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How Judges Make their Decisions – is witness demeanour a myth?

Madeleine Whelan, barrister of Fourteen, considers how much weight judges might give to witnesses’ demeanour when evaluating their evidence in the light of a recent judgment by Mrs Justice Lieven.

Madeleine Whelan, barrister, Fourteen


Madeleine Whelan, barrister, Fourteen

This is the part that most will be familiar with: witnesses go into the witness box, swear on a holy text or give an areligious affirmation to tell "the truth, the whole truth and nothing but the truth". Then they tell their side of the story. In an ideal world, the judge would be able to trust this evidence completely because the witness had sworn an oath. Obviously, this is not the case: the witness is human, and humans have the capacity to exaggerate, overstate, twist and sometimes, outright lie. The task of the court at this stage is to try and tell when this is happening and discern the truth from the differing human accounts.

So: how do judges do this? Well, the most important task for a court to undertake is a detailed assessment of all the circumstances of the case, including all facets of all the evidence and take what the witness says in context with that assessment. However, the nature of human evidence is that it undoubtedly leaves a human impression: judges are humans too, and they can assess other humans in several ways. A judge may look to demeanour, non-verbal and verbal cues, body language and presentation when assessing the honesty of a witness. I emphasise here that this is not the only aspect of evidence a judge should look at, and a judge must be careful not to place undue emphasis on these factors when assessing the credibility of a witness. This is highlighted by Mr Justice Hayden in the case of PS v BP [2018] EWHC 1987 at para 18:

"The Judge found there to have been "overwhelming evidence" supportive of the allegations and evaluated F as "deceitful, dishonest and dishonourable". When analysed, these conclusions proved not to have been rooted in the substance of the factual allegations but essentially predicated on the Judge's observation of F's demeanour. Whilst the impression a witness makes upon the Judge will always be important and signals the inestimable advantage the first instance Judge has, in assessing the evidence, it is not a substitute for a detailed analysis of those features of the evidence which reinforce the reliability of the allegation." [emphasis added by the author here and in the later judgments cited in this article]

It is acknowledged in this passage that the judge can, and should, take into account a witness's demeanour when assessing a case, but he or she cannot only take into account demeanour to the detriment of the sense of the evidence. This seems sensible, given that we know humans respond to stress (which the author assumes being in a courtroom would elicit in most people) in a variety of ways – some may be given over to laughter, some to excessive sweating, some to stammering. However, none of these responses in isolation would allow someone to know whether that person is telling the truth or not. The judge must take this demeanour into context and evaluate the rest of the case using demeanour as a tool.

How then, in the current crisis, is a judge still able to make a holistic assessment of a case? The coronavirus pandemic has forced courtrooms into computers and there is no longer physical attendance at court and certainly no physical attendance of witnesses in front of the judge. Trials with contested evidence and disputed facts are being heard via video platforms without any of the parties in proximity to one another. The question is, what happens to witness demeanour in these circumstances when a judge cannot see the witness and physically assess them? The pandemic has given us a unique insight into just how important demeanour is, as, never before in the family court system has an entire hearing determining facts or making permanent decisions about children's' welfare been conducted remotely.

Thankfully, this question has already been tackled by the senior judiciary in the Court of Appeal over the last month due to the fact that nearly all hearings are being conducted remotely due to the pandemic. The first answer came in the form of a judgment from the President of the Family Division, Sir Andrew McFarlane in the case of Re P (A Child: Remote Hearing) [2020] EWFC 32. Briefly, that case concerned the issue of fabricated or fictitious illness (FII) and whether the parents had been involved in faking illness in their child. The President is clear that the judgment is fact-specific on that basis. However, it gives a useful insight into how much weight the courts should place on physical demeanour and manner of witnesses, as at para 26:

"The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge's screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person's link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment."

Therefore, clearly, the senior court felt in this instance that the judge could not make a proper assessment of the witnesses, particularly the parents, without physical attendance at the court. However, as mentioned, the court was keen to stress this case was fact-specific and should not be extrapolated outside of its facts.

Nevertheless, helpfully, the question was tackled again only two weeks later in the case of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583. This case concerned a final hearing where non-consensual adoption was being considered (that is, against the parents' wishes) and was also heard before Sir Andrew McFarlane P. Again, he emphasises that the case is fact-specific, but gives further insight into his views on witness demeanour and presentation at para 58:

"the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right. There is, however, a need for caution when the only witness(es) required to attend court are the lay parties when others, for example the key social worker, are not."

Here, the key point is made that it is preferable for a trial judge to hear evidence in person rather than via video link – clearly, this is because judges do factor in the physical presentation of a witness, or they should, when such serious outcomes are being decided, that is, whether or not a child should be adopted outside of its family.

That may well have been the end of the matter – the answer is, according to the cases, that yes demeanour is a factor, but it must be reviewed in the context of other factors and it is important to establish for each case whether physical attendance is required. However, a further case was handed down at the tail end of last week which added further to the narrative of witness demeanour. That case was A Local Authority v A Mother [2020] EWHC 1086 before Mrs Justice Lieven. This case concerned a child in care proceedings who had suffered potential non-accidental injuries. The judge had heard the medical evidence about the injuries to the child via Zoom and the question was then whether the hearing should continue via Zoom for the parents' evidence (who were accused by the local authority of inflicting the injuries). The case comes from a lower court than the decisions discussed above, and therefore has less legal 'weight'; however, it contains an extremely useful discussion of witness demeanour at para 23:

"One important factor in a decision whether to proceed, particularly in a fact finding case, is the question of whether the judge will be in a less good position to judge whether or not the witnesses are telling the truth if the case is conducted remotely. This was clearly an issue of particular concern to the President in Re P at [26] where he refers to the benefits of seeing the witness in court. The issue of the weight that a judge should give to the demeanour of witnesses is an intensely complex one and has been the subject of considerable judicial debate."

Lieven J then refers herself to the case of SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 which is a Court of Appeal case and contains some extremely useful points on demeanour at paras 36 and 40:

"[36] Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges "in a permanent position of disadvantage as against the trial judge". That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness's demeanour as to the likelihood that the witness is telling the truth.

"[40] This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, "Detecting Lies Using Demeanor, Bias and Context" (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories."

Having considered these comments from the Court of Appeal in that case, Lieven J then concludes the following in relation to her own case regarding the injuries to the child at para 27:

"Having considered the matter closely, my own view is that is not possible to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely. It is clear from Re A that the Court of Appeal is not saying that all fact-finding cases should be adjourned because fact finding is an exercise which it is not appropriate to undertake remotely. I agree with Leggatt LJ that demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating."

The judge takes the view that the matter should proceed because, amongst other factors, she does not feel the witnesses will be prejudiced by giving their evidence remotely and that her ability to judge their evidence will not be affected. It is clear from her comments that this judge does not feel that demeanour is a helpful tool, and her reasoning appears to be sound on this point. Some humans are good at lying, and this will be the case whether they are in a courtroom or their own living room – either way, the court will have to determine the truth.

And so, for parties facing the court system, is demeanour important? Patently yes, and it is considered by judges, naturally, whether they like it or not. However, this can and should be in the context of a raft of other factors and it is clear that demeanour should never be the determining factor. Some judges may be better at controlling how much weight demeanour holds for them, but all judges are taking demeanour and presentation into account in some way when they determine cases. Parties must have confidence in the court system and, in my view, appreciating that judges are assessing their manner and presentation – be it by video link or in person – may humanise the process somewhat and allow them to know that their case is being considered from all perspectives and not only on the basis of what is written in the papers.