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View from the Foot of the Tower: The truth, the whole truth and nothing but the truth

Date:13 OCT 2014
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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 spirit.]

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.

For civil cases, character evidence is admissible if it follows the tests set out in O’Brien v Chief Constable of South Wales Police 2005http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050428/obrien-1.htm

'3. Any 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 [1973] 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.'

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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.

'The importance 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) [2004] 2 FLR 263 at para [26], 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) [1996] 1 FLR 80) at page 23; Ryder J in A County Council v AN and Others [2005] EWHC 31 (Fam) para [44]; in Re L (Children) [2011] 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.

[The Court of Appeal in Re S (Appeal from Sexual Abuse Findings) [2013] EWCA Civ 1254, [2014] 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 follow it).

For example:

Pigslowska [1999] 3 All ER 632, namely:

"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 evaluation."
And more recently: 

Re S (Children, W and T) [2014] EWCA Civ 638, [2014] 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 [2013] UKSC 58 [2013] 1 WLR 2477, an appeal court should not overturn findings of fact made by a trial judge unless compelled to do so.
And we have been helpfully told in Re M (Residence) [2002] EWCA Civ 1052, [2002] 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.

Good character could outweigh both medical evidence and other inconsistencies in the evidence. It would be a brave judge who would expressly say that a person’s religious beliefs weighed heavily in their conclusions about the witnesses veracity.

Andrew Pack is the winner of the 2014 Family Law Commentator of the Year award.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.