THE JUDICIAL ASSESSMENT OF EVIDENCE: AN ESSENTIAL SUMMARY

In  the judgment today in The Queen on the application of ASK -v- The Secretary of State for the Home Department [2017] EWHC 196 (Admin) Mr Justice Green sets out a template for the judicial assessment of evidence.  It provides useful pointers in virtually every type of litigation.

      “It is of the nature of litigation conducted with the benefit of hindsight that lawyers excavate into lacuna and interstices in and between the evidence before the Court. Small gaps may be portrayed with forensic skill as gaping holes”

“In circumstances such as these I give far greater probative weight to the contemporary evidence than to evidence generated months or years later.”

THE CASE

The claimant brought an action alleging that he was unlawfully detained in an Immigration Removal Centre and, thereafter, detained for an unreasonably long period before transfer to a psychiatric unit.  This involved the court in reviewing a great deal of documentary evidence, including medical records and reports.

THE JUDGE’S OBSERVATIONS ON THE APPROACH TO BE TAKEN TO THE EVIDENCE

Approach to be Adopted to the Evidence
70.               Before turning to consider the evidence in this case I set out some general observations about the approach to be taken to evidence in cases such as this. In particular a number of issues have arisen as to the weight to be attached to particular pieces of evidence with the parties having adopted what were frequently diametrically opposed views of the evidence. In Das ( ibid) and in O v SSHD the Court of Appeal and the Supreme Court emphasised that the enquiry that had to be undertaken was a practical one which eschewed ” spurious” attempts to achieve accuracy (see paragraphs [23] – [25] above). These authorities lay down a warning to Courts to exercise a proper degree of circumspection in the way in which they address the evidence.
(i) Evidence must be viewed as a whole and in the round – avoiding snapshot conclusions
71.               In this case I am required to assess a significant number of medical and detention records. Many of these are abbreviated and in note form. Frequently they simply update earlier similar reports and notes and presuppose that the reader will be familiar with the prior history. When the author prepares each document he or she therefore assumes that they are being read in sequence as, in effect, an unfolding story or account. It is therefore essential for a Court to review the documents in the round and not to take snapshots and then treat the snapshot as typical or representative. This is especially important in a case involving the variable or evolving medical condition of a detainee where the true picture can be ascertained only by considering a sequence of notes and reports prepared over time. It follows therefore that if a caseworker writes (for instance) that a detainee is ” fit to be detained” or ” not fit to fly” then that might be a transient or conditional conclusion which could change within hours, days or weeks. If the conclusion is based upon the patient’s failure at a given point in time to adhere to a medication regime but the clinician is confident that the patient can be brought into a state of consistent self-medication then, obviously, the conclusion that the patient is unfit to fly may be both conditional and temporally limited. It would not be valid to alight upon an isolated statement of this nature and treat it as the definitive position.
(ii) Competence
72.               Not every documented conclusion carries weight. It is important to attribute weight only to a view, opinion or conclusion from those competent to express that view, opinion or conclusion. Many documents are authored by caseworkers who are not, for instance, psychiatrists or medical clinicians and they are not competent to express a view about such clinical matters. In practice non-specialist caseworkers often summarise or rely upon the reports of those who are competent and qualified. Where this happens it is important to consider the source of the report and not to assume that the case worker has properly transcribed or summarised the expert view.
(iii) Medical hearsay
73.               Equally it is commonplace for clinicians to record and identify the material (such as prior treatment and diagnoses) upon which they have relied to form their opinions. The purpose is to provide the context for their own opinion. That material is not always being set out in the report upon the basis that it is necessarily represents a comprehensive or definitive account of every development in a person’s prior treatment. An illustration which arose in the present case concerned the stated observation of an expert that whilst the Claimant had been in IRC detention his condition had deteriorated. This was relied upon in argument upon the basis that it was a statement of absolute fact supporting the proposition that in the IRC the Claimant’s conditions had uniformly deteriorated. But as a conclusion it was simply not accurate. It did not reflect the totality of all of the past records which showed a far more fluctuating and variable position. The position was not static as the later expert described it. Where a report is based upon documents (such as records) which are not before the court then the Court needs to exercise care and to be aware that the report is a second-hand account and may not be complete or accurate.
(iv) Avoid reading documents as if they were legal texts
74.               Many documents relied upon in Court are prepared by busy caseworkers and clinicians who (understandably) do not agonise over the most felicitous turn of phrase. Frequently the notes are conclusionary or truncated and set out conclusions with only sparse reasoning. This might be because the author knows (or assumes) that the particular entry in the records will be read by professionals who understand the shorthand and the context. Some clinical or detention review reports are quite detailed and when this is the case it is reasonable to conclude they represent a more considered view; but conversely where a document or report is abbreviated or cursory and even conclusionary such brevity is not necessarily an indication of unreliability.
(v) Piecing together the chronology
75.               It is of the nature of litigation conducted with the benefit of hindsight that lawyers excavate into lacuna and interstices in and between the evidence before the Court. Small gaps may be portrayed with forensic skill as gaping holes. For instance Ms Harrison QC, for the Claimant, argued that the Court should draw the inference that the decision to detain was taken without the clinicians knowing what the Claimant’s drug regimen was. Ms Anderson, for the Secretary of State, fairly accepted that in principle it was a part of the duty of the Secretary of State when considering the detention of a person with mental health or other medical problems, to make due enquiries as to the drugs and medication that the putative detainee was taking as of the time of initial detention. It was submitted on behalf of the Claimant that on the present facts an inference to be drawn from a brief note of drugs prescribed was that only the drug in question had been prescribed and therefore not another drug and that the evidence hence showed that the Claimant was given an inadequate combination of drugs. It was argued that this evidenced a serious and material failure on the part of the Defendant to address herself to a very material consideration. However when the wider chronology was considered it became evident that the clinicians were uncertain, at the outset, of the Claimant’s pre-existing drug regime, but this was not due to any fault on their part and they took steps to remedy the situation with expedition. I have addressed this more fully at paragraph [166ff] below. The point is referred to here to illustrate the need for careful consideration of the entire chronology but also the need not to assume that every omission is a culpable one.
(vi) Documents not written according to formula / non-reference to policy
76.               A facet of the need to adopt a ” practical” analysis of the evidence involves avoiding demanding adherence to artificially high standards. In this case criticisms were made by the Claimant of the fact that in a number of detention reviews no express mention is made of Chapter 55.10 EIG. It was argued that this evidenced a failure on the part of the Defendant to address herself to relevant considerations. In response to my questions on this Ms Harrison QC, for the Claimant, fairly accepted however that the mere omission of a reference to a policy in a document was not dispositive. What matters is substance and not form. As I find as a fact the caseworkers were aware of the policy that they had to apply and in some (generally later) detention reviews cited expressly from the policy and sought to apply it in an express form and manner. In early reports however there is no reference to the policy. A Court should be slow to assume an absence of knowledge simply because a busy caseworker does not, mantra like, recite the policy in notes, reviews and reports.
(vii) Failure to record the questions that are asked
77.               The same point applies to the questions that a case worker or clinician should ask him or herself as an analytically sequenced framework leading to an answer. Ms Harrison QC criticised the caseworkers for not asking the sorts of questions which the Court of Appeal identified in Das and the Supreme Court identified in O v SSHD. I do not read those judgments as suggesting that caseworkers must set out and methodically answer each question sequentially and then explicitly record the answer in their notes. What the Court must do is view the evidence in the round to see whether in substance the Defendant has through her officials addressed the correct issues.
(viii) Ex post facto witness statements
78.               A witness statement has been served from Ms Kiran East on behalf of the Defendant, a Senior Executive Officer who was in charge of the detained casework team which had responsibility for the Claimant. Ms Harrison QC, for the Claimant criticised the statement and the deponent as inaccurate and misleading in certain respects. The statement sets out a chronological account of the approach adopted to the Claimant at every stage of this detention. It is largely constructed by reference to the documents in the case. I would make three points in this respect. First, this sort of chronological account prepared by an official with direct knowledge and responsibility for the case is helpful to a Court in piecing together a complex story in a logical and coherent manner. However as with all evidence the account must be read in conjunction with the actual underlying documents so that the accuracy of what might be a summary in the statement is viewed in context. Second, and consistent with normal principles of judicial review, the Court will be loath to permit a decision maker to advance reasons, ex post facto, to paper over cracks in the decision or advance new reasoning which were not in mind or considered relevant at the time. Third, there is no reason why a Court should reject an explanation or evidence said accurately to reflect the position at the time (and not therefore the progeny of convenient hindsight) simply because it supplements the documentary record. A court will simply weigh that evidence along with other material and attribute weight according to its due probative value.
(ix) Avoid being wise in hindsight
79.               Finally, all parties have advanced expert reports which review the documents and then set out conclusions. The Claimant relies upon them to support the contention that, inter alia, the Claimant: (a) could not be treated in the IRC; (b) was detained for an excessively long period of time; (c) was subject to restraint upon him that was inappropriate and (d) was transferred to hospital after an excessive delay which caused him suffering; and (e) lacked mental capacity from the outset. When considering after the event evidence by experts who were not there and who did not treat the patient at the time real care is required. There is no allegation that any clinician who saw or treated ASK at the time acted negligently or unreasonably or otherwise in breach of professional duties. This was specifically confirmed by Ms Harrison QC for the Claimant during the hearing. Yet the Claimant now says that he was treated in an inhuman and degrading manner. I have set out above the law which clearly, and for good reason, indicates that the appraisal is that which occurred at the time (see paragraphs [50] – [51] above). This is in my view especially important in cases such as the present where there is a variable condition and variable diagnoses. This is not – contrary to the Claimant’s case – a situation of a stable and easily identified medical condition for which there is a widely recognised and well established medication, for example diabetes or a heart complaint. In circumstances such as these I give far greater probative weight to the contemporary evidence than to evidence generated months or years later.”

THE RESULT

The claim failed on the facts.

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