Interestingly the drafting of perhaps the most crucial question is ambiguous: “Did they play football with James? If so, has he expressed sadness at not being able to play to the same level and ability as before the accident?”. She took their statements over the telephone and she was provided with a list of questions, drafted by a more senior fee earner, to use when discussing the case with Mrs Glancy and Simon Fennell. “I am also mindful of the evidence I have heard from She was a trainee solicitor in her first seat, a matter of weeks into that seat, when she was asked by her principal to proof Mrs Glancy and Simon Fennell. The judge considered the way that the statement was taken The neighbour who gave evidence had made a statement that Mr Shikhell was “unhappy because he could not play football as he did before.” There was considerable debate about what this meant – that he was playing to lower standard – or could not play at all? The proceedings were also brought against his father and two “character witnesses”, a neighbour and a team mate. In fact he played regularly, had played every match for his team that season and had been “man of the match” several times. He had given evidence that he could not play football and was severely disabled. In a similar manner the dangers of having a set “checklist” of questions is clearly seen in the judgment in the contempt of court case of Motor Insurers Bureau –v- Shikhell EWHC 527 (QB).Ī contempt of court action was being brought against Mr Shikhell for false statements he made in a personal injury action. The questions were loaded, not open ended, they were working towards a pre-existing view of what happened. It can be seen that there was clearly an agenda when those statements were being taken. Just a set of questions geared entirely towards the behaviour of people, like myself, whose only fault was that we saw fellow fans die.” Not a single question about how many police were outside the ground, the state of the stadium, whether any stewards filtered people away from the central Leppings Lane death pens, whether police officers responded to dying fans screaming to be let out of the cages, or if I saw any medics helping casualties. “Virtually all the questions were slanted towards finding out how culpable the fans were: “What time did you arrive at the ground? Did you witness any disorder? Did you witness any consumption of alcohol in the streets? Did you witness alcohol being brought into the ground or consumed inside the ground? Did you witness any act by supporters which obstructed police, stewards or medical persons? Were you subjected to any threats or violence? Did you witness anything you consider to be a criminal act by any person?” The best example of this I have seen is Brian Reade, writing in the Mirror, on his experience of having his statement taken by the police after the disaster: However one significant matter is the way that the police actually asked questions. There is much controversy about the statements that were taken after the Hillsborough disaster. Here I don’t mean deliberately corrupted but that a witness, who is anxious to help, could inadvertently agree with matters which, on closer examination, are not correct. It means that the evidence is far less likely to be “corrupted”. This practice, of not asking leading questions, is an essential tool in a litigator’s armoury. It meant that the judge was hearing the witnesses’ evidence rather than a response to a number of loaded questions coming from the advocate. However the rule against asking leading questions was important. A central fact that a party had told you about clearly in conference 10 minutes earlier could, sometimes, not be teased out of them at all. However the most difficult problem was the fact that you could not ask “leading questions”. “Proofs of evidence” could be fairly perfunctory (if they existed at all). Witness statements now stand as the evidence in chief. There are a declining number of practitioners who will have seen examination in chief in a civil case, let alone carried out this task. The questions asked, and the way questions are asked, will determine the evidence that goes into the statements. However one overlooked aspect is the way that witnesses are questioned. Earlier posts on witness statements have dealt with the manner of drafting and presentation.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |