Evidence – the basis of admissibility
This is the latest in a series of briefings on the Fitness to Practise investigations process.
The rules of evidence have become gradually more relaxed over the decades. Complex rules such as the hearsay rule and its even more complicated exceptions are no longer directly applicable in the context of Fitness to Practise hearings. The general principle which applies is that evidence is admissible if it is relevant to a disputed issue and that any concerns with respect to the reliability of the evidence are dealt with by the Panel determining what weight to attach to the evidence. Evidence which would have been excluded in the past under the stricter regime can be admitted but may well have little or no weight attached to it by the FTP panel.
However, it is important to bear in mind that the prosecutor is still expected to present the best evidence. They should not choose to rely on the hearsay evidence of an important witness if that witness could be available to attend and have their evidence tested by cross-examination. The fact that a witness is unavailable to attend and answer questions will not automatically lead to the exclusion of their evidence but may do so where the FTP panel determines that admitting the evidence would lead to unfairness which could not be addressed simply by them exercising a judgment as to the weight to be attached to the evidence.
It should be noted that some tribunal’s have introduced verification requirements for testimonial evidence. This is largely directed at ensuring that testimonial witnesses are aware that their letters will be provided to a FTP and are aware of the nature of the allegations which the tribunal is considering.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.