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View from the Foot of the Tower: The truth, the whole truth and nothing but the truth
Sep 29, 2018, 19:59 PM
family law, evidence, oath, trial by ingestion, reforms
On my blog recently there has been a discussion about whether a court should give greater weight to the evidence of someone who is devoutly religious, because they are more likely to take the oath seriously. This article considers whether that is the case, and the extent to which the court considers character when weighing evidence.
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On my blog recently there has
been a discussion about whether a court should give greater weight to the
evidence of someone who is devoutly religious, because they are more likely to
take the oath seriously. This article
considers whether that is the case, and the extent to which the court considers
character when weighing evidence.
There’s some sense in the
original assertion – if a person really believes that God is watching and will
know if they are lying are they more likely to give honest answers?
[That’s the whole basis of Trial by Ingestion – one of
the trial by ordeals of the Middle Ages. The suspect / witness was given dry
bread and cheese blessed by a Priest and if they choked whilst eating them then
they were lying and guilty. To our modern eyes this seems like a deeply
unsophisticated method, but it actually worked in those times because most
people believed that God would watch and intervene and that they would not be
able to get away with their lies. I am wary of writing about Trial by Ingestion
for fear that the MoJ might try to implement it – on the basis that parties
provide their own bread and cheese, of course.]
On the other hand, the
corollary of that would be that judges should routinely give less weight and
suspect people of lying if they were not religious.
Even if you were minded to
believe that, Art 14 of the Human Rights Act prevents a public body
(including a court) to discriminate against a person on the basis of their
religious belief, or lack thereof. It
would also be unlawful to do so as a result of the Equalities Act 2010.
Might the judge consider the
evidence in the light of the way that the oath is delivered? You can imagine
that someone who believes in God might be more punchy and forceful in giving
the oath. Can that be taken into account? Conversely, if someone gives the aath
in a halting, hesitant and doubtful manner, would that not colour how the judge
sees their later evidence?
If an advocate sees a witness
give the oath and have their fingers crossed behind their back, would they be
right to draw that to the court’s attention?
When does a witnesses
EVIDENCE start? Is it in the delivery of the oath, or only after the oath is
given? If the way they deliver the oath
makes them look shifty or guilty, is it legitimate for the court to take that
into account? [I’m afraid that this is a
rhetorical question and I simply don’t have the answer. I think in the ‘fingers
crossed’ example, the oath would probably be administered again and the court
would notionally put the episode out of its mind and give it no regard at all.
And if you believe that would actually work, I admire your faith in the human
If a devout Christian or
Muslim don’t start with additional bonus points purely because of their
religious beliefs, can a court take into account a person’s general character
and values when considering how much weight to give their evidence? When looking at character evidence, a court
is entitled to take into account both reputation and disposition.
If a witness were to be
devoutly religious then it might be possible to adduce evidence that they are
kind, put others first, have a set of values and a moral code and that they
would not breach those values or code lightly. That’s not to say that those
qualities are exclusively held by religious people, but that they might be a
route into establishing them. Nor does holding those values mean that the
witness is incapable of telling a lie or making a mistake.
[I think the ‘incapacity to tell a lie’ would be
reserved in court as a factor for either George Washington or Pinocchio. Sadly,
the first never said it – the story about 'I cannot tell a lie' is erm, a lie;
and the second does lie but just with recognisable ‘tells’. If one were
cross-examining Pinocchio, it might be necessary to request a ruler or tape
measure be deployed during his evidence.]
Family law is rather less
rigorous about character evidence than the criminal law, where there is a
rather different approach to the laws of evidence in any event.
evidence, to be admissible, must be relevant. Contested trials last long
enough as it is without spending time on evidence which is irrelevant and
cannot affect the outcome. Relevance must, and can only, be judged by
reference to the issue which the court (whether judge or jury) is called upon
to decide. As Lord Simon of Glaisdale observed in Director of Public
Prosecutions v Kilbourne  AC 729, 756, "Evidence is relevant if
it is logically probative or disprobative of some matter which requires proof ... relevant (ie logically probative or disprobative) evidence is evidence
which makes the matter which requires proof more or less probable".
4. That evidence of what happened on an earlier
occasion may make the occurrence of what happened on the occasion in question
more or less probable can scarcely be denied. If an accident investigator, an
insurance assessor, a doctor or a consulting engineer were called in to
ascertain the cause of a disputed recent event, any of them would, as a matter
of course, enquire into the background history so far as it appeared to be
relevant. And if those engaged in the recent event had in the past been
involved in events of an apparently similar character, attention would be paid
to those earlier events as perhaps throwing light on and helping to explain the
event which is the subject of the current enquiry. To regard evidence of such
earlier events as potentially probative is a process of thought which an
entirely rational, objective and fair-minded person might, depending on the
facts, follow. If such a person would, or might, attach importance to evidence
such as this, it would require good reasons to deny a judicial decision-maker
the opportunity to consider it. For while there is a need for some special
rules to protect the integrity of judicial decision-making on matters of fact,
such as the burden and standard of proof, it is on the whole undesirable that
the process of judicial decision-making on issues of fact should diverge more
than it need from the process followed by rational, objective and fair-minded
people called upon to decide questions of fact in other contexts where reaching
the right answer matters. Thus in a civil case such as this the question of
admissibility turns, and turns only, on whether the evidence which it is sought
to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense
probative. If so, the evidence is legally admissible. That is the first stage
of the enquiry.
5. The second stage of the enquiry requires the
case management judge or the trial judge to make what will often be a very
difficult and sometimes a finely balanced judgment: whether evidence or some of
it (and if so which parts of it), which ex hypothesi is legally admissible,
should be admitted. For the party seeking admission, the argument will always
be that justice requires the evidence to be admitted; if it is excluded, a
wrong result may be reached. In some cases, as in the present, the argument
will be fortified by reference to wider considerations: the public interest in
exposing official misfeasance and protecting the integrity of the criminal
trial process; vindication of reputation; the public righting of public wrongs.
These are important considerations to which weight must be given. But even
without them, the importance of doing justice in the particular case is a
factor the judge will always respect. The strength of the argument for
admitting the evidence will always depend primarily on the judge's assessment
of the potential significance of the evidence, assuming it to be true, in the
context of the case as a whole.'
It might well be, therefore,
that with a parent who is suspected of having injured a child, their previous
good character and demonstration of moral values and probity would be
admissible evidence when the court is weighing up whether or not they are
telling the truth about a particular incident.
The courts in recent years
have moved more towards placing the parents evidence in relation to physical
injuries and the court’s assessment of character and veracity as a central
component of the determination process. Indeed, there are many examples in the
last two years of the court preferring the evidence of parents to the medical
opinion when considering whether a child has been deliberately harmed.
For example, in the High
Court decision of Re O (A Child) 2014, the court drew
together a series of examples from other cases about the importance of the
court looking at ALL of the evidence, not just the medical evidence.
of other evidence, particularly where medical opinion is not unanimous, should
not be overlooked or undervalued. As
Butler-Sloss P said in Re U: Re B (Serious Injury: Standard of Proof)  2
FLR 263 at para , the court’s responsibility is to survey a wide canvas
of the evidence (see Lord Nicholls of Birkenhead in Re H and R (Child Sexual
Abuse: Standard of Proof)  1 FLR 80) at page 23; Ryder J in A County
Council v AN and Others  EWHC 31 (Fam) para ; in Re L (Children)
 EWCA Civ 1705, Thorpe LJ said in dismissing the appeal:
'Clearly from the forensic standpoint, given any
degree of uncertainty in the medical and scientific field, the judge’s
appraisal and confidence in the parent is absolutely crucial to outcome.'
The Family Courts have also
embraced the criminal concept of a “Lucas Direction” - that a Court must take into account that
the fact that a person is lying about “A” does not inexorably lead to a
conclusion that they were lying about B, C, D and E as well. People can have
many reasons for lying.
Court of Appeal in Re S (Appeal from Sexual Abuse Findings)  EWCA Civ 1254,  Fam Law 153 say that it is helpful, but not mandatory,
for the court to give itself a Lucas direction – it might fatally flaw some
cases but not others.]
Idly, I wonder whether there
is such a thing as a Reverse Lucas direction – that just because a judge has
found that a witness has told the truth about A, B and C does not mean that the
witness is automatically deemed to be telling the truth about D.
To be honest, I have never
been entirely sure how much Lucas really bears down on a decision. If as a
judge, you are deciding whether mother or father caused an injury to the child,
and both deny it, and during the hearing father has been caught out in four or
five lies and mother’s account has been shown to be truthful on four or five
things, it would be peculiar to put that completely out of your mind when
deciding which of them is telling the truth on the major issue.
Certainly when you are in
court and a witness is caught out in a demonstrable lie, there isn’t much of a
sense along the front row that 'ah well, it doesn’t really matter that he’s
lying about that because of Lucas'.
There’s relatively little
guidance about how a court is to weigh the evidence of a witness and what
weight is to be given to various factors. The Court of Appeal generally say
that the advantage of a trial judge in having seen and heard the witnesses is
not to be taken lightly when considering whether to grant an appeal (sometimes they ignore this and sometimes they
Pigslowska  3 All ER
"It is because specific findings of fact, even by
the most meticulous judge, are inherently an incomplete
statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded
by a penumbra of imprecision as to emphasis, relative
weight, minor qualifications and nuance … of which time and language do not permit exact description, but which
may play an important part in the judge's overall
And more recently:
Re S (Children, W and T) 
EWCA Civ 638,  Fam Law 1233
The weighing of conflicting evidence is pre-eminently
a matter for the trial judge. For all the reasons given in a string of
decisions of the House of Lords or the Supreme Court, culminating most recently
in McGraddie v McGraddie  UKSC 58  1 WLR 2477, an appeal court
should not overturn findings of fact made by a trial judge unless compelled to
And we have been helpfully
told in Re M (Residence)  EWCA Civ 1052,  2 FLR 1059 that the assessment of the
credibility of a witness is a matter for the judge. (I am
not sure that anyone has ever suggested seriously that it isn’t.)
How a judge chooses to weigh
up the evidence is thus largely a matter of discretion. One suspects that an
appeal court would be more favourable to a judge who outlines with examples and
citations from the evidence why they preferred one witness to another, as
opposed to a Judge who says that witness A seemed like a better and more honest
person than witness B.