There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police  EWHC 1367 (QB). I just want to look at one of them. This was a case all about the conduct and evidence of police officers. The statements of some of the officers giving evidence for the police service, it transpired, had been drafted by lawyers. This illustrates the care that has to be taken when taking statements to ensure it is a statement from the witness and not a document produced by the lawyer on the witnesses “behalf”. In particular it may be appropriate for cross-examination to touch upon how the statement came to be taken and what the witness can actually recall as oppose to “reconstruct”. Here we look at some (but by no means all) of the criticisms that have been made of witness statements “drafted” by lawyers.
THE WITNESS EVIDENCE IN THE MOUNCHER CASE
- “During the course of cross-examination of some of the police officers who gave evidence on behalf of the Defendant but who were not officers of SWP it emerged that their witness statements had been drafted by lawyers. I do not find that surprising but, of course, I have scrutinised the statements with care so as to ensure that they are not attempts to re-write history. As it happens, the important aspects of those officers’ evidence related to the arrests of the Claimants and the reasons for the arrests. Upon those issues, there is a large amount of contemporaneous or near contemporaneous documentation which provides a reasonably sure guide as to why particular Claimants were arrested and what happened when they were arrested”.
We have seen similar comments in the judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust  EWHC 2627 (QB) when discussing the evidence of a doctor who was giving evidence for the claimant against his own employer
“Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers)”
THE ABRAMOVICH CASE: THE INDUSTRIOUS PRODUCT OF LAWYERS
In Berezovsky -v- Abramovich  EWHC 2463 (Comm) Mrs Justice Gloster DBE commented on the history of the litigation and length of the witness statements and observed;
“It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.”
THE HANDBOOK FOR LITIGANTS IN PERSON: ALL TOO OFTEN STATEMENTS ARE INCORRECT
This was written by six highly experienced circuit judges.
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).
PREVENTING A CONFLICT BETWEEN THE LAWYER AND THE CLIENT OR WITNESS
The task of the lawyer is clear, to obtain and record the evidence and not produce it. There should be no conflict between the lawyer and the client. The lawyer’s main task is to ensure that the evidence is complete and accurate. I am not concerned, in this post, with the ethics of drafting, that has been considered in detail elsewhere on this blog. I am concerned with protecting the interests of both the client and the solicitor and ensuring that the:
- The witness is fully aware of the significance of the documents they are signing.
- There is a clear record of the lawyer explaining the significance to the client.
The question of ethics when drafting witness statements is considered
- Drafting witness statements: Guidance from the Bar Council that every litigator should read.
- Witness statements and avoiding jail: are you protecting your clients and protecting yourself?
Posts on witness evidence and credibility generally: