The Silent Witness
Monday, June 4, 2018
In the TV show, Silent Witness, criminal cases are solved by key characters actively searching for forensic evidence. But beware not to take this approach in an Employment Tribunal.
I had a recent case in which a witness was giving evidence and, overnight, thought it might be a good idea to find some additional evidence to support his case and assist the Tribunal. He knew that as a witness, he was not allowed to talk to his legal team or to the other witnesses. It had not occurred to him that he could also not speak to someone else about the case while giving evidence under oath. The other party found out what had happened and the next day, the witness was given a sound telling-off by the Employment Judge, who made it clear that, when giving evidence, a witness must not speak to anyone else about a case. That is the real meaning of keeping silence as a witness.
In fact my witness was lucky to get off with only a warning. It could have been much worse. In the recent case of Chidzoy v BBC, the Employment Appeal Tribunal agreed with the decision to strike out Ms Chidzoy's claims for whistleblowing and sex discrimination when it was found out she had discussed her case with a journalist during a break period while she was still under oath and giving evidence to the Employment Tribunal. The Tribunal was not interested in what exactly had been discussed; the fact that she had discussed issues relating to her case was enough, and it was entitled to conclude her conduct was unreasonable.
This is part of a broader issue, namely that when under oath, witnesses must comply with the directions of a court or tribunal and answer truthfully any questions put to them. A failure to do so amounts to contempt of court that has been highlighted in a recent case reported in the press. Sandip Singh Atwal, a DJ from Birmingham, claimed that his career had been destroyed by medical treatment given to his hand and lip in 2008 and sought damages of £837,109. This huge figure was made up of significant claims for loss of future earnings and the need for care, on the basis that he was unable to work and significantly incapacitated. However he was lying, as his music videos showed, and is now facing a possible two year jail sentence.
Another case from 2016 related to a juror who researched information about a defendant and then shared the results with other jury members resulting in proceedings being abandoned. He was sentenced to nine months’ jail, suspended for 12 months.
The reality is that in any legal case, witnesses have different stories to tell regarding particular events. A court or tribunal then has to decide which person to believe. Having done so, there is always a risk that the judge determines that the evidence which they did not believe amounts to a lie (i.e. contempt of court – which is itself punishable). For this reason, judges will not go that far, save in the most gratuitous cases, and will instead say that they “prefer the evidence of A rather than B”, and if they feel B was being misleading, may add that they found B to be an “unreliable witness”. This is elegant, but effective messaging.
Getting back to the TV show, last minute forensics are not the way to succeed in litigation: cases are won by getting the evidence right long before going to court or tribunal, and then giving truthful evidence under oath and taking great care not to speak to anyone about the case while under oath, even if you are only halfway through your evidence on a Friday night and have to sit out the weekend in silence. The reality of being a Silent Witness is anything but easy.