Can a part-heard witness review a transcript of their evidence?

Authors: Kevin HolderArthur Lo
In: Article Published: Thursday 10 September 2020

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Can a part-heard witness review a transcript of their evidence?

Covid 19 and consequent lockdown and social distancing strictures have presented major challenges to the continued operation of the courts, mitigated through the rapid deployment of technological measures. The use of live video feeds to facilitate the remote participation of judges, advocates, and witnesses has been one of the most significant of those measures, utilised not only for short procedural hearings but also lengthy trials featuring extensive cross-examination of witnesses.

Digital platforms used to facilitate remote hearings not only permit communication between participants, but also the automatic recording of proceedings. It is possible for the recordings to be provided to transcribers who use voice recognition software to provide affordable and accurate transcripts to the Court and parties at the end of each day of trials. What used to take weeks (and was thus only available for appeals) can now be obtained within two hours of adjournment or even in real time.

The desirability of such a facility to the legal profession is apparent; judges and advocates can focus on listening to live evidence and observing the witness’ delivery. They are not distracted by the need to maintain a note of what is being said, and have the benefit of a verbatim record when preparing lines of questioning, closing submissions, or the substantive judgment.

The facility does however raise the question of who should have access to transcripts and when such access should be afforded. In particular, should witnesses be entitled to review the transcript of their testimony when that transcript is received by the parties at the end of each day’s sitting? In the past, given that such a facility did not exist, the question did not arise. Technology now poses the question, and the interests of justice demand an answer and consistency in approach.

ROTAMEAD

Whilst there is a lack of guidance on this issue in both the authorities and Civil Procedure Rules, the question arose before Martin Bowdery QC sitting as a Judge of the High Court in the unreported TCC case of Rotamead v Durston Scaffolding Ltd HT-2018-000334 in August 2020.

Prior to the trial in that matter, arrangements were made for same-day transcripts to be provided by Auscript Limited to the parties and the Court each evening.

One of the parties commenced his testimony on the second day of the trial and was due to continue his testimony on the third day. Opposing counsel had indicated that he could “probably finish off in the next five minutes if your Lordship would give me that indulgence,” to which His Lordship responded “Could you have five minutes tomorrow morning just in case? When you read the transcript there may be further matters you may want to raise.”

His Lordship then proceeded to give the witness the usual warning (often known as the “purdah warning”) not to discuss his testimony with anyone that evening or the following day until he had concluded giving his evidence:

It is the practice of the courts when a witness is in the middle of his evidence, until his evidence is concluded, that you must not discuss this case with anyone else. Please enjoy your evening, but do not think it is appropriate to discuss the case with friends, family, or legal advisors.”

On the first day of the trial, the transcript had been sent by Auscript to the parties’ legal representatives, who in turn made it available to the parties. On the second day, the testifying party’s solicitors received the transcript as normal, but did not forward it to the client. During the course of that evening, the client e-mailed his solicitors to request sight of the transcript. In accordance with the purdah warning, his solicitors did not respond, but instead instructed his counsel to e-mail the judge and ask for permission to disclose the transcript to him.

The judge invited submissions from opposing counsel as to whether he should accede to the application/ request.

Opposing counsel conceded that he could find no authority on the question, but urged the judge to refuse permission on the following grounds:

  1. The question of providing the transcript to the testifying party should have been addressed by counsel prior to the adjournment;
  2. If the issue had not been raised because the testifying party had only communicated the request after the adjournment, then this arguably contravened the purdah warning;
  3. The purpose of the purdah direction is to protect the integrity of witness evidence;
  4. If transcripts had not been available, a witness would not be permitted to read his solicitor or counsel’s note of his evidence.  Transcripts should not be treated differently.
  5. The testifying party was said to have shown a propensity to memorise and cross-refer to evidence that he was not being asked about;
  6. Owing to said propensity, provision of a transcript to study overnight was likely to taint the integrity of his evidence the following day;
  7. The witness’ position was adequately protected by the fact that his counsel would have sight of the transcript and the ability to re-examine on any points arising.

THE DECISION

His Lordship responded by e-mail declining the testifying party’s application advising that reasons would be given the following day.

The learned judge held as follows:

The reasons why I rejected the application is that I consider it inappropriate [to provide the testifying party] in circumstances where his cross-examination had not been completed. In the ordinary way he would not be allowed to review his lawyer’s notes or his evidence during the course of his cross examination. He has experienced counsel ready to re-examine him on any part of his evidence once his cross-examination has been completed.

I consider that there is a risk that if he had the opportunity to read the transcript before his cross-examination was completed, he might be tempted to re-examine himself on his own evidence. I also consider the application was made too late in the day. It should have been made before the commencement of the evidence.

If it were appropriate, and I strongly consider that it is not, then all witnesses would have the opportunity of reviewing a transcript of their evidence before their cross examination was completed. The practical difficulties of allowing that to happen support the case that no witness of fact should be allowed to read a transcript of their evidence before their cross examination is completed and before their evidence is concluded, and therefore I consider it would be inappropriate [for the testifying party] to review the transcript before his cross- examination was complete. Therefore, I reject the application."

DISCUSSION

It is unfortunate, that, before deciding the issue, the Court did not have the benefit of full argument on the issue. Accordingly, the purpose of this article is to seek to consider whether or not there is a default prohibition on testifying parties having access to transcripts and the policy considerations for and against a witness having recourse to a same day or real time transcripts. It should be noted that until such time as the matter is determined by the Civil Procedure Rules or binding authority, any views expressed herein are provisional, theoretical, and untested, and accordingly should not be relied upon in Court proceedings. Parties and witnesses should obtain their own legal advice before taking any action in respect of any of the matters discussed below.  It is, however, hoped that this article will contribute to the debate on this topical and important issue.

RIGHT OF ACCESS TO THE TRANSCRIPTS

CPR rule 39.9(3) provides that: “Any party or person may require a transcript of transcripts of the recording of any hearing to be supplied to them, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.” This provision is repeated in many of the Court Guides, including at paragraph 12.4.1 of the Queen’s Bench Guide, which states “Any party or person may require a transcript of the recording of a hearing to be supplied to them on payment of the appropriate charges.”

Consequently, where the parties have paid for same day transcription, they  appear to have a right of access to said transcript as soon as it becomes available.

Neither the CPR nor the Court Guides expressly articulate any constraints upon this right of access.  Section 15 of the Technology and Construction Court Guide explains the virtues and procedural implications of same day and simultaneous transcription, but notably does not impose any restrictions save for the fact that “all parties have equal access to the transcript.

Section 15 provides:

  • Many trials in the TCC, including the great majority of the longer trials, are conducted with simultaneous transcripts of the evidence being provided. There are a number of transcribing systems available. It is now common for a system to be used involving simultaneous transcription onto screens situated in court. However, systems involving the production of the transcript in hard or electronic form at the end of the day or even after a longer period of time are also used. The parties must make the necessary arrangements with one of the companies who provide this service. 

 

  • In long trials or those which involve any significant amount of detailed or technical evidence, simultaneous transcripts are helpful. Furthermore, they enable all but the shortest trials to be conducted so as to reduce the overall length of the trial appreciably, since the judge does not have to note the evidence or submissions in longhand as the trial proceeds. Finally, a simultaneous transcript makes the task of summarising a case in closing submissions and preparing the judgment somewhat easier. 

 

  • If possible, the parties should have agreed at or before the PTR whether a simultaneous transcript is to be employed. It is usual for parties to agree to share the cost of a simultaneous transcript as an interim measure pending the assessment or agreement of costs, when this cost is assessable and payable as part of the costs in the case. Sometimes, a party cannot or will not agree to an interim cost sharing arrangement. If so, it is permissible for one party to bear the cost, but the court cannot be provided with a transcript unless all parties have equal access to the transcript."

It is accepted that the benefits highlighted in Section 15 refer to advantages for counsel and judges rather than witnesses, but if there was a policy concern that part heard witnesses should not have access to real time or same day transcripts, one might expect that sentiment to be expressed in the Court Guides.

The notion that such a default policy position does not exist, is arguably supported by the case of BGC Brokers LP and others v Tradition (UK) Ltd and others [2019] EWHC 3588 (QB), in which Eady J refused an application to exclude witnesses from the Court during the testimony of others and to prohibit the witnesses from accessing the daily transcripts until they had completed their testimony. This is the only reported case the authors are aware of where the issue of prohibiting access to transcripts has been considered. Her Ladyship held that the general principle is that civil trials are heard in public in accordance with “the common law principle of open justice,” and that no one who wishes to be present should be excluded from the hearing. The Court’s discretion to exclude a witness was said to be of an “exceptional nature.” The Court further took the view that even witnesses who are not parties would ordinarily have the right to be in Court and to review transcripts on the basis that they “also have a legitimate interest in seeing that justice is done.” Her Ladyship continued “If the principle of open justice is to be respected, the right of those involved in the proceedings as witnesses to be present during the hearing must be acknowledged; any restriction on that right would need to be limited to that which was both proportionate and necessary.” In the case of parties, the Court reiterated the utility of a parties having reviewing transcripts in order to provide instructions to legal representatives.

It is accepted that this case was concerned with the issue of whether a witness should be precluded from hearing or reading the testimony of another witness rather than their own testimony. Nevertheless, if a witness has a right to hear and read the evidence of another (before they conclude their testimony), it is difficult to see why they should be precluded from reading their own evidence. Presumably, the risk of influence is far greater where a witness is exposed to the testimony of others rather than their own previous testimony. A witnesses’ testimony derives from their own consciousness rather than an extraneous source. Furthermore, whilst access to a transcript of third-party evidence is likely to afford significant insight (that the witness would not otherwise possess), access to the transcript of one’s own evidence is likely to only marginally augment a witness’ own faculty of memory.

 If a witness has a legitimate interest in seeing that justice is done, do they not also have the right to assess whether their own evidence was fairly adduced and accurately expressed? If the interests of open justice do not cede to the risk that witnesses will influence each other’s testimony, it is difficult to understand why it should cede to the risk that a witness will influence themselves.  

BGC confirmed that whilst the Court does have a right to control witness access to transcripts, any such discretion should be justified on the individual facts of the case. It was considered that any restrictions should be: “limited to that which was both proportionate and necessary.” Consideration should also be given to the principles of open justice, and the utility of a party seeing transcripts so as to provide instructions.

In the case of  R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), Hickinbottom LJ declined to authorise live streaming of a hearing, but held that given that the parties had agreed to obtain a daily transcript of proceedings, “the possibility can be investigated of that transcript being made accessible on the web as soon as it is available on the day.” If a transcript were to be made available on the internet at the end of each day, it would be accessible to all, including part heard witnesses.

Accordingly, it appears likely that a witness does have a right of access to the transcript (at least where the relevant transcription fees have been paid), but that said right can be restricted by the Court where it is proportionate and necessary to do so.

WOULD ACCESS TO THE TRANSCRIPT CONTRAVENE THE PURDAH WARNING?

The term “purdah” refers to the warning usually given by a judge to a witness, in the event that their testimony is interrupted by an adjournment, not to discuss their evidence or case with anyone before the conclusion of his evidence. In Rotamead, the direction was “you must not discuss this case with anyone else.” The purpose of the purdah was succinctly summarised by Patten LJ in Hughes Jarvis Ltd v Searle [2019] EGLR 13 in the following terms at paragraph 23:

Witnesses are commonly given warnings by the trial judge not to discuss their evidence until after it has been completed. The purpose of the warning is to protect the witness from any attempt by a third party to influence their evidence and also to ensure that, so far as possible, the evidence which the witness gives is his or her own best recollection unassisted by any other person. Compliance with the warning both protects the witness and the effectiveness of the trial process.”

His Lordship continued:

  • Although, as I have said, trial judges frequently warn witnesses not to discuss their evidence whilst still under oath, I have never regarded that as amounting to an order as such nor, in my view, can it be treated as one in this case…. 
  • The obvious sanction open to a judge who discovers that a witness has communicated with some third party about his evidence during the course of the trial is to ascertain what was discussed and, if appropriate, to discount or give no weight to the evidence…. 
  • if the judge here had wanted to make her warning to the witness an order of the court which if breached could lead to the witness's committal for breach of the order, it was incumbent on the judge to spell out to the witness not only the precise terms of the order which was being made but also the consequences (in terms of committal) which could follow from a breach.”

His Lordship not only held that a purdah warning does not ordinarily constitute a Court order, but also that the scope of such a warning is limited to its express terms:

 

even if what the judge said to Mr Jarvis is to be construed as an order then it was limited to an embargo on his speaking about or discussing his evidence during the adjournments. I have set out the terms of the judge's warning in the passages quoted earlier and nowhere does the judge say that Mr Jarvis is prohibited from sending emails and documents to his legal representatives. I do not regard the sending of such emails as amounting to a discussion of his evidence given that they were not responded to.

WOULD ACCESS TO THE TRANSCRIPT CONSTITUTE INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE

His Lordship also considered “criminal contempt involving an interference with the due administration of justice,” and noted that “there is no reported case in which a witness has been held to commit a contempt of this kind by discussing his evidence with a third party during an adjournment.

Whilst as Patten LJ noted “the concept of interference with the administration of justice is a wide one,” it is difficult to envisage how a witness having access to a transcript of their own evidence (assuming it was not annotated or modified) would interfere with the administration of justice any more than them having access to their witness statement or the trial bundle.

PROVISION OF THE TRANSCRIPT

It might be considered that the aspect of the purdah warning most likely touched upon is any communication from a witness to a solicitor asking for sight of the transcript or indeed communication from the solicitor to the witness providing the transcript.

Whilst ideally any transcript would be received directly from the Court or the transcriber rather than from the witness’ own legal representative, Hughes Jarvis would seem to suggest that the purdah warning must be construed according to its terms. Accordingly, it is arguable that provision of an unmodified transcript provided without comment does not constitute a “discussion of evidence” or a “discussion of the case” as there is no dialectic aspect; merely the witness being provided with his own words presented in an unedited format. Clearly if the representative annotated, highlighted, or was in any way selective in the provision of the transcript, that would not be the case and might amount to tacit discussion that in some way invites the witness to reconsider their testimony.

IS THERE A DEFAULT PROHIBITION?

Accordingly, on the face of it, it is unclear that there is any standing prohibition of a witness receiving a transcript of their evidence during any adjournment (though such a conclusion cannot be definitively stated until such time as the matter is determined by the courts or the CPR). As Patten LJ held, the purpose of the purdah warning is to protect the witness from third party influence and to facilitate testimony of a witness’ “own best recollection unassisted by any other person.” Third party involvement appears to be the issue the Court seeks to guard against. There is not, for example, a warning to witnesses that they should not re-read their witness statement or read through the trial bundle during any adjournment. Whilst testimony is designed to be the evidence of the witness it is not a closed book exam or memory test of previous testimony.

ON WHAT BASIS CAN THE COURT DENY OR DEFER ACCESS TO A TRANSCRIPT?

It seems clear that by virtue of broad case management powers, the power to control the evidence, and (in the case of the High Court) inherent jurisdiction, the Court does have the power to restrict or at least delay a witness’ access to a transcript until after they conclude their testimony.

CASE MANAGEMENT POWERS

Although not addressed in any of the reported cases dealing with the purdah warning or the exclusion of witnesses, it seems likely that the power to give the purdah warning, exclude witnesses, and deny or defer witness access to a transcript is covered by the “catch all” CPR r.3.1(m), which provides:

the court is permitted to take any step or make any order for the purpose of managing the case and furthering the overriding objective.

As the White Book states at paragraph 3.1.13, this rule allows the court “to make any order which it is necessary to make if the court is to act effectively.”

POWER TO CONTROL EVIDENCE

CPR r.32.1 states that the Court can control evidence by giving directions as to:

(a)        The issues on which it requires evidence;

(b)       The nature of the evidence which it requires to decide those issues;

(c)        The way in which the evidence is to be placed before the court.

Whilst, the power to give the purdah warning, exclude witnesses, and deny or defer witness access to transcript clearly falls outside of (a) and (b), it is arguable that the Court’s power to control “the way in which evidence is to be placed before the court” would extend to such measures. As the White Book states at paragraph 32.1.1. “the general power to control the evidence is a far-reaching one.”

INHERENT JURISDICTION

In addition to express powers under the Civil Procedure Rules, superior courts, such as the High Court, are able to utilise inherent jurisdiction. The Court’s jurisdiction in this respect is extremely broad. The White Book Vol 2 at 9A-68 states that the inherent jurisdiction is a matter of procedural, rather than substantive law, under which the Court may “control its own process” and “make any order which it is necessary to make if the court is to act effectively”. An illustration of the court’s approach towards the exercise of its inherent jurisdiction in procedural matters is found in the case of Bremer Vulkan Schiffbau Und Maschinefabrik v South India Shipping Corp Ltd [1981] AC 909. In this case, Lord Diplock held that the Court has a general power to control its own procedure to prevent injustice. Examples include an inherent jurisdiction to ensure convenience and fairness in legal proceedings, to prevent steps being taken to render judicial proceedings inefficacious, and to prevent abuses of process.

POLICY CONSIDERATIONS IN EXERCISING THE POWER TO DENY OR DELAY ACCESS TO THE TRANSCRIPT

It is considered for the purposes of this article, that asking why a witness should have access to a transcript (a default restriction) is not the correct approach. Rather, the appropriate question to pose is why a witness who is permitted access to a transcript by virtue of CPR r.39.9(3) should have that right suspended.

A LEVEL PLAYING FIELD

The fact that not all witnesses are able to access a transcript during testimony is not a compelling basis for a default prohibition. It is true that same day or instantaneous transcripts are not available in all cases, but where that is true, it is the case for all parties; judge, counsel, and witness alike. No participant has immediate recourse to a verbatim record and accordingly all rely upon recollection and notes. This creates a level playing field, where a witness is tested on their recollection of events rather than on their recollection of what they said in the witness box a few moments, minutes, hours, or days earlier. Whilst a witness can be tested for consistency as to what they say in the witness box, the assessment should be substantive rather than semantic. If a witness is challenged as having contradicted himself, he will be able to rely upon his own recollection, and the judge will likely intervene if the cross-examining advocate makes an unfair challenge.

Where a transcript exists, it permits the cross-examining advocate to question a witness not upon a matter that is within the common recollection of the Court, but which forms part of the Court’s written record. Just as a witness might reasonably expect to be taken to a document they had written or a transcript of the telephone call, or a paragraph of their witness statement (and thus ascertain precise language and context), if a witness is to be cross-examined on a verbatim record of their oral testimony, they should similarly have the ability to read the transcript for themselves.

Whilst it could be argued that this right should be limited to having access to the transcript whilst in court and when specifically questioned on the contents of said transcript, the fact remains that witnesses (when parties to the litigation) are not precluded from having access to the contents of a trial bundle or their witness statements outside of the court room.

Equally, it seems questionable to contend that witnesses whose testimony is adjourned would have an advantage over witnesses who deliver their testimony in one sitting. It is true that “part heard” witnesses have time to reflect and adapt their testimony, but they have this ability with or without access to the transcript. Such an advantage is afforded by the faculty of memory and the equanimity afforded by time to reflect. The opportunity to reflect and adapt may also prove more damaging than beneficial given that a witness who adjusts the style or substance of their testimony after an adjournment is likely to undermine their perceived credibility. Perhaps the most significant distinction between continuous and adjourned testimony is the influence of short-term memory. A witness who completes their testimony in one sitting is likely to have a relatively clear recollection of their testimony. A witness who continues their evidence the following day or days or weeks afterwards will clearly not have that advantage. It is considered that provision of any available transcript is a proportionate manner of ameliorating such a disadvantage. If no transcript exists for any party, then the disadvantage is mitigated. If, however, the witness is expected to continue without a sound short term recollection, whilst the advocate is armed with a word-perfect record, that appears to be intrinsically unfair.

THE DIFFERENT ROLES OF ADVOCATES AND WITNESSES

Whilst it is true that a witness possessed of a transcript during the adjournment might be inclined to correct themselves when resuming testimony, that is not necessarily averse to the interests of justice. A witness ought to give a full and accurate account. If they discover they have misspoken, justice favours that they correct themselves. In the case of expert witnesses this is a matter of obligation under Part 35, and in the case of witnesses of fact it is a matter of obligation under their oath or affirmation to tell the whole truth. There is a risk that witnesses may seek to “re-examine” themselves if they perceive shortcomings or omissions in their testimony, but both the cross-examining advocate and the court are well equipped to prevent that from occurring. It is considered that the risk of “self re-examination” is an insufficient basis to deny or delay witness access to transcripts.

It is not correct to say that the witness is protected if they can be re-examined by an advocate who also has access to the transcript; by that point the witnesses’ confidence and credibility has already been undermined.

Whilst it is true that a reliable witness should be capable of consistency in the substance of what they say even if they do not recollect what they have previously said in the witness box, the fact remains that cross-examination is often designed not to test for broad substantive consistency but to forensically identify any disparity however small, in the hope of undermining the witness’ credibility. Often that will involve taking a witness to their statements or documentary evidence. In those cases, the witness is not merely asked to recall events, but justify past statements about events. Where those statements are contained in witness statements or exhibits, the witness is ordinarily permitted to refresh their memories by having regard to the documents themselves. Where a witness is challenged to justify earlier statements in the witness box, it is ordinarily expected that they can do so from short term memory. It is suggested that is an unfair expectation when those statements were made days, weeks, or months previously.

COMPARISON OF A TRANSCRIPT WITH LAWYERS’ NOTES

The argument that a witness would not be permitted access to his lawyers’ notes and therefore should not by analogy have access to the transcript also faces difficulties. Lawyers’ notes are unlikely to be a verbatim record; owing to the nature of notation, answers are likely to be paraphrased and recorded according to perceived significance. Just as a witness should not be permitted to ask their lawyer what they said in cross examination (for fear that the lawyer consciously or inadvertently influences the witnesses’ perception as to what they should say), it naturally follows that they should not read lawyers' notes until their testimony is concluded. That is not the same as a verbatim record that is no more than a faithful mirror of the witness’ own testimony, and that affords nothing more than would be enjoyed by a person with perfect memory.

THE STERILITY OF THE WITNESS BOX

A slightly more compelling argument is that testimony should be a sterile process in which the witness is scrutinised for the purpose of testing their evidence. The performance of the witness under pressure is obviously an important factor. Ideally the process should help to identify not only facts, but also clarity, consistency, truthfulness, and reliability. It is obviously undesirable for a witness to be able to study their testimony overnight with a view to identifying and insulating themselves against the cross-examiner’s strategy, strategising for the following day, or memorising any fabrications that they might wish to maintain. The difficulty with this argument is that a disingenuous witness is able to do this whenever there is adjournment; whenever there is time to reflect and formulate. Many witnesses can no doubt do this during the course of the testimony itself. It does not seem a sufficient reason to deny the witness “equality of arms” with their inquisitor. If a Court came to the conclusion that a witness had, through studying a transcript overnight, artificially strengthened his evidence in order to ensure consistency with what he said on the previous day, the appropriate response would be to adjust the weight to be given to the ‘contaminated’ part of his evidence, rather than to pre-emptively prevent him from accessing the transcript.

THE ROLE OF MEMORY

There is an ostensible fallacy in contending that access to a transcript will distort the Court’s assessment of the witness’ reliability. As contended above, access to a transcript assists a witness with what they said in Court (short term memory) rather than augmenting their recollection of the facts in issue (long term memory). There is an arbitrary disparity between a witness who completes their testimony in one sitting (and thus benefits from a short-term recollection of their earlier testimony) and a witness whose testimony is adjourned, and who accordingly has a diminished sense of their earlier testimony. There is no principled distinction between a witness being able to read their witness statement before or during their testimony and a witness being permitted to read a transcript of their earlier testimony; both constitute a written record of their evidence. The fact that a witness has access to their witness statement does not inhibit cross examination on inconsistent statements, and so it is difficult to see why it would have that effect if witnesses had access to transcripts.

In Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm), Leggatt J provides an insightful discourse on the fallibility of witness evidence owing to the intrinsic unreliability of memory:

  • While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

 

  • Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

 

  • The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be  significant motivating forces…

 

  • [the value of cross examination] lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

If the probative value of establishing a witness’ confidence in his or her own long term memory of events is questionable, then surely the probative value of establishing a witness’ recollection of their testimony days or weeks before is minimal, and certainly not sufficient to warrant a witness being denied access to a transcript of their evidence.

Furthermore, the notion that recollection is contaminated by being able to listen to the testimony of others or by reading a transcript of earlier testimony ignores the axiomatic fact that contamination occurs well before the witness steps foot in court. As His Lordship noted:

Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."

CONCLUSION

In conclusion, it is considered that the default position should be that witnesses are not precluded from access to transcripts, but that the Court retains the discretion to depart from that position where it is necessary and proportionate to do so. It is further considered that the policy considerations for adopting a default prohibition are not particularly compelling. It is hoped that the CPR or binding authority will provide authoritative guidance on this issue in the near future.

KEVIN HOLDER AND ARTHUR LO © 2020

BARRISTERS

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.