WITNESS STATEMENTS THAT REQUIRE TRANSLATION OR WHERE THE MAKER IS NOT LITERATE: FAILURE TO COMPLY WITH RULES IS NOT SIMPLY A “TECHNICAL BREACH”
In Diamond v Secretary of State for the Home Department  EWHC 3313 Mr Justice Calver considered the weight to be attached to witness statements that did not comply with the Civil Procedure Rules. The case shows why everyone should be aware of the rules relating to the preparation of witness statements and how failure to comply is likely to adversely affect the weight given to statements (if, indeed, they are found to be admissible at all).
“The breaches of the CPR and its Practice Directions referred to above are not mere technical breaches. They affect the weight which the court should give to that evidence because they concern the extent to which the court can be sure that the contents of the witness statement truthfully reflect the evidence of non-English speaking witnesses.”
The claimant was seeking to judicially review a decision that he was not entitled to British Citizenship. One major issue was the claimant’s date of birth. The claimant adduced witness statements in support of his case. These statements did not comply with the provisions of the CPR.
THE JUDGMENT ON THIS ISSUE
The judge considered the witness statements that the claimant sought to use in support of his case.
In these proceedings, the Claimant seeks to rely upon three witness statements of his mother, Anowara Khanom, as well as a witness statement of his eldest sister, Shamsun Nahar Doli (“Doli”). There was no statement from the Claimant’s younger sister, Mili, who lives in England with her husband. The Claimant said in evidence that is because she is controlled by her husband and so she would not come. Neither Anowara nor Doli gave evidence in person. They are in Bangladesh and they both state that because of Covid-19 they are unable to travel to London and there is no fast internet which would enable them to participate by video-link. The nearest town, Sylhet, is 40 miles away. At the hearing I was told that Doli had young children to look after which meant that she could not travel to Sylhet and that Anowara also could not do so because of her age. Neither of these reasons were contained in their respective witness statements and so there was a non-compliance with CPR 33.2(2)(b). However, Ms Masood did not object to the Court having regard to the evidence in their witness statements; rather, she contended that little weight should be attached to their evidence. In her impressive closing submissions, Ms Masood relied for this submission upon section 4(1) and (2)(a), (b), (d) and (f) of the Civil Evidence Act 1995 which provides that:
“4 Considerations relevant to weighing of hearsay evidence.
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
Ms Masood also relied upon the fact that the statements of Anowara and Doli do not comply with the CPR in that, contrary to PD 22, para 2.4, the statement of truth verifying the witness statements are not in the witness’s own language. I was told that Anowara Khanom cannot read or write English; indeed she states in each of her witness statements that the content of the statement has been read to her in Bangla. Similarly, Doli states at the end of her statement that the content thereof has been read to her in Bangla. Furthermore, contrary to PD 32, paragraph 18.1, 19.1 and 23.2 the witness statement does not state the process by which it was prepared, whether face to face, over the telephone or through an interpreter; it does not appear to have been drafted at any stage in the witness’s own language; it is not translated and no foreign language version has been filed with the court, together with a translator’s certificate.
Whilst I consider the failing under CPR 32.2(2)(b) to be relatively minor on the facts of this case (as I accept the truthfulness of the witnesses’ accounts as to the difficulty which they both faced in giving evidence in person or by video link in this case), I consider the failings under PD 32 and 22 to be significant failings in this case which significantly affect the weight that I should give to these written statements which have not been tested in cross-examination. The breaches of the CPR and its Practice Directions referred to above are not mere technical breaches. They affect the weight which the court should give to that evidence because they concern the extent to which the court can be sure that the contents of the witness statement truthfully reflect the evidence of non-English speaking witnesses.
In considering the weight to give to these statements, I also take into account paragraphs 4(2)(b) and (d) of the Civil Evidence Act, but not (a) or (f). I do not consider it would have been reasonable and practicable for the Claimant to have produced either Anowara Khanom or Doli as a witness in view of the fact that they live in a small village in Bangladesh without access to the internet; and so I do not consider that there has been any attempt to prevent proper evaluation of the weight of their statements. However, I do consider that the fact that (i) these statements were not made contemporaneously with the relevant events, in particular the sending of the 2003 letters and the Claimant’s obtaining of his birth certificate in 2007, but rather are made in support of his claim to be entitled to a British passport many years later, and (ii) the Claimant’s family have an obvious motive to conceal or misrepresent matters to improve his prospects of the renewal of his British passport, taken together are matters which affect the weight that I give to the evidence contained in these witness statements.