Evaluating Evidence: The Modern Approach

One would need the fingers of many hands to count how often one had heard a Tribunal or Magistrates’ Chair say, in finding the allegations proved, “We found witness X to be honest  and reliable, and her evidence compelling”, and that was about it.

That is no longer regarded as satisfactory.  It is an outdated and unreliable way of fact-finding.

All those who find facts and draft reasons need to be trained in the modern approach and apply the training to their fact-finding, for those defending have much more ammunition with which to challenge the outcome.

In the words of Warby J in R(Dutta) v GMC [2020] EWHC 1974 (Admin):  “It is an error of principle to ask “Do you believe her?” before considering the documents … Reliance on a witness’s confident demeanour is a discredited method of judicial decision making …”

An Appellate Court may now be more ready to overturn a decision even though it has not had the benefit of having heard the witnesses itself.  It will do so where there is a flawed approach by the Tribunal in question.

Where a Tribunal makes a subjective assessment of a complainant’s evidence based in significant part on the witness’s demeanour, rather than properly addressing credibility, the decision may be challengeable.

Warby J said in Dutta, supra, “… the Tribunal’s reasoning process is vitiated by at least three fundamental errors of approach.

“First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents.

“Secondly, the Tribunal’s assessment of the witness’s credibility was based largely, if not exclusively, on her demeanour when giving evidence.

“Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.”

When challenging such decisions, practitioners now have available to them a considerable body of authority setting out the lessons of experience and of science in relation to judicial determination of the facts.

As well as Dutta, look also at the following authorities.

In Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm), Leggatt J observed that we believed memories to be more faithful than they are.  Two common errors were to suppose (1) that the stronger and more vivid the recollection, the more likely it was to be accurate; (2) the more confident another person was in their recollection, the more likely it was to be accurate.

But memories were fluid and malleable, being constantly rewritten whenever they were retrieved.  This was even true of the misleading term “flashbulb” memories, i.e. memories of experiencing or learning of a particularly shocking or traumatic event.

Events could be recalled as memories which did not happen at all or which happened to somebody else.

The process of civil litigation itself subjected the memories of witnesses to powerful biases.

Considerable interference with memory was introduced in civil litigation by the procedure of preparing for trial.  Statements were often taken a long time after relevant events and drafted by a lawyer who was conscious of the significance for the issues in the case of what the witness did or did not say.

The best approach from a judge was to base factual findings on inferences drawn from documentary evidence and known or probable facts.  This did not mean that oral testimony served no useful purpose.  But its value lay largely in the opportunity which cross-examination afforded to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalled of a particular conversation and events.

Above all, it was important to avoid the fallacy of supposing that, because a witness had confidence in his or her recollection and was honest, evidence based on that recollection provided any reliable guide to the truth.

Mostyn J had more to say on the subject in Lachaux v Lachaux [2017] EWHC 385 (Fam) [2017] 4 WLR 57:

“Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist.  It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.

“For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred.  Therefore, contemporary documents are always of the utmost importance …

“I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities …”

Agreeing with the view of Bingham J, Mostyn J said: ”the demeanour of a witness is not a reliable pointer to his or her honesty.”

The same judge in Carmarthenshire County Council v Y [2017] EWFC 36, [2017] 4 WLR 136 added “This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.”

Of the five methods of appraising a witness’s evidence, Lord Bingham in The Business of Judging identified the primary method as analysing the consistency of the evidence with what was agreed or clearly shown by other evidence to have occurred.  The witness’s demeanour was listed last, and least of all.

A recent Australian criminal case also highlighted these principles at work: Pell v The Queen [2020] HCA 12.

Allowing the appeal and quashing Cardinal Pell’s convictions, on the basis that, assuming the witness’s evidence to have been assessed by the jury as “thoroughly credible and reliable”, nonetheless the objective facts “required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt.”

Only yesterday, a High Court Judge sitting in the Administrative Court quashed the panel’s findings on the basis that its approach to the evidence of all three complainants was erroneous.

That being so, the Tribunal’s Determination was based on a fundamentally flawed approach and could not stand: Muhammad Zakariya Goolam Mahomed Khan v General Medical Council [2021] EWHC 374 (Admin)