LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED
“This may be an interesting year for the consideration of issues relating to the accuracy of memory. An interesting case where the relevant principles were considered in detail can be found in the judgment in EF -v- The Catholic Child Welfare Society (Diocese of Middlesbrough)  EWHC 3336 (QB). The judgment reviews the principles in some detail. The case confirms that the “Gestmin” principles are not confined to commercial cases but are of general applicability.
This was one of a number of test cases arising from allegations of abuse in various schools. In this case abuse was alleged to have happened between 1972 and 1973.
THE JUDGE’S REVIEW OF THE RELEVANT PRINCIPLES
Given the length of time that had elapsed, it is perhaps not surprising that the judge considered the relevant principles in some detail.
In many cases the assessment of the credibility of competing witnesses is crucial to the proper consideration of the evidence in the case. This is particularly true of allegations of sexual abuse which, by their nature, are unlikely to be capable of independent verification either by a witness or a recording in a document.
In his instructive article entitled 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.”
Mr Justice Bingham went on to conclude that the first three of the tests may be regarded in general as giving a useful pointer to where the truth lies, whereas the fourth test is more arguable. As regards the fifth, he was of the view that:
“the current tendency is … on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty.”
“Speaking from my own experience, 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 facts 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. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness’ motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth.”
Whilst this extract speaks of cases of fraud it could equally be applied to cases such as the present one where it would not be difficult to find motives why either the Claimants’ or the Defendants’ witnesses might choose to lie.
On any view the recollection of witnesses about events which occurred many years ago is important in this case. The reliability of a witness’s recollection is difficult to assess independently of an assessment of their likely truthfulness. The difficulty was identified and analysed in a recent decision of Mr Justice Leggatt in Gestmin SGPS S.A. v Credit Suisse (UK) Limited and others  EWHC 3560 (Comm) where he said:
“15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, 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.
22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, 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.
23 It is in this way that I have approached the evidence in the present case.”
Mr Justice Leggatt was dealing with a commercial case in this litigation but it seems to me that the analysis is apposite to any case where witnesses are being asked to give evidence from their recollection of events many years previously.
“There are serious problems for the expert arising from the fact that the material events took place over 40 years ago. Memory is not reliable over such long periods of time. Recall is an active mental process in which memories tend to become distorted with time to fit the individual’s beliefs, needs and values. Both the content and meaning of recollections often change with time. Event can and do acquire a significance years later that they did not have at the time. “
“We agree that, even in the most honest and reliable of informants, there would probably be difficulties in recalling events accurately after so many years. We agree that the lapse of time can probably account for some of the inconsistencies observed in this case.”
THE JUDGE’S CONCLUSION IN RELATION TO THE WITNESS EVIDENCE
The judge declined to exercise his discretion under Section 33 of the Limitation Act 1980 in this case. However he did consider the evidential issues in detail. Some of the alleged perpetrators were dead, others had been convicted. However the claimant’s evidence was found to be insufficient to establish that abuse had, in fact, occurred.
The whole history of the allegations against Brother James is fraught with problems. Firstly it is alleged that the Claimant was abused both sexually and physically in Brother James’ office at a time when he did not have an office. When the Claimant saw Ms Farrell he told her that Brother James did not sexually abuse him although ” he knew what was happening” [C1/C/92]. He had alleged in his first statement that he was sexually abused by Brother James in the Tower but in his second statement he alleged only physical abuse and denied any sexual abuse in the Tower. In his evidence he was asked about this inconsistency and he said the entrance to the Tower was clearly visible from the yard and other boys would be able to see him enter and leave “so it wasn’t quite private enough for him”. It is difficult to make sense of this reasoning as his evidence is that Brother James came into the Tower to physically abuse him in any event, with the entrance I assume in full view of other boys. The allegations that Brother James abused him in front of other boys at the swimming pool, in the dormitory or on camping trips do not sit well with this explanation.
Although I accept that there is a risk that the Claimant was physically and/ or sexually abused whilst he was a pupil at St William’s because of the presence of known perpetrators there I cannot find on the balance of probability that he was. Whilst he was not openly an unconvincing witness his evidence to the court generally is vague and inconsistent. There are significant inconsistencies in what the Claimant has said to the court and others at various times. Many of the allegations are inherently implausible and he never really adequately explained why he chose not to reveal the abuse at any stage in his prison career, even after he had made his first disclosures when he accepted in evidence that he might have been able to use the history to his advantage. He has failed to discharge the burden of proof on him of satisfying me that the abuse occurred on the balance of probability. I accept there may be differing explanations for why he would give this evidence but I do not need to make a specific finding as to his motivation when I do not need to do so to resolve the case.
The litigation & memory series
- Lawyers, litigation & memory: The Memory Illusion
- Lawyers, litigation & memory II: How you are affecting the memories of witnesses (& possibly sowing the seeds for defeat).
Key posts of witness evidence and memory
- In-House course on witness statements and civil procedure.
- Witness statements: When things go wrong – blame the solicitor.
- Witness statements: alteration and the fallible memory: a scientific study.
- Witness statements and Hillsborough: confirmation bias at its worst.
- Why lawyers have to know about the fallibility of memory (even company lawyers)