MORE ABOUT WITNESS STATEMENTS AND CONTEMPORARY EVIDENCE: THE RULE OF RECENT FABRICATION

The post on the decision in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 led to an interesting comment. However that comment, in itself, leads to further interesting questions about the use of witness statements.

KEY ISSUES

  • Judges (as a general but not invariable rule) clearly express a preference, in general, for statements made nearer to the date of the incident.
  • Witness statements are often composite documents which reflect, in part, instructions and statements made earlier in the proceedings.  However they are signed at a much later date.
  • A trial judge cannot possibly dissect which parts of the statement are from earlier statements and which part added at a later date.
  • Is this dilemma solved by a party taking and serving an early statement in addition to a later “fuller” statement?
  • Should the early statement be exhibited to the the served witness statement.
  • In any event it is important that litigators are aware of the principles relating to the “rule of recent fabrication”. This allows earlier statements to be adduced in evidence if it is alleged in cross-examination that the evidence of the witness is a recent fabrication.

THE KEY PARTS OF THE DECISION: THE CLOSER IN TIME THE BETTER

The judge in Bartlett considered a number of witness statements and commented.

“It is a matter of common sense and experience that, in general, the recollection of a witness is likely to be better closer to the index incident than further from the event in question. Put bluntly, memories are likely to fade and the more time that passes the greater that risk. Further, it also the case that, in general, a witness’ recollection of an event is likely to be better if it involves an unusual incident or an unfolding series of events rather than an occurrence which is of no real interest at the time and only later becomes relevant or important.”

 “There is a real danger that with the significant passage of time a witness may replay the events in their mind resulting in a greater chance that their “recollection” becomes influenced by hindsight, sympathy or extraneous materials. In such a case there is a real risk that the witness may recount what they consider to be a genuine recollection of the events although the same has been affected by the passage of time and tainted by hindsight”.

THE COMMENT FROM MARTIN PEIRSON

This led to the following comment from Martin Peirson

“With regard to a number of posts on the subject of witness statements there seems to be a misunderstanding by trial judges regarding the recollection of facts and the dating of witness statements. In my experience seldom, if ever, will the initial statement taken from the claimant be exchanged as part of the court proceedings. It will at the very least be updated regarding quantum prior to exchange. The exchanged statement may well therefore be dated say 2 years after the relevant events but the facts set out in the statement are not being recollected anew after 2 years. Those facts may well have been given to the instructed solicitor a day or two after the accident, noted down clearly and then form part of an early draft statement approved by the claimant. It is therefore incorrect to say the claimant is attempting to recollect events 2 years later and that recollection should therefore be criticised in this way.

I accept there seem to have been other relevant factors in this case but the date of the statement is often a red herring”.

FAIR COMMENT: BUT HOW IS A JUDGE GOING TO KNOW WHICH PARTS OF A STATEMENT ARE WHICH?

This is absolutely a fair comment.  The difficulty is how is a judge going to know what part of the evidence is “contemporaneous” and what part given shortly before the date of the witness statement?  A trial judge can never know. It is, even, a difficult issue to cross-examine about since it easily impinges into the issue of legal privilege.

NEED THE WITNESS STATEMENT BE ONE COMPOSITE DOCUMENT?

This raises the question of whether a witness statement need, in fact, be one document. Unless there are specific directions to the contrary there is nothing to prevent a party putting in:

  1. A witness statement of the facts made shortly after the incident.
  2. A further witness statement which deals with issues that arose subsequently.

Neither the rules or the Practice Directions prohibit a witness serving more than one statement simultaneously. The Practice Direction is concerned with the format of the witness statement and does not prohibit a witness serving more than one.

CPR 32.5 does refer, in places, to a party serving a “witness statement” which appears to be in the singular. However it is doubtful whether the service of two witness statements would be prohibited.  In addition directions often refer to “witness statements” of the parties.

THE IMPORTANCE OF EARLY STATEMENTS COMPLYING WITH THE RULES

This emphasises the importance, however, of statements complying with the rules at a very early stage. That is the statement as to the facts

COULD THE FIRST STATEMENT BE EXHIBITED?

Another alternative is to exhibit the initial witness statement to the statement for service.  This may help if the initial statement is, in essence, transcribed word for word into the statement that is served. However litigants can be certain that every minor difference is likely to be dissected at trial.  It is a possible, but not an elegant, solution. If may be a prudent strategy if there are clearly allegations of recent fabrication or accurate recollection is going to be a major issue.

THE RULE OF RECENT FABRICATION

However if all else fails and a witness in the witness box is cross-examined on the basis that the account given is untrue and recently fabricated, there is some case law that assists.

Where it is alleged that a statement is a “recent fabrication” there is a long-standing rule that allows that party to put in evidence previous statements which show consistency. This was confirmed by the decision in Fox -v- General  Medical Council [1960] 3 All ER 225. The Privy Council considered an argument that a decision of the General Medical Council was unfair because the Council did not allow the doctor to adduce evidence from a friend of the doctor. That friend would confirm a conversation that showed consistency. The Privy Council held that this was not admissible

“The purpose of such evidence of a witness’s previous statements is and can only be to support his credit, when his veracity has been impugned, by showing a consistency in his account which adds some probative value to his evidence in the box. Generally speaking, as is well known, such confirmatory evidence is not admissible, the reason presumably being that all trials, civil and criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent and, as was remarked by Humphreys J in R v Roberts ([1942] 1 All ER at p 191), it does not help to support the evidence of a witness who is the accused person to know that he has frequently told other persons before the trial what his defence was. Evidence to that effect is, therefore, in a proper sense immaterial.”

However, and important for the topic being considered, the speech goes on to state:

“There are, however, certain special exceptions, or at any rate one head of exception, from this general rule. If, in cross-examination, a witness’s account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue whether, at some previous time, he said or thought what he has been saying at the trial, he may support himself by evidence of earlier statements by him to the same effect. Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross-examination and the relative cogency of the evidence tendered to repel it. Its application must be, within limits, a matter of discretion, and its range can only be measured by the reported instances, not in themselves many, in which it has been successfully invoked. Thus, in R v Coll, a police witness who identified an accused in his trial evidence as being present at and party to the crime charged, being cross-examined on an earlier information sworn by him that did not mention the name of that accused, was allowed to give evidence to the effect that he had mentioned the name in an information of still earlier date. The admission of his evidence seems to have been treated by the court as coming within the “recent invention” exception. That apart, it seems to have been little more than a permissible exercise of the right of re-examination to ask him, in effect, whether or not the second of the two informations may not have been due to inadvertence and thus to displace the inference which the cross-examination had sought to draw from its contents. R v Benjamin is often referred to in this connexion. A police witness, whose account of what he saw in certain premises was challenged in cross-examination, was allowed to refer to a contemporary entry in his official note-book showing that he had immediately made a report to the same effect to his superior in the police force. Perhaps the best example of the way in which the exception can be properly invoked and applied is offered by Flanagan v Fahy. There a witness who had testified to the forging of a will was cross-examined to the effect that he had invented his story because of enmity between him and the accused, the beneficiaries under the propounded will. He was allowed to call confirmatory evidence to show that, before the cause of this enmity had arisen, he had told a third party the story he was now telling. In that situation, the issue raised by the cross-examination was clearly defined; a recent invention due to a specified cause, and, if the witness could show that his account had been the same before the cause existed, he was certainly adding a relevant fact in support of his credibility.”

THE PRINCIPLE APPLIED IN HUNT

In Hunt -v the Chief Constable of Avon & Somerset Police Authority (CA 9th December 1988). The Court of Appeal considered an appeal when the claimant in a civil case wanted to put an attendance note from his solicitor before the court. The note recorded that the claimant had been ill-treated. However the claimant was not allowed to place the note before the jury (this being a civil trial).

“It was Mr. Hunt’s case that he had been treated in a wholly improper manner. When this appeal opened he sought to draw our attention to the attendance notes which were kept by Mr. Woodward, the solicitor, of his dealings with the matter. Mr. Woodward, on 14th January, did see Mr. Hunt and indeed Mrs. Hunt as well. He made an attendance note following that which appears at page 1319 of the bundle. It is in these terms: “Saw Mr. and Mrs. Hunt. Both complained they had not been well treated. Mrs. Hunt had been denied washing facilities and had received very little to eat or drink during the time she was in custody. Mr. Hunt indicated he had been kept in solitary and he was given a very rough time , (underlining added) but he made no allegations of any assault. I put to him what D/S Bathey had told me and wondered if he wished me to apply for bail as I was concerned for his safety.” That was a reference to the fact that the officer had indicated that Mr. Hunt could well be in difficulty because of what had happened leading to the discovery of the large quantity of money.

Mr. Woodward goes on: “Mr. Hunt indicated he did not think he had anything to fear as at no time had he asked Tibbs where the money came from and so he was probably not in any danger because he had not indicated to the Police that the money was stolen. The facts, so far as he was concerned, were that Mr. Tibbs merely wished to invest the money with him on the basis it would be used as cash to enable Hunt to purchase bankrupt kitchen stock, which he would then install.”

It is not necessary to make further reference to that attendance note although it continued to deal with a number of other matters. It is significant to note that it included a complaint made by Mr. Hunt that he was being kept in solitary and he was given a rough time and that both Mr. and Mrs. Hunt were complaining to the solicitor when they first saw the solicitor that they had not been well treated. That attendance note was never disclosed by Mr. Hunt’s previous legal advisers, nor was it disclosed by Mr. Hunt prior to the commencement of the present trial.

Not unnaturally, Mr. Hunt was anxious to have the attendance note put before the court at the second trial. The question of that attendance note was first raised during Mr. Hunt’s opening of his case. Mr. Hunt in the course of his opening asked the learned judge this: “…. am I allowed to say my instructions to my solicitor or not, as they were then? (Mr. Justice Hutchison): Do you mean your instructions at the time all this happened? (Mr. Hunt): Yes, when I saw my solicitors afterwards, because there is a conflict between me and my solicitors. (Mr. Justice Hutchison): I do not think you are. It is very difficult for me to know without knowing precisely what you wish to say. If necessary we will ask the jury to withdraw, but you can take it as a good working rule that first of all you ought to be very slow to disclose anything that passed between you and your own solicitors, because that is privileged. Secondly, it is very doubtful whether it is admissible in evidence, because it is hearsay evidence, which is the term used to describe conversations taking place not in the presence of the opposite party. So, on both those grounds, I think you ought to be very cautious about trying to tell the jury anything about what passed between you and your solicitors. If you wish, notwithstanding what I have said, to press the matter, then I will ask the jury to leave us so that you can tell me precisely what it is.”

“(Mr. Hunt): Would I be allowed to say to the jury exactly from my solicitors’ notes?” The learned judge repeated his good working rule but eventually took the view the jury should retire and they did retire. The matter was then raised in the absence of the jury. Mr. Hunt then said: “I understand that my solicitor is coming to Court to give evidence. (Mr. Justice Hutchison): Let us just see. These are not documents which ahve been disclosed to your opponents, are they — disclosed to Mr. Cotterill or Mr. Sleeman? (Mr. Hunt): I would not have thought so. Well, when you say ‘not disclosed’ , they were obviously disclosed at the last trial.”

That matter was gone into and eventually the learned judge said this: “There you are. They say they have not seen them, so you have this additional difficulty: I cannot in the ordinary way look at and read documents which are not disclosed documents, so I think you had better tell me what this goes to. What is the point that you are seeking to bring out? (Mr. Hunt): I have been saying for six years what happened to me. I am not a man who makes false allegations against the police. I have been through the system all my life. You heard me say on my last case that there have been consiracies against me and I think those papers — I do not know what position I am in law-wise, but I know they prove what I am saying.”

There Mr. Hunt was clearly seeking to indicate to the learned judge he thought that the note supported his case. Then Mr. Cotterill interposed to say should the judge not look at the documents in order to help the plaintiff. That is what the learned judge decided to do. The learned judge was anxious and concerned, obviously, about the situation and he made it clear that he was not going to read them and he no doubt took that view because he thought that they may contain information which was prejudicial to Mr. Hunt and he would not want to be in a position where it might be said thereafter that he was affected by this prejudicial information.

Having had a quick look at the documents the learned judge went on to say: “What I propose to tell Mr. Hunt is that the documents are not admissible and cannot be placed before the jury, but in so far as they assist him to recall facts as to which he proposes to adduce evidence from his solicitors, he is of course entitled to open those facts to the jury, not by putting the document in front of them, but simply by anticipating facts which he will then prove by evidence. Plainly the documents are aide memoires to which his instructing solicitor, if called, could refer.” Then he asked counsel whether they wished to see anything. He heard counsel.

In the course of counsel’s submissions Mr. Sleeman, who appeared for the Metropolitan Police confirmed that Mr. Woodward could refresh his memory from the notes and then Mr. Justice Hutchison said to Mr. Hunt, “The first thing to be said is this: you cannot put these documents before the jury because they are not admissible as such, and in any event, they have not been disclosed at the moment to your opponent.”

Although that was not the end of the interchange, the comments from the learned judge which I have already referred to indicate the tone of his ruling which indicated that for limited purposes the attendance notes may be referred to but basically they were not to be put before the jury.

Mr. Hunt thereafter gave evidence and Mr. Sleeman accepted, in the course of his submissions to this court, in the course of Mr. Hunt’s evidence he was cross-examined to indicate that there was no complaint being made either to the magistrates or indeed until the particulars of claim were amended to include the sort of allegation which Mr. Hunt was making at the first trial and the second trial as to being kept incommunicado and not be provided with food or water.

Later in the case Mr. Woodward was called to give evidence and he gave evidence on 11th July. In the course of his giving evidence, Mr. Hunt asked the learned judge this: “My Lord, what took place in that discussion” — that is the discussion between him and Mr. Woodward — “I understand is privileged. (Mr. Justice Hutchison): Yes.” On the next page followed an answer by Mr. Woodward which ended up by his asking: “My Lord, do you wish me just to summarise what happened that morning?” — that is referring to the morning at the magistrates’ court — Mr. Justice Hutchison asked Mr. Hunt: “Do you wish to adduce this evidence, Mr. Hunt?” Mr. Hunt said: “I wish to — yes, I wish things to come out.”

Later the witness said: “Mrs. Hunt was released on bail, my Lord, and I had a discussion with Mr. Hunt and gave him advice. I then left the building to come back to Bath.” At that stage Mr. Woodward said nothing about the nature of that discussion. Then there came a stage when Mr. Hunt asked: “Could I be permitted to ask whether he” — Mr. Woodward — “would say that on the occasion of the Court appearance we were happy with our treatment by the police? (Mr. Justice Hutchison): No, I do not think you are allowed to ask that. (Mr. Hunt): I am sorry, my Lord.” Then he went on with asking his questions.

There can be no doubt that when mr. Hunt asked the learned judge for his ruling on that matter, again he was referring to the conversation which took place between him and Mr. Woodward which is referred to in the passage in the attendance notes which I have cited.

I want to go to a later stage in the evidence of Mr. Woodward. His evidence spanned the luncheon adjournment on 11th July and at the commencement after the hearing of the adjournment, Mr. Justice Hutchison said this to the jury: “I have received your note, members of the jury, in which you ask whether Mr. Woodward has any recollectin of Mr. Hunt complaining of his treatment or lack of receiving water and food for the three days up to 14th January, 1980, and if so, what action did Mr. Woodward take, if any? Well, members of the jury, the problem is that there are rules about hearsay evidence and those rules in my view prevent anyone asking Mr. Woodward questions of the sort you envisage. Whether counsel will feel that they can pursue the matter by a slightly different means — there are ways in which this might be explored further, but you cannot simply have Mr. Woodward asked: ‘Well, did he tell you this, that or the other?’ , I am afraid.”

The learned judge having made that ruling, the cross-examination by the first defendant’s counsel terminated and then Mr. Woodward was cross-examined by Mr. Sleeman on behalf of the second defendants. In the course of his cross-examination Mr. Sleeman very properly accepted from Mr. Woodward the fact that no complaint had been made to the magistrates that Mr. Hunt had been starved and that he had had no drink for three days. Mr. Sleeman explored the matter fully. It was there said Mr. Woodward’s recollection was not as clear as it might be. He was asked by Mr. Justice Hutchison: “You have no recollection? (A) One of the difficulties is of course that this matter has been going on for so long, and I know from conversations with Mr. Hunt since that things have been said which are in my mind, and it is difficult to recall, perhaps, whether those things were said at the time, or whether I can recall them being said from my later conversations with him.

“(Q) As I understand it, I appreciate your position at the moment, Mr. Woodward, but what it comes to is that you have no recollection of making, either to the Magistrates or to the plice, any complaint about the conditions in which Mr. Hunt had been detained.

(A) Certainly that is the case as far as Mr. Hunt is concerned. As far as Mrs. Hunt is concerned, my Lord, the fact that I did not make any complaint to the police may have been influenced by the fact that I was aware that she was going to be granted bail.”

Counsel were very careful not to ask any questions of Mr. Woodward which could have elicited answers to exactly what Mr. Hunt had said to Mr. Woodward. They were mindful of the fact that Mr. Hunt was appearing in person and would not have wanted to endanger his position as a result of anything he said which he would not want to be said and which would be subject to privilege. Of course the judge and counsel were both under the disadvantage that they did not know there was material in the attendance note which indicated that Mr. Hunt, in general terms, was complaining of ill treatment and that Mrs. Hunt was complaining of ill treatment as well. Certainly if it was going to be alleged, as the cross-examination of Mr. Sleeman suggested, that the ill treatment allegation was of recent invention, quite clearly the attendance notes were of very considerable importance to Mr. Hunt. They were, of course, not entirely in his favour as they certainly did not contain the whole of the allegation which he was giving in evidence. But they did firmly establish that they had made a complaint to Mr. Woodward of the treatment that he had received during the critical period.

The Court of Appeal held that the attendance note was admissible:

“When the language of section 3 [of the Civil Evidence Act 1968]  is considered it does seem that this is a case where, quite apart from the common law position, the attendance note could be properly admitted for the purpose of rebutting a suggestion that the evidence given by Mr. Hunt had been fabricated. On that basis I would, myself, regard the attendance notes as being admissible, as well as on the basis previously indicated.”

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