WHEN THE WITNESSES ALL SAY THE SAME THING: A RECAP

Mediatelegal

There has been some discussion on Twitter this morning about the issues that  arise when witnesses make statements that are, to all intents and purposes, identical. It provides an opportunity to look at some cases on this issue. They make salutary reading for anyone preparing witness statements.

 

MINUTE DETAILS FROM EVENTS 10 YEARS PREVIOUSLY – NOT A CREDIBLE ACCOUNT

In Patel -v- Patel [2017] Andrew Simmonds QC (sitting as a judge of the High Court) was considering the credibility of witnesses.  The action concerned the validity of a will made in 2005. The claimant asserted that the will was valid, the defendant that it was forged. Much rested on the credibility of witnesses.

THE COMMENTS IN RELATION TO WITNESS CREDIBILITY

Much of the judgment is an assessment of witness credibility, and an interesting read on that topic. The judge considered, in particular, the striking amount of detail in the witness evidence given in support of the claimant.

  1. My remaining concern with Nirja’s evidence is one that applies equally to all four witnesses on Girish’s side. The degree of minute detail which they purported to remember about the events of 23 June 2005 was, to my mind, quite incredible. Each of Ranjanbala, Jayshree and Nirja were giving evidence about an event which supposedly occurred ten years before they were first asked to provide a witness statement and it was an event of no personal significance to any of them. Even Girish said he thought the Will was unnecessary and he instantly forgot all about it until Christmas 2014, despite the Deceased’s death in 2011. In those circumstances, I would have expected the witnesses to have, at best, a vague and outline recollection of what had occurred. Yet, one or more of them purported to remember (a) exactly who stood or sat where in the office at Gorst Road; (b) what day of the week it was; (c) who drank tea and who didn’t and when; (d) which pen each of them used to sign and what the Deceased did with her pen after signing; (e) that Jayshree asked what the date was and was told by Nirja (although neither mentioned this in their witness statements); (f) what colour sari the Deceased was wearing; and (g) what the Deceased had to eat after the shopping trip. This did not, in my judgment, have the ring of truth.”

THE RESULT

The claimant’s action failed.

COMMENT

The issues of credibility when witnesses all agree with each other to a large extent was considered in an earlier post

 

WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG

This is the title of an article by Joshua A. Krisch on vocativ. The opening paragraph says it all

“Let’s face it—there’s something inherently fishy about a panel of witnesses who each recall the exact same series of events. Humans are imperfect; we see things differently, forget minor details and recount stories in odd orders. So, when witnesses’ accounts don’t differ by a healthy margin, it’s actually a sign something might be wrong.”

The article draws upon an article by the Royal Society: Too good to be true: when overwhelming evidence fails to convince.  This is a sophisticated mathematical analysis. However, as Joshua Krisch, summarises “the probability of perfect agreement between witnesses is almost zero”.

So the more witnesses that positively identify a culprit, the less likely they are to be correct (the optimum number is three).

A PROCESS CALCULATED TO DEVALUE THE EVIDENCE OF WITNESSES

There is an interesting discussion in the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch) and the judgment in New Court Securities she refers to.

The judge was hearing an action by time share owners alleging breach of contract by a membership company. The claim was dismissed on the grounds that the claimants failed to prove causation or damages. The penultimate paragraph of the judgment reads

“I also note that the Claimants’ second witness statements were largely identical: see the comments of Chadwick J in Smith New Court Securities Limited v. Scrimgeour Vickers (Asset Management) Limited [1992] BCLC 1104 at 1115-6. The Court of Appeal’s decision was reversed by the House of Lords and Chadwick J’s decision reinstated but there was no criticism of Chadwick J’s judgment on this point by the Court of Appeal in any event”

THE JUDGMENT IN NEW COURT SECURITIES

In New Court Securities Chadwick J was considering the weight to be given to two witness statements which were identical. The makers of those statements alleged that they had not made them together.  The judge had clear views on the likelihood of that.

The standard of proof and the weight to be given to the evidence of Mr Lewis and Mr Abrahams
“Before examining the events of 21 July 1989 in detail, it is appropriate that I should make two observations. First, the allegations against Mr Roberts are serious allegations involving the imputation of conscious dishonesty. The standard of proof required is the civil standard of ‘balance of probabilities’; but inweighing probabilities the court must take into account the gravity of what is alleged (see Hornal v Neuberger Products Ltd [1956] 3 All ER 970 at 973, 978, [1957] 1 QB 247 at 258, 267 per Denning and Morris LJJ). As Ungoed-Thomas J put it in Re Dellow’s Will Trusts [1964] 1 All ER 771 at 773, [1964] 1 WLR 451 at 455:

‘… the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it …’

Accordingly, in examining the evidence in support of the allegations that Mr Roberts made representations on 21 July 1989 which he knew to be false, I keep in mind that convincing proof is required to displace the presumption that a person in his position could be expected to act honestly.
Secondly, the circumstances in which Mr Lewis and Mr Abrahams prepared their evidence in advance of the criminal proceedings against Mr Roberts, and the manner in which they gave that evidence, make it necessary to approach the evidence which they have given in this trial with extreme caution. The circumstances in which Mr Lewis and Mr Abrahams prepared their evidence in advance of the criminal proceedings may be summarised as follows:
(1) On 1 December 1989 Mr Lewis and Mr Abrahams were interviewed, together, by officers of the Serious Fraud Office (the SFO) in the presence of Nicholas John Holt, a solicitor and then the director of SNC responsible for its legal affairs.
(2) Shortly after this meeting the SFO produced a first draft statement to be made by Mr Lewis. Copies of that statement were given to both Mr Lewis and Mr Abrahams. It was used by Mr Holt to prepare a second draft composite statement headed ‘Draft Statement: Geoffrey Alan Lewis/Anthony Sidney Abrahams’. That composite statement contains input from both Mr Lewis and Mr Abrahams.
(3) On 14 December 1989, a copy of the draft composite statement was sent by Mr Holt to SNC’s solicitors; but not to the SFO. On 19 December 1989 a partner in that firm of solicitors, and his assistant, went through that composite statement at a meeting with Mr Lewis and Mr Abrahams.
(4) As a result of that meeting a further draft composite statement was prepared (the 20 December draft), taking in amendments arising out of the joint discussions with Mr Lewis and Mr Abrahams. A copy of that composite statement was given to the SFO.
(5) Further amendments to the 20 December draft were made by Mr Holt, following conversations with Mr Lewis and Mr Abrahams.
(6) On 8 January 1990 two clean copies of the composite statement were prepared by Mr Holt; one for Mr Lewis and one for Mr Abrahams. The two statements are in substantially identical terms.
(7) Those two statements were then re-typed by the SFO in Criminal Justice Act form; and were presented to Mr Lewis and Mr Abrahams, individually, for signature on 9 January 1990.
The effect of this process was that any independent recollection which either Mr Lewis or Mr Abrahams might have had as to the events of 21 July 1989 was likely to have become coloured by the recollection of the other. No doubt Mr Holt, and SNC’s solicitors, thought they were acting in the best interests of SNC; but a process better calculated to devalue the evidence of the two principawitnesses for the prosecution in the criminal proceedings – and, subsequently, in the civil proceedings in this court – would be difficult to imagine.
The problem does not stop there. When asked on 25 January 1991, in the course of his cross-examination in the criminal proceedings, to explain why his Criminal Justice Act statement was virtually word for word identical with that of Mr Lewis, Mr Abrahams’s observation was that the coincidence was ‘interesting’. When pressed, he gave this answer:

‘It is amazing we both wrote twelve pages and ninety five per cent is the same, but I am not surprised … I am not surprised that we wrote similar sort of statements, because we did the deal together … I would, I suppose have found it very surprising if Mr Lewis had written a totally different type of statement.’

Mr Abrahams denied, emphatically, that he had prepared his statement in conjunction with Mr Lewis. He denied that he was ever shown Mr Lewis’s statement. He said that the similarity between his statement and that of Mr Lewis was ‘sheer coincidence’.
Mr Lewis was equally disingenuous. When he was asked about the same matter, on 29 January 1991, he said that he had never seen Mr Abrahams’ statement. There followed this exchange:

Q. There is a very marked similarity between your witness statement and that of Mr Abrahams. Are you aware of that? A. In the circumstances, as we spent most of the day together in the deal in Ferranti, I would assume that our recollection of events should be pretty similar.

Q. You would attribute the similarity to the fact that you saw and were involved jointly and therefore separately have described it in the same way? A. As I said, as we spent most of the day together, the facts would appear similar to both of us.’

In my judgment, Mr Lewis and Mr Abrahams each sought, deliberately, to mislead the jury in the criminal proceedings as to the true process by which their Criminal Justice Act statements were prepared. The true position did not emerge until full discovery was made, belatedly, in the course of the trial of the civil action in this court. I do not accept their explanations, given in this court, that they had forgotten, at the time when they gave evidence in January 1991, the circumstances in which their Criminal Justice Act statements had been prepared one year earlier.
In these circumstances it would, in my view, be unsafe to make a finding of dishonesty against Mr Roberts on the unsupported evidence of Mr Lewis and Mr Abrahams. I approach the examination of the events of 21 July 1989 on the basis that little, if any, weight can be given to their evidence where it is in conflict with that given by Mr Roberts.

 

POLICE TOLD TO GET ON THEIR BIKE

In Macleod -v- the Commission of Police for the Metropolis [2015] EWCA Civ 688.  Various witnesses for the defendant gave evidence as to the way in which an accident happened.   Several, it transpired, had not even seen the accident but were “told what had happened” and assumed it was right. Jackson L.J. noted:-

  • “I was wholly unimpressed by these forays into the written evidence and the transcripts of cross-examination. There is always a need with accident witnesses to be careful to distinguish evidence of what they actually saw from evidence about they think might have happened. The judge was plainly alert to this danger when evaluating the evidence of the various witnesses.
  • Thus, although Ms Walton had certainly recorded an impression that the man was thrown from east to west, she also said that she did not see enough of the accident to be able to say where the man had come from. Her final sentence was “All I can say for sure is that the police car was travelling from south to north and the man travelled from west to east in the air, I think“. This is hardly a promising basis for a submission that the judge ought to have accepted this account.In any event I do not see how the claimant can have been thrown any appreciable distance west to east when he ended up due north in the left hand lane of Southgate Road. To make matters worse, during cross-examination, Ms Walton volunteered that she had been “sort of told what had happened and … I sort of assumed that was right“.
  • Similarly Ms Hutchings explained in cross-examination that what she had said about the cyclist coming from Northchurch Road was an assumption. She explained that she did not think she had seen the cyclist at all.
  • Ms Knight’s account also had inconsistent features, not least her account of the impact occurring at right angles, which was inconsistent with the physical evidence. She also places the resting place of the bicycle in Northchurch Road. In cross-examination she accepted that the branches of the tree were substantial, even though not in leaf at that time of year, and had blocked her view so that she could not get a proper picture of what happened. As to what she saw at the point of collision she accepted that it was “all a bit of a blur” and she might be mistaken. Later in her evidence when, being cross-examined by Mr Waters, she started to refer to the bicycle being at “an angle” to the car. It is fair to say that Mr Waters managed to get Ms Knight to accept that the angle was such that it was impossible for the cyclist not to be coming down Northchurch Road. I would, for myself, have regarded that as opinion evidence that Ms Knight was unqualified to give. The judge was perfectly entitled to accord it no weight.”

IDENTICAL WITNESS STATEMENTS ARE JUST SUSPICIOUS

In AA -v- London Borough of Southwark [2014] EWHC 500 QB the deputy judge considered three statements given in the course of the litigation. Unanimity in the witness statements did not help.

. “Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.”

WITNESSES SO SIMILAR A CHART WAS DRAWN UP

In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) heard evidence from members of the claimant’s family who gave “supportive evidence”. The similarities were so marked that the defendant’s counsel actually drew up a graph to show the same phrases being used.

“Various families members and friends gave supportive evidence
  1. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.
  2. Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment.
David Hood
recall of what he overheard MsHastie telling the out of hours service
Ms Hastie recall of what she told Greta Jones
Greta Jones recall of symptoms relayed by Ms Hastie
Karen Jones recall of what Greta Jones told her Ms Hastie had said
1
“lethargy”
“being listless”
Listless
2
“high temperature”
“high temperature”
“high temperature”
“high temperature”
3
“history of severe headaches”
“severe headache for two days”
“intense headache for two days”
“intense headache for two days”
4
“crying and screaming”
“crying and screaming”
“crying and screaming”
“crying and screaming”
5
“being off his food”
“being off his food”
“and the last solid food he had had was on the morning of 31st December when he had a small amount of Weetabix”
“not eating”
“not eating”
6
“unable to drink very much”
“unable to drink”
“not … drinking”
“not … drinking”
7
“vomiting bile”
“vomiting Calpol and bile”
“vomiting bile”
“vomiting bile”
8
“pale”
“pale looking”
“pale looking”
“pale looking”
9
“not being himself”
“not being himself”
“not being himself”
“not being himself”
  1. A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.”

RELATED POSTS

On taking witness statements

On witness credibility generally