Pure and Simple – the Court of Appeal attack hearsay

To clarify, the Court of Appeal did not attack the manufactured flash-in-the-pan pop sensation that was Hear’say, who deserve it merely for the superfluous apostrophe.  

[In their defence, the band produced not only Kym Marsh who has been ace in Corrie, Myleene Klass who was top viewing on I’m a Celebrity, but also their reject pile produced Jessica from Liberty X, a major factor in keeping Kevin Pieterson happy and in good shape to thrash the Aussies at cricket in the upcoming Ashes series]

No, this is really about  Re W (Fact Finding : Hearsay) 2013, and hooray for a meaningful title AND a Court of Appeal case that is not about bloody placement orders.

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1374.html

For the real people who read this blog, here’s a quick illustration of what hearsay means

1. Kevin Pieterson goes into the witness box and describes how he watched Ian Bell hit a six right over the head of Mitchell Johnson  (direct evidence, no hearsay)

2. Matt Prior goes in the witness box and describes how Kevin Pieterson TOLD him about seeing that six.  (That’s direct evidence that KP SAID it, but only hearsay evidence that Ian Bell did actually hit the six) 
3. Graham Swann (swanny!) goes in the witness box and says that Matt Prior told him (swann)  that KP told him (prior)  that he (KP) had seen Ian Bell hit a six   (that’s now getting very removed from someone who can say whether Ian hit that six, and is hopeless at establishing whether it happened or not. Hearsay pure and simple)

In crime, there are complicated and technical rules on when hearsay evidence is admissible and when it is not. That’s why we family lawyers put those thick Law of Evidence tomes into cardboard boxes, scotch-tape them shut and put them in the attic as soon as our exams were over.

In family law proceedings, hearsay evidence is generally admissible

7. There is a great deal of authority on the subject of hearsay evidence in cases concerning children. I will list below the authorities that were cited to us as of particular relevance to the issue but we were not asked to revisit them or to venture any general guidance, the appeal being approached with commendable practicality on the basis that the judge erred in the way in which she treated the evidence in this particular case. The authorities were: Official Solicitor v K [1965] AC 201; Re W (Minors)(Wardship: Evidence) [1990] 1 FLR 203; R v B County Council, ex parte P [1991] 1 FLR 470; Re N (Child Abuse: Evidence) [1996] 2 FLR 214; Re D (Sexual Abuse Allegations: Evidence of Adult Victim) [2002] 1 FLR 723; Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773; H v L [2006] EWHC 3099 (Fam); B v Torbay Council [2007] 1 FLR 203; W (a child) [2007] EWCA Civ 1255; JFM v Neath Port Talbot Borough Council [2008] EWCA Civ 3; Enfield LBC v SA (By her Litigation Friend, The Official Solicitor) [2010] EWHC 196 (Admin); Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12 [2010] 1 FLR 1485; Surrey County Council v M, F and E [2013] EWHC 2400 (Fam).

8. We were also referred to the Children (Admissibility of Hearsay Evidence) Order 1993, the Civil Evidence Act 1995 and Articles 6 and 8 ECHR.

In this case, a 28 year old woman T, made allegations that she had been sexually abused as a child. That was important, because she had younger siblings who were still children.  If T’s allegations were false, then there was no risk for those children. If, however, they were true, then there would be a potential risk.

A fact finding hearing therefore took place, for the Court to determine which of those two options was correct. The Court made findings that T’s allegations were true. T did not give evidence herself, and that’s why the case was appealed.

9. Much of the local authority’s evidence in relation to the sexual abuse findings was hearsay. The principal source of evidence about what happened to T was obviously T herself. She had spoken to social workers about her experience in late 2012/early 2013 and they reported to the court what she had said. However, Judge Davies (who very properly attended to the case management of this case throughout) was quite rightly intent on ensuring that her evidence should be received by the court in a more direct form and made an order on 20 March 2013 that if the local authority were relying on her evidence, they were to file a statement from her. A date was given for the filing of the statement and when that was not complied with, an extension was given. However, still no statement was forthcoming.

10. T’s position was discussed at a directions hearing on 6 June 2013. There is a difference of recollection as to the extent to which any reason was given for the absence of a statement from her but it may be that the local authority explained to the judge that T was not co-operating with the process, as Miss Heaton QC explained to us on their behalf during the appeal hearing. No orders were sought from Judge Davies or made by her with a view to resolving such problems as there were.

11. By the time that the final fact finding hearing commenced on 17 June 2003, nothing had changed. T had not made a statement and she did not attend to give evidence. It seems that the hearing proceeded without any discussion of why this was or what should be done about it.

12. T is a vulnerable adult who has suffered from depression and she has learning difficulties, although no one suggested that they were such as to prevent her from giving evidence. Social services are involved in relation to her children, of whom there are four, the youngest having been born at the end of April 2013. In her statement of 3 May 2013, Ms McMenemy (one of the social workers who gave evidence to Judge Davies) spoke of reports that T was under a great deal of pressure from her family to write a statement supporting them and said that T was not now willing to provide a statement confirming what she had said about abuse (B62/3). However, it appears that there was no up to date evidence about T’s position offered to the court either at the directions hearing on 6 June 2013 or at the fact finding hearing. The judge should at least have been told, for example, what efforts had been made to obtain a statement from T and/or to secure her attendance at court and why these had foundered, and she should have been fully informed about any continuing personal difficulties on T’s part which it appeared were getting in the way of the process.

13. It may not be entirely surprising, in the circumstances, that the judgment contained no reference at all to the reasons why direct evidence from T was not available. The judge said only this about T’s absence:

“On behalf of F, I am reminded that he has Article 6 rights to a fair trial. I must bear in mind that he has a right to cross examine witnesses and, if witnesses have not been called to give evidence, I must consider what weight should be given to their evidence.” (§7)

“T has not been called to give evidence, either by the local authority or by the parents; and I must remind myself it is for the local authority to prove the case, it is not for the parents to disprove it.” (§8)

“I have to bear in mind that T has not attended court to be cross examined…” (§22)

The parents were not arguing that the hearsay evidence in relation to T’s allegations was not admissible (as they might have in a criminal trial) but rather that in the absence of T being available to be challenged, the Judge ought to have given that evidence much less weight.

The Court of Appeal took the view, and gave some guidance, that where the allegations that are central to the case are being made by an adult, all endeavours ought to be made to get that adult to give the evidence [particularly where, as here, T had previously retracted the allegations]

22. Where an adult’s evidence is so central to a finding or findings sought, I would normally expect that adult to give evidence, although there can, of course, be situations in which that is not possible. Judge Davies herself made clear by her order of 20 March 2013 that she expected that T would furnish direct evidence. She was never asked to revoke that order, although equally she was not asked to direct that the local authority could not rely on the hearsay material as to what T had said.

23. Where it is said to be impossible to obtain a statement from a witness or to secure a witness’s attendance at court, the court needs to know the reasons why so that that can be considered when, to use the phraseology of section 4 Civil Evidence Act 1995, “estimating the weight (if any) to be given to hearsay evidence”.

24. There are ways in which witnesses can be assisted to overcome difficulties in engaging in court proceedings and the various options should always be considered when there are problems in getting evidence from a central witness. They include special measures such as screens in the court room or a video link. Alternatively, a witness summons may be appropriate. None of these options seem to have been considered in this case. We were told that T has recently given a statement to the police by way of an ABE video interview. Had that course been taken before the fact finding hearing, the video interview would at least have covered the ground that would have been covered by a statement. The question of cross examination could then have been addressed as a supplementary issue in the knowledge of what T had said in the ABE interview.

25. Assuming that none of the available measures secures direct evidence from the witness, the judge has to have regard to the reasons for this in weighing the hearsay evidence on which reliance is placed instead. A judge may be less uncomfortable in giving weight to such evidence where there is a good reason for the witness’s non-engagement (such as the sort of profound psychological difficulties from which C is suffering or a protracted physical illness) than where the reason is hard to divine or the non-engagement appears to be a matter of deliberate choice on the part of the witness.

26. The estimation of the weight to be given to T’s recent complaints was complicated by the fact that she had retracted what she said. She did so in the form of two letters. She has problems with literacy and they were written by her brother B and signed by her. The first is dated 6 February 2013 (E105). It alleges that social services are trying to “manipulate and intimidate me into making a statement” and says that she is not willing to make a statement about F molesting her as it would be a false statement. The second letter (E253) is undated but I think it was received by social services towards the end of April 2013. It says that social services had blackmailed her by saying they would pay for a deposit for a house move if she made a statement about F but that she would not do so as it would be false.

27. The judge referred to the two letters in §§20 and 21 of her judgment but went on to make her findings about T’s complaints in §22 without setting out how she had approached them in her evaluation. She had earlier rejected the suggestion that the social workers had put pressure on family members to make untrue allegations (see §10) and found the social workers to be very careful in their evidence and accurate in their note-taking and recollection. This was, of course, material to her approach to the retraction letters in which improper conduct on the part of social services was suggested. She also stated in a different section of the judgment later on (§31) that she found that pressure had been put on T by B and by both parents to withdraw her allegations but this was a bald statement without any supporting analysis or details and without specific reference to the letters.

28. The retraction of a complaint normally requires careful and specific consideration and this case was no exception. Obviously the fact that a complaint is subsequently retracted does not prevent a judge from accepting that it is in fact true but it gives rise to questions which must be addressed sufficiently fully and directly in the judge’s reasons so that one can be confident that the fact of the retraction has been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation. Where, as here, the only evidence before the court about the complaint is hearsay, it seems to me that this is particularly so and the judgment was insufficiently specific in my view.

The Court of Appeal concluded that the findings made should be set aside and the case sent back for rehearing. In this particular case, they felt that there should be a fresh start before a different judge  (although that was not decided as a principle applicable to all cases)

[When I find myself in times of trouble, Andy Flower talks to me, we need a batting hero, get KP… Get KP, get KP, get KP, oh get KP, we need a batting hero, get KP]