For those involved in the giving or preparation of trial witness statements in cases proceeding in the BPC, new rules expected to apply to statements signed on or after 6 April 2021, in the form of Practice Direction 57AC (PD) and its accompanying Statement of Best Practice, are a must read before putting pen to paper, or even commencing the proofing process.
There is in fact little that should be surprising in the new PD, if proper consideration is given to the purpose of a witness statement. The fact that there has had to be this legislative reminder, and its language and new requirements, provides an insight into judicial thinking, suggesting an increasing concern around unsatisfactory trial evidence.
The PD reminds us that the purpose of a trial witness statement is to herald the oral evidence on disputed issues of fact that need to be proved at trial which would be admissible evidence in chief from the witness. It is broadly accepted that a witness should only speak of factual matters within their personal knowledge. Oral evidence in chief should not venture into broader commentary, argument, opinion or submission. So too, it follows, their witness statement.
In recognising that the human memory fades and is “vulnerable to being altered by a range of influences”, the PD seeks to limit the practice of showing documents to witnesses at the proofing stage, especially where those documents were not seen by the witness at the time, and reveals a concern about witness statements being overly crafted, cautioning against the potential corrupting effect of too many drafting stages.
The key take home points are these:
- While the lawyer can draft the statement and determine structure, layout & scope, the statement should be in the witness’s own words/language (even if not the language that would be chosen by the lawyer!)
- Statements should only cover key disputed matters of fact that the witness can give first hand evidence on, having experienced it him/herself and be as concise as possible: “A matter will have been witnessed personally by a witness only if it was experienced by one of their primary senses (sight, hearing, smell, touch or taste) or if it was a matter internal to their mind (for example, what they thought about something at some time in the past or why they took some past decision or action)… It may include evidence of things said to a witness”
- Statements should not contain argument, submission, opinion, commentary on other witness evidence, or wide commentary on/heavy quoting from documents. Witnesses should refer to documents only where necessary, in limited circumstances.
There is nothing new in any of that, but significantly the PD goes further:
- Witnesses can be shown documents, but only those that they would have seen at the time, or “while the facts evidenced by or referred to in the document were still fresh in their mind, so that they would have known if they were accurate or inaccurate” – a clear signal that the judiciary wish to discourage the practice of evidence being prompted, or gaps in memory filled, by witnesses indiscriminately reviewing evidence bundles and documents never seen before, ahead of or during the proofing stage. As such (and this is new), greater transparency will be required around the documents that are shown to a witness at the proofing stage – these will now need to be listed.
- On important disputed matters of fact, witnesses will be required to state the strength of their recollection and the extent to which it was prompted by documents – again a new requirement.
The above heralds a clear move away from “kitchen sink” witness statements containing narrative evidence, towards very focussed statements, together with a renewed focus on true recollection and strength of recollection. A balance will be required between proofing BPC case witnesses as early as possible, while memories are still fresh, but only when the issues of fact are properly crystallised and understood. We can foresee the need for careful analytical preparation ahead of the proofing stage to identify the specific issues for each witness and the appropriate documents for review, and in this sense we see clear parallels with the changes brought about by the Disclosure Pilot Scheme.
Both legal advisers and witnesses should pay careful heed to the PD. Going forwards, both will have to confirm their understanding of these rules in BPC cases – the witness via new wording within the Statement of Truth; the lawyer by a new certificate of compliance.
We see a shared responsibility here. The lawyer’s duty is to explain, to ensure compliance and to avoid any form of pressure or practice which might alter or influence a witness’s recollection. The witness’s responsibility is to be truthful (both in the evidence given and in confirming strength of recollection) but also to be robust in avoiding creep beyond, or being led beyond, the limits of the evidence that he or she can properly give. Otherwise both will have an uncomfortable experience in the Court room – we can only expect greater judicial scrutiny once the PD comes into force.