A QUICK WORD ON WITNESS CREDIBILITY: WHAT THE BUTLER SAID

In Burrell -v- Clifford [2016] EWHC 249 (Ch) Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division) had to assess the credibility of two litigants. It provides an interesting insight into the judicial scrutiny of witness evidence.

“However, Mr Burrell has exercised his right to bring the current proceedings, and they have survived a serious attempt by Mr Clifford to have them struck out. The fact that Mann J appears to have had concerns, which I share, about the disproportionality between the value of the claim and the costs involved (to say nothing of the use of scarce court resources) has no bearing on Mr Burrell’s entitlement to compensation.”

THE CASE

The claimant brought an action for breach of confidence and misuse of information alleging a breach by the defendant in disclosing a letter to the News of the World.  Much depended on the judge’s view of the credibility of the witnesses.

THE JUDGE’S VIEWS AS TO CREDIBILITY

  1. Both Mr Burrell and Mr Clifford have experience of presenting an image to the public. Further, the events which are at the heart of this case took place in 2002, and were not brought back to the minds of either of the protagonists until about a decade after they had occurred. I consider that in any case involving such a lapse of time there is a heightened risk that witnesses may be genuine but mistaken about what took place, and may give evidence about what they would like to think happened rather than what they can truly recollect. These factors made my appraisal of their evidence more difficult.
  2. Judging by his demeanour alone, I do not consider that Mr Burrell was in any way dishonest. However, I consider that he is self-absorbed, and prone to seeing himself as always in the right. He was willing to make concessions when inconsistencies in his evidence were put to him in cross-examination, but sought to play them down as far as he could. For these reasons, but even more importantly for the specific reasons that are discussed below, I do not consider that his evidence was reliable in every respect.
  3. Mr Clifford made no real concessions in cross-examination. If anything, the more he was challenged the more he asserted that he was in the right and Mr Burrell was in the wrong – at one stage saying words to the effect that Mr Burrell knew that he was lying and could not look him the eye in court for that reason. His demeanour seemed quite aggressive at times, and did not assist him in my perception. In addition, Mr Clifford readily accepted that he had often dissembled, and had been at the very least “economical with the truth”, in his dealings with the media over the years. It is therefore apparent to me that deception is second nature to Mr Clifford, even without regard to the history of his criminal prosecution, which can only serve to underline the point. However, it naturally does not follow that he was not telling the truth before me.
  4. At the end of the day, I consider that the best guide to the truth is to be found not so much in the demeanour of the protagonists (although, in so far as that is relevant, I set more store by the dependability of Mr Burrell), but in such scant contemporary documents as remain available and in an objective appraisal of the probabilities overall.

THE BACKGROUND TO THE WITNESSES AND THEIR EVIDENCE

In case anyone is not aware of the background
  1. Both Mr Burrell and Mr Clifford have had encounters with the criminal justice system.
  2. On 18 January 2001, the police searched Mr Burrell’s home and he was arrested. On 16 August 2001, Mr Burrell was charged with stealing 342 items of property from the Royal Household, following the death of the Princess of Wales. Mr Burrell was tried at the Old Bailey. The first trial began on 14 October 2002 and ended with the jury being discharged on 16 October 2002. A re-trial began on 17 October 2002 and ended on 1 November 2002 with a “Not Guilty” verdict being entered on all charges. This followed the presentation by the Crown Prosecution Service of a certificate of Public Interest Immunity in respect of the disclosure of information in those proceedings. Those events constitute an important part of the background to the issues which I have to decide.
  3. Mr Clifford’s encounter is relevant for a different reason, namely that it is said to be germane to an assessment of his credibility. Many years after the events with which I am concerned, Mr Clifford was charged with a number of sexual offences. There were some counts on which he was acquitted or on which the jury were unable to agree. However, Mr Clifford was convicted on eight counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, which carried a maximum sentence of 2 years imprisonment. These convictions related to offences against four victims, aged between 15 and 20, which were perpetrated over about 7 years, all more than 30 years ago. The seriousness of these offences is apparent from the detailed sentencing remarks of His Honour Judge Leonard QC, and from the fact that Mr Clifford was sentenced to a total term of imprisonment of 8 years. It appears from those sentencing remarks that if these offences could have been prosecuted under later legislation, the maximum sentence would have been 10 years in some instances and life imprisonment in others.
  4. Mr Clifford appealed against that sentence, and his appeal was dismissed by the Court of Appeal: see R v Frank Maxwell Clifford [2014] EWCA Crim 2245. At [23], Treacy LJ identified one of the aggravating features of Mr Clifford’s offending as being that it “involved an abuse of a powerful position coupled with deceit”, and at [26] he said:
“It is clear, however, that over the period of offending, these young women were targeted by the appellant who actively misled them and exploited their desire to succeed in their careers for his own purposes. The appellant was a dominant personality and in a powerful position within the world of entertainment and media. This enabled him to do what he did and to convince the victims that there was no point in complaining because no one would listen to them. He was thus able to lead a double life, progressing in his career, whilst his victims, affected by what he had done to them, felt powerless to complain.”
  1. Mr Bennett relied on two aspects of these convictions. First, the nature of Mr Clifford’s offending revealed a clear pattern of deceit. Second, the nature of Mr Clifford’s defence to the charges involved not only a denial of guilt but also (as the sentencing remarks make plain) allegations that the complainants were lying (in one case “in order to obtain notoriety or money”) – all of which must have been rejected by the jury on the counts on which he was convicted. Mr Bennett submitted that Mr Clifford had been proven to be someone who would tell flagrant lies in pursuit of his own ends.
  2. When these matters were put to Mr Clifford in cross-examination in the present case, he maintained that the complainants were lying and that he had been wrongly convicted, and he stated that he was appealing against his conviction. During the course of closing submissions, Mr Barrett told me (on instructions) that there is in existence an application made by Mr Clifford’s criminal lawyers to the Court of Appeal for permission to appeal against conviction, apparently on the grounds of new evidence which was not available at the trial. If that is right, it would, or might, explain why an appeal against conviction is only now being made, when it seems to me that in the ordinary course it would typically be made together with an appeal against sentence.
  3. Unless and until any appeal against conviction succeeds, I consider that I ought to proceed on the basis that Mr Clifford was rightly convicted, and that, accordingly, he was dishonest both towards his victims and in the conduct of his criminal defence. Even so, there is still an issue as to the extent to which his propensity for dishonesty revealed in that context is relevant and helpful when assessing his credibility in the present case.
  4. In all the circumstances, I have sought, in the first instance, to appraise Mr Clifford’s credibility in the present case divorced from consideration of this criminal history, and only then in addition to have regard to what may be gleaned from his criminal trial.
OTHER ISSUES IN RELATION TO CREDIBILITY
  1. In the above summary, I have deliberately omitted a number of dates, which formed the basis of a major part of Mr Burrell’s cross-examination by Mr Barrett.
  2. In Mr Burrell’s case as originally formulated, he put forward the following time line in documents which he verified in each instance by a statement of truth: (i) his initial contact with Mr Clifford took place “in or around April or May 2001” (see paragraph 5 of the Particulars of Claim dated 29 May 2014, and paragraph 5 of his first witness statement dated 21 December 2015); (ii) he sent the Letter to Mr Clifford “sometime in April or May 2001”, shortly after his meeting with Mr Clifford (see paragraphs 3 and 10 of his first witness statement); and (iii) he terminated his relationship with Mr Clifford “sometime between January and March 2002” (see paragraph 10 of the Particulars of Claim, and paragraph 13 of his first witness statement).
  3. In Mr Clifford’s pleaded Defence dated 30 January 2015, he contended that Mr Burrell and he “did not meet at [his] offices in April or May 2001 but they did meet on 12, 15 and 22 April 2002” (see paragraph 9(a) of the Defence). Mr Burrell’s Reply dated 20 February 2015 pleads various matters in response to the limitation defence raised by Mr Clifford, but otherwise contains no more than a general joinder of issue on the Defence.
  4. In his witness statement dated 18 December 2015, Mr Clifford re-iterated (at paragraph 6) his belief that he first met Mr Burrell not in 2001 but on 12, 15 and 22 April 2002.
  5. Following the exchange of witness statements, Mr Burrell made a second witness statement dated 19 January 2016. In paragraph 2 of that witness statement Mr Burrell referred to press cuttings which had been disclosed by Mr Burrell after he had made his first witness statement, which he said had “refreshed my memory about what happened in 2002”. In paragraph 3, Mr Burrell explained that, while he had originally believed that he had met Mr Clifford in April or May 2001, he now believed that he met him in April 2002 “having now had sight of the press cuttings from May 2002”.
  6. It is understandable that anyone could make a mistake about events which happened so long ago. It is also possible that, once a mistake is made about dates, that mistake may become embedded in the case materials and be repeated without careful consideration.
  7. The tenor of Mr Burrell’s answers in cross-examination was “I made a mistake with the date”. Mr Burrell also said “I know our relationship was only 3 to 4 days old and that it was in April-May 2002 that I terminated the relationship [with Mr Clifford]”.
  8. In my judgment, however, there is no escape from the conclusion that this repeated error about the time line seriously undermines Mr Burrell’s reliability and, thus, his case. It is important to put this error in context. It had the effect that, from the time the Particulars of Claim was signed (although it seems only to have been served on 16 October 2014) until 19 January 2016, Mr Burrell was putting forward a case that, having approached Mr Clifford solely for the purpose of providing him with a public relations services, he had not terminated his relationship with Mr Clifford until almost a year after he had approached Mr Clifford, and that this termination had occurred before April 2002. Mr Burrell’s pleaded case, and, subsequently, his first witness statement set out a clear chronology, in which (among other things) his meetings with Mr Clifford are said to have preceded the date when he was charged with theft on 16 August 2001.
  9. Standing back, Mr Burrell’s original case on dates makes no sense in light of the fact that Mr Burrell does not contend either (a) that Mr Clifford ever did anything between about April or May 2001 and January to March 2002 to provide protection from the unwanted media attention to which Mr Burrell and his family were subjected or (b) that Mr Burrell ever made, or even agreed to make, any payment to Mr Clifford for the provision of services. Indeed, Mr Burrell’s evidence when cross-examined was that “Payment was never discussed”. However, what concerns me is that, before verifying that case with more than one statement of truth, Mr Burrell seems never to have paused to reflect how implausible it was. Instead, he seems only to have been prepared to accept that his initial case was wrong when he considered a number of contemporary press cuttings which were disclosed by him shortly before the trial but which, so far as I can see, Mr Burrell could have researched for himself initially or at least at the stage of deciding how to respond to Mr Clifford’s Defence.

THE OUTCOME

The  judge found, however, that the defendant was never authorised to disclose the letter. The claimant was successful and recovered £5,000 in damages.

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