WITNESS EVIDENCE AND DOCUMENTS: GESTMIN CONSIDERED IN THE SUPREME COURT
In Bancoult, R (on the application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)[2018] UKSC 3 the Supreme Court considered the “Gestmin” principles. There are several aspectse of the judgment. Here we look at the judgment in relation to the importance of documentary evidence and the confirmation by the Supreme Court that the Gestmin approach is appropriate in these circumstances.
“Being able to confront a witness with statements that she or he previously made which are inconsistent with their testimony is one of the most important tools in the cr0ss-examiners’ armoury”
“ Case law emphasises the importance of documentary evidence in assessing the credibility of oral witnesses. … all these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
THE CASE
The Appellant is the chair of the Chagos Refugees Group. He represents residents of the Chagos Archipelago in the British Indian Ocean Territory (‘BIOT’) who were removed and resettled elsewhere by the British Government between 1971 and 1973 and were prevented from returning, There were challenges to decisions made by the government which affected the possibility of residents returning.
One issue in the case related to the admissibility of a “leaked”document. A communication between the respondent and American government – referred to as the cable.
THE JUDGMENT ON THIS ISSUE
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The Divisional Court concluded that the cable was not admissible in evidence. It nevertheless permitted Mr Pleming to cross examine Mr Roberts and Ms Yeadon about its contents on the basis that its authenticity was assumed but not established. The Court of Appeal considered that the cable was admissible but held that, even if it had been admitted, it would have made no difference to the conclusion of the Divisional Court that improper motive had not been established.
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The arguments about admissibility have been fully canvassed in the judgments of Lord Mance and Lord Sumption and need not be repeated here. I agree with Lord Mance that it has not been established that the cable remained part of the archive of the London mission and, on that account, that the status of inviolability can no longer be claimed. I also agree with Lord Sumption that it cannot be a violation of the US embassy’s archives to use in litigation a document which has entered the public domain.
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One must keep in mind that the exclusion of the cable had two distinct effects. First, it restricted the cross examination of Mr Roberts and Ms Yeadon. It was not possible to challenge them on the basis that the document was genuine and was to be taken as having recorded their statements at the meeting and, in Ms Yeadon’s case, subsequently. Being able to confront a witness with statements that she or he previously made which are inconsistent with their testimony is one of the most important forensic tools in the cross-examiner’s armoury. Technically, Mr Pleming was bound by the answers given by the witnesses to questions based on the cable’s contents. This would not have been the case if the cable had been admitted in evidence.
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It has been suggested that the evidence given by Mr Roberts about the meeting on 12 May and Ms Yeadon’s own evidence “give a picture which is generally and substantially consistent with that presented by the cable”. Much of the evidence that they gave coincides with the contents of the cable, it is true. But in crucial areas it is incontestably inconsistent. It is not in the least surprising that much of the evidence from the civil servants and the contents of the cable were found to coincide. Indeed, it was part of Mr Pleming’s admitted strategy to point to that coincidence in order to establish the cable’s authenticity. But to imply that there were not highly significant differences, differences which, moreover, touched on the very issue at stake in this case, is unrealistic. Mr Roberts denied using the expression, “Man Fridays”. Ms Yeadon denied that Mr Roberts had said that “establishing an MPA would in effect put paid to resettlement claims”. This is directly contrary to the contents of the cable. Indeed, it is directly contrary to the evidence of Mr Roberts himself, for he is recorded as having accepted that he did say to the US officials that the establishment of an MPA would in effect put paid to the resettlement claims. The opportunity to exploit these differences if the cable had been admitted in evidence, as it should have been, cannot be airily dismissed. The entire cursus of the cross examination (and consequently the conclusions that might have been reached on the critical issue) could have been radically different.
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The second consequence of excluding the cable from evidence was that it did not rank as independent material with the potential to act as a significant counterweight to the FCO witnesses’ testimony. If the Divisional Court had admitted the cable in evidence, it would have to be pitted as an item of evidence which was in many respects directly contrary to the testimony of Mr Roberts and Ms Yeadon. The court would have been required to assess the veracity and reliability of their claims against the contemporaneous evidence provided by the cable. As it was, the Divisional Court merely theorised about whether Mr Pleming’s cross examination would have been more effective if the cable had been admitted in evidence. It did not consider the cable’s contents for their capacity to discredit the testimony of the two FCO witnesses.
(ii) The curtailing of cross examination
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Dealing with the impact of the exclusion of the cable from evidence, the Court of Appeal said at para 88:
“[Our] outline of the cross-examination of both witnesses does not capture its full flavour. It was extensive and searching. In our judgment, Mr Pleming was not disadvantaged by not being able to put questions on the basis that the cable was authentic and a true record of what was said at the meeting of 12 May 2009. He tested the evidence of Mr Roberts and Ms Yeadon on the basis of the cable. It is true that he was not able to put questions like: ‘have you any explanation for the fact that you are recorded as having said X when you deny having said it?’ But it is unrealistic to suppose that, if Mr Pleming had been able to put such questions, this would have materially affected the thrust or course of the cross-examination or of the answers that were given. The Divisional Court was right to say that the dividing line between questions which its ruling permitted and those which it did not permit was ‘fine’. In our judgment, the inhibition on Mr Pleming’s questions can have had no material effect on the course or the outcome of the cross-examination. Mr Pleming was able to, and did in fact, explore the accuracy of the contents of the cable with both witnesses. In particular, he probed the purpose of the MPA and whether what was purportedly recorded in the cable as having been said had in fact been said.”
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It is true that there was extensive cross examination of Mr Roberts and Ms Yeadon based on the contents of the cable. The difference between probing witnesses’ accounts and confronting them with admissible evidence which flatly contradicts their accounts should not be underestimated, however.
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As the Court of Appeal observed (in para 80 of its judgment), Mr Roberts refused to answer questions as to whether the contents of the cable were accurate. This was in reliance on the government’s policy of “neither confirm nor deny” (NCND) policy. It appears to have been accepted without demur by the Divisional Court and the Court of Appeal that NCND justified this stance. For my part, I would not be disposed to accept that this policy could be resorted to in order to avoid answering a relevant question with which the court was required to deal. Given that the Divisional Court had decided that the authenticity of the cable should be assumed, it appears to me that Mr Roberts should have been required to answer as to whether what was recorded in the cable faithfully recorded what had taken place. As it happens, of course, Mr Roberts did address the question whether some parts of the cable were accurate – see para 81 of the Court of Appeal’s judgment.
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What is clear, in my view, is that Mr Roberts could not have relied on NCND if the cable had been admitted in evidence. Nor could he have refused to deal with what the Court of Appeal described in para 82 of its judgment as “the ultimate question”: whether he had an explanation for the fact that he was recorded as having made certain statements which he denied having uttered. In deciding whether being required to answer such a question could have made a difference to the outcome of the Divisional Court case, one must consider the range of possible responses that might have been given. (In this context, Lord Mance has accepted for the purposes of the appeal that the appropriate question is whether the admission of the cable could have made a difference – see para 23 of his judgment. For reasons that I will give later in this judgment, I consider that this is indubitably the correct test in this instance.)
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If one imagines that Mr Roberts’ answer to the “ultimate question” was that he had no explanation, or even, when pressed, that the cable was indeed accurate and that he recanted his initial disavowal of what he was recorded as having said, it is not difficult to conclude that this could have made a significant difference to the court’s assessment of him as a reliable witness. The Court of Appeal did not consider the range of possible responses that Mr Roberts might have given to this question. In my opinion, it should have done. And if it had done, it could not have reached the conclusion that it did.
(iii) The capacity of the cable to counter the FCO evidence
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The Court of Appeal dealt cryptically with the second issue, namely, the status of the cable as independent material with the potential to act as a counterweight to the FCO witnesses’ testimony. At para 89, the court said, “[w]e do not accept that there is a realistic possibility that the court’s assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted in evidence as an authentic document”.
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Case law emphasises the importance of documentary evidence in assessing the credibility of oral witnesses. In Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce, having reviewed the various reasons that a witness’s oral testimony might not be credible, stated, “all these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.” In Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1, 57 Robert Goff LJ made this observation:
“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”
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That approach was approved by the Privy Council in Grace Shipping Inc v CF Sharp & Co (Malaya) Pte Ltd [1987] 1 Lloyd’s Rep 207 and applied in a number of subsequent cases. For example, in Goodman v Faber Prest Steel [2013] EWCA Civ 153, the Court of Appeal held that the trial judge had erred in accepting a personal injury claimant’s evidence of pain without dealing with contradictory documentary evidence and explaining why the claimant’s evidence was to be preferred. Moore-Bick LJ applied the approach of Robert Goff LJ and stated that “memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken. That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth”. He concluded that:
“[O]ne is left with the clear impression that [the judge] was swayed by Mr Goodman’s performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case. It may have been open to her to prefer what he had said in the witness box, but if she was minded to do so it was incumbent on her to deal with the documentary evidence and explain why Mr Goodman’s oral evidence was to be preferred.”
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It is not to be suggested that the Divisional Court ignored or disregarded the “important documentary evidence” which the cable constituted. But if it had admitted the cable in evidence, as should have happened, the contrast between some of its contents and the evidence of Mr Roberts and Ms Yeadon would have been starker. The need to confront the discrepancy between the two could not have been avoided.
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Although said in relation to commercial litigation, I consider that the observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), paras 15-22 have much to commend them. In particular, his statement at para 22 appears to me to be especially apt:
“… the best approach for a judge to adopt … 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.”
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The intellectual exercise on which the Divisional Court was engaged in evaluating the evidence of Mr Roberts and Ms Yeadon, having refused to admit the cable in evidence, was quite different from that on which it would have had to embark if the evidence had been received. By refusing to admit the evidence, the court effectively had confined its role to an assessment of how well the witnesses had withstood cross examination. If the cable had been admitted, the discrepancies between the contents of the cable and their testimony would have had to be considered objectively, while keeping in mind all the adjurations as to the likelihood of contemporaneous documentary evidence being intrinsically more reliable.
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If the Divisional Court had admitted the cable in evidence, what were the possible consequences? If it had concluded, as well it might, that it was inherently unlikely that the cable would have recorded Mr Roberts as having said there would be “no human footprints” and no “Man Fridays” on BIOT’s uninhabited islands, unless he had actually used those words, what impact would that have had on his believability? These were striking expressions. Indeed, Ms Yeadon said that, if they had been used, she would have been shocked. Could they have been fabricated by the author of the cable? Why should they have been? If the cable had been admitted and was therefore a freestanding item of evidence, it is at least possible that the Divisional Court would have decided that it was unlikely that the person who composed the cable would have fabricated those phrases and attributed them directly to Mr Roberts. And, if it was concluded that this was unlikely, what effect would that have on Mr Roberts’ credibility in light of his denial of having used them?
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When the Court of Appeal came to consider what difference the admission in evidence of the cable might have made, the question for them should have been whether a different outcome was possible, not whether that would have happened or even whether it was likely. (I will explain presently why I consider that the possibility of a different result was the correct test.) The Court of Appeal, however, seems to have considered various possible formulations at different points of its judgment. At para 89 it twice stated that it was unrealistic to suggest that the court “would” have reached a different conclusion, had the evidence been admitted. Later in the same paragraph the court said that it had borne in mind that “a legally correct approach would have made no difference to the outcome: see, for example, R v Chief Constable of the Thames Valley Police, Ex p Cotton [1990] IRLR 344, per Bingham LJ at para 60.” These statements suggest that the appeal court considered that, unless the admission of the cable would have made a difference, as opposed to whether it could have done so, a review of the Divisional Court’s decision would not be appropriate. I do not consider that this is the correct test and I turn now to that issue.