nature of the oath and is capable of giving intelligible evidence. • Incompetence can arise from intoxication or mental illness.

9. Contentious issues during hearing cont’d • Incompetence ceases upon sobriety or lucidity. • Communication difficulties overcome by use of interpreter. • If difficulties prevent meaningful cross examination then evidence can be excluded as unreliable. • All competent witnesses are compellable.

10. Contentious issues during hearing cont’d Oath “It is a fundamental principle of the common law that for the purposes of trials either civil or criminal cases viva voce evidence must be given on oath or affirmation” Finlay CJ, Mapp v. Gilhooley • Reliance on unsworn testimony a mistrial unless: • Estopped by express or unambiguous implied representation of waiver of the right to challenge the evidence, or • An appeal on the basis of a want of the oath amounts to a fraud or abuse of process.

11. Contentious issues during hearing cont’d • Viva voce evidence should be true by providing for a moral or religious AND legal sanction against deliberate untruth (perjury). • Witness of no religious persuasion who takes oath does NOT invalidate the oath taken. (S.3 Oaths Act 1888). • Witness objecting to oath should be asked to take an alternative form of oath which binds the conscience of the witness. • Last resort is the solemn affirmation. • Solemn affirmation is of equal effect as oath (S.1 Oaths Act 1888).

12. Contentious issues during hearing cont’d • Evidence on oath, Examination in Chief • Questioning witness to extract evidence supporting the party’s case. • Cannot ask LEADING QUESTIONS: • Phrasing questions in a manner to extract the desired answer, or • Phrasing question in a manner that assumes the existence of a fact in dispute,

13. Contentious issues during hearing cont’d Exceptions to Leading Questions: • Introductory matter, • Facts not in dispute, • To identify people or objects, • To aid recollection • Hostile witness. Civil cases do not adhere rigorously to the application of the rule. Evidence is not inadmissible but may affect weight to be attached Cannot cross examine or attack a witness called by the party, unless witness is classified as hostile.

14. Contentious issues during hearing cont’d Evidence on oath, Cross Examination • Essential for a fair hearing. • Extracts evidence favorable to the other party. • Can be questioned on any fact in issue or matter relevant to a fact in issue. • Not restricted to evidence given in chief. • Cannot question witness leading to inadmissible evidence

15. Contentious issues during hearing cont’d • Query truth, accuracy or reliability of evidence given. • Question errors or inconsistencies. • Question capacity in relation to recall, memory or any disability affecting these. • Question in relation to motive, bias or bad character. • CAN ask leading questions. • Interruptions by Tribunal during cross examination should be limited.

16. Contentious issues during hearing cont’d • Cross examining party who intends to adduce evidence in contradiction of what the witness has said in evidence in chief must be given opportunity to challenge the proposed contradictory evidence. • Tribunal may take into consideration evidence of a witness unavailable for cross examination or incapable of cross examination through ill health or death.

17. Contentious issues during hearing cont’d Evidence on oath, Re-Examination • A cross-examined witness may be recalled by the party that originally called the witness to remedy any damage done to the witness whilst under cross-examination. • Questions must relate only to the evidence given under cross-examination.

18. Contentious issues during hearing cont’d Evidence on oath, refreshing memory. • May refresh memory by referring to a document while giving oral evidence provided: • Document was made contemporaneously with the event in question, • Witness need not remember the event in question and can rely upon the recorded event in the document as evidence of the event occurring provided the witness swears to the accuracy of the document, • Document must be the original unless lost or destroyed,

19. Contentious issues during hearing cont’d • Document must be shown to the other party and be the subject of cross-examination, • Document is NOT proof of the event recorded in the document but goes to the credibility of the witness’s account of the event, • Witness’s account is evidence.

20. Contentious issues during hearing cont’d Evidence on oath, Hearsay. “A statement, orally, in writing or by communicative conduct, other than one made by a person testifying in which it is sought to be admitted, is inadmissible if tendered as evidence of the trust of any fact asserted.” • An evidential rule, but also • Integral part of fair procedures, • Right to cross-examine.

21. Contentious issues during hearing cont’d • Evidence of a witness that includes words spoken by another person is not inadmissible. • Such is evidence that the words were spoken by another person. • The words spoken are not evidence of the fact contained in the spoken words. • Where the witness gives evidence of what is in the personal knowledge of the witness, such is not hearsay evidence even though it may relate to what other person did or said.

22. Contentious issues during hearing cont’d Non hearsay examples: • Witness can give evidence of what he / she heard a third party say. • Witness cannot give evidence of what an individual said to a third party which is told to the witness. • Where the making of the statement is a fact in issue in the case “he said the rent would be €X, or the lease was for a year”. • Where the statement is evidence of the witness’s ability to communicate. • Where the state of mind of the recipient of the statement is an issue e.g. fear of threats from an individual leading the party in fear to claim self defence and give evidence of what the threatening party said giving rise to the fear.

23. Contentious issues during hearing cont’d • Where words spoken have legal effect e.g. where the existence of a contract is in issue that there was an offer or acceptance.

24. Contentious issues during hearing cont’d Types of hearsay • Oral statements: i.e. what a person has said to the witness who then wishes to give evidence of what was said. • Written statements: not hearsay once proved in evidence where the document is original and authentic. • Conduct may amount to hearsay e.g. gestures or nodding in response to a question.

25. Contentious issues during hearing cont’d Exceptions to hearsay. 1. Part of res gestae (statement so closely associated with an event that it forms part event rather than a reported statement: • Spontaneous declarations at the time of the event, • Declarations explaining the performance of an act, • Declarations as to state of mind (opinions), • Declarations as to physical state.

26. Contentious issues during hearing cont’d • Admission made to witness about which evidence is given. Can arise expressly, by conduct or by a third party on behalf of the party in question. • Declaration by deceased person that is contrary to the deceased’s interests. • Public documents. • Declarations in the course of duty. • Business records.

27. Contentious issues during the hearing cont’d Expert Evidence Given where the matter falls outside the ordinary knowledge or expertise of the tribunal of fact. Expert cannot give evidence in relation to the ultimate issue for determination unless opinion of expert is necessary for determining the dispute. Witness must be an expert.

28. Contentious issues during the hearing cont’d Facts upon which expert opinion is based must be established by admissible evidence. Other witnesses or the expert can establish these facts. Expert witness cannot base opinion on facts provided to him by a third party.

29. Contentious issues during the hearing cont’d Weight to be attached to the expert • Qualifications, • Experience, • Knowledge of facts upon which opinion is based, • Extent of investigation, • Acknowledged area of expertise, • Opinion is generally recognised by a body of experts, • Facts upon which opinion is based have been proved.

30. Contentious issues during the hearing cont’d Evidence after the close of a hearing. Generally all evidence should be given before the close of the party’s case, unless: • Rebuttal evidence arising from unpredictable evidence given by a witness, • Evidence of a formal or uncontentious nature omitted through oversight, • General discretion. Authorities suggest that any evidence allowed after the close of the party’s case is given whilst the court is still sitting and has not finished hearing the matter.

31. Contentious issues during the hearing cont’d Documentary evidence Document - “photographs, maps, X-rays, fax, audio tape, film, electronic and microfiche”. Must prove content of document by producing original but copy (true) of document will suffice in civil cases. Document should be signed and dated (due execution).

32. Contentious issues during the hearing cont’d Tape, film and photographs. • Must be authenticated. • Film may require oral evidence by photographer and developer. Electronic Commerce Act 2000 S.2 - electronic - “means electrical, digital, magnetic, optical, electromagnetic, biometric, photonic and other forms of related technology”.

33. Contentious issues during the hearing cont’d • information – “ data, all forms of writing and other text, images, sound, codes, computer programmes, software, databases and speech”. • - legal proceedings – “civil or criminal, and includes proceedings before a court, tribunal, appellate body of competent jurisdiction or any other body or individual charged with determining legal rights or obligations”. • Expenses incurred must be vouched – authentic receipts, invoices, estimates, • Should be on headed / official paper, itemised, signed and dated.

34. Contentious issues after the hearing Obligation to give reasons • Bodies exercising judicial or quasi judicial functions are obliged to give reasons. • Part of the constitutional right to a fair hearing. • Where statutory right of appeal exists. • Reasons must be adequate.