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06/12/2006

What did you say?

I’ve been to Court a few times over the last week or two, including a several day trial (on which more another time, as there were interesting arguments involved). Across these hearings, there have been some significant concerns raised over witness statements. Not any of mine (as in drafted by me), I hasten to add, but lessons to be learnt, nonetheless, with some very pointed remarks coming from District and Circuit Judges.

The first issue concerned witness statements made by people who can’t read. A witness statement made and signed by a witness did not have a certificate made by an authorised person as described in PD 22, despite having been made over a year before this requirement was in force. There was a challenge to admissibility of the statement, which contained one key assertion. No-one was present who could confirm the statement had been read to the witness.

Lesson – if you have old witness statements by people who can’t read, without the certificate, ensure that a fresh witness statement is taken or that a later certificated statement covers all the same matters. In this instance, as it was clear that the statement had been taken for extremely urgent proceedings, it was cautiously admitted, to be confirmed with the witness, but there is no reason to risk this.

The second issue is trickier. Often, perhaps particularly in a legal aid practice, a statement requires substantial work by the statement taker to get the details in a clear, logical and chronological form, let alone add the formalities required by the CPR and PD 32. Clearly, from what I saw at a couple of hearings, some solicitors tend to insert the facts and beliefs of the witness into something almost wholly in legalese, or in language which is far from that used by the witness.

PD 32 at 18.1 says

The witness statement must, if practicable, be in the intended witness’s own words.

and, at 20.1

A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence.

In the recent hearings, witnesses who were illiterate and had english as a second language had apparently given something like legal argument in their statements, and often used ‘refute’, ‘deny’ and ‘repudiate’ in everyday speech. When they took the stand, their oral evidence was halting and confused, as might be expected. The Courts in these hearings pointed to the CPR and criticised the statements forcefully as not being ‘in the witnesses’ own words’ to the extent that they could not be considered as the equivalent of their oral evidence. The upshot was that the witnesses’ evidence did not carry the weight that it might have done, and, in one case, although the witness’s belief in what they were saying was not questioned, the accuracy and reliability of that evidence was put in doubt.

Lesson – I have always resisted the failing of putting what is in effect legal argument into a statement (unless prefaced with ‘my solicitor has advised me that…). Still, there is always a temptation to translate the witness’s words into ‘court language’. This should be resisted as the CPR is clear on this point and, I think, rightly so.

The solicitor might be confident they have effectively ‘translated’ what the client has told them, but if the witness doesn’t understand the statement as written, who will ever know (until trial)? Witnesses, particularly those with language or literacy problems, will often sign what the solicitor puts in front of them and agree without understanding.

The flip side is that, yes, some clarity and order has to be brought to what the witness tells you, and I don’t believe the CPR is suggesting a direct word for word transcription.

But the statement must be believeable as the witness’ evidence. My rule of thumb has been that I want the witness to agree, or say ‘yes, that’s how it was’ to each paragraph, not just get a signature at the end. The best result is the witness exclaiming without prompting ‘yes that’s it, that’s what I wanted to say’.

I have, more controversially, on a couple of occasions taken some patois grammar and useage into a statement, after discussion with counsel – but this was carefully adjusted for clarity (as was mentioned in the preamble to the statement). This decision was vindicated at one of the recent hearings.

I’ll accept that any decision on the language of the statement will also be shaped by knowledge of the local courts, and there is always a risk involved as to which judge will hear the case. But at least one can then argue the CPR point, whereas a statement all too clearly made by the solicitor on the witness’s behalf may well fall foul of CPR (PD) 32, despite having the statement of truth signed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. Jarndyced

    The best recent example of idiocy in taking witness statements I’ve encountered was in a case which boiled down to two persons’ words against one’s. I was representing the one, and despite the fact that the two opponents were partners (engaged, I believe) I was not hopeful of my client’s chances.

    Until the day came to exchange witness statements. I sent my client’s off.

    First my opponents’ statements were late.

    Then they were later.

    Then they finally arrived unsigned.

    Then they turned up at court with signed copies bristling with handwritten amendments.

    In addition, the two statements were almost word for word identical in huge chunks save for first person in one being changed to third person in the other (and not every instance was changed, either).

    Counsel for my client rubbed his hands in glee and asked the other side which one of the two had written the statement, since it was clearly just one statement. They wriggled and conceded that the solicitor had written it.

    You should have seen the judge make hay with that. Kaching!

    And then there was the statement where the solicitor drafting it from a template had omitted to delete the boilerplate, so in the middle of one paragraph the rogue sentence “Insert reasons to justify expenditure here” appeared…

    Reply
  2. contact

    Beauties.

    My favourite so far was the other side’s client giving evidence and taking the default position that any document with what appeared to be his signature was forged, was not by him, or he couldn’t recall signing it. This was including his own statement. His counsel was a trembling mess after 30 minutes.

    Reply

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