An interesting story in the Lawyer about Peter Smith J criticising SNR Denton for their handling of witnesses and witness statements. I was reminded immediately of Gloster J’s comments in the Abramovich-Berenovsky case about the polishing of evidence. The tension between lawyers duty to the client and their duty uphold the rule of law and the proper administration of justice is once again exposed to judicial concern. These fundamental principles bind lawyers and in situations of conflict the latter duty takes precedence:
Where two or more Principles come into conflict, the Principle which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice. (SRA Code of Conduct, Guidance 2.2)
The significance of this can be emphasised by highlighting a section of the judgment:
This case demonstrates the need for solicitors preparing witness statements to curb their enthusiasm in seeking to obtain the best for their clients. It must not be forgotten that witness statements are merely a replacement for evidence which a witness previously used to give live in chief. It is intended to be the factual evidence of the witness in his own words. Too often witness statements are drafted by solicitors who put words in their mouth to achieve a better result. Witness statements can then be changed from drafts to a later stage without the witness understanding the significance of the change. An extreme example of this kind of activity was highlighted by me in a statement I made in the Farepak case. In this case too it is clear that statements were “finessed” to present them in a more favourable light from AETN’s point of view without the witnesses understanding what was happening. This is unfair to witnesses. They should not be required to justify witness statements when the true effect of them is not understood by them.
Further when preparing hearsay statements it is even more incumbent on the solicitors not to manufacture things to put that evidence in the best light for their clients. The Court will not have any opportunity to explore that evidence with live witnesses and the duty on the solicitors is therefore even more clear to confine witness statements to what the witness would have said in his own words had he or she been giving evidence.
Equally I do not think it is appropriate for a witness to have his statement taken from him when he does not realise that it is being taken from him for the purpose of giving evidence. That too is unfair. Further when such a person objects to giving evidence it cannot be appropriate in my view for that statement which has been taken down to be served up as a hearsay statement without reference to that potential witness (the more so when he has said he does not want to give evidence). Without the investigations in cross examination in this case none of the actual defectiveness of the hearsay statements would have come to light.
The references to witnesses being unfairly treated is an interesting one. Witnessed appear to have been rung up, interviewed, notes taken and then asked if they would give evidence. Those who declined nevertheless appear to have had their ‘statements’ included as hearsay evidence. The judge says, “I suppose there is nothing technically wrong with this.” I am less sure. Putting aside the point that reputable researchers seek informed consent from anyone they interview in research projects, the solicitors’ profession is obliged not to take unfair advantage of third parties under its Code of Conduct. There is a good case that this is what happened here.
The parenthesises “finesse”: but what is he saying? One can understand the desire of a Judge not to spell matters out without further investigation but there are important questions raised. Was there an attempt to knowingly or recklessly mislead the court? Whether or not there was, is the administration of justice served by the practices identified here? Is it sufficient that a judge scolds a firm in this way, or should firmer regulatory action take place? Any professional who, like MPs with expenses, opines in their own defence that everyone is at it is on dangerous ground. If the practice is widespread one can understand that firms exposed might feel unfairly singled out, but if a widespread practice is a malign one it needs tackling. Judges, if they have serious concerns, need to refer these firms to the SRA. The SRA needs to pick up these cases and investigate them.