THE CIVIL EVIDENCE ACT, THE ABSENT WITNESS AND WITNESS CREDIBILITY: A CASE IN POINT

This blog has already looked at the decision in Mohidin -v- Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) in the context of the contents of witness statements and the length of the trial bundles. That judgment also contains a lengthy discussion in relation to the credibility of witnesses and the primacy of the role of the judge as fact finder when there have been earlier investigations and hearings in relation to a matter.

One other issue of  profound practical importance is the judge’s consideration and application of the principles of the Civil Evidence Act 1995.

“It is also important to stand back and look at his evidence overall. If one does so, it is a striking fact that it is a very detailed account, recorded within a few hours of the incidents in question.”

THE CIVIL EVIDENCE ACT 1995

The aim of the Act was to ensure that hearsay evidence could not be excluded from civil proceedings. Section 1.(2)(a) of the Act defines hearsay.

“(a)hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and

(b)references to hearsay include hearsay of whatever degree.”

SAFEGUARDS IN RELATION TO HEARSAY EVIDENCE

Sections 2 – 4 of the Act provides safeguards in relation hearsay evidence.

  • Section 2 provides that notice has to be given in relation to hearsay evidence.
  • Section 3 permits any other party to the proceedings to call a witness when they have received notice that a party is relying on hearsay evidence from that witness.
  • Section 4 gives a number of factors which the court should have regard to in weighing hearsay evidence.

THE CONSIDERATION OF SECTION 4

In the Mohidin case the judge was considering the evidence of a police constable, PC Onwugbonu,  who had made a statement that some of the claimants had been ill-treated by fellow police officers. PC Onwugbonu had been cross-examined extensively in earlier criminal proceedings.  The claimant had served a Civil Evidence Act notice in relation to PC Onwugbonu’s evidence, he had stated he was reluctant to attend.

  1. the context of his evidence, I must have regard to the criteria in section 4 of the Civil Evidence Act 1995:
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”

  1. I have already set out my views on the witness’ absence from the trial. I turn now to the criteria in section 4(2):

(a) I do consider that he could have been produced as a witness. Equally, the Third to Sixth Parties could have required him to attend;

(b) the statements relied on were made contemporaneously;

(c) the statement does not involve multiple hearsay;

(d) I do not consider that he had any motive to conceal or misrepresent matters. I deal at length with this matter in the succeeding paragraphs;

(e) it was not an edited account, nor made for any purpose other than that of a police officer setting out in his notebook and in a draft witness statement his recollection of the events that had occurred a few hours before;

(f) For the reasons I have given, I do not consider that the Claimants sought to avoid calling him to prevent a proper evaluation of weight. I do consider that the Third to Sixth Parties’ approach sought the tactical advantage of depriving it of weight by keeping him from the witness box. However I have received a large amount of material about him, and a large amount of evidence from others who were involved in these events. That being so, there is nothing in the circumstances which prevent the court from making a proper evaluation of weight.

  1. Mr Hardy also invited me to consider under section 5 (2) Civil Evidence Act 1995 the following matters about his evidence at the Crown Court trial, which he said discredited his evidence:
i) he had admitted at the Crown Court trial that he had wrongly said that a man I shall refer to as D was beaten up by officers, including PC Jones on 31st May 2007;
ii) he had wrongly said at first that Ahmed Hegazy was handcuffed to the rear;
iii) he had been “possibly wrong” to say that PC Brown had been swearing;
iv) he had been wrong to say at first that PC Prout was in the rear of the van:
v) he had been wrong to record that it was PC Kitchener and Sergeant Wilson who brought Basil Khan on to the carrier, when it was Pc Jones and Sergeant Wilson;
vi) he had been wrong to have an impression that PC Brown removed his vest as he was offering to fight Ahmed Hegazy, and that he accepted that he could simply have been removing it because he was hot and uncomfortable;
vii) he was wrong to maintain that PC Jones kept punching Basil Khan after the carrier arrived at the Police Station;
viii) he was wrong to say that he did not visit Basil Khan in custody, when he visited both him and Ahmed Hegazy;
ix) he was wrong to recall that PC Prout told him that he had also seen wrongdoing;
x) he had not told DPS officers about the matter of the premises search in 2006;
xi) his notebook and WORD draft contained differences.
  1. I shall take those in turn;
i) I have addressed the previous complaint already. I shall treat it as untrue;
ii) this is an error in recollection. It has no effect on credibility at all;
iii) he had been “possibly wrong” to say that PC Brown had been swearing. In any event, I would not regard evidence that PC Brown swore in the situation he was dealing with as in any sense blameworthy, albeit perhaps unwise;
iv) this is an error in recollection. It has no effect on credibility at all. Indeed his concession was properly made and led to PC Prout’s acquittal on the charge of misconduct in public office;
v) this is an error in recollection. It has no effect on credibility at all;
vi) at most it was an impression, which he conceded could have been wrong. It has no effect on credibility at all;
vii) I agree that PC Onwugbonu is wrong about this matter. I agree that it is necessary to look at his evidence in the light of it. However I conclude that the other parts of his evidence relating to Omar Mohidin and Basil Khan are true;
viii) this is not a proper allegation by the Third to Sixth Parties. It became quite apparent from the CCTV film, as Mr Hardy accepted, that the most he did was to go to the doors of their cells. There is no evidence at all of his ever having spoken to them;
ix) this was his error in recollection. PC Prout was undoubtedly sympathetic to him. It has no effect on credibility at all;
x) this is another aspect of (i);
xi) this is a frankly desperate point. None of the differences are of any real significance in the context of the case.
  1. It is also important to stand back and look at his evidence overall. If one does so, it is a striking fact that it is a very detailed account, recorded within a few hours of the incidents in question. In the case of Omar Mohidin, it chimes well with the actual reason for the van having made the long detour, namely that PC Jones was angry at the disrespect shown towards him and the other TSG officers by Omar Mohidin as the van travelled southwards. In the case of Basil Khan, it is a remarkable fact that the account given by him of what occurred when Basil Khan was put in the van matches so well with that of Basil Khan, when, given the evidence of Inspector Cruickshank and the CCTV and audio evidence, Basil Khan had no idea at all of what PC Onwugbonu had said when Basil Khan gave his description. The only evidence one can set against what PC Onwugbonu said is that of PC Jones, Sergeant Wilson and PC Giles Kitchener, as I shall presently.”

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