WHICH WITNESS IS GOING TO BE BELIEVED? A HIGH COURT DECISION ASSESSING THE CREDIBILITY OF WITNESSES
It is essential that litigators have a keen understanding of how witness evidence is likely to be assessed at trial. Many trials take place precisely because there is a conflict of evidence between the witnesses. An example of a close and careful analysis of witness evidence can be found in the judgment of Mr Justice Turner in Laporte & Christian -v- Commissioner of Police for the Metropolis  EWHC 3574 (QB). It is important to note that the judge found that, for the most part, the witnesses were honest but mistaken. Some witnesses, however, were more mistaken than others.
THE CASE: ACTION AGAINST THE POLICE
This was an action against the police following their handling of the claimants in a protest that took place in Haringey Civic Centre in 2011. The essential questions of fact related to precisely what had happened. The assessment of the witnesses was central to this.
THE JUDGE’S PRELIMINARY OBSERVATIONS IN RELATION TO EVIDENCE AND HIS JUDGMENT
There had clearly been detailed submissions made in relation to credibility. These were noted in the judge’s preliminary observations.
- At the outset, I would wish to say something about the way in which I propose to attempt to meet the challenge, which arises in acute form in this case, of producing a satisfactory judgment which is also one of manageable length. I have considered a very substantial quantity of material. The parties in this case have produced opening and closing written submissions which run to a combined length of about 280 pages all of which I have read carefully. These documents contain long and detailed catalogues of inconsistencies and implausibilities which each side contends have the effect of weakening the evidence of the witnesses called by the other. As one might expect, the documents also contain a substantial number of examples of material alleged to enhance the credibility of their own witnesses. Whilst paying tribute to the level of industry to which these well intentioned and articulate submissions attest I resist the temptation to try to reconcile and resolve all of the subordinate issues which have thereby been generated. As the Court of Appeal held in Customs and Excise Commissioners v A and Another  Fam. 55:
“82 A judge’s task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process…
83 However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.
84 Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”
- I have tried to balance those advantages and disadvantages in what follows by giving reasoned decisions on those issues of fact which I consider to be central but without dealing with every peripheral issue the resolution of which would not in any event impact on my essential findings or upon the outcome of the claims.
The judgment contains a detailed consideration of the background facts and the relevant law. However we are concerned primarily with the assessment of the witness evidence.
ASSESSING THE EVIDENCE
- The determination of the issue as to whether there was an ongoing or imminent breach of the peace at the time of the arrival of the TSG has been complicated by a number of factors:
i) The events in question unfolded at different times and in different parts of the building often in crowded and confused conditions in which no single witness would be in a position to make a confident assessment of everything or even most of what was going on.
ii) Inevitably, to varying degrees, protester witnesses were inclined to interpret events in the way most favourable to their own standpoints and police witnesses were inclined towards justifying their actions retrospectively by overstating the seriousness of the state of affairs at the Civic Centre.
iii) Emotions at the time were running high on both sides and objectivity was further impaired as a result.
iv) The incident took place about three and a half years before these claims came to court by which time recollections could be expected to have been weakened and rendered more unreliable by the passage of time.
- Inevitably, a considerable proportion of the trial was spent in perfectly legitimate cross examination by both sides, the purpose of which was to establish that the protester witnesses and police officers respectively were unreliable and inaccurate in their recollections of the events of the evening.
- It is not my intention to rehearse each and every respect in which the evidence of the individual witnesses was either resilient to or undermined by the workings of the adversarial process. To embark on such a task would be disproportionate and would add unnecessarily to an already lengthy judgment. I will, however, summarise the position.
- With respect to the protester witnesses I find, by way of example, a number of points of criticism properly to have been made out by the defendant.
- The protester witnesses all expressed themselves in their witness statements in a way which was economical with the truth as to the circumstances of their invasion of the corridor. I am satisfied that these statements were in their own words in compliance with CPR 32 PD 18.1. It was clear from the video footage that sustained and heavy physical force was used to overcome the resistance of the officers in the corridor. Yet this was alluded to in their respective witness statements simply as the crowd “moving” or” making its way” down the corridor. Their explanations under cross examination for this omission were generally unsatisfactory. Mr King, one of those who invaded the corridor, asserted that he made no mention of the force used against the police because he did not consider it to be relevant. His daughter, Esther, also present at the time, maintained that she did not regard this at the time to have been an important matter to have been included in her statement. Mr Over, another protester, persisted in saying that when making the statement he did not consider the use of force against the police to have been relevant.
- The protester witnesses also demonstrated the strength of their feeling in other ways which were likely to contaminate the level of objectivity they could be expected to bring to bear upon their appraisal of the situation. Mr King considered that the use of force and passive resistance was entirely justified and his comments to a passer by outside the building after the incident reveal a level of pride in having, he thought, stopped the meeting. I do not doubt the genuineness of the convictions and strength of feeling of Mr King or any of the other protesters but I am unable to escape the conclusion that the very fervour of their beliefs seriously undermined the chances of their forming an impartial view as to the seriousness of the situation which had developed in the Civic Centre.
THE ANALYSIS OF THE EVIDENCE WAS NOT A ONE WAY PROCESS
However this was not a one-sided acceptance of the evidence. The witness evidence adduced by the defendant was scrutinised and criticised.
- On the other hand, the police witnesses were, in some cases, overplaying the seriousness of the incident at least as strenuously as the protesters were underplaying it.
- With respect to the evidence of the local officers, and in particular, PC Bloomfield and Acting Police Sergeant Kneebone, the accounts which they gave in their witness statements were considerably more detailed in some respects than those which they had given earlier under section 9 of the Criminal Justice Act 1967. Much of this detail went to the seriousness of the events upon which the breach of the peace issue fell to be determined. There is force in the claimants’ contention that it is surprising that such detail, if accurate, was not incorporated in the earlier statements made when matters were bound to have been fresher in the officers’ minds. As with the protester witnesses, I do not find that there is any element of deliberate dishonesty revealed by the content of the witness statements in this regard. Nevertheless, I am satisfied that that I must treat the additional detail with come caution.
- The criticisms levelled against the TSG officers are more serious.
- I am satisfied that, after the event, efforts were made to ensure that the TSG officers produced in their notes of the incident a consistently gloomy picture of the situation which they had earlier faced at the Civic Centre. It is not disputed that it is entirely appropriate for officers, in general, to confer in making their notes in order to preserve, at the very least, a coherent chronology of events. Nevertheless, each officer must record his or her own individual recollection rather than follow a “party line”. There are respects in which I have concluded that officers allowed their individual accounts to be contaminated either by information received from Inspector Wakeford or others thereby distorting their own recollections.
- Firstly, the TSG officers all recorded after the event that they had responded to an urgent assistance call from officers inside the Civic Centre. However, all calls are intended to be recorded on a computerised system known as CAD. The operator of the system on the evening in question recorded no request for urgent assistance. He or she recorded two requests for assistance from the two officers in the corridor but neither was labelled as urgent. No officer was called to give evidence that it was he or she who made the urgent call and no audio recordings have been produced. I conclude that there was no urgent call but that Inspector Wakeford inaccurately referred to an urgent call as the officers were conferring in making their notes and that the power of suggestion was such that unreliable hearsay was all too swiftly and undeservedly promoted to the status of direct personal recollection.
- Secondly, in their notebook accounts, seven of the TSG officers described themselves as running into the building and through the reception area. The CCTV evidence reveals that their progress was generally somewhat slower than this. By the time the officers came to make their witness statements, they had seen the CCTV footage and their accounts of the speed with which they entered and proceeded through the Civic Centre were trimmed accordingly.
- Thirdly, many of the officers recalled seeing significant numbers of protesters active outside the Civic Centre at the time of their arrival. No such activity is to be seen in the clear view provided by the CCTV footage at the material time.
- Fourthly, six of the TSG officers recorded that the fire alarm was still sounding and this was adding to the confusion as they were escorting the protesters down the stairs from the third floor landing. Again this is contradicted by the film footage which reveals that the alarm had stopped sounding some considerable time earlier at a time when the TSG officers were going through the foyer and before they had even reached the corridor.
- Fifthly, I am satisfied that the descriptions given by many of the TSG officers of the level of resistance and aggression shown by the protesters are overstated. I accept that the film footage would only record a proportion of what was occurring but it would be too much of a coincidence if, by chance alone, none of the more extreme examples of obstructive, aggressive and violent behaviour relied upon had been captured.
ASSESSMENT OF THE INDIVIDUAL WITNESSES
- My assessment of Ms Laporte was that she was essentially an honest witness but one who struggled not to see things through the distorting lens of her own firm convictions. I am also satisfied that it is likely that, with the passage of time, her interpretation and recollection of events has hardened and become more entrenched in her own favour and that of the protesters in general.
- The basis for my finding that some caution must be exercised in accepting the accuracy and objectivity of Ms Laporte’s evidence takes into account the points made by the defendant in his written closing submissions but, in particular:
i) She betrayed an undue scepticism of the motives of the police and the Council members which was not supported by the evidence. For example, she dismissed the efforts of Claire Kober to persuade the protesters to allow the meeting to go ahead as half-hearted. Having seen the film footage, I am bound to disagree. It is difficult to see what more Ms Kober could reasonably have done.
ii) She understated her own role in the incursion into the canteen corridor saying in her witness statement that: “It took me by surprise and very quickly I was pushed from behind up against an officer. The crowd then made its way down the corridor.” The film footage shows her to have been at the front of the protesters at this point and reveals a concerted and determined use of force by the protesters against the police officers. I am satisfied that she has attempted to minimise her involvement in the invasion of the corridor and her inconsistent explanations of her conduct and state of mind at the time are attempts to rationalise her behaviour after the event. This is conduct which, if she had been able to maintain a more objective perspective, she may well subsequently have regretted. For example, her speculation that she thought that the police officers might have willingly let them through was implausibly optimistic and, at best, reveals an element of self-delusion.
iii) I was unpersuaded that Ms Laporte’s overriding state of mind was one of anxiety and fear for her safety as she was going down the stairs. Her pleaded case was that she did as she was instructed and moved down the stairs trying to do so carefully to avoid falling. It became clear in the course of cross-examination, however, that Ms Laporte resented that fact that the police were expelling the protesters and she was deliberately going slower than her natural pace in order to lay down a marker. If she had been seriously concerned about the risk of injury she would not have increased the danger by acting in a way which was calculated to encourage the police to continue to push her forwards.
iv) The level of Ms Laporte’s emotional response to the police action is revealed by the film footage showing her shouting at a police officer on the third floor landing: “What the fuck are you doing?” This, together with her demeanour at the time, reveals that her state of mind was not likely to be conducive to a cool and rational appraisal of how her actions were liable to be interpreted by the police officers on the stairs.
- It is also to be noted that she gave a no comment interview after caution and her first recorded account was that set out in her letter of claim of 19 June 2012. Thus there was plenty of time over which her memory of events was liable to degenerate into more of an ex post facto rationalisation of her conduct than an accurate recollection.
- It is clear from the concessions she made in cross examination that, as she was going down the stairs, Ms Laporte was deliberately pressing at the boundaries of conduct which might lead to her arrest. She wanted to make her point by going intentionally slowly but without being seen to be so obstructive as to precipitate her arrest. In the end, this risky balance was one which she failed to maintain.
- Before I turn to analyse the sequence of events on the stairs which was to lead to the arrest of Ms Laporte I must emphasise that it occurred over the course of a very short time indeed. With depressing predictability, the film footage and still photos do not capture the central moments so I have to rely primarily upon the accounts of eye witnesses. The accounts of these witnesses are, in many cases, coloured by the attitudinal perspective from which their authors viewed the incidents, irreconcilably inconsistent with the accounts of other witnesses, inconsistent with their own earlier accounts and impaired by the passage of time. The result is a Gordian knot of evidential complexity.
PREVIOUS CONDUCT AS AN AID TO ASSESSMENT
The judge considered evidence of a previous complaint about a police officer giving evidence.
he behaviour of PC Thomas had earlier been the subject of a complaint by one Mr Tallis arising out of a completely separate incident which occurred in Parliament Square in May 2009. Footage of the incident in question was admitted in evidence. It shows PC Thomas administering a knee strike to Mr Tallis. PC Thomas explained his actions as being in response to Mr Tallis struggling to prevent him from applying a conventional police hold. I am unable, on the limited evidence available, to conclude that PC Thomas’ response was deliberately disproportionate but he is in my view properly to be criticised for failing subsequently to record the fact that he perpetrated a knee strike in his later note of the incident. I find that PC Thomas knew that he should have made a note but considered that life would be easier for him if he omitted to do so. I do not infer from this, however, that he was thereby attempting to cover up the use of force which he well knew to be excessive. I must therefore bear in mind that PC Thomas has, in the past, shown himself capable, for the sake of expediency, of deploying a level of economy with the truth. This does not mean, however, that he is, therefore, liable to resort to wholesale fabrication to cover up a deliberate and violent abuse of power. Accordingly, I exercise the requisite degree of caution when assessing his evidence but I do not find that the strength of the evidence relating to Mr Tallis’ complaint requires me, without more, to dismiss it as being inevitably mendacious.
ASSESSMENT OF AN ARGUMENT IN RELATION TO UNREASONABLE FORCE
- I am not satisfied that Ms Laporte was treated with excessive force. I draw attention to the following factors:
i) Her recollection and interpretation of events was coloured by her anger and resentment at the involvement of the TSG. She believed that they had no right to expel the protesters and her restraint in the witness box can be contrasted with the footage showing her shouting profanity on the third floor landing.
ii) She showed a readiness to reach conclusions which cast the darkest light on the motives and actions of police officers where other interpretations were, on a more objective analysis, perfectly plausible. For example, by the use of the adjective “eventually” in describing the process by which her rucksack was removed in her witness statement, the clear impression was given that there was undue delay in the process. However, the evidence as a whole demonstrated no such culpable delay.
iii) Her evidence in relation to the amount of force deployed was not compellingly supported by photographic evidence which was produced during the course of the trial relating to marks on the left arm and wrists which was, at best, ambiguously indistinct.
iv) She made no formal complaint about her treatment either before or immediately after the criminal proceedings in which she was acquitted. This was done, she said, on the advice of her solicitor but I find her to be an intelligent and strong minded individual who would have been well able to form an independent view of whether to make a formal complaint.
v) There was a long delay between the occurrence of the incident and the first account from Ms Laporte concerning what she alleges happened during the course of which it is likely that her recollection would have become more polarised and generally less reliable.
vi) People in the vicinity were openly recording what was occurring on mobile phones and on camera. As it happens, the first photograph of the incident was not taken until after Ms Laporte had been taken to the floor but officers acting in an overtly excessive display of force would run the risk that this would have been captured for all the world to see with potentially devastating effects on their careers and the attendant likelihood of criminal proceedings and conviction.
ASSESSMENT OF OTHER WITNESSES
- My assessment of the credibility of Mr Christian does not differ markedly from my assessment of Ms Laporte. The reliability of his evidence is undermined by the following factors:
i) He was evidently passionate about the justice of his stance and continued to chant loudly after the breach of the peace which led to the occupation of the council chamber. I pass no comment upon whether his conduct, of itself, amounted to a breach of the peace at this stage but merely observe that his continued chanting emphatically demonstrated where his sympathies lay and how strong they were.
ii) In common with Ms Laporte, his account in his witness statement of his progress and that of the other protesters down the canteen corridor omits any mention of the sustained use of force against police officers and paints the picture of a gentle and unimpeded promenade. There is some doubt about what, if any part, he played in the physical pushing but he was a direct witness to these events and participated in the common purpose by chanting and making his way with other protesters beyond the second set of doors leading into the canteen area.
iii) His accounts of what occurred are not wholly consistent. In his letter of claim he asserted that he had turned back as he was proceeding along the corridor and he noticed that protesters ahead of him were being pushed back by the local officers. The film footage and photographs, however, reveal that he actually made it into the canteen and was waving his placard there for some time before he was made to leave by the officers. In fact, he was one of the last to retreat.
iv) Mr Christian said in cross examination that but, for the intervention of the police, he would simply have showed his placard to the councillors in the canteen and would have left of his own accord. I simply do not accept this as being even remotely likely. The extent of his earlier determination coupled with the evidence of the films as to the extent of his reluctance to leave after he had shown his placard expose this as a piece of retrospective wishful thinking.
Again the judge found that there had not been unreasonable force.
- I do not accept Mr Christian’s account of excessive force used by the police officers. I take particular note of the following:
i) On the day after the incident, Mr Christian made a prepared statement about the events in question with the assistance of a solicitor. This account omits any reference to being punched. I would have expected that if Mr Christian had any recollection, at this stage, of having been punched he would have recorded it. It would still have been very fresh in his mind and of undoubted significance. I do not find the fact that he was distressed and worried at the time to provide a sufficiently convincing explanation for his omission.
ii) Mr Christian’s evidence, both in relation to the knee strikes and punches, was unclear. He said he could see the knee strikes to his stomach but not the fists to his chest. This account, if accurate, is hard to explain but it is, on the other hand, consistent with a reconstructed memory of blows which did not actually take place and the infliction of which had therefore left no coherent visual image in Mr Christian’s mind.
iii) Any officer attempting to punch Mr Christian to the chest would have to have bent right down in order to do so. For an officer intent upon using casual and gratuitous violence such a move would have been as elaborate as it would have been inexplicable.
iv) Mr Christian accepted that the blows complained of were not causing him strong pain in the immediate aftermath of these events as he was walked towards the wall to which he was faced. There was no physical evidence of any injury.
v) The evidence of other protesters was not very helpful to Mr Christian’s account. Mr Over described the punches as having been struck when Mr Christian was standing or stooping and not when bent over. Miss Hewitt had the impression that Mr Christian, her partner, was being beaten up but could not recollect any particular assaults at all. Ms Phillips did not see either punches or knee strikes.
vi) Again, the use of sustained and manifestly excessive force would run the risk that it would be recorded on film with extremely serious consequences for the officers concerned.
vii) PC Carnegie accepts that he attempted to strike Mr Christian with his knee albeit with limited success. In the rapidly developing and confusing sequence of events it is not too difficult to see how his actions may have been perceived and/or subsequently recalled as a deliberate and unwarranted physical attack.
- In the circumstances, I am satisfied that Mr Christian’s arrest was lawful and that he was told about the fact of his arrest and the reason for it as soon as was practicable. Doubtless the handcuffs which were applied were uncomfortable but their use was proportionate and Mr Christian was not treated with excessive force.
THIS IS AN UNUSUAL CASE: IT WON’T APPLY TO MY TYPE OF LITIGATION
This issue of the credibility of witnesses is central to most types of litigation. A future post will deal with witness credibility in the context of major commercial litigation.
FINDINGS AS TO WITNESS CREDIBILITY THE KEY
This issue is also discussed in a number of other posts.
1. Litigators must know about credibility.
2. Witness Statements and Witness Evidence: More about Credibility.
3. Which Witness will be believed?Is it all a lottery?
4. The witnesses say the other side is lying: What does the judge do?
5. Assessing the reliability of witnesses: How does the judge decide?