Justice personified is a woman bearing a sword of truth in her right hand, holding the scales of justice in her left and she is blindfolded, unseeing, impartial. We recognise the meaning behind that symbolism, and the phrase “justice is blind”, but do we hold it to be true?
The enforced remote working family practitioners are subjected to gives a new context to this question. A central plank of many submissions to adjourn final hearing is that the Court cannot assess a witness’ evidence effectively by remote means. There are many problems with remote hearings - many of which are addressed in an illuminating article for the Transparency Project (see here) by Jack Harrison, a new and welcome addition to the family team at Deans Court Chambers - but I suggest that the assessment of reliability and credibility is far from being the major one.
Do witnesses, like miracles, have to be seen to be believed? Is it necessary to see a witness to assess the credibility and reliability of the witness? Many would answer yes to these questions. It appears so obvious that it scarcely requires justification. But how far does the way in which a witness gives their evidence really affect the credibility of its content?
In Re P (A Child: Remote Hearing)  EWFC 32, a case involving allegations of Fabricated and Induced Illness, the President appeared to think that being able to assess the way in which the parents gave their evidence and the way in which they presented throughout the hearing was important:
“a crucial element in the judge’s analysis for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting, as they may or may not do, to the factual and expert evidence as it unfolds during the course of the hearing.”
The use of the phrase “experience the behaviour” of witnesses implies the Judge must watch the parents’ reactions to the evidence throughout the case taking into account demeanour not just when giving evidence, but throughout the hearing, to reach a view of the truth of their evidence.
There are significant problems with this ‘judge as polygraph’ approach to evidence. Quite apart from the potential to disqualify the unsighted from judicial office, it depends on assumptions that certain responses or behaviours are objective indicators of truthfulness.
Assessment of behaviour/demeanour is essentially a subjective matter. The Equal Treatment Bench Book cautions judges about relying on demeanour:
“People perceive the words and behaviour of others in terms of the cultural conventions with which they are most familiar. Our outlook is based on our own knowledge and experience, and this may lead to misinterpretation or a failure to understand those who are different or have different perspectives from us.”
“Science and a growing understanding indicates the difficulties with, and the possible fallibility of, evaluation of credibility from appearance and demeanour in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new”
Plainly expectations of ‘normal’ behaviour which are implicit in any consideration of demeanour may not be reliable given the Courtroom is not a normal setting a point recognised by Lady Justice Macur in Re M (Children)  EWCA Civ 1147:
“Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so”
An informative discussion of these issues is to be found in the judgment of Mr Justice MacDonald at in Cumbria County Council v R (Special Guardianship Order or Interim Care Order)  EWHC 2782 (Fam) The Court had to consider whether to change findings about the cause of a head injury following a fresh account given by the father during the welfare stage. The account was given to an independent social worker during a visit to the family home who was impressed by the way in which the parents presented when the account was given. The parents sought to rely on the what they contended was the genuine nature of the distress they exhibited when the story was recounted.
In response to the parents case on this point MacDonald J said
“The need for care with witness demeanour as being indicative of credibility has also been highlighted by the Court of Appeal in Sri Lanka v. the Secretary of State for the Home Department  EWCA Civ 1391. The Court of Appeal observed that it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness' demeanour as to the likelihood that the witness is telling the truth, noting research suggesting that interlocutors cannot make effective use of demeanour in deciding whether to believe a witness and some evidence that the observation of demeanour diminishes rather than enhances the accuracy of credibility judgments. Within this context, Leggat LJ stated as follows at  and :
" 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.
 No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the way it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts."
He went on to express his own view:
‘Within the context of the foregoing legal principles, this court must bear in mind that the assessment of the credibility and reliability of the parents should coalesce around matters including the internal consistency of their evidence, its logicality and plausibility, details given or not given and the consistency of their evidence when measured against other sources of evidence (including evidence of what the witness has said on other occasions) and other known or probable facts. The credibility and reliability of that parent should not be assessed simply by reference to their demeanour, degree of emotion or other aspects of their presentation. This of course works in both directions. It is as problematic to rely on an impression that a witness has an 'honest' tone, manner or presentation, for example that they appear "genuinely upset", as it is to rely on an impression that the tone or manner of a witness appears 'dishonest', for example that they cross their arms or look at the floor. These principles must apply both when the court is evaluating the parent in the witness box and when the court is evaluating the significance of the observations of other's regarding the parent's demeanour at a given point.”
If this is right, and it surely must be, it does bring a very different perspective to the current discussions about the ability to reliably assess witnesses in a remote hearing. Whether in a remote hearing or a live one, if we shift the focus of our consideration to an analysis of the content of the witness’ evidence and away from the way in which they give it, and the quality of justice may be improved.