DRAFTING WITNESS STATEMENTS: GUIDANCE FROM THE BAR COUNCIL THAT EVERY LITIGATOR SHOULD READ

 The Bar Council has very useful guidance drafting witness statements in civil proceedings*. This deals with  the practicalities of drafting statements and ethical issues that arise in the material that can properly be included (and omitted) from statement. It is, as ever, essential reading for all those who draft witness statements.

BAR COUNCIL GUIDANCE ON ETHICS

The Guide states the issue succinctly:

  1. The cardinal principle in drafting a witness statement is that the witness will swear or affirm that the evidence is true. It is therefore crucial that the statement accurately reflects the witness’s evidence.
  2. The cardinal job of the person drafting the statement is to ensure that understand the relevant evidence and express that evidence in the witness’s own words.
  3. It is important that it is made clear to the witness that the statement, once approved, is the witness’s statement.
  4. Ultimately it is the witness’s own responsibility to ensure the evidence given is truthful.
  5. It is good practice to remind the witness of this from time to time.
  6. It is the not duty of the person drafting the statement to vet the accuracy of a witness statement.
  7. It may be appropriate to draw the witness’s attention to other evidence that conflicts with what the witness is saying and may make it difficult for a court to accept the witness’s evidence.
  8. If the witness maintains the evidence it should be recorded. Ultimately it is for the judge to decide the correctness of the witness’s evidence.

MATERIAL CANNOT BE IN THE STATEMENT WHICH IS UNTRUE

“6. It follows that the statement:

(i) Must accurately reflect the witness’s evidence. Rule 704 of the Code of Conduct states:

A barrister must not devise facts which will assist in advancing the lay client’s case and must not draft any … witness statement [or] affidavit … containing:

… (d) in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his instructions the barrister reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination ;

provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation of their accuracy by the lay client or witness.”

(ii) Must not contain any statement which Counsel knows the witness does not believe to be true. Nor should the witness be placed under any pressure to provide other than a truthful account of his evidence.

(iii) Must contain all the evidence which a witness could reasonably be expected to give in answer to those questions which would be asked of him in examination in chief. The witness statement should not be drafted or edited so that it no longer fairly reflects the answers which the witness would be expected to give in response to oral examination-in-chief in accordance with the witness’s oath or affirmation.”

EXCLUDING FACTS TO THE EXTENT THAT THE STATEMENT IS THEN MISLEADING

Although a witness statement should not anticipate cross-examination. It is improper to omit material where such exclusion renders the evidence untrue or misleading.The BGuidance considers  the possibility that omitting material from a witness statement can, in certain circumstances, improper.

“ Although it is not the function of a witness statement to answer such questions as might be put in cross-examination, great care should be exercised when excluding any material which is thought to be unhelpful to the party calling the witness and no material should be excluded which might render the statement anything other than the truth, the whole truth and nothing but the truth. While it is permissible to confine the scope of examination-in-chief to part only of the evidence which a witness could give, that is always subject to Counsel’s overriding duty to assist the Court in the administration of justice and not to deceive or knowingly or recklessly to mislead the Court (Rule 302 of the Code of Conduct). Consequently, it would be improper to exclude material whose omission would render untrue or misleading anything which remains in the statement. It would also be improper to include fact A while excluding fact B, if evidence-in-chief containing fact A but excluding fact B could not have been given consistently with the witness’s promise to tell the truth, the whole truth and nothing but the truth. Whether it is wise and in the client’s interest in any given case to exclude unfavourable material which can properly be excluded is a matter of judgment.”

* Available here 26_-_the_preparation_of_witness_statements (4)

RELATED POSTS

This issue is also discussed in a number of other 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 decision on credibility

7 Evidence, Experts & Arson: Analysing the evidence when serious allegations are made

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