For those that potentially missed it last summer (which, let’s face it, was easily done), the case of R (Dutta) v GMC  EWHC 1974 (Admin) contains an extremely useful summary of the modern guidance and caselaw surrounding the issue of assessing a witness’ credibility and provides a stern reminder to all, not just to professional disciplinary tribunals, that demeanour is not everything, in fact far from it.
Dr Dutta was a cosmetic surgeon. He faced a number of allegations, one group of which related to Patient A. It was alleged that he inappropriately pressurised Patient A into undergoing breast augmentation surgery by offering her a time-limited discount, for financial gain. He was also accused of having failed to obtain adequate informed consent to the surgery and falsely told her that he would not be using PIP implants.
Dr Dutta denied the allegations and relied on some contemporaneous records to support his account. Patient A was cross-examined by reference to the documents which she simply dismissed as fabrications. It was not the GMC’s case that any of the documents had been fabricated or tampered with and therefore their authenticity was not in dispute between the parties.
The allegation in respect of offering a discount for the surgery was found proven by the tribunal and this decision was subsequently appealed. Despite recognising the high threshold to be crossed when appealing findings of fact, Mr Justice Warby found himself “compelled” to accept the appellant’s critique of the tribunal’s decision and reject their approach as “wrong in principle and untenable, for a number/host of reasons”.
He went on to state at paragraph 38 that “I regret to say, in my judgment the Tribunal’s reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal’s assessment of the witness’s credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.”
At paragraph 39 the Judge set out in detail the legal principles involved, as derived from recent caselaw. I make no apology for setting out these paragraphs in full as they represent in my view essential reading and different parts may apply to a case depending on the issues at hand:
iii) Carmarthenshire County Council:
45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis  2 Lloyd’s Rep 403, 431; Robert Goff LJ in Armagas Ltd v Mundogas SA  1 Lloyd’s Rep 1, 57.”
The Judge went on to find that, instead of starting with the objective facts as shown by authentic contemporaneous documents, independent of the witness, and using oral evidence as a means of subjecting these to ‘critical scrutiny’, the tribunal had taken the opposite approach, starting with Patient A’s evidence. It was an error of principle to first ask “do we believe her?” before considering the documents.
Further, the tribunal had placed too great a reliance on Patient A’s demeanour. The Judge pointed out that the tribunal’s reasons did not clearly or sufficiently acknowledge the fluidity of memory, or the fact that an honest witness can construct an entirely false ‘memory’. The fallacy that confident evidence from an honest witness is accurate evidence was starkly illustrated by Patient A’s insistence that the authentic documents shown to her in cross-examination must have been faked. It was plain that her only basis for saying so was that the documents were at odds with what she was saying. She was seeking to ‘explain away’ the problem in a way that maintained her belief in her own account, a classic symptom of cognitive dissonance.
Finally, the tribunal’s third error when deciding what to make of the apparent mismatch between its impressionistic assessment of Patient A and the contemporaneous documents, was to ask itself whether the documentation was ‘determinative’, and such as to ‘preclude’ the case theory which the tribunal had come to adopt. This was, in effect, to require Dr Dutta to establish to the criminal standard a defence to the charge. Whereas the tribunal’s proper task was to assess the evidence in the round and decide whether the GMC had discharged the burden of showing that it was more likely than not that pressure was applied by means of a discount offer, for financial motives, as alleged.
For these reasons the Judge found that the tribunal’s factual determination on the charges could not stand and that the only reasonable conclusion available on the evidence was that Patient A’s recollection that she had been offered a discount to have the surgery quickly was not reliable, and the GMC’s case was not proven.
It is John Brown‘s view that this case provides a useful review of the modern principles to be applied by any fact finder when evaluating the evidence presented by a witness and has general application far beyond professional disciplinary proceedings. It is therefore to be remembered, and perhaps (gently) reiterated to the tribunal in an appropriate case, that reliance on a witness’s confident demeanour is now very much a discredited method of judicial decision-making.