CIVIL LITIGATORS AND THE SECRET BARRISTER 4: WHY WE CAN’T TRUST THE GOVERNMENT (OR OURSELVES)
SB’s book sales plough on. It has reached the top 10 in the best seller list. The Criminal Bar Association have set up a fund to send a copy of the book to every MP. You can donate here. In case you think that you will simply be added carats rather than carrots to SB’s household* SB has made it clear that the royalties on the book raised from this page will be donated to the Bar Pro Bono Unit. Further the book’s publishers, Pan Macmillan, are matching this.
Here I want to look at one section of the book that looks at miscarriages of justice. Matters often go wrong at an early stage. Investigators “believe” the case they are bringing and confirmation bias comes to overtake everything. Whilst I am looking at cases of government agencies this is a major danger in all areas of litigation and to all litigators. Your investigation goes in one direction and there is a failure to consider, or assess, contrary evidence which (bluntly) hits you in the face at trial.
WHY WE CAN’T TRUST THE GOVERNMENT
This is in the context of the dangers of an “inquisitorial” system rather than an “adversarial” one. The inquisitorial system relies on accurate and comprehensive evidence and fact collection by government agencies. This is unlikely to happen. SB points out many high profile investigations by government agencies (the police mainly) that have led to manifest injustices.He uses the example of “Nick, who alleged high profile individuals had been involved in sex-abuse. A senior police offer went on record as saying “[my colleagues] and I believe what Nick is saying is credible and true”. Then needless to say, politicians board the bandwagon. Sixteen months, and £2.5 million later the investigation was closed. The damage to those accused men was done. A post-mortem was carried out by Sir Richard Henriques is described as “brutal”. The police had adopted a policy of “belief”
Sir Richard stated: “the policy adopted by the police “perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind.” It “has and will generate miscarriages of justice on a considerable scale.”
“In the culture of belief, nonsensical allegations are not properly challenged or tested until far too late. Conspiracy-laden ramblings are treated as immutable, protected from the same rigorous examination as the police apply to denials of guilt by the falsely accused. Evidence tending to contradict the truth of a complaint gets underplayed, confirmation bias prioritising that which might support what the police have been mandated to believe.”
A UNIVERSAL ISSUE
The danger of collection of collecting evidence with “belief” which leads to confirmation bias is a major issue in all types of litigation. It would be wrong to pick out the government or government agencies. However it is worthwhile noting that there are problem several dozen cases on this blog alone that show an agency, or regulator, falling down in its task to collect evidence properly and impartially. Take a look at When Public Officials Make Witness Statements: Farepak Revisited.
AND ITS RELEVANCE TO CIVIL LITIGATORS?
Every team in every case suffers from “confirmation bias”. This has a major impact on the way that evidence is collected. In some cases the client’s worst enemies are the people they are employing to gather evidence, or draft statements, on their behalf. Those who take witness statements are (almost universally) untrained in the task of collecting evidence. Again there are dozens of reported cases on this blog where witness statements are shown to have been risible in the way they were drafted.
Take, for example, the Farepak case, where numerous witnesses made witness statements (although this was evidence gathered on behalf of a government agency).
I had, in addition to Mrs Burns’ evidence, evidence from seven witnesses who were there to the events. All of those witnesses in my view gave honest evidence. I do not believe that they were dishonest, but it turned out that in each case the emphasis given in certain vital aspects of their affidavit evidence was slanted against the defendants unfairly and in each case all of the witnesses ultimately, in one way or another, acknowledged this, some even apologised, and some withdrew paragraphs of their evidence. This was all in the light of being confronted, as regards those paragraphs, by contemporaneous evidence which they had not been shown, or the importance of which had not been drawn to their attention, or some of which they did not even know about, in some cases even though they were contained in exhibits to their own affidavits.
Or Marsh -v- Ministry of Justice  EWHC 1040 (QB) Lady Justice Thirwall stated (of statements taken by the Ministry of Justice)
“There were undoubtedly flaws in the way some of the statements were drafted. Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years. This is not a method likely to achieve the best evidence. “
“The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues. That is why statements were served well out of time, with no explanation and why careless errors were made.”
To be fair I could add possibly a hundred similar quotes from cases involving private litigants.
IT IS NOT JUST THE HIGH PROFILE CASES
Many of the major errors in the way evidence is collected comes to light in high profile cases. As SB points out the problem is universal. The low-profile “run of the mill” case is just as likely to fall foul of the problem of confirmation bias.
ONE-SIDED FACT COLLECTION
There was a recent example of this in the Court of Appeal Miller & Anor v The Health Service Commissioner for England  EWCA Civ 144. The applicants sought judicial review of the procedural fairness of the Health Service Commissioner (“the ombudsman” ) against findings made against two general practitioners.” This is illustrative of the dangers of a public body going about its duties very much with a “confirmation bias”. Lady Justice Gloster stated:
“I shall identify as poor practice in the field of administrative adjudication, which was sadly a feature of the process followed by the ombudsman’s officials”.
“EVERY APPEARANCE OF PRE-DETERMINATION OF THE RESULT”
This court has had the advantage of being taken through the entirety of the ombudsman’s file. The contents give every appearance of pre-determination and almost none of a fair handed approach. From the outset the actions of the doctors were assessed and reported upon as if they were ‘guilty as charged’. The language used by the ombudsman’s officers was firm, concluded and adverse and gave no hint that there may be a possibility of doubt. It may be the case that the absolute nature of the standard of review adopted by the ombudsman tends to inculcate an approach that there cannot be a reasonable explanation or alternative once a clinical opinion is given by an independent advisor that is adverse. I discuss this below and I am happy to accept that the perception of bias by pre-determination does not originate in any of the officials being deliberately adverse. Although the procedure adopted by the ombudsman is intended to ring fence the initial assessment from the subsequent investigation, it is acknowledged that the adverse opinions contained in the former were in the file which was made available to the investigator. That was wrong.
It is also conceded that the ombudsman’s evidence from one of her most experienced Directors, Mr Kellett, contained an unfortunate use of language when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language: it reflected the practice of and language used by officials in the documents to which this court was taken ie unless the doctor had noted something in the clinical records, poor practice is assumed. Aside from reinforcing an impression of pre-determination, that is an inappropriate way to conduct an investigation: it merely engenders defensive note taking by doctors rather than clinical good practice. It is important to look for corroborating contemporaneous notes and also for evidence of good recording and safeguarding practices but it is also important to listen to what a professional says.
Mr Kellett’s evidence cannot be ignored. The investigator filed a statement of evidence but that was limited to events up to 17 January 2013. Why that is the case is a matter that only she can answer. Mr Kellett was not involved in this complaint but as a senior officer of the service his evidence cannot be ignored, particularly when it is the only evidence that deals with the conduct of investigations and the evidence is not contradicted other than in submissions. His evidence was that the appellants had the opportunity to “dispute” the provisional findings and recommendations rather than to inform them and more pertinently he said in his written evidence that “where the provisional decision was to be overturned, a revised Draft Report would always be produced and shared. A decision to overturn a provisional view was usually approved by a Director of Investigations” [emphasis added].
It is also of note that in this case the final report of the ombudsman contained not one trace of the extensive expert opinions provided to the ombudsman on behalf of the doctors nor of the important challenges to the advices of the ombudsman’s clinical advisors in respect of good practice, the timing of symptoms and causation. It is as if the ombudsman had never received those opinions. They were rejected without explanation. “