THE KIMATHI DECISION 4: THE APPROACH TO WITNESS EVIDENCE: MEMORIES ARE FLUID AND MALLEABLE: SOME KEY POINTS ON GESTMIN

This is the fourth in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB).  The trial judge was looking at evidence of matters that had happened some 50 years earlier, there was little (often no) supporting documentation.  The method of assessing witness evidence was of some importance.  There is a useful summary of the case law and the appropriate judicial approach to witness evidence. This highlights the importance of the “Gestmin” principles.

 

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

THE JUDGMENT ON THE JUDICIAL APPROACH TO WITNESS EVIDENCE

“The approach to evidence
    1. In recent years there have been a number of first instance judgments which have helpfully crystallised and advanced learning in respect of the approach to evidence. Three decisions in particular require citation. These are:
  • Gestmin SGPS SA v Credit Suisse (UK) Limited[42] – Leggatt J (as he then was)
  • Lachaux v Lachaux[43] – Mostyn J
  • Carmarthenshire County Council v Y[44] – Mostyn J
    1. Rather than cite the relevant paragraphs from these judgments in full, I shall attempt to summarise the most important points:

i) Gestmin:

  • We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
  • Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
  • Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
  • The process of civil litigation itself subjects the memories of witnesses to powerful biases.
  • Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
  • The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords 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 recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”.

ii) Lachaux:

  • Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities[45]. I extract from those citations, and from Mostyn J’s judgment, the following:
  • “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…”
  • Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.”

iii) Carmarthenshire County Council:

  • The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
  • However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said:
“…this approach applies equally to all fact- finding exercises, especially where the facts in issue are in the distant past. 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.”
    1. Of course, each case must depend on its facts and (a) this is not a commercial case (b) a central question is whether the core allegations happened at all, as well as the manner of the happening of an event and all the other material matters. Nevertheless, they are important as a helpful general guide to evaluating oral evidence and the accuracy/reliability of memory.
    2. I now turn to a quartet of alleged sex abuse cases against the Catholic Child Welfare Society and others. These were decided by Judge Gosnell sitting as a High Court Judge[46]. In all four cases Judge Gosnell referred to the relevant passage from Gestmin and also the guidance given by Robert Goff LJ, which Mostyn J relied on in the Lachaux case. He also set out Bingham J’s observations[47]. The three main tests which in general give a useful pointer as to where the truth lies, although their relative importance will vary from case to case are:
“(1) The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) The internal consistency of the witness’s evidence;
(3) The consistency with what the witness has said or deposed on other occasions.”[48]
    1. Judge Gosnell exercised his discretion under section 33 of the Limitation Act 1980 in different ways:
  • In AB he refused to allow the action to proceed. One of the factors was clear evidential prejudice to the Defendant due to the passage of time, the most significant prejudice being the inability to call specific witnesses at trial.
  • In CD he allowed the action to proceed on the basis that the effect of the delay on the cogency of the evidence was not significant, given the fairly narrow enquiry to establish whether the abuse took place, and the benefit of expert evidence and voluminous documentation to assist on the effects of the abuse. Most of the witnesses relevant to the allegations were still alive and able to give evidence for the Defendant.
  • In EF the judge refused to allow the action to proceed. Amongst other things there were concerns about the cogency of the evidence in terms of the Claimant’s vagueness on details, and the fact that two of the three alleged perpetrators who had given evidence had no memory of the Claimant. There was little or no contemporaneous documentation and the experts agreed that the paucity of documentation made their assessment of causation very difficult, if not verging on impossible.
  • In GH the judge allowed the action to proceed, albeit that the Claimant was “not a convincing witness” [65]. The main alleged perpetrator was available to give evidence. He denied sexual abuse and the judge said “it can be said that his evidence would have been no clearer 24 years ago than it is now. It is not something that he is likely to have forgotten.” There are explanations as regards three other potential witnesses for the Defendant. The judge said that the documentation in GH was “both extensive and illuminating” and that “what little documentation was unavailable had very little, if any, impact on the fairness of the trial.”[49]
    1. These are, then, some of the most important factors in approaching the evidence in this case generally and in relation to each Test Claimant:

(a) The three principles referred to in Bingham J’s article[50].

(b) “With every day that passes memory becomes fainter and the imagination becomes more active”[51].

(c) Memories are fluid and malleable, being constantly rewritten. This is true even of memories of experiencing a particularly shocking or traumatic event.

(d) Nevertheless, in my judgment, memories of a state of affairs, perhaps particularly very unpleasant ones, which take place and persist over a lengthy period of time are less likely to be erroneous as to their central facts, though many details will fade over the years.

(e) The court must be aware of the biases introduced by the process of civil litigation as outlined in Gestmin.

(f) Oral evidence given under cross-examination is the gold standard and a vital component of due process. The correct context is that the value of oral evidence lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny, and to gauge the personality and motives of a witness, rather than in testimony of what a witness recalls of particular events.

(g) As the Claimants state[52], the Claimants could not look at the documents. They were unable to read them, had no context against which to assess their contents, and lacked the ability to bring themselves to a point where they could sensibly comment. Their vulnerability left them (as both parties agree) able to rely only on recollection (and, occasionally, a map they had marked with the assistance of their legal representative) whilst giving evidence. The Claimants suggest that this means that they were disadvantaged as opposed to the Defendant. There is some force in this, but there is also force in the fact that they could not be cross-examined on documents. To what extent that would have been relevant in any event, given the lack of documents which pertained specifically to them, is difficult to assess. Further, the Claimants say that when the TCs’ recollections do correspond with the documentation, that provides a high degree of confidence that the evidence is reliable and accurate. This will need to be considered on a case by case basis.

(h) I have been referred to an abundance of documents in this case and will need to consider to what extent these documents assist in testing/corroborating oral evidence[53]. A matter of some importance is that, unlike in many cases, there is nobody to comment on or put into context what documents there are.

(i) There are no contemporaneous documents which refer to any incident of assault or battery alleged by a Test Claimant and, in particular, no medical or other records. There is no Defendant witness who is an alleged perpetrator of any tort on any TC. In TC34’s case there is no witness from either side, who can give direct evidence of any of the core allegations or of anything at all about him. The lack of documentation relevant to a particular Test Claimant means that the ability to test or respond to the Claimant’s oral evidence against any contemporaneous documents, coupled with the fact that the Defendant was not in a position to put a positive case to any Test Claimant, means that the potency of that evidence is reduced. The Defendant did call some witnesses, but it was very rare for a witness to have been the author of a document such that the document could properly be put into context by that witness.

Corroborative Witnesses
    1. The Defendant criticises the lack of any corroborative evidence called by the TCs. Apart from TC18, there is no witness who corroborates details in the individual accounts. This is the position with TC34. This point calls for a little exploration:
  • The Claimants say it would be astonishing if there were corroborative witnesses to the particular assaults alleged. Further, the beatings alleged by TC34 (apart from possibly at Hola) would, on his account, have been witnessed by hardly anybody else. The Claimants postulate an extreme case: even if TC34 had been beaten every day at Manyani, that would amount to no more than 300 beatings; if each beating had been witnessed by 20 different people, only 6000 people would have ever witnessed TC34 being beaten there; if all were alive, the odds would be heavily stacked against finding a corroborative witness to a beating. I accept that it is likely to be difficult to trace any such person, even if still alive. Whatever the chances, however, (a) no evidence was given by the Claimants of any attempts to trace such witnesses; (b) if TC34 had been able to call substantial credible evidence which directly corroborated his account of the core allegations, that would have been a factor in his favour in the determination of whether there can still be a fair trial, and, consequentially, whether it is equitable to allow his claims to proceed;[54](c) the lack of witnesses is the position now; that is not to say there were not witnesses who could have been available much nearer the time.
  • It is difficult to say whether there is any merit in the Defendant’s argument that there is nothing from any family member, friend or associate who corroborates at least part of the case, e.g. as to TC34’s removal to a camp, presence in a camp or the happening of some of the core allegations[55] or injuries. I do not know whether any such witnesses still exist or could be found. I have no evidence of any attempts made by the Claimants to trace any of them. Whether or not they could now have been found and called as witnesses, the position in relation to at least some core allegations, e.g. those at Ngong Forest and Gikuni, is that they were said by TC34 to have been witnessed by people not engaged by the Administration. In the absence of any direct evidence, the chances of those witnesses being available to give evidence must have diminished over time.[56] It may also be that, had this trial taken place much nearer the time when TC34 says he suffered the assaults, he could have identified and obtained evidence from (for example) other detainees who witnessed those assaults in Manyani, MacKinnon Road and Hola. We shall never know. What we do know is that there is, for whatever reason, no evidence now that corroborates TC34’s account of any of the core allegations.
  • In the course of dealing with some matters later in this judgment, I shall refer to the evidence of some witnesses whom the Claimants submit are corroborative. Apart from questions of whether they can materially corroborate TC34’s account, they are all Claimants in this litigation, a factor which may be of some relevance. On the other hand, they do not, apparently, know each other and there is nothing to suggest that their evidence was cross-contaminated or tainted in any other way.”

 

THE SIGNIFICANCE OF THE GESTMIN PRINCIPLES

This case highlights why all litigators should be familiar with the approach taken by Gestmin.  In many cases now trial judges are approaching witness evidence by directly considering the Gestmin case.  In other cases the principles are applied even if  not directly expressed.

THE GESTMIN PRINCIPLES: AN OVERVIEW

To make life simple here is a bullet point version of the Gestmin principles.

POINT BY POINT

  • There  obvious difficulty with allegations and oral evidence based on recollection of events which occurred several years ago is human memory.

HUMAN MEMORY IS FALLIBLE

  • Everyone knows human memory is fallible.
  • The legal system has not sufficiently absorbed the research into the nature of memory and the unreliability of eyewitness testimony.
  • We are not aware of the extent to which our own memories are unreliable and believe our memories to be more faithful than they are.

COMMON MISCONCEPTIONS WITH MEMORY

Two common and related errors are that:

  • The stronger and more vivid is our feeling or experience of recollection the more likely the recollection is to be accurate.
  • The more confident another person is in their recollection, the more likely their recollection is to be accurate.

THE FAULTY MODEL OF MEMORY AS A MENTAL RECORD

Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of the event and fades over time.

  • Memories are fluid and malleable.
  • They are constantly rewritten whenever they are retrieved.
  • This is true of “flashbulb” memories of a shocking or traumatic event.
  • The very description “flashbulb” memories is misleading because it reflects the misconception that memory is like a camera.
  • External information can intrude into a witness’s memory as can their own thoughts and beliefs.
  • This can cause dramatic changes in recollection.
  • Events can be recalled as memories which did not happen at all or which happened to someone else (“a failure of a source of memory”.

MEMORY IS ESPECIALLY UNRELIABLE WHEN IT COMES TO RECALLING PAST BELIEFS

Memory is unreliable when it comes to past beliefs.

  • Memories are revised to make them more consistent with our present beliefs.
  • Studies show that memory is particularly vulnerable to inference and alteration when a person is presented with new information or suggestions when their memory is already weak due to passage of time.

THE PROCESS OF CIVIL LITIGATION ITSELF SUBJECTS MEMORY TO BIASES

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

  • Witnesses have a stake in a particular version of events.
  • This is more obvious in relation to parties and those with ties of loyalty to parties.
  • More subtle influences include the very process of making a witness statement and going to court to give evidence.
  • A desire to assist the party calling a witness and a natural desire to make a good impression can be significant motivating factors.

THE PROCEDURE OF PREPARING FOR TRIAL HAS A CONSIDERABLE INTERFERENCE WITH MEMORY

Considerable interference with memory is introduced by the process of preparing for trial.

  • A witness is often asked to make a statement a long time after the relevant events.
  • The statement is usually drafted by a lawyer who is lawyer who is conscious of the significance of the issues in the case.
  • The statement is made after a witness’s memory has been “refreshed” by reading documents.
  • The documents include pleadings and other argumentative material which the witness did not see at the time or which came into existence after the event.
  • The statement goes through several versions before it is finalised.
  • Months later the witness is asked to re-read the statement and documents before giving evidence in court.
  • The effect of this is to establish in the mind of the witness the matters in the statement and documents whether they be true or false.
  • This also causes the witness’s memory to be based increasingly on the material and later interpretations rather than the original events.

THE DIFFERENCE BETWEEN RECONSTRUCTION AND RECOLLECTION

Witnesses are often asked in cross-examination the difference between reconstruction and recollection.

  • These questions are misguided.
  • There is a presumption that there is a clear distinction between recollection and reconstruction.
  • All remembering of distant events involves reconstruction processes.
  • Such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

THE APPROACH OF THE JUDGE

Mr Justice Legatt was particularly concerned with commercial cases. However, again, these matters are probably universal.

  • A judge places little, if any, reliance on witnesses’ recollections of what was said in meeting and conversations.
  • Factual findings are based on inferences drawn from the documentary evidence and known probable facts.

THIS DOES NOT MEAN THAT ORAL EVIDENCE SERVES NO USEFUL PURPOSE

  • The utility of witness evidence is often disproportionate to its length.
  • Its value largely lies in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness rather than what the witness recalls of particulars conversations and events.

THE KEY POINT

  • “Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”