This blog has looked at the fact finding process in the Mitchell judgment several times already. Here I want to look at the issue of the “truth”. This is an issue that has wider implications for those involved in the litigation process.
MR MITCHELL WAS NOT FOUND TO BE TELLING LIES
This is important. One of the best reviews of the trial is the assessment by Archie Bland a Guardian 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.”
SO MR MITCHELL WAS RELYING ON HIS MEMORY
The human memory is not reliable, Mr Mitchell cycled away, probably forgot about this incident for a while until it emerged as a political issue the next day. By that time several police officers had made contemporaneous notes of what was said.
- He was then subject to an unparallelled attack by the media.
- There were lies told about him by police officers. PC Wallis went to jail for a year. (That did not, however, mean that the officers at the gate were telling lies).
- He subsequently had first-hand experience of meeting police officers who, thereafter, misrepresented what he said afterwards.
Further, and this is important, much of what was reported about Mr Mitchell was not true. There is a certainty irony that by far the best recognition of this came from Mr Richardson, one of the police officers who Mr Mitchell suspected was in a conspiracy against him. He wrote a letter to his Chief Superintendent after the “press storm” broke.
“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?”
BACK TO MR MITCHELL’S MEMORY
Mr Mitchell was quite right in his recollection that much that was being said about him was lies. He was also right to suspect that (some) police officers were using this incident for political reasons. However (the judge found) the reality was that he could not remember precisely what was said. On the 24th September he told his deputy that he “could not remember” what he had said the police officer. He said this again on the 17th October to another MP.
Mr Mitchell, however, is largely correct in rejecting much of what was said about him.
THE PROCESS OF LITIGATION
We don’t know the date of Mr Mitchell’s witness statement, however since we know that it had “substantial passages” covering the damages claim it is safe to conclude that it was made some time after the event.
MEMORY AND WITNESS STATEMENTS
There are many academic and popular texts on the subject of memory. However we need only consider the assessment by Mr Justice Leggatt in Gestmin -v- Credit Suisse  EWHC 3560 (Comm).
- While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
- Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
- Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
- The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
- Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
THE DIFFICULTY: GIVING EVIDENCE LOOKING BACK “KNOWING WHAT YOU KNOW NOW”.
We can, and probably should, accept Archie Bland’s view that Mr Mitchell believed he was telling the truth. The difficulty was that he had no contemporaneous documents as to what was said and had, twice, told colleagues he could not remember what was said. His memory was certainly correct that he did not say all that had been attributed to him; it was more fallible in relation to the precise words used.
This is, as the Gestmin case shows, a universal issue with litigation and one that litigators have to recognise and deal with when preparing statements and considering the merits of the case.
WHAT ABOUT PC ROWLAND?
If I have appeared sympathetic to Mr Mitchell it is because I am sympathetic to his plight as a litigant, not to what he has been found to have said. PC Rowland was proven to be correct both in what he had heard, and what he wrote down immediately after the incident. He did nothing at all to stir this incident up. This is what the trial judge said.
“PC Weatherley said that when PC Rowland told them about what Mr Mitchell had said, she wanted to make a complaint about it, but he did not:
“No, I have dealt with it. Leave it at that.”
- In a recorded telephone call to Sergeant Shaun Jones, almost certainly at 08.58.32, on 20 September, he said that:
“Everybody seems angrier about it than me. I just was a bit disappointed really.”
- When Mr Mitchell apologised to him by telephone on the afternoon of 20 September, a call overheard and noted by Chris Martin, principal private secretary to the Prime Minister, he thanked Mr Mitchell and said that it was the first time in 20 years that he had received an apology. He did nothing to help or encourage those who wished to harm Mr Mitchell or further the cause of the Police Federation in its dispute over pay and conditions with the government.”
He is, the judge found, a man ideally suited to his job. If PC Rowland were ever to swear at Mr Mitchell it would probably be in the context of “get out of the f******* way sir” as he put himself in harm’s way to protect him. [I have subsequently been told, by an experienced police officer, that PC Rowland probably wouldn’t even have sworn in these circumstances].