The Mitchell case was at the forefront of attention a year ago when the Court of Appeal set out its (apparently widely misunderstood) views on relief from sanctions. It is even more in the headlines today. The case has been widely reported on twitter (and reported very well). However the action came, ultimately, down to which witnesses the judge believed. The important point here is that no-one was lying.
(Since this was first posted the transcript of the judgment has been made available on Bailli. The transcript confirms the accuracy of the live tweeting. It confirms the view that it was issues of credibility, and in particular the primacy of documentary evidence that played a large part in the judge’s view as to what actually happened at the gate. It also confirms that the judge, albeit not explicitly, went through the process of reasoning described by Mr Justice Leggatt in Gestmin SGPS S.A. -v- Credit Suisse  EWCA 3560 (Comm). That approach is summarised here. Note, in particular the role of contemporaneous documentary evidence in the judgment in Mitchell).
I have also added a section below dealing with the comment from a Guardian journalist who watched the entire trial.
THE JUDGMENT: WHOSE EVIDENCE WAS PREFERRED?
There are obvious dangers in writing on the basis of a transcript based on tweets. However all the tweeters from the Court of Appeal. Here I am just looking at the evidence of the two principal witnesses.
Judge says Mitchell “did lose his temper” & that it can lead to “loss of inhibition in speaking & imperfect recollection”
Judge says Rowland did not have the “wit and inclination” to invent on spur of moment what a senior politician said.
Of course the judgment was much more sophisticated than that. It analysed the documentary evidence; “expert” evidence and the evidence of police colleagues. There was immediate, contemporaneous, support for the use of the “toxic” word.
Sgt Mills also called Inspector Booth, who testified that in that phone call he was told about use of the word ‘plebs’
THE SCENARIO THE JUDGE PREFERRED
It was important that PC Rowland was shown not to have taken any part in the media frenzy that took place afterwards. He made contemporaneous notes and there was evidence that he recounted the “toxic” words to a colleague immediately after the incident. Mr Mitchell had a honestly held belief he did not speak those words. However, the judge found, he was so angry that he could not really recall what was said.
ITS ALL ABOUT THE EVIDENCE
This blog has looked, numerous times, on issues of witness evidence, reliability and credibility. Two of the central issues considered on this blog that is: (i) the Mitchell case and (ii) witness evidence have collided quite dramatically. Ironically enough one of the first times was in a post that covered the procedural aftermath of the Mitchell decision on sanctions Surviving Mitchell 14: Litigators must know about credibility. Here is what was written in that post:-
“CREDIBILITY IS NOT THE SAME AS HONESTY
This is a common misconception. A witness can be totally honest and still totally wrong. Their are always different views of what happened and what was said. (Try asking competing football supporters whether a particular tackle should have been a penalty or not – they all saw the same thing, they have totally different views of what went on). Further the memory distorts matters over time.
A common finding in a civil case is that a witness is totally honest but mistaken. What has to be considered is whether the evidence will be found to be credible, not honest. This means considering the view that a trial judge will take of that witness.”
“HONESTY IS NOT SYNONYMOUS WITH ACCURACY”
This is another case that proves that point. On some occasions, as the courts have recorded in some of the posts below, strongly held views and honest convictions are more of an impediment to accuracy.
FINDINGS AS TO WITNESS CREDIBILITY THE KEY
There will, undoubtedly, be much commentary on this case. I plan to return to this issue, and the related issue of the “character” evidence and “similar fact” evidence, combined with the impact of the expert evidence, once the transcript is available.
THE FACTS AS SEEN BY THE GUARDIAN
It is interesting to read the assessment by Archie Bland a journalist who watched the trial throughout.
“The strange but intuitively obvious conclusion I drew from hearing Mitchell and Rowland is that they both absolutely believe themselves to be telling the truth.”
This is most probably the reality of the situation. However the judge had to assess two accounts. It pays to remember the guidance from Mr Justice Leggatt
“Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
OTHER POSTS ON WITNESS CREDIBILITY
This issue is also discussed in a number of other posts.