MTECC NEWS 22.07 ||| Assessing Witness Credibility
[Note: this is an extended version of an MTECC News Article by Dr Richard Manly QC published on 30 May 2022]
The proper approach to the question of the credibility of a witness has been canvassed from time to time.  However, it must be appreciated there is a distinction between issues of credit and issues of credibility. 
Issues of Credit
Issues of credit relate to the personal integrity of a witness ie: the honesty, and veracity of the witness. Issues going to the credit of a witness are matters which affect the judges judgment about the veracity of the witness.
Issues of Credibility
Issues of credibility relate to the reliability or believability  of the testimony of the witness on other types of grounds such as:
- the quality of the witnesses opportunity to observe; and
- the extent of the witnesses ability to recall and communicate the events narrated in the witnesses testimony.
Issues going to credibility are issues which affect the judge’s judgment about the reliability and believability of the testimony of the witness on grounds that they do not reflect adversely on the honesty of the witness. Issues going to credibility, are matters bearing on the likelihood of the witness’s testimony being flawed by honest mistake as opposed to lies.
There is no inconsistency in a judge accepting the testimony of a witness as a witness of truth in the sense that the judge accepts that the witness is sincere and honest in the testimony given, while doubting the reliability of that testimony. Such doubts may arise because of factors touching on the:
- witness’s intelligence,
- observation of the events in question, or
- state of mind at the time of those events.
Such doubts may also arise because of the personal qualities of the witness observed in the witness box that, while not impugning the honesty of that witness, suggest the witness is an emotional or hasty person who is likely to make premature judgments on people or events.
Credibility and Honesty
It is to be remembered that “credibility” is not the same as “honesty”. A witness can be found to be totally honest but still totally wrong. A common finding by judges in civil cases is that a witness is totally honest but mistaken.
What factors do judges take into account when assessing witness credibility?
What follows has been sourced from the April 2022 article by Gordon Exall  as regards the factors judges take into account in assessing the question of witness credibility.
Gordon Exall commences with an extract from Thornton v. Northern Ireland Housing Executive  where Gillen J remarked:
Credibility of a witness embraces not only the concept of his truthfulness ie: whether the evidence of the witness is to be believed but also the objective reliability of the witness ie: his ability to observe or remember facts and events about which the witness is giving evidence.
In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following:
- the inherent probability or improbability of representations of fact,
- the presence of independent evidence tending to corroborate or undermine any given statement of fact,
- the presence of contemporaneous records,
- the demeanour of witnesses, eg: does he equivocate in cross examination,
- the frailty of the population at large in accurately recollecting and describing events in the distant part,
- does the witness take refuge in wild speculation or uncorroborated allegations of fabrication,
- does the witness have a motive for misleading the court.”
This is followed by useful comments by His Honour Judge Simon Brown QC in David Piper v. Mark Hales  where he has provided the following summary of relevant principles:
The guidance about how courts approach this (ie: witness credibility) is given in the extrajudicial writing of the late Lord Bingham of Cornhill approved by the courts is apposite. In “The Judge as Juror: The Judicial Determination of Factual Issues” published in “The Business of Judging”, Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985 p 1-27, he wrote:
… Faced with a conflict of evidence on an issue substantially effecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties’ lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? …
The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agreed to have happened but also of what plainly did happen, even thought the parties do not agree.
The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v. Vergottis  2 Lloyds Rep 403 at p 431. In this he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full:
Credibility’ 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. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue …. More often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
- the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
- the internal consistency of the witness’s evidence;
- consistency with what the witness has said or deposed on other occasions;
- the credit of the witness in relation to matters not germane to the litigation;
- the demeanour of the witness.
The first of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness’s evidence conflicts with what is clearly shown to have occurred, or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded a suspect. It may only be unreliable, and not dishonest, but the nature of the case may effectively rule out that possibility. The fourth test is perhaps more arguable …
The following guidance of Lord Goff in Grace Shipping v. Sharp & Co  is also helpful:
And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost),  1 Lloyd’s Rep. 1, when he said at p. 57:
Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.
That observation is, in their Lordships’ opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.
In that context he was impressed by a witness described in the following terms:
Although like the other main witnesses his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable. That is so important, and so infrequently done.
This approach to fact finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others :
By the end of the judgment, it is clear that what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings
There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
In my judgement, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.
Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties’ lawyers long after the events also distort the accurate picture even though they are meant to assist the court.
Conclusion and Summary
The most appropriate conclusion and summary of the relevant principles is provided by Lyons J in Euromark Ltd. v. Smash Enterprise Pty Ltd  where he cited with approval the following passage from Pell v. R :
I consider the surest test to determine credibility and reliability in any criminal or civil case is to assess:
the inherent consistency of the witnesses’ account; the consistency of that account with those of other witnesses; the consistency of that account with undisputed facts; the “credit” of the witness (based upon matters which include, for example, demeanour); any relevant infirmities of the witness; and importantly, the inherent probability or improbability of the evidence in question …
Liability limited by a scheme approved under professional standards legislation
 See generally Gordon Exall, Civil Litigation Brief, 25 May 2014 “Witness Statements and Witness Evidence: more about Credibility”; 25 May 2020 “Assessing Witness Credibility: A reminder of the basic principles”; 4 April 2022 “Assessing Witness Credibility: Credibility is not necessarily the same as honesty”.
 See generally Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 269 – 274.
 David Ross, Ross on Crime (Thomson Reuters, 4th ed, 2009) 415.
 See above n1.
 (2010) NIQB 4  – .
  EWHC B1 (QB)  – ; see also Gestmin SGPS S.A. v. Credit Suisse (UK) Ltd  EWHC3560 (Comm)  – ; Watson Farley & Williams (a firm) v. Ostrovizky  EWHC 160 (QB)  – ; Virulite LLC v. Virulite Distribution Ltd  EWHC 366 (QB) ; Armagas Ltd v. Mundogas S.A. (The Ocean Frost)  1 Lloyd’s Rep 1.43, 57; East Midlands School CIC v. Palmer  EWHC 4138 (QB)  – .
  1 Lloyd’s Law Rep. 207 at 215-6.
  EWCA Civ. 610 ,  and .
  VSC 97.41 per Lyons J.
  VSCA 186. per Weinberg JA.