Wigan BC v M (veracity assessments) 2015 http://www.bailii.org/ew/cases/EWFC/HCJ/2015/8.html
Veracity assessments, if you don’t know, is where you have an expert, usually a psychologist, to look at the video interviews of a child’s allegations of abuse and to advise the Court as to the features of that interview that indicate whether reliance can be placed on them. They went through a brief spell of being popular, and then became unpopular – largely because they go to the ultimate decision of the Judge. The Judge’s function is to decide who is telling the truth and who is lying, and thus on some level it is a bit of a cop-out to ask an expert to give them the answer.
[There is quite a lot of good research about human beings ability to assess whether people are lying, and we really are quite bad at it. The one I have in mind was specifically about whether a six year old on a video is telling the truth about whether or not they touched a particular toy – and most people who had some ‘professional’ stake in deciding whether or not people are liars did worse than the group of students who did the same exercise as a control group. In fact, people generally do reasonably well when estimating that a statement is true, and are actually slightly worse than chance when estimating that a statement is a lie. The ‘signs’ that most of us think will be present in a liar actually correlate very badly with actual lying
In a minority of studies, accuracy in detecting lies was computed separately from accuracy in detecting truth. Where this did occur, results show a truth-bias, that is, judges are more likely to consider that messages are truthful than deceptive and, as a result, truthful messages are identified with relatively high accuracy (67%) and deceptive messages with relatively low accuracy (44%). In fact, 44% is below the level of chance, and peoplewould be more accurate at detecting lies if they simply guessed. http://eprints.port.ac.uk/23/1/SAMJAP.pdf “Detecting true lies” Portsmouth University study ]
This is the first veracity assessment case I’ve seen in a few years, and certainly the first one since the test for an expert became ‘necessary to resolve the proceedings justly’
To be fair to the expert in the case, he did exactly what was asked of him and pretty much concluded that there wasn’t a need for a specific veracity assessment “I have seen nothing to suggest that what these children say requires interpretations by an expert, beyond the accommodation of the factors identified in this report. I hope that I have set out the significant factors and possibilities in this case in such a way that weight can be placed on relevant factors, including any new information that emerges.”
In the end, nobody relied on the report, and the Judge at final hearing, Jackson J, indicated that the parties had been premature in seeking such an assessment. The child in question was a capable witness who could have been called and had questions put to them, and that was a much better way of getting to the truth than having an expert look at things.
The Judge expressed doubts about whether a veracity assessment could meet the current test for expert reports – it might be informative, or useful, but it could hardly be necessary.
Veracity assessments / validation exercises
- Having received short submissions from the parties and having consulted the current experience of colleagues, I believe that three principles can be identified:
1) As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true. That was the conclusion of the Court of Appeal in Re M and R (Child Abuse: Evidence)  2 FLR 195, interpreting Section 3 of the Civil Evidence Act 1972. It held that expert evidence dealing with issues, including the ultimate issue, was admissible, subject to the overriding requirement of relevance, which, together with questions of weight, was a matter for the judge. At page 210, Butler-Sloss LJ said: “The modern view is to regulate such matters by way of weight, rather than admissibility. But when the judge is of the opinion that the witness’s expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him.”2) The Court of Appeal left open the question of whether and to what extent the court had a power to exclude evidence that was admissible and potentially relevant. That question has now been answered by FPR 2010 Rule 25.4 which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.
3) In my view, cases in which it will be necessary to seek expert evidence of this sort will nowadays be rare. While the decision must rest on the facts of the individual case, judicial awareness of these issues has greatly increased, from the Cleveland Inquiry in 1987 to the most recent iteration of the principles of Achieving Best Evidence in 2011. In the two decades since Re M and R (above), understanding has naturally moved on. The process continues to evolve, with the final report of the Children and Vulnerable Witnesses Working Group set up in 2014 by the President of the Family Division expected shortly. The overall result is that judges have been trained in and are expected to be familiar with the assessment of evidence of this kind. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.
- I note that in D v B & Others  EWHC 2987 (Fam), Mr Stephen (now HHJ) Wildblood QC said that “Personally I find veracity evidence of assistance in many cases in this field of exceptional difficulty.” In that case, matters had gone awry after the veracity expert went far beyond her proper remit and then changed her opinion after leaving the witness box. It might be seen as an extreme illustration of the potential pitfalls of admitting evidence of this kind.
- I also note the observations of Baker J in A London Borough Council v K  EWHC 850 (Fam):
“… this case has, to my mind, demonstrated that veracity or validity assessments have a limited role to play in family proceedings. They are, so far as I am aware, unused in criminal proceedings in this country, and I see strong arguments for imposing restrictions on their use in family cases as well. … there is a danger that some courts, faced with these difficult decisions, will subconsciously defer to the apparent expert. That danger has been recognised in a number of cases in which the courts have emphasised the discrete roles of the expert and the court. In the case of the veracity expert, the danger is particularly acute. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone. He cannot delegate that decision to any expert. I acknowledge that a child psychiatrist… may be able to point out some features of a child’s account that add or detract from authenticity… But, in my experience, many of these features should be obvious to judges in any event. No expert, however experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence.”
- I entirely agree with that statement of principle. I acknowledge that judges, however experienced, benefit from the knowledge that experts bring, but that knowledge can be absorbed through judicial training and awareness of the well-known protocols of good practice; it does not have to be imparted case by case with the attendant expense that is bound to arise.
- In the present case, the parties now accept that the children’s evidence should have been studied before the question of a ‘veracity’ or ‘validation’ assessment was considered, and that if that course had been taken, it is unlikely that the application would have been made, let alone granted. I agree. In the event, the parties did not refer to the resulting report during the fact-finding hearing, nor did I do so when determining the veracity of the children’s allegations.
If your assessment of my veracity when I claimed in the title to be a veracity assessor was that I was lying, then congratulations, you were right. You might want to consider becoming a veracity assessor. Or you might not, given that you’re not going to get any instructions.
[I can see some scope for a veracity assessment where there is something about the child’s background which makes them give their responses in a way that would be consistent with them being a liar when compared with an average person from England, but is more about their culture or disability, but I think that’s more about an assessment of child’s presentation or functioning than about veracity per se]
NB, a voracity assessment might be a very different thing, and there might still be a place for those…