Analysing the evidence
1See Terence Anderson, David Schum and William Twining, Analysis of Evidence, 2nd edn, Cambridge, 2005, especially chapters 8 and 9; Richard Eggleston, Evidence, Proof and Probability, Butterworths, 1983; Lord Bingham, ‘The Judge as Juror: The Judicial Determination of Factual Issues’ (1985) 38 Current Legal Problems 1, reprinted in Lord Bingham, The Business of Judging, Oxford, 2000, p3; and Andrew Goodman, How Judges Decide Cases: Reading, Writing and Analysing Judgments, Universal, 2007, Parts 1 and 5.9. See also articles in Tribunals in appendix C.Re [2009] 2 FLR 200
Re [2009] 2 FLR 200
Re [2004] 2 FLR 838
Times 30 November
Times 28 December
Re [1992] 1 FLR 548
Re [1992] 1 FLR 548
Times 9 February
Re [1996] 1 FLR 667
Re [2009] 2 FLR 14
Re [2005] 2 FLR 658
11.69The relevant law determines the facts that are material and the standard of proof determines the degree of probability that has to be applied. The burden of proof determines who bears the consequences of the facts material to an issue not being proved to the required standard. Within that framework, the finding of facts is for the tribunal.
2This includes an appellate body if an appeal lies to the body on issues of fact or the body has jurisdiction over the facts once an error of law has been identified.11.70In order to find the facts, the evidence always has to be assessed. It is the nature of evidence that it is always incomplete, commonly inconclusive, often ambiguous, with some favouring one party some another, and from sources of varying degrees of credibility and reliability.
3This analysis comes from Terence Anderson, David Schum and William Twining, Analysis of Evidence, 2nd edn, Cambridge, 2005, p246. Assessment involves analysing the factors that affect the probative worth of the evidence as a whole and evaluating the evidence as assessed by reference to the standard of proof.
4This is how assessing, analysing and evaluating are used here. They are not terms of art and may be used differently by judges and writers. For evaluating by reference to the standard of proof, see chapter 14. The assessment must be the tribunal’s own; it is not limited to choosing between the analyses put to it by the parties.
5Woodhouse School v Webster [2009] ICR 818. Coleridge J explained the position in
Re A (Removal Outside Jurisdiction: Habitual Residence):
6[2011] 1 FLR 2025.In my judgment, a fact-finding judge is always entitled to consider version A put forward by one side and also version B put forward by the other and reach version C which represents a selection from or a mix or hybrid of the two competing versions. Such a course is always open to him providing the judge explains, by reference to the evidence, how and why he reaches a conclusion different from that contended for by either side.
7[2011] 1 FLR 2025 at [54].But as Ouseley J noted in
R (CJ) v Cardiff County Council,
8[2011] 2 FLR 90 at [81]. ‘that may not always be appropriate where serious issues arise, as here, of credibility and false documentation concerning a large and crucial gap.’
11.71The decisions of courts and tribunals given on appeals on points of law set the limits within which they will interfere with the fact-finding process. They set the limits within which the fact-finder must operate. Beyond this, they disclaim the responsibility of teaching the First-tier Tribunal how to assess evidence.
9Rix LJ in Fryer-Kelsey v Secretary of State for Work and Pensions reported as R(IB) 6/05 at [25]. Nevertheless, on occasions they have offered general guidance or have commented on the judge’s analysis of the evidence.
10As in Re W-P (Fact-finding Hearing) [2009] 2 FLR 200 at [13].11.72The language of assessment and fact-finding is beset by metaphors. It is traditional to refer to balance and weight. This adds a spurious precision to the exercise, which involves judgment rather than precise calculation. In this chapter, this language is avoided in favour of references to the probative worth of evidence. As the standard of proof is concerned with certainty and confidence, the probative worth of evidence is determined by factors affecting the certainty and confidence with which findings may be made from it.
Some general principles
Common sense
11.73In
Lord Advocate v Lord Blantyre,
11(1879) 4 App Cas 770. Lord Blackburn said that the probative worth of evidence was determined by ‘the rules of common sense’.
12(1879) 4 App Cas 770 at 792. See also: Lord Diplock in Walters v R [1969] 2 AC 26 at 30; O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534, discussed below. That recognises that there is no specifically legal process of reasoning that differs from that used outside the law. However, as applied to tribunals it has three deficiencies.
13It has a fourth deficiency as applied to courts. The rules of evidence may exclude material that would be relevant on a common sense view. See Lord Diplock in R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 at 488. This possibility remains, although the rules on admissibility have to a considerable extent been changed into factors relevant to the probative worth of the evidence. First, common sense has not always proved sound when subjected to scientific scrutiny.
14For example: many people believe that it is common sense not to trust someone who looks away when speaking, but this has been proved unreliable as an indicator of honesty. Second, even if it is valid, a common sense approach may not be sufficiently rigorous for legal purposes. Third, it does not acknowledge the possibility that the tribunal may have, and be allowed to use, special knowledge, experience or expertise that is not commonly available.
11.74Nevertheless, the courts continue to insist that issues of causation must be determined by reference to common sense.
15Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663 at 681.Rationality
11.75In
R v Deputy Industrial Injuries Commissioner ex p Moore,
16[1965] 1 QB 456. Lord Diplock described the decision-making process in terms of logic rather than common sense:
The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer; but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above.
17[1965] 1 QB 456 at 94.And in
Mahon v Air New Zealand,
18Mahon v Air New Zealand [1984] AC 808. he said:
What is required … is that the decision to make the finding must be based on
some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding … is not logically self-contradictory.
19[1984] AC 808 at 821. See also Lord Simon in DPP v Kilbourne [1973] AC 729 at 756.Perhaps ‘rationally’ would be a better word than ‘logically’, as it avoids the technical rigours of modern logic.
20Having said this, logical fallacies are useful as identifying issues on which further questioning is appropriate. This apart, these passages go some way to redress the first of the deficiencies in Lord Blackburn’s remark. Although they do not expressly address the second deficiency, they leave open the possibility that the reasoning may be guided by sense that is special to the decision-maker as well as by sense that is common.
11.76A rational approach is merely an instance of the right to fairness in the proceedings, whether under the principles of natural justice at common law or under article 6.
What does rationality involve?
11.77A rational approach requires a scrutiny of the evidence.
21Lord Hope in R v Mirza [2004] AC 1118 at [123]. The evidence must be assessed. It is not sufficient to act on instinct or gut-reaction. The assessment must be undertaken by reference to criteria. Those criteria must be identified, else they cannot be subjected to scrutiny, and they must be relevant to the probative worth of the evidence. There is no scope for a formulaic approach. The criteria must be applied consistently to all the evidence. Different sorts of evidence may require different criteria, but there is no scope for applying the same criteria differentially.
11.78It is the assessment of the evidence that must be rational. The criteria used must be rational. This does not mean that the evidence must be assessed on the basis that those concerned have acted rationally.
22There is a danger that decision-makers may interpret facts so as to make them understandable to themselves rather than as they were understood by the actors involved: Peter Halligan, ‘Beliefs: shaping experience and understanding illness’, in Halligan and Aylward, The Power of Belief, Oxford, 2006, pxv.11.79A rational assessment of evidence takes account only of criteria that are relevant by generally accepted standards. As Lord Bingham explained in
O’Brien v Chief Constable of South Wales Police:
23[2005] 2 AC 534 at 4. See also: R v Chancler [1976] 1 WLR 585 at 590; R v Kearley [1992] 2 AC 228 at 236.… it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right decision matters.
11.80Some potentially relevant criteria are considered below. They do not provide a formula for determining the probative worth of the evidence. They are merely factors to be taken into account in doing so.
The significance of the burden and standard of proof
11.81The factors must be applied sensibly and realistically to the evidence with appropriate regard to the incidence of the legal burden of proof. In
Rhesa Shipping Co SA v Edmunds,24[1985] 1 WLR 948. the House of Lords was concerned with an insurance claim following the loss of a ship at sea. The trial judge had accepted the owners’ explanation for the loss, although he considered that it was extremely improbable. The House of Lords allowed the appeal and decided that the owners had not proved that the loss was covered by the insurance. Lord Brandon explained:
… the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense.
25[1985] 1 WLR 948 at 956.The evidence as a whole
11.82The evidence may be considered piece by piece. But it must be assessed as a whole.
26Re W-P (Fact-finding Hearing) [2009] 2 FLR 200 at [12]. This applies to the evidence of a witness as a whole
27EPI Environmental Technologies Inc v Symphony Plastic Technologies plc [2005] 1 WLR 3456 at [74]. and to the evidence in the proceedings as a whole. The process was explained by Sedley LJ in
Karanakaran v Secretary of State for the Home Department:
28[2000] 3 All ER 449 at 477.… a civil judge will not make a discrete assessment of the probable veracity of each item of the evidence: he or she will reach a conclusion on the probable factuality of an alleged event by evaluating
all the evidence about it
for what it is worth. Some will be so unreliable as to be worthless; some will amount to no more than straws in the wind; some will be indicative but not, by itself, probative; some may be compelling but contra-indicated by other evidence. It is only at the end point that, for want of a better yardstick, a probabilistic test is applied.
29[2000] 3 All ER 449 at 477.11.83
Re T (Abuse: Standard of Proof)30[2004] 2 FLR 838. illustrates the danger of not following this approach. The issue for the judge had been whether a child was being sexually abused. He analysed the medical evidence on its own and rejected it on the ground that it did not show abuse. In doing so, he did not take into account other evidence relevant to abuse. He then considered this other evidence and rejected it on the ground that it did not show abuse either. The Court of Appeal held that this was wrong in law. Butler-Sloss P explained why:
It seems to me that the judge, having rejected the medical evidence in isolation from the non-medical evidence, found himself in the difficulty that evidence cannot be evaluated and assessed in different compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
31[2004] 2 FLR 838 at [33]. See also [15] for counsel’s successful argument.In other words, the judge should have assessed the evidence as a whole. Each part of the evidence may have supported or remedied the limitations of, or deficiencies in, the other evidence.
11.84It is wrong for a judge to form a provisional view of some of the evidence and make preliminary findings of fact based on that evidence before considering the effect of the expert evidence. In
Hall v Jakto Transport Ltd,
32(2005) Times 30 November. the judge had taken this approach to the non-expert evidence. The Court of Appeal held that the judge should have considered the expert evidence at the same time, as it might have been relevant to the credibility of the other evidence.
Mibanga v Secretary of State for the Home Department33[2005] INLR 377. is another example of a ‘flawed fact-finding exercise’ which led the tribunal ‘to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence’.
34[2005] INLR 377: Wilson J at [23] and [24].Coherence
11.85One approach to an overall assessment of the evidence is to seek the most coherent account that the evidence supports.
35Neil MacCormick, Legal Reasoning and Legal Theory, Oxford, 1978, pp90–93. However, depending on the nature of the issue, this can be misleading. People may act or take decisions on incomplete information and on limited considerations. They may act impulsively without regard to all the possible consequences. Their conduct, viewed as a whole, may be inconsistent, irrational and contradictory. If these considerations may apply, it is safer not to seek coherence but to use it as a check on provisional conclusions on the facts.
Assessing the probative worth of evidence
11.86The assessment of evidence is not generally governed by legislation. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is an exception.
36Discussed in JT (Cameroon) v Secretary of State for the Home Department [2009] 1 WLR 1411.11.87A tribunal is entitled to reject any evidence, regardless of whether it is contested, consistent or agreed.
37R v City of Westminster Assessment Committee ex p Grosvenor House (Park Lane) Ltd [1941] 1 KB 53 at 61 and 70–71. But it must always have a reason for disbelieving it.
38Collins J in R v Social Security Commissioner ex p Bibi unreported 23 May 2000. If the evidence conflicts, the tribunal must decide which it prefers. If evidence is not challenged and there is no fact or circumstance to displace it or to cast doubt on it, the tribunal must accept it.
39R v Matheson [1958] 1 WLR 474 at 479.11.88The first task in considering evidence is to decide whether it is relevant to a fact in dispute. If it is not, it cannot be taken into account. If it is relevant, the tribunal must assess its probative worth. This is done by assessing its credibility, its reliability and its significance. In this chapter, credibility refers to the honesty and integrity of the witness and reliability refers to the evidence given.
40The expressions are not terms of art and they may be used differently. In practice, it is not possible to keep these two concepts totally distinct. But they are useful in suggesting a structured, although not rigid, approach to assessing the probative worth of evidence.
Credibility
41See Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431.11.89Credibility refers to the witness rather than to the evidence. Specifically, it refers to the honesty and integrity of the witness. To what extent is the witness trying to tell the truth? It is a matter of degree, because a witness may lack credibility on some but not all parts of the evidence.
11.90The credibility of a witness may be assessed by reference to: (i) the way that the witness gave evidence; (ii) the character and health of the witness; (iii) the reliability of the evidence given by the witness.
The way the witness gave evidence
11.91The courts have recognised the benefit of seeing and hearing a witness giving evidence.
42Powell and Wife v Streatham Manor Nursing Home [1935] AC 243. This is in the context of limiting the extent to which an appellate court will interfere, even in an appeal on the facts, with a conclusion reached by a judge who took the oral evidence. The significance of these factors reflects the fact that a bare transcript of the evidence and the judge’s judgment setting out the findings of fact cannot convey every nuance of the evidence as given in court.
11.92The demeanour of the witness is sometimes considered relevant when assessing honesty.
43Powell v Streatham Manor Nursing Home [1935] AC 243. This reflects the common belief that some features of demeanour indicate dishonesty. But all these features may all be accounted for in other ways.
44Serjeant Sullivan explained the difficulties he encountered in giving honest evidence in The Last Serjeant, MacDonald, 1952, pp41–42. Avoidance of eye contact may be cultural. Hesitation may allow an answer to be framed accurately. Reluctance to answer may be a result of embarrassment at the personal nature of the evidence.
11.93The academic psychology literature classifies the phenomena that may indicate dishonesty into three categories.
45Aldert Vrij, Detecting Lies and Deceit, Wiley, 2000. They are: (i) physiological signs; (ii) the language used; and (iii) behaviour.
11.94The physiological signs are the witness’s rate of breathing, sweating, heart rate and brain activity. As they can only be measured by instruments, there is no scope of the use of these signs in a tribunal room. In any event, the signs indicate stress, not the cause of the stress, which may be unconnected with the honesty and integrity of the witness.
11.95The language used involves an analysis of the way that evidence is expressed. It largely ignores the substance of what is said. The difficulty with this is that it requires material to compare how the witness normally speaks with the evidence given to the tribunal.
11.96The person’s behaviour refers to visual and oral signs that reflect the emotions of the witness. Research has shown how complex it can be to use emotions to distinguish between honesty and dishonesty. A leading researcher has provided a list of 38 factors that have to be taken into account in assessing the honesty of what someone says.
46Paul Ekman, Telling Lies, Norton, 2001, Appendix Table 4. His whole book presents a sustained argument that correctly interpreting the signs that may indicate dishonesty is complex and that those signs have to be considered in combination and in their context.
11.97The practical difficulties involved in a hearing room make the task even more complex. A witness will not have the tribunal’s undiverted attention, as the judge will have to read documents or take a note of evidence. The layout of the room and background noise may hamper visual and aural observation. The matter is further complicated by the fact that the unfamiliar circumstances of a hearing may themselves lead an honest witness to exhibit signs that could in other circumstances be indicative of dishonesty.
11.98Worryingly, research shows that people misunderstand the significance of cues to dishonesty and overrate their ability to detect them.
47Aldert Vrij, Detecting Lies and Deceit, Wiley, 2000, chapter 3.11.99Whatever the relevance of these supposed clues to honesty,
48The Law Commission was not convinced that a witness’s demeanour was particularly significant as a factor in assessing the evidence. See the Commission’s 1997 Report No 245 on Hearsay in Criminal Proceedings: Hearsay and Related Topics (Cm 3670). and whether they are derived from common experience or academic research, they have a limited relevance, because honesty is only one aspect of a tribunal’s assessment of the evidence. At best, they help to identify a witness who is convinced that the evidence is truthful. This will sometimes be relevant, but it is more likely that the tribunal will be concerned with the reliability of the evidence rather than the honesty or integrity of the witness.
11.100In practice, it is rare for a conflict of evidence to be resolved solely or primarily by reference to the demeanour of the witness.
49R (G) v Governors of X School [2011] 4 All ER 625 at [80]. It is safer in all cases to concentrate on assessing the evidence that is given rather than the honesty of the witness who gave it. As Atkin LJ said in
Société d’Avances Commerciales v Merchants’ Marine Insurance Co:
50(1924) 20 Ll L Rep 140.… the existence of a lynx-eyed Judge who is capable at a glance of ascertaining whether a witness is telling the truth or not is more common in fiction than in fact on the Bench, and, for my part, I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
51(1924) 20 Ll L Rep 140 at 152.11.101A former Chief Justice of the High Court of Australia made the same point, saying:
I am sure that where inferences can be drawn from established facts, one is on much stronger ground in reaching the truth than by reliance on the demeanour of the witnesses.
52Sir Harry Gibbs, ‘Judgment Writing’ (1993) 67 ALJ 494 at 497.11.102The manner in which evidence is given can, though, be a useful indication of how certain the witness is. There are non-controversial features that qualify what is being said. They are part of everyday experience, covering the tone of voice and the accompanying gestures and facial expressions. For example: a firm tone of voice may convey certainty, but an accompanying shrug of the shoulders or facial expression may indicate that the witness is less than certain about the accuracy of a piece of evidence. But these signs must be treated with caution. Depending on the circumstances, a witness may have an interest in creating an impression of either certainty or uncertainty.
The character and health of the witness
11.103In most tribunals, there is unlikely to be evidence directly on the character of the witness or party. It is more likely to emerge from an analysis of the reliability of the evidence. One relevant consideration is the extent to which the witness appears to be objective, dispassionate and disinterested.
11.104In those tribunals that deal with disability issues, the mental health of a party may be relevant to that person’s credibility.
The reliability of the evidence given by the witness
11.105If one piece of evidence is found to be unreliable, that may affect the credibility of the witness. However, it is important to assess this carefully. For example: the tribunal may decide that a witness is an unreliable judge of time or distance. But that does not mean that the witness is dishonest or unable to recall specific events in detail. Even if the tribunal decides that the witness is dishonest on one matter, that need not indicate general dishonesty. It may be no more than an attempt to support evidence that is otherwise honest. The Privy Council commented on the relevance of lies in the context of criminal law in
Broadhurst v The Queen.
53[1964] AC 441. Lord Devlin said:
There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.
54At 457.And in
EPI Environmental Technologies Inc v Symphony Plastic Technologies plc,
55[2005] 1 WLR 3456 at [74]. Peter Smith J cautioned against assuming general dishonesty from what might have been a stupid lie told by a witness in order to bolster a good case.
11.106The same approach applies to other misconduct in relation to the proceedings. As Mostyn J said in
AA v NA (Appeal: Fact-finding): ‘It does not follow at all that litigation misconduct inevitably demonstrates intrinsic mendacity on the primary issues for adjudication.’
56[2010] 2 FLR 1173 at [46].11.107The issue for the tribunal is whether a lie or other misconduct is indicative of general dishonesty. If (and only if) it is, the lie is relevant to the assessment of the witness’s evidence generally. The same holds for any other inaccuracy in evidence. It is only relevant to the assessment of the witness’s evidence as a whole if the circumstances are such that the inaccuracy infects other evidence as well.
11.108Witnesses may also be willing to lie discriminately,
57Charles J in A County Council v K, D and L [2005] 1 FLR 851 at [28]. for example according to the importance of the point. Sir Richard Eggleston’s opinion was:
… whether a witness will lie about a particular matter depends on his attitude to that matter – on the one hand, his motive for lying, and on the other, the relevance of the matter to the issues in the case.
58Evidence, Proof and Probability, 2nd edn, Butterworths, 1983, p196.In other words, a witness may be prepared to lie about matters regarded as peripheral to the case but not about matters that are perceived to be important.
59Serjeant Sullivan in The Last Serjeant, MacDonald, 1952, p98. The witness’s likely motivation is a key factor in assessing the significance of a lie.
Reliability
60See paras 11.70ff above.11.109Credibility is not the same as reliability. As Sedley LJ said in
Anya v University of Oxford:
61[2001] ICR 847 at [25].Credibility … is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.
11.110Judges have given guidance on some of the factors that should be used to assess the reliability of oral evidence. In
Armagas Ltd v Mundogas SA,
62[1985] 1 Ll L Rep 1. Goff LJ said:
I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.
63[1985] 1 Ll L Rep 1 at 57.11.111In
Heffer v Tiffin Green (a firm),
64(1998) Times 28 December at [3.2]. Henry LJ applied this reasoning to an allegation that an accountant had submitted false accounts. He criticised the trial judge’s acceptance of the evidence of a witness:
But it was crucial to test his evidence against the objective facts, the contemporaneous documents, the motives of those involved or the lack of them and the overall probabilities.
These factors are always relevant, regardless of the nature or seriousness of the issue.
11.112And in
Secretary of State for Work and Pensions v Roach,
65Reported as R(CS) 4/07, at [31]. Leveson LJ explained:
… it is trite to say that the credibility of a witness depends upon an assessment by the fact finder of a number of features. Without being exhaustive these include what is said, the way it is said, its internal consistency and the extent to which it corresponds with known facts or human experience; all this must be considered in the context of the perceptions of the witness.
11.113In
Re F (A Minor) (Child Abduction),
66[1992] 1 FLR 548. Butler-Sloss LJ gave advice on assessing conflicting affidavit evidence and the use of the burden of proof:
If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn evidence of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
67[1992] 1 FLR 548 at 553–554.This advice and in particular the need for compelling extraneous evidence, may reflect the nature of the proceedings, child abduction, in which oral evidence is discouraged.
11.114There is no limit to the factors that are relevant to the reliability of evidence. The following is a useful checklist of factors that are likely to be relevant. They also provide a partial framework for testing through questioning the reliability of the evidence presented.
68For further elements of a framework for testing evidence see paras 11.69 onwards.Factors relating to the witness
•To the extent that it is relevant, is the witness credible?
•Is there a reason why the witness might have formed a false perception of the evidence?
•How accurate and reliable is the witness’s memory? Are there any factors, such as illness, the passage of time or intervening events, that might affect this?
•Does the witness have a reason, conscious or not, to misrepresent or conceal the truth?
•How good a communicator is the witness?
Factors relating to the witness’s evidence
•Was the evidence given on oath
69Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 at 636–637. or in a sworn statement?
70Butler-Sloss LJ in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 553. •Is the evidence within the personal knowledge of the witness? Evidence that is not given of personal knowledge is hearsay. It is admissible,
71The rationale for limiting the use of hearsay is that it is not appropriate evidence for a jury to assess. This rationale does not apply in tribunals, which do not involve juries: Parke B in Wright v Doe (1837) 112 ER 488 at 517. but it is relevant to know how the witness learnt of it.
•How contemporaneous is the evidence to the time of the events in question? Time can affect the accuracy of recollection.
•Is the evidence to be taken literally? It may be clear that an expression has been used colloquially rather than literally. For example: ‘It was miles’ or ‘It took me hours’. But even if the language is intended to be accurate, it may not be reliable. For example: time and distance are notoriously difficult to judge. And if it cannot be taken literally, it may not be inconsistent with, or contradictory of, other evidence.
•How clear, precise and detailed is the evidence? Clear, precise and detailed evidence is likely to be more useful to the tribunal than vague generalities. But, depending on the circumstances, too great a recall may not be plausible. And lack of clarity may also reflect the witness’s capacity for self-expression.
•Is the evidence of the witness internally consistent?
•How plausible is the evidence? There is a danger in placing too much emphasis on this factor if the events took place in a context that is outside the tribunal’s experience. This has been noted in asylum cases,
72Neuberger and Chadwick LJJ in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 at [29]–[30] and [70]. but may also be true for domestic cases involving, for example, ethnic minority cultures.
•Was the evidence obtained by leading questions? This evidence is admissible, but it is possible that the question suggested the answer that was required. This may reduce the reliance that can be placed on it.
73Moor v Moor [1954] 1 WLR 927 may state the point too strongly for the way that many tribunals operate. However, too much can be made of this. It is likely that a witness will have a good idea of what evidence is relevant and what will and will not be advantageous. A witness is likely to know the answer required, however the question is framed. And it is permissible for a tribunal member to put a question in a form that would be leading if asked by a representative, especially if this is done to put the member’s provisional view of the evidence to a witness.
74Thorpe and Buxton LJJ in Currey v Currey [2005] 1 FLR 952 at 20 and 33. •If the evidence is of belief or opinion, is it reasonable? The more unreasonable, the less likely it is to be found to be genuine.
75Lord Bingham in R v K [2002] 1 AC 462 at 23(2), citing Lord Lane CJ in R v Williams [1987] 3 All ER 411 at 415. But some people do genuinely hold bizarre opinions.
Factors relating to other evidence and circumstances
•Other evidence must be assessed by the above criteria as well as being considered comparatively by the following criteria.
•Is the evidence of the witness consistent with or contradicted by other evidence?
•Is it corroborated? Evidence usually need not be corroborated as a matter of law, but corroboration can increase its probative worth.
76Lord Simon in Director of Public Prosecutions v Kilbourne [1973] AC 729 at 758. Lack of corroboration can also be relevant to the probative worth of evidence. If it could be corroborated, has the party failed to produce that evidence (for example, by not calling a particular witness) without a plausible explanation.
77Fairchild v Glenhaven Funeral Services Ltd [2002] ICR 798 at 13. In
TK (Burundi) v Secretary of State for the Home Department,
78[2009] EWCA Civ 40 at 21. Thomas LJ emphasised the importance of the evidence being available to the party:
The circumstances of this case in my view demonstrate that independent supporting evidence which is available from persons subject to this jurisdiction be provided wherever possible and the need for an Immigration Judge to adopt a cautious approach to the evidence of an appellant where independent supporting evidence, as it was in this case, is readily available within this jurisdiction, but not provided.
•Is the evidence contested? If it is not, the tribunal does not necessarily have to accept it;
79R(IS) 14/93 at 7. it may not be plausible or it may conflict with specialist knowledge of the tribunal.
•If there is a factual dispute about the evidence, to what extent has it been tested by questioning.
80Kataria v Essex Strategic Health Authority [2004] 3 All ER 572 at 63. •To what extent was it within the power of the party to produce evidence on a particular matter?
81Lord Bingham in Fairchild v Glenhaven Funeral Services [2002] ICR 798 at [13]. This must be applied realistically in a tribunal, as the party may not be aware of how best to present a case or able to afford the costs involved in obtaining the evidence.
Factors relating to the nature and effect of memory
11.115The report of the British Psychological Society Research Board on Guidelines on Memory and the Law (2008) summarised its key points as follows:
i.Memories are records of people’s experiences of events and are not a record of the events themselves. In this respect, they are unlike other recording media such as videos or audio recordings, to which they should not be compared.
ii.Memory is not only of experienced events but it is also of the knowledge of a person’s life, i.e. schools, occupations, holidays, friends, homes, achievements, failures, etc. As a general rule memory is more likely to be accurate when it is of the knowledge of a person’s life than when it is of specific experienced events.
iii.Remembering is a constructive process. Memories are mental constructions that bring together different types of knowledge in an act of remembering. As a consequence, memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court.
iv.Memories for experienced events are always incomplete. Memories are time compressed fragmentary records of experience. Any account of a memory will feature forgotten details and gaps, and this must not be taken as any sort of indicator of accuracy. Accounts of memories that do not feature forgetting and gaps are highly unusual.
v.Memories typically contain only a few highly specific details. Detailed recollection of the specific time and date of experiences is normally poor, as is highly specific information such as the precise recall of spoken conversations. As a general rule, a high degree of very specific detail in a long-term memory is unusual.
vi.Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.
vii.The content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious. This content can be further modified and changed by subsequent recall.
viii.People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. For example, an event that was imagined, was a blend of a number of different events, or that makes personal sense for some other reason, can come to be genuinely experienced as a memory, (these are often referred to as ‘confabulations’).
ix.Memories for traumatic experiences, childhood events, interview and identification practices, memory in younger children and older adults and other vulnerable groups all have special features. These are features that are unlikely to be commonly known by a non-expert, but about which an appropriate memory expert will be able to advise a court.
x.A memory expert is a person who is recognised by the memory research community to be a memory researcher. It is recommended that, in addition to current requirements, those acting as memory expert witnesses be required to submit their full curriculum vitae to the court as evidence of their expertise.
Significance
11.116The significance of a piece of evidence can only be determined in relation to a specific issue and in the context of the evidence as a whole.
11.117As to the issue, the closer and more directly related to the issue for decision, the greater the significance of the evidence. For example: evidence that a claimant has been seen sawing wood on a building site is more significant to the issue whether he has been working than evidence that he has been seen walking towards the site carrying a bag of tools. The same evidence may be more significant to one issue than to another. For example: evidence that a claimant was seen walking along a street in the direction of a building site is not particularly significant to the issue whether he was working at the site, but it may be highly significant to the issue of his ability to walk a particular distance.
11.118As to the context, the other evidence can affect the significance of a particular piece of evidence. For example: evidence of a claimant walking along a street near a building site becomes more significant if he is seen regularly and at times when work is starting and finishing.
Familiarity
11.119It is essential to guard against the risk of familiarity. Psychological research has shown that people judge those possibilities with which they are familiar to be more likely than those with which they are not.
82Philip Johnson-Laird, How We Reason, Oxford, 2006, p198.Expert evidence
83For an overall examination of the authorities on medical evidence, see Charles J in A County Council v K, D and L [2005] 1 FLR 851 at [39]–[49].11.120It can be difficult for a tribunal that is not expert in an area to know how to analyse or question expert evidence. The tribunal should assess the expert, the area of expertise and the evidence.
84For a slightly different analysis see Douglas Walton, Fundamentals of Critical Argumentation, Cambridge, 2006, chapter 3, ‘Argumentation Schemes’. The chapter contains a valuable analysis of the structure of different forms of argument together with schemes for challenging and evaluating them.11.121As regards the expert, the tribunal should consider the expert’s qualifications and experience relevant to the issue before the tribunal.
11.122As regards the area of expertise, the tribunal should consider the limits within which the area of expertise can provide answers to issues relevant to the case.
11.123As regards the evidence, the tribunal should consider the factual basis and the soundness of the expert’s reasoned opinion.
11.124So far as facts are concerned, the tribunal should identify the facts on which the expert’s opinion was based. It should then decide whether it accepts those facts.
11.125So far as the expert’s reasoning is concerned, the tribunal should consider the extent to which it is transparent or opaque? Transparent reasoning sets out the expert’s opinion together with the factual and other bases on which it is made. Opaque reasoning merely records the expert’s opinion. Transparent and opaque reasoning are not distinct separate categories. They are extremes of a spectrum. The more transparent the reasoning the better, because it allows the tribunal to make its own assessment of the expert’s reasoning.
85This appears to be the distinction being drawn by Peter Smith J in EPI Environmental Technologies Inc v Symphony Plastic Technologies plc [2005] 1 WLR 3456 at [76]. It is also relevant to consider whether the expert’s evidence is consistent with the views of the profession. The panel members may be aware of this from their background or it may be apparent from other evidence. However, if the area of expertise is outside that normally seen by the tribunal, it may not know whether the views expressed are representative of general opinion, a recognised minority view, or maverick.
11.126A tribunal does not have to accept expert evidence.
86Hackney London Borough Council v Rottenberg (2007) Times 9 February. The proper approach was set out by Evans LJ in
Dover District Council v Sherred and Tarling:
87(1997) 29 HLR 864.… issues of fact are for the judge to decide in accordance with the evidence given before him. Where expert evidence is admissible in order to enable the judge to reach a properly informed decision on a technical matter, then he cannot set his own ‘lay’ opinion against the expert evidence which he has heard. But he is not bound to accept the evidence even of an expert witness, if there is a proper basis for rejecting it in the evidence which he has heard, or the expert evidence is such that he does not believe it or for whatever reason is not convinced by it.
88(1997) 29 HLR 864 at 867. See also Armstrong v First York Ltd [2005] 1 WLR 2751.11.127The approach set out in
Dover is illustrated by
Re B (Care: Expert Witness).
89[1996] 1 FLR 667. The Court of Appeal was concerned with medical evidence relevant to the care of a child. In such cases, the courts take a multi-disciplinary approach involving all disciplines relevant to the case. The judge had rejected the opinion of the only expert who gave evidence, preferring evidence from other witnesses. The Court of Appeal held that he was entitled to do this. Ward LJ explained the way in which expert medical evidence should be treated:
The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.
90[1996] 1 FLR 667 at 670.Butler-Sloss LJ added the need to give reasons when differing from expert evidence:
An expert is not in any special position and there is no presumption or belief in a doctor however distinguished he or she may be. It is, however, necessary for a judge to give reasons for disagreeing with experts’ conclusions or recommendations. That, this judge did. A judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.
91[1996] 1 FLR 667 at 674.11.128A tribunal should not develop its own theory against the evidence of the expert,
92Charles J in A County Council v K, D and L [2005] 1 FLR 851 at [60]. especially if the experts are agreed and have relied on a recognised source for their opinions.
93Re B (Fact-finding Hearing: Evidence) [2009] 2 FLR 14 at [18]. However, if the tribunal contains a member with particular expertise, the member may use that expertise as a basis for assessing, and if need be differing from, the expert evidence.
94Dugdale v Kraft Foods Ltd [1977] ICR 48 at 54–55.11.129Megarry V-C said that an expert’s opinion should always be provided in full and should be accompanied by the instructions to the expert.
95Gleeson v J Wippell & Co [1977] 1 WLR 510 at 519. However, they cannot be required if they are covered by privilege.
96LM v London Borough of Lewisham [2009] UKUT 204 (AAC).11.130Expert evidence should not be used to assist the tribunal in deciding on credibility.
97Ward and Scott Baker LJJ in Re S (Care: Parenting Skills: Personality Tests) [2005] 2 FLR 658 at [57] and [71] respectively.11.131In
A Local Authority v A (No 2),
98[2011] 2 FLR 162 at [22]–[23]. Ryder J approved of a practice of ‘hot tubbing’ whereby all expert witnesses were sworn and questioned together.
A realistic approach to fact-finding
11.132Tribunals should not, and do not, invent facts. However, their findings may be influenced by their perception of the justice or merits of the case. This perception operates through their approach to the evidence, including the application of the standard of proof. The members of the tribunal may not be conscious of its influence. It can lead a tribunal to give less significance to evidence or not pursue questions that might elicit unhelpful answers. A tribunal that considers that the merits favour one party may also be more easily persuaded that particular evidence is sufficient to prove a fact in favour of that party than if the evidence had been considered in a purely neutral way.
11.133Quintilian understood the psychology at work in this:
Proofs, it is true, may induce the judges to regard our case as superior to that of our opponent, but the appeal to the emotions will do more, for it will make them wish our case to be better. And what they wish, they will also believe.
99Quoted in Edward Corbett and Robert Connors, Classical Rhetoric for the Modern Student, 4th edn, Oxford, 1999, p290.So did Pascal: ‘All men whatsoever are almost always led into belief not because a thing is proved but because it is pleasing’.
100Quoted in Chaïm Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, Notre Dame, 2008, p61.