“Mum’s the word…”
Silent Witness is a TV show where key characters actively search for forensic evidence. But don’t take this approach in an Employment Tribunal!
I was recently part way through a case where one of my witnesses thought it might be a good idea to find some extra evidence overnight to assist the Judge. He knew he wasn’t supposed to discuss the case with us or the other witnesses, but didn’t think that he also had to keep mum generally while under oath. The other side found out what happened and, the next day, the witness received a royal rebuke from the Judge, who made it clear that, when giving evidence, a witness must not speak to anyone about a case.
This particular judge was benign by giving only a warning. It could have been worse: claims by a Ms. Chidzoy against the BBC for whistleblowing and sex discrimination were struck out entirely when it was found out she had discussed her case with a journalist during a break while still giving evidence. The Employment Tribunal weren’t interested in what had been discussed; it was the mere fact that she had discussed her case was enough for it to conclude that her conduct was unreasonable. And that was the end of that.
This is part of the wider issue that, when under oath, witnesses must do what a court or tribunal orders, and answer truthfully any questions put to them. Not doing this is contempt of court. In fact it was reported recently that a Mr. Atwal, a DJ from Birmingham, who had claimed that his career had been destroyed by medical treatment in 2008 and wanted damages of £837,109 for loss of future earnings and the need for care, was lying, as his music videos showed. Having done so, he is now facing a possible 2 year jail sentence. Another case in 2016 related to a juror who did some online research about a defendant and shared the results not evidence before the court) with other jury members, resulting in the case being abandoned; he was sentenced to 9 months’ jail, suspended for 12 months.
The reality is that, in any case, people have different versions of the same story. A court or tribunal then has to decide who to believe. There’s always a risk that a judge thinks that evidence given is a lie (i.e. contempt of court – which is itself punishable). For this reason, judges will say they “prefer the evidence of A rather than B”, and if they feel B was being misleading, may add that they found B to an “unreliable witness”. Elegant, but effective.
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 care not to speak about a case while under oath (which can make a weekend seem like a very long weekend).
Being a Silent Witness can be tough.