THE MITCHELL JUDGMENT AGAIN: PREVIOUS INCONSISTENT STATEMENTS
The issue of witness credibility in the Mitchell case has already been considered on this blog. However reading the transcript gives rise to more issues. Here we look at one – the significance of the previous statements made by Mr Mitchell as what was said at the event.
EARLIER STATEMENTS BY MR MITCHELL THAT HE COULD NOT RECALL WHAT HE SAID IN THE VITAL CONVERSATION
- In a conversation with John Randall MP on 24 September, Mr Mitchell said that he could not recall what he had said to the police officer. Mr Mitchell said in evidence that that was said by him, if he did say it — which he accepts that he may well have done — because he wished to close down any discussion with Mr Randall about the incident. I accept that he wished to do so but not that he would do so by telling a flat lie to his deputy. I am satisfied that what he said was substantially true: he could not remember what he had said.
- A similar statement to like effect made on 17 October to Michael Fabricant MP, because it was made three weeks later, is of much less significance.
RELATING THIS TO EARLIER OBSERVATIONS ON CREDIBILITY AND EVIDENCE
Many Judges look to the same source for assistance when determining factual disputes. As did Stephen Smith Q.C., sitting as a High Court judge, in Freemont (Denbigh) Ltd -v- Knight Frank LLP  EWHC 3347 (Ch).
JUDICIAL OBSERVATIONS ON WITNESS CREDIBILITY AND EARLIER STATEMENTS
Many judges, as part of their judgments, have referred expressly to The Judge as Juror: The Judicial Determination of Factual Issues, published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation:
“The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
(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) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.”
LACK OF “CONSISTENCY” IN THE MITCHELL CASE
It was this lack of consistency between what had been said earlier and the later statement that the “toxic” words had not been said that was a factor in the judge’s determination of the facts over the relevant period.
ALSO WORTH READING
Judges often cite the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis  2 Lloyds when he set out a number of factors a judge determining differences between witnesses .
“Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that 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 accident occurred.”
In the Mitchell case the account given immediately afterwards, that he could not remember what he had said, was taken to to be of some significance.
THIS DOES NOT MEAN MR MITCHELL WAS LYING OR DELIBERATELY TRYING TO MISLEAD
I have already mentioned the Guardian article and the assessment by Archie Bland a journalist who watched the trial throughout.
“The strange but intuitively obvious conclusion I drew from hearing Mitchell and Rowland is that they both absolutely believe themselves to be telling the truth.”
It is when both parties believe they are stating the truth that the trial judge has to carry out the most careful analysis of the facts.A later post will look at the importance paid by documentary evidence.