THE MITCHELL JUDGMENT 2: THE ROLE OF DOCUMENTARY EVIDENCE

The judgment in the substantive Mitchell case has been examined several times on this blog. Not in relation to political and other ramifications but instead considering the judge’s analysis of the evidence.  The previous post looked at the difficulties posed by inconsistent evidence. Here we look at the importance of contemporary documentary evidence.

THE DOCUMENTARY EVIDENCE

The contemporaneous documents consisted of the police note books and contemporaneous e-mails.  Immediately after the incident the police were told to take notes.

  1. Sergeant Mills told him and everyone who had witnessed the incident to make notes or statements immediately.  At some stage before PC Rowland and the police officers on the gate left for APEX House in a police van shortly after 8 pm, PC Rowland did so.  His note reads:
  2. “Chief Whip Andrew Mitchell : ‘Best you learn your fucking place, you don’t run this fucking government, you’re fucking plebs’.”

DID INCONSISTENCIES IN THE NOTES LEAD TO THE WITNESS BEING UNRELIABLE

  1. Mr Price submits that inconsistencies in the account which PC Rowland has given undermine his credibility to the point at which I should conclude that he, unaided, or with the help of the three other police officers at the gate, did fabricate the words.  There have been inconsistencies and one gap in his account, of which the following are the most significant examples.
  2. 1.  In his police notebook completed after he returned to APEX House, he wrote:

“As we got to the gate …”

In other words the pedestrian gate:

“… Mr  Mitchell  said, ‘Best you learn your fucking place …’.”

Et cetera.

  1. Whereas in his email to Inspector Booth at 21.22 he said that Mr Mitchell  spoke, “as we neared it”, ie the pedestrian gate.
  2. And in his interview by Sergeant Coles during the Operation Alice investigation on 6 January 2013 he said it happened, “as we walked across”, ie the pavement leading to the pedestrian gate:

“It’s between … as we walk across and there, but I can’t say, I’m really sorry.”

  1. His account in evidence as noted was that Mr Mitchell  had finished speaking by the time that he, PC Rowland, arrived at the pedestrian gate.
  2. 2.  In evidence he said that he made the entry in his police notebook, in which he sets out the words used by Mr Mitchell  between the first unexplained telephone call and that made to Sergeant Mills at 19.37.23.  The CCTV footage shows, as he accepted in cross-examination, that he could not have done.
  3. 3.  The first telephone call remains unexplained.
  4. 4.  He said he had gone to 10 Downing Street after the incident to confirm Mr Mitchell ‘s identity with the custodians and thought he had done so.  The undisputed evidence of one of them, Mr Wilds, is that they did not have a photograph of Mr  Mitchell  so that PC Rowland could not have confirmed his identity by that means.
  5. I acknowledge that these inconsistencies and gap do exist but they do not demonstrate that PC Rowland’s account of the incident is fabricated.  These inconsistencies are the sort which inevitably occur when a witness has given an account on several different occasions about an incident which arose unexpectedly and lasted for no more than 3 minutes and 20 seconds, from the moment that Mr Mitchell  left his office to the time at which he exited the gate. 

THE CONTEMPORANEOUS E-MAIL

He did so between 8 and 9 pm.  PC Rowland told him that Mr  Mitchell  had called the police officers “fucking plebs”.  Inspector Booth told him to email him with the details of what had happened.  He did so from APEX House at 9.22 pm.  The email reads:

  1. “Sirs and Sergeants,

“Whilst on duty at D3B tonight, Wednesday 19 September, on a 1400 to 2200 hours, between the hours of 1800-2000, I had to deal with a man claiming to be the Chief Whip and whom I later confirmed to be such and a Mr Andrew  Mitchell .

  1. “Mr Mitchell  was speaking to PC Gill Weatherley, demanding exit through the main vehicle gates into Whitehall.  PC Weatherley explained to Mr  Mitchell  that the policy was for pedal cycles to use the side pedestrian exit.  Mr  Mitchell  refused, stating that he was the Chief Whip and he always used the main gates.
  2. “I explained to Mr Mitchell  that the policy was to use the side pedestrian gates and that I was happy to open those for him but that no officer present would be opening the main gates as this was the policy we were directed to follow.  Mr  Mitchell  refused, repeatedly reiterating that he was the Chief Whip.
  3. “My exact explanation to Mr Mitchell  was:
  4. “‘I’m more than happy to open the side pedestrian gate for you, sir, but it is policy that we are not to allow cycles through the main vehicle entrance.’
  5. “After several refusals Mr Mitchell  got off his bike and walked to the pedestrian gate with me after I again offered to open that for him.  There were several members of the public present, as is the norm, opposite the pedestrian gate and as we neared it, Mr  Mitchell  said:
  6. “‘Best you learn your fucking place … you don’t run this fucking government … you’re fucking plebs.’

OTHER ENTRIES IN THE NOTEBOOKS

  1. Further, some of the words which he spoke were heard by other police officers.  Mr Richardson heard him say:

“Please don’t swear at me.”

  1. And recorded as much in his countersigned notebook, made up between 8.30 and 8.45 pm that night.
  2. PC Weatherley heard PC Rowland say:

“Please don’t swear or I will arrest you.”

  1. And recorded as much in her notebook, purportedly initialled by her, but not countersigned, at 19.47 that night.

PC WEATHERLEY

Her notebooks were subjected to close scrutiny.

  1. Her note reads:

“Chief Whip argues to be let out via vehicle gate.  I instruct him to use side gate as are instructions via Inspector Roberts.  Toby, 457D, Roger Tupman, 618D, present.  I heard Toby saying, ‘Please don’t swear or I will have to arrest you’.  At this time there are numerous members of the public by ped [pedestrian] gate.”

  1. There is then a line and her initials.
  2. PC Weatherley said that she had used two pens because she put one down before completing her note.  Mr Price suggested that the second part of the note was made later and that the time at the foot of it is false.  I reject that submission.  It requires that PC Weatherley deliberately falsified her police notebook and has lied about the circumstances in which she made the note.  I do not believe that she is capable of such serious dishonesty.
  3. Further, as I will demonstrate, unless the four police officers were exceptionally subtle conspirators, it is surprising that her note of what happened does not fully support the allegedly false account.  The second part reads:

“As Toby returned us, he said, ‘He just called us fucking plebs and we should know our fucking places’.  After a short discussion I went to D4 post to make my pocket notebook entry.”

  1. There is then a time, 19.47 and a date, 19/9/2012, and her initials.
  2. There is no mention of shocked members of the public and none of the words, “You don’t run the fucking government”, in her note.
  3. I am satisfied that her note is a genuine contemporaneous note of what happened.  It provides powerful support for PC Rowland’s account and to PC Weatherley’s evidence about what occurred.

SLIGHT DIFFERENCES SUGGEST A LACK OF COLLUSION

  1. I am satisfied that PC Tupman was a truthful witness.  He gave his evidence in a straightforward manner and was careful to state no more than what he remembered seeing and hearing clearly.  As in the case of PC Weatherley, his police notebook entry does not contain all of what PC Rowland says he told him about what Mr Mitchell  had said, that:

“He had just warned him that he would be arrest for public order as he was swearing at him and called him a ‘fucking pleb’.”

  1. Again, this suggests a lack of collusion, rather than collusion.  I can see no reason to doubt his evidence, even the police notebook entry that several members of the public were stood outside the gate during the incident.  It is no more than a marginally mistimed observation.  There were several people immediately outside the gate immediately after the incident, who can be seen looking in at the four police officers discussing what has happened.

DOCUMENTS AND EVIDENCE:  HOW DO THEY MIX?

There are a number of cases where judges have set out, expressly, how they consider contemporary documents and witness evidence.

FAREPAK

Peter Smith J in the Farepak case

On contemporaneous documentation at paragraph 71:

“… we all know in litigation that the first port of call in any case is the contemporaneous documents: see what people said when they were not writing for posterity, i.e. a trial, and see whether what they say now can  be consistent with what they said then, and if it is inconsistent then find out why they say something different now to what they said at the time. This is an essential part of preparing evidence…”

THE OCEAN FROST

Robert Goff LJ given in The Ocean Frost [1985] 1 Lloyds Rep 1 at 57:

“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case…

CREDIT SUISSE

Gestmin -v- Credit Suisse [2013] EWHC 3560 (Comm)  where Mr Justice Legatt was faced with a number of witnesses who gave evidence about a large number of issues over a considerable period of time.

“In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

LORD BINGHAM

Lord Bingham of Cornhill approved by the courts is apposite. In “The Judge as Juror: The Judicial Determination of Factual Issues” (Often cited in judgements).

“In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time.”

“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred”

 CONTEMPORARY DOCUMENTS ARE IMPORTANT

Mr Mitchell had no contemporary documents. Indeed, as we have seen,  earlier he stated that he could not remember what was said.  In the absence of an express finding that the police officers had immediately colluded to fabricate their written account, the contemporary documentary evidence carried considerable weight.

FINALLY LOOK AT THIS DOCUMENTATION

The nail in the coffin for Mr Mitchell’s case was the evidence of Mr Richardson  It is evidence that has not received much coverage but is extremely telling. Note, in particular, the importance of the letter which shows a wholly balanced and unbiased view.

  1. Of all of the witnesses to the incident, Mr Richardson was and is the most objective.  He was within three weeks of retirement, after 30 years of unblemished police service.
  2. After the press storm broke, he wrote an impressive letter to Chief Superintendent Tarrant, the officer in command of the Diplomatic Protection Group.
  3. He wrote to complain about the lack of response by senior officers to the incident, which he said had allowed the Police Federation to hijack the issue.  He said that a concise and correctly worded press release should have been made quickly, which would have prevented the media “feeding frenzy”.
  4. He produced an eminently sensible draft.  He also made the justified complaint that senior officers had not passed on PC Watson’s email about the incident on 18 September to the police officers on gate duty on 19 September.
  5. His letter concluded with two significant comments:

“I saw on TV both National and Metropolitan Federation representatives stating that officers concerned are ‘comfortable with the version printed in Friday’s Sun newspaper’. I am not comfortable, nor had I been asked.  Descriptions such as ‘rant’, ‘explode with fury’, and ‘furious rant at WPC’, I consider to be gross exaggerations.  Most of this reporting is also, in my opinion, grossly unfair to Mr  Mitchell .  Could there not have been a response by the Metropolitan Police?  Did the absence of a comprehensive account of the matter leave us unable to issue any clarification?”

  1. And:

“Where did The Sun get their information from?  With the matter recorded correctly and as directed on Wednesday evening, there appears to have been a serious breach in confidentiality by the time of The Sun’s print run on Thursday night.  Does this not question the very integrity of the DPG?”

  1. Both comments were justified.  The first showed that he had kept a sense of balance and perspective.  It shows that he had no animus against Mr Mitchell  or wish to promote any agenda of the Police Federation.
  2. The second comment is made the more powerful by the first.  An honest and level-headed police officer told his commanding officer that the matter had been correctly recorded as directed by Sergeant Mills and Inspector Booth on 19 September and by necessary implication from the words, “There appears to have been a serious breach of confidentiality”, that what had been correctly recorded had been disclosed to The Sun; in other words, what had been leaked was true.
  3. His own note did not record what PC Rowland said Mr Mitchell  had said to him because he regarded it as a minor incident and because PC Rowland would make his own note.  However, as he said in evidence in re-examination, Gill Weatherley had shown him a copy of PC Rowland’s report, in other words his email to Sergeant Norton, on the night of 19 September.  It was that report on which he relied to refresh his memory when he made his witness statement for the purpose of Operation Alice on 17 December 2012.
  4. I quote the answer which he gave in cross-examination verbatim:

“Answer:  I wrote them down because I recollect I remembered that that was what Toby said when I saw his report.

  1. “Question:  Well, that’s what I’m asking you.  You didn’t write that down from memory, did you?
  2. “Answer:  Not from complete memory, absolutely not, no.
  3. “Question:  No, you copied it out of another document?
  4. “Answer:  Believing that that was the correct words, yes.  I don’t know about another document.”
  5. Mr Richardson is not the sort of man who would put his name to a witness statement or give sworn evidence to support a former colleague if he had any doubt about its truth or accuracy.  I am satisfied that he knew that PC Rowland’s email description of the words used by Mr Mitchell  was correct and that his evidence that PC Rowland relayed this to his Whitehall gate colleagues immediately after the incident is both truthful and correct.
  6. The notion that Mr Richardson was involved in a conspiracy to create a false account or even to exaggerate or distort the truth is, in my judgment, absurd.  I accept his evidence without reservation.”

RELATED POSTS

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. The Mitchell judgment again: Previous Inconsistent Statements.

 

 

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