The Hillsborough Report makes for chilling reading in many ways, but Section 11 dealing with the review and alteration of witness statements should be studied by all of us who are involved in the litigation process.
Officers from South Yorkshire Police (SYP) were told to prepare full statements. These were then subjected to review by solicitors before final, CJA compliant, versions were prepared, which were then provided to the Taylor Inquiry. The Report notes that if the intention was simply to remove opinion from the final statements, the effect of the alterations went further:
"129. The process of transition from self-taken recollections to formal Criminal Justice Act statements was presented as removing 'conjecture' and 'opinion' from the former, leaving only matters of 'fact' within the latter. Disclosed correspondence between SYP and the Force solicitors reveals that comments within officers' statements 'unhelpful to the Force's case' were altered, deleted or qualified (rewritten by the SYP team)."
In relation to civil litigation, CPR 32.4 provides that a witness statement should contain "the evidence which that person would be allowed to give orally" and should contain evidence "in relation to any issues of fact to be decided at the trial". The Practice Direction at 32PD.18 provides that the statement "must, if practicable, be in the intended witness's own words."
There is a heavy responsibility and trust placed on lawyers in the litigation process. being a lawyer is not about winning cases at all costs. I sometimes wonder whether the increasing commercialisation of litigation and creation of financial incentives on litigators to win cases tempts some lawyers to "cut corners" to avoid facing up to inconvenient evidence and therefore to undermine the process of justice.
We all want more access to justice, not more access to injustice.
Back to witness statements: as lawyers must be astute to ensure that witness statements are in the witness's own words rather that in the words we would like them to use.
Whilst opinion evidence from lay witnesses may not be admissible in civil proceedings, we should not delete inconvenient factual evidence from statements under the guise of taking out opinions.
We should remember that in court the witness will have to confirm that their evidence, including their statement, is not just the truth, but "the whole truth" (I have long thought that the statement of truth required to verify statements under the CPR should accord more closely with the oath or affirmation given at court).
If statements are being prepared for an Inquest or Inquiry, then there will be no strict rule to exclude opinion evidence. Counsel to the Taylor Inquiry had advised that there should be no reason why opinion evidence should not be included in the officers' statements.
Here is an example of the mischief which can be done by alteration and review, taken from the Hillsborough Report:
"2.11.71 In his initial account, Police Constable Keith Bradley referred to problems with radio communication and lack of direction from senior management. It was altered substantially. His original recollection read:
As it became obvious what had happened those of us attempting to keep some sort of order outside the ground, and keep the way clear for emergency vehicles, were subjected to a non stop torrent of vehement verbal abuse and threats from a good proportion of the crowd by now leaving the ground, this was a frightening situation as we were by now vastly outnumbered by a potentially hostile mass of distressed people. No officer senior or otherwise, came to inform us of what had happened, we were deflecting the insults, threats and abuse, basically still being unaware of what exactly had happened. Radio traffic was non existent all through this time, as was a lack of direction from supervisory officers.
2.11.72 The altered version read:
As it became obvious what had happened those of us attempting to keep some sort of order outside the ground, and keep the way clear for emergency vehicles, were subjected to a non stop torrent of vehement verbal abuse and threats from a good proportion of the crowd by now leaving the ground, this was a frightening situation as we were by now vastly outnumbered by a potentially hostile mass of distressed people. We were deflecting the insults, threats and abuse, still being unaware of what exactly had happened. Radio messages being passed were more difficult to understand all through this time.
2.11.73 The original recollection was unequivocal, asserting that radio traffic was 'non existent'. Yet this was deleted and the amended version altered the meaning by stating that radio messages were sent but difficult to understand. The amended version also removed reference to the 'lack of direction from supervisory officers'.
2.11.74 Reproducing these paragraphs in full demonstrates a further significant issue in the process - the removal of conjecture or opinion was highly selective and officers' comments on the hostility of the crowd remained as a statement of fact."
Any reader of this blog would avoid alterations of that kind, but the Hillsborough report also contains many other more subtle examples where it appears that an intention to "protect the client" has contributed to this gross injustice.