THE KIMATHI DECISION 3: THE EVIDENCE GATHERING PROCESS, STANDARD QUESTIONNAIRES AND THE USE OF LEADING QUESTIONS
This is the third in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office  EWHC 2066 (QB). Here we look at the evidence gathering process, in particular the use of questionnaires and the dangers when the questions asked include leading questions.
The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants. Mr Justice Stewart was deciding one of the test cases (“TC34”) and the issue of whether the court should exercise its discretion under Section 33 of the Limitation Act 1980. This was decided as part of the trial process and not as a preliminary issue. One matter in issue was the evidence gathering process.
THE JUDGMENT ON THIS ISSUE
The methods by which the evidence was gathered was considered in detail.
The evidence gathering process
I have already cited above, from the translators’ judgment at , as to how, apparently, evidence was taken from witnesses in English. There is no documentation specific to TC34 in relation to how he first gave details of his claim. However, there is such documentation in respect of TC11. It will be apparent from the pro forma nature of the documentation, that it is likely that the system was used to obtain initial information from all potential Claimants.
There are three pro forma documents, namely a “Claimant questionnaire”, a “claim overview – form 1” and an “existing client – evidence pack”. There is a box on the questionnaire for the Claimant’s full witness statement. In TC11’s case this is described as “attached”. There is a thumb/fingerprint of the Claimant confirming that the statement is true and to the best of his knowledge, that he agrees to and understands the content of the document and that it has been explained to him in his own language.
- There is a heading “type of injury: (please tick applicable box)”. There are three boxes capable of being ticked, namely “rape”, “torture” and “detention”. Later there are three boxes headed “details of physical injuries sustained”, “details of psychological injuries sustained” and “details of property lost & damaged.” Two further boxes are “if injuries sustained whilst based at a detention camp, provide name and location of camp” and “medical history – GP/hospital attended, if any: (please provide date, name and location of GP/hospital attended).”
- There is then a Claimant identification number, a space for the identification card, Claimant’s signature and clear image of Claimant’s thumb/fingerprint. That document is dated and the name of the interviewer is given.
The claim overview form 1 again asks for formal details, but in addition asks for the address during the state of Emergency, occupation during the state of Emergency and presently, and marital status during the state of Emergency and presently. The name of the interviewer and the position and employer (Griffin Legal case worker, on behalf of Tandem Law) are completed, as is the total travelling time from Nairobi to the location. However, details of date and time of interview, total time taken to interview witness and “name of interpreter (if you had one)” have not been filled in.
There is then a section headed “incident details” which is followed by “(please make sure the claimant understands each heading)”. The first heading is
- DO YOU ALLEGE THAT YOU WERE FORCIBLY REMOVED FROM YOUR HOME: YES/NO
- AGE AT THE TIME”
There are similar questions in relation to detention, forced labour, physical assault, sexual assault and other losses. Finally, there is the client’s statement which provides as follows:
“PLEASE ENSURE THE CLIENT IS AWARE OF THE ALLEGATIONS AND CLAIMS THEY HAVE MADE
PLEASE ASK THE CLIENT TO SIGN THE BELOW IF THEY AGREE
“I have been told that the purpose of this questionnaire is to enable Griffin Legal to categorise my potential evidence and that the questionnaire will not be the evidence I give in court”.
There is then provision for signature or fingerprint. This form is undated.
The final document is the 16 page “existing client – evidence pack”. This is a detailed document filled in on 2 August 2013 by a Griffin Legal case worker on behalf of Tandem Law. There are multiple pro forma questions under the headings “forcibly removed”, “detention” and “forced labour”. Broadly, the questionnaire follows a similar format asking for example:
“Do you allege that you were forcibly removed? Yes No
Who removed you? British Military Kenyan Police Home Guard Other
Did you sustain any injury during the removal? Yes No”
There is then the option of circling various parts of the body if injury has been alleged. There is a line “alleged perpetrator British Military Kenyan Police Home Guard Other”. There are similar multiple-choice questions in relation to detailed types of physical assault.
It seems therefore that the information was recorded only in English. The evidence pack is thumb printed by the Claimant “in the presence of the undersigned witness, having first confirmed that he/she had familiarised themselves with its contents by having a translation read to them.” TC11’s evidence pack is witnessed by the case worker who signs this declaration.
i) The questionnaire is in English and contains leading questions on matters of importance
ii) In the question about psychological injury four possibilities are set out, namely “anxiety”, “nightmares”, “flashbacks” and “other”. The Defendant says there is no indication of how these terms were explained in the native language.
iii) The headings in the questionnaire are similarly used in the witness statement and AIPOC of TC34 (and other TCs).
THE DANGERS OF THE USE OF QUESTIONNAIRES
The criticism of the use of questionnaires in this case was relatively mild. The main problems arose because of the decision to use English as the language to record the initial statements (a language the witnesses could not read).
However there are always dangers in the use of questionnaires. Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd  EWCA 2264, at 456