Is Sherlock Holmes’ maxim applicable to fact finding hearings? The Court of Appeal take a look
A (Children)  EWCA Civ 1278
As all Holmes fans know, the Great Detective opined “Once you have eliminated the impossible, whatever remains, however improbable, must be the truth” * [see footnote]
[Gratuitous Cumberbatch photo, for the female followers of this blog, including the Great Fiancee]
In this finding of fact hearing, involving a fatality to a child, the father, who ended up with the finding of fact being made against him, appealed in part on the basis that the Judge had approached this sort of formulation.
The Court had determined that the child had, on the balance of probabilities, suffered an injury.
It had then determined that the only 3 possible perpetrators were the mother, the father or an elder child ‘C’.
The father claimed that what then happened was in effect that the Court ruled out mother and C as potential perpetrators and thus came to the conclusion that the father, being the remaining suspect must be the perpetrator, rather than carrying out the identical form of scrutiny.
(i.e, that had the Judge considered the order of suspects differently, and approached matters with a fresh eye, he might have ruled out father, then C, leaving mother; or any other sequence. And that it just so happened that this order of events left father as ‘last man standing’. It was unfair to father to not have the same impartial eye testing whether he should be ruled out, and the burden effectively shifting to being for him to provide evidence why he WAS NOT the perpetrator)
It is probably fair that I give you now, Lady Justice Black’s concluding paragraph
23. I simply add this: that this is a case which we have considered very much on its own facts; nothing that I have said should be taken in any way to alter the established formulation of the law applicable to cases such as this.
So perhaps the case is useless for anything other than determining the appeal that was before them, but I respectfully think that it is of interest because the precise forensic approach of how the Court approach the ‘whodunnit’ element of a finding of fact hearing, having established that something was done, and who the potential perpetrators are, is very important, and anything that adds to our pool of understanding as to the right or wrong way to go about it is therefore useful.
This is how the Court of Appeal record the Judge’s decision-making process
4. So this was a heavy trial for the judge, and it is manifest that all its concentration was upon the facts, the investigation of all relevant facts and the establishing on the balance of probabilities of the crucial facts. That the law played no great part in the process is, I think, demonstrated by the fact that the judge deals with it in two short paragraphs. In paragraph 28 he said:
“In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children) (Care Proceedings: Standard of Proof)  UKHL 35. Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.”
5. In he following paragraph 29 he only added:
“Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children  UKSC 17.”
6. So, moving on from that early and brief direction, the judge explains himself essentially in paragraphs 170 and following under the subheading “Responsibility for B’s injuries”. He considers first the position of B’s mother. He sets out in paragraph 170 under seven numbered paragraphs the matters that he was taking into account in reaching the conclusion that B was in good health when mother left the house and that he was injured in her absence. Having reached that conclusion it is not surprising that in paragraph 171 he said:
“I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.”
7. In paragraph 172 he turned to consider the father’s position, saying:
“I turn to consider whether F’s explanation that C caused B’s injuries is credible. If it is not, the inescapable conclusion is that they were caused by F.”
And then in paragraph 173 he set out what he described as being the combination of a large number of circumstances necessary for C to have injured B in the way that the father suggested. There are 22 subparagraphs of such factors.
8. In paragraphs 174 and 175 he considered the father’s credibility generally as well as specifically, and he concluded that the father was an unconvincing witness. However, in paragraph 176 he said:
“176. In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries. Lies may be told for other reasons. The burden of proving responsibility remains on those that allege it.”
9. In paragraph 177 he considered possible explanations for untruthfulness that would not be in any way probative of causation. In paragraphs 178 and 179 he then states and explains his fundamental conclusion. He said:
“178. My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries. A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole. I reject F’s case.
179. I find that F caused B’s injuries. I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account.”
The father submits that paragraph 179 is effectively a reversal of proof, and placing the burden on the father to show that he was not the perpetrator, rather than on the Local Authority to prove to the requisite standard that he was.
The Court of Appeal considered that the argument was skilfully drawn, but rejected it nonetheless (largely because of the way that the Judge at first instance had balanced matters)
10. Now Mr King’s principal criticism is of paragraph 172, which I have already cited. He submits that this amounts to an implicit reversal of the burden of proof. The submission is skilfully advanced and is certainly worthy of careful consideration, but it has to be taken in the context of the passage as a whole, all the paragraphs from 172 to 179, the relevant passages of which I have already cited. It seems to me that what the judge was saying in paragraph 172 was that he had to consider whether the father’s explanation that C caused B’s injuries was a real possibility — was it plausible? — and that was certainly a permissible and indeed a sensible approach.
11. Mr King has submitted that essentially the judge has pinned the label of responsibility on the father by a process of elimination. He has first eliminated the mother, then he has eliminated C, and therefore he has, as it were, reached the only remaining possible conclusion. I see that that submission is also open to Mr King given that the judge has specifically said:
“I find that father caused B’s injuries. I have reached this conclusion by eliminating the only possible alternative.”
12. He might have put alternative into the plural but I do not think that that is fair to the judge overall. He had to reach a realistic conclusion; he had to be as specific as the evidence permitted; and overall it seems to me that the conclusion was well supported by evidence and was acceptably reasoned. Mr King has said that there was no medical evidence to force the judge’s conclusion and that there was no other evidence to force the judge’s conclusion, and that accordingly the judge should more safely have announced that there was a real possibility that the father committed the injury, but no more than a real possibility.
13. That is essentially putting his primary submission in other words, and it does not lead me to doubt the conclusion that I have already expressed on his primary submission.
14. It will be, I have no doubt, Peter Jackson J who conducts the second stage of this trial. It may be that he will be persuaded to admit the police records that Mr King highlights. In passing, I note that there seems as yet to be no explanation as to why they are belatedly produced. That is something that requires no further speculation. There can be no doubt at all that the kick injury inflicted by C on the carer is a subsequent development. There can be no doubt at all on the authorities that the judge at the second trial is not only entitled but bound to have regard to that subsequent development. Authority is equally clear that it is open to him to reconsider his earlier stated findings of fact, if he is persuaded that the subsequent development is sufficiently material. With that observation I would dismiss this appeal.
It does seem to me, on the basis of that, that IF the Judge had approached it in the way father was suggesting of :-
- I have found that the child was injured
- I have found that this injury could only have been caused by M, F or C
- I have found that it could not have been caused by M
- I have found that it was not caused by C
- Therefore it was caused by F
(rather than 5 – “my analysis of the evidence given by F and the features of the case are such that I find F caused the injury”)
that this would have given rise to a successful appeal.
And therefore, the Holmes maxim DOESN’T apply to the law. The Court have to consider all of the various possibilities (That it was M, that it was F, that it was C, that it is one of them but it is not possible to say whom, that it was one of two of them but that “X” is excluded) and determine which is the correct finding, based on the evidence.
As we saw from Justice Mostyn’s decision earlier this year, https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/
it is peculiarly lawful for the Court to examine the two possible explanations for the child’s injuries and to discount both as being inherently implausible and fall back on the burden of proof as being the determining factor. The authority that gave rise to that, was of course, a shipping case. Shipping cases nearly always are at the bottom of any important legal principle (that or runaway milk horses or pensioners consuming ginger ale)
[All of the principles in Re SB http://www.familylawweek.co.uk/site.aspx?i=ed47645 still apply, of course – that it isn’t for the judge to dance on the head of a pin in trying to establish who caused the injury and if the evidence does not allow for a definitive finding, the Court should not exonerate one parent simply because another seems more likely. ]
i) “If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case”; ii) judges should avoid attributing the relative probability of who is responsible for harm where they are unable to identify a perpetrator and iii) when a perpetrator is identified there is a risk that the judge gets it wrong but that risk cannot be used to conclude that there is a risk to the child. However it was also
“Important not to exaggerate the extent of the problem. It only really arises in split hearings…… In a single hearing the judge will know what findings of fact have to be made to support his conclusions both as to the threshold and as to the future welfare of the child.”
* The Great Detective, when making this maxim, probably did not envisage just how improbable the improbable explanations for fictional crimes could become. My personal favourite, Harry Stephen Keeler, for example, managed to concoct an explanation for a murder that involved a strangler midget who disguises himself as a baby, and who descended in a portable personal helicopter to commit a murder in which a man was found dead in the middle of a field of fresh snow with only his own footprints leading to or from his body.
I do heartily recommend Mr Keeler if you are a little jaded with traditional murder mysteries and want to glimpse what life would be like if you were somehow able to turn your brain to a totally different angle.
I am also reminded of the lovely Raymond Chandler anecdote, where in the midst of filming “The Big Sleep”, the director, Howard Hawks, telephoned him and frantically asked, “Mr Chandler, I have a problem in the film. I simply can’t work out who killed the chauffeur” and Chandler had to confess that he too had no idea either. Read the book, it really is completely unresolved. Other than that, it is a flawless piece of writing, which dazzles on every page.