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(see Re W and another (Non-accidental
injury) [2003] FCR 346). |
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The evidence of
parents and any other carer is very important,
particularly when considering information around
suspected injuries to a child. It is essential that the
court forms clear assessments of their credibility and
reliability. A parent and/or carer must have the fullest
opportunity to take part in the court hearing and the
court is likely to place considerable weight on the
evidence at the impression it forms of them when
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Mostyn J in Lancashire
County Council v R [2013] EWHC 3064 (Fam) (citing Onassis
and Calogeropoulos v Vergottis [1968] 2 Lloyds
Rep 403, per Lord Pearce and A County Council v M and
F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras
[29] and [30]) The assessment of credibility
generally involves wider problems than mere
demeanour which is mostly concerned with
whether the witness appears to be telling the truth as he
now believes it to be. With every day that passes the
memory becomes fainter and the imagination becomes more
active.
Therefore, contemporary
documents are always of the utmost importance.
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Lucas Direction and Re A-B-C updated
guidance
It is common for witnesses in these cases
to tell lies in the course of the investigation and the
hearing. The court must be careful to bear in mind that a
witness may lie for many reasons, such as shame,
misplaced loyalty, panic, fear and distress, and the fact
that a witness has lied about some matters does not mean
that he or she has lied about everything (seeR v
Lucas [1981] QB 720).
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In Re A-B-C
(Children) [2021] EWCA 451 Macur LJ provided updated
guidance on the assessment of credibility. That a witnesss dishonesty may
be irrelevant in determining an issue of fact is commonly
acknowledged in judgments, and with respect to the
Recorder as we see in her judgment at [40], in formulaic
terms:
That people lie for all sorts of
reasons, including shame, humiliation, misplaced loyalty,
panic, fear, distress, confusion and emotional pressure
and the fact that somebody lies about one thing does not
mean it actually did or did not happen and / or that they
have lied about everything.
But this formulation leaves open the
question: how and when is a witnesss lack of
credibility to be factored into the equation of
determining an issue of fact? In my view, the answer is
provided by the terms of the entire Lucas
direction as given, when necessary, in criminal
trials.
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Crown Court Compendium legal summary
Chapter 16-3, paragraphs 1 and 2 of the
December 2020 Crown Court Compendium, provides a useful
legal summary:
A defendants lie, whether
made before the trial or in the course of evidence or
both, may be probative of guilt. A lie is only capable of
supporting other evidence against D if the jury are sure
that: (1) it is shown, by other evidence in the case, to
be a deliberate untruth; i.e. it did not arise from
confusion or mistake; (2) it relates to a significant
issue; (3) it was not told for a reason advanced by or on
behalf of D, or for some other reason arising from the
evidence, which does not point to Ds guilt.
The direction should be tailored to
the circumstances of the case, but the jury must be
directed that only if they are sure that these criteria
are satisfied can Ds lie be used as some support
for the prosecution case, but that the lie itself cannot
prove guilt.
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Guidance from Re H-C and Sir Andrew
McFarlane
In Re H-C (Children) [2016] EWCA
Civ 136 @ [99], McFarlane LJ, as he then was said:
In the Family Court in an appropriate case a judge
will not infrequently directly refer to the authority of
Lucas in giving a judicial self-direction as to the
approach to be taken to an apparent lie. Where the
lie has a prominent or central relevance to
the case such a self-direction is plainly sensible and
good practice. 100
In my view there should be no
distinction between the approach taken by the criminal
court on the issue of lies to that adopted in the family
court. Judges should therefore take care to ensure that
they do not rely upon a conclusion.
To be clear, and as I indicate above,
a Lucas direction will not be called for in
every family case in which a party or intervenor is
challenging the factual case alleged against them and, in
my opinion, should not be included in the judgment as a
tick box exercise. If the issue for the tribunal to
decide is whether to believe A or B on the central
issue/s, and the evidence is clearly one way then there
will be no need to address credibility in general.
However, if the tribunal looks to find support for their
view, it must caution itself against treating what it
finds to be an established propensity to dishonesty as
determinative of guilt for the reasons the Recorder gave
in [40]. Conversely, an established propensity to honesty
will not always equate with the witnesss
reliability of recall on a particular issue.
That a tribunals Lucas
self-direction is formulaic, and incomplete is unlikely
to determine an appeal, but the danger lies in its
potential to distract from the proper application of its
principles. In these circumstances, I venture to suggest
that it would be good practice when the tribunal is
invited to proceed on the basis , or itself determines,
that such a direction is called for, to seek
Counsels submissions to identify: (i) the
deliberate lie(s) upon which they seek to rely; (ii) the
significant issue to which it/they relate(s), and (iii)
on what basis it can be determined that the only
explanation for the lie(s) is guilt.
The principles of the direction will
remain the same, but they must be tailored to the facts
and circumstances of the witness before the court.
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