Where lies the truth? It’s time to help judges find the answer 

Where lies the truth? It’s time to help judges find the answer 

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The words of America’s most high profile Arbitrator, the charismatic ‘Judge Judy’ made a distinct impression on me recently. ‘Do you know you’re a liar?’ she asked one defendant in her normal acerbic tone in response to an incredible story about a family bust-up. But it left me pondering; how can Judith Sheindlin in her quasi-judicial capacity gauge truthfulness? It was the beginning of a reflection that centred on the suitability of the judiciary to make findings on the basis of credibility and impressions of witnesses.

Most top football bosses once plied their trade as professionals in the game. In the same vein, the vast majority of senior judges reached the pinnacle of legal practice and were elevated to Queen’s Counsel. But in football the modern manager will not get close to the poisoned chalice of management without a litany of letters after his name and, normally, a number of seasons managing under-age teams to develop the mettle required for the job. This is not a facetious comparison as experience and ‘know-how’ is a vital attribute to career progression in any walk of life.

Spotting a lie

But why do we entrust the judiciary with the capability to ‘spot a lie’, in the vernacular of Judge Judy, or to know when inconsistencies in the evidence of a witness are indicative of their mendacity? This writer recognises that a lot of judges are indeed very, very good at what they do. Many conduct hearings with an almost nonchalant approach yet have the ability to make sharp, insightful insights into the integrity and conduct of a witness. But analysing the judicial task should certainly not be construed as criticism. The sanctity of a jury’s deliberations and reasoning remains understandably steadfast, but in many ways the process by which a judge forms a view is too. As American Jurist John L Kane has written, this judicial function ‘is left largely to the mysteries of intuition’. Interestingly, the earliest recorded forms of jury trial were characterised by selection of individuals from the same locale as the Defendant as they were likely to be a better position to judge his/her credibility and character more appropriately. Modern justice conversely places complete emphasis on courtroom demeanour in what is essentially the process of subjective evaluation. A question that makes one witness mumble or hesitate may not trouble another. The often bewildering experience of a courtroom may result in staggered evidence of an otherwise upstanding member of society. There is, of course, no available mechanism through which the subconscious of each witness can be assessed.

In Northern Ireland Magistrate’s Court proceedings, apart from the Youth Court and Family Proceedings Court, the District Judge alone is charged with the task of dealing with matters of fact and law. In England & Wales, the presence of Lay Magistrates is slightly different and the argument has frequently been made that they are invariably less au fait with the law than professional judges. Whilst this may be so, a basic competency of a Magistrate is the ability ‘to make judicial decisions’ and they receive comprehensive training. This inherently involves the assessment of evidence and witness credibility and thus it’s a fair inference that this ‘job description’ applies to all judges at that level.

Supergrass trial

A good illustration of the importance of this judicial task was displayed in the 2012 ‘Supergrass Trial’ in Northern Ireland involving 12 Ulster loyalists who stood trial for 21 weeks based on the evidence of two informers from the ranks of the Ulster Volunteer Force. The ‘UVF’, as it is more commonly known, is a loyalist paramilitary group that has taken the lives of over 500 people throughout the region’s troubled past and has at its heart the objective of fighting Irish republicanism. The Supergrass prosecution utilised the Serious Organised Crime and Police Act of 2005, known as ‘SOCPA’ whereby the accused is not granted immunity but is guaranteed a significantly reduced sentence for giving evidence against former associates .The charges centred around the murder of loyalist man Tommy English in front of his wife and 3 young children in 2000. Despite the multitude of charges including murder, hijacking and kidnapping only 1 of the 13 Defendants left court without a full acquittal. Interestingly, this case saw a re-emergence of the ‘Diplock Court’ system whereby the right to trial by jury is suspended amid legitimate fears for the safety of jurors. The trial, which lasted 71 days, was one of the longest and most expensive in Northern Ireland’s legal history. The sheer amount of barristers involved in the case stretched Belfast Crown Court to its limits with a number of counsel resorting to taking their seat in the jury box.

The judgment of the lone sitting judge, Gillen J (as he was then), is fascinating and paragraph 292 begins under a simply named subheading ‘Lies’. It must be recognised that issues surrounding the corrobation of evidence were highlighted, but the judge made specific reference to the manner in which one witness testified:

‘’I was certain from his shifty demeanour that he was dissembling and that this was a piece of very recent invention to bolster up his assertions.’’ [305]

There were material issues with the informant’s testimony and on reading the judgment it is clear to see how the judge had grave doubts over the veracity of the evidence. But it gives a vivid insight into how the judge went about the assessment of witness testimony in a case where absolutely everything hung on 2 Crown witnesses. Whilst he was careful not to criticise the ability of the prosecuting authorities to make use of the ‘SOCPA’ provisions, the judge made it abundantly clear that the prosecution witnesses had fabricated evidence under oath. Understandably, there was much retrospective public criticism of the decision to prosecute and the future of such Supergrass trials in the jurisdiction remain unclear.

Where’s the evidence?

The reality is that credibility of a witness will always be important and demeanour and impressions will always have to be assessed in the administration of justice. Academics like Spellman and Tenney have written at length about the virtues of utilising evidence based psychological research in the legal domain. But where do judges fit into in all of this? Harking back to our football analogy, there is little point in developing the latest technology in sports science yet not allowing coaches and managers to embrace and implement it to improve performance. The skills of legal research, critical analysis and communication are ones that advocates develop and are transferrable to the bench. But the ability to assess credibility, whilst perhaps one that lawyers pick up, is certainly not one that is specifically expected or tested. But once selected and appointed to judicial office this is not only a desirable asset but one that day in, day out judges are expected to demonstrate.  Informed ignorance of this reality is perhaps what is precluding a genuine discussion of the issue. It is a perfectly viable argument that judges should receive some training on what is essentially a new and rather important role of the job.

This piece is certainly not calling for an overhaul of judicial recruitment to include polygraph reading, but it is submitted that the broad issue of judicial training deserves attention at least. Judges must complete a mandatory training to hear rape cases, so there is a clear appreciation that judicial training has benefits. Lawyers now live in the world of ‘continuing professional development’ and even the most senior are expected to look at how they can improve themselves and their practice. Judges should not be ‘compelled’ to embrace this process but should instead recognise the merit in how the administration of justice can be improved.  How witnesses give their evidence has been transformed through the introduction of special measures in recent years and the Criminal Justice Act 2003 modernised many aspects of the criminal justice system in England & Wales. Against that backdrop, the judiciary can actively participate in developing and responding to change. Where is the harm in allowing our judges to improve their key skills? It is axiomatic that lies are told in courtrooms and we empower judges with the tools to deal with them. If judges can collaborate with academics and professionals who research and study witness behaviour then the justice system only stands to benefit.

Guest post, by John Taggart
The Bar Library, Belfast

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