Second Distinguished Law Lecture explores relationship between truth and proofWednesday 28 October 2015
In the second in his free public lecture series, Professor Sir Mark Hedley took on the task of examining the relationship between truth and proof in the justice system.
Sir Mark has passed judgment on high profile cases in the field of criminal, family, end of life, medical, and mental capacity law, and in this lecture he focused on the issue of baby shaking as a prime example where a judge needs to combine an insight into the whole situation with the medical evidence.
Noting that the issue of baby shaking has led to the creation of two completely opposite schools of thought, Sir Mark also detailed some of the questions a judge must ask himself to establish the truth. This included bearing in mind the real distinction between an honest and a reliable witness, stating: “The controversial matters have to be assessed in the context of the agreed evidence. In this case there will be one or two people who actually know the truth but the judge will not be one of them.”
He continued: “The judge must then make an assessment of the witnesses: are they honest, are they accurate, are they reliable?
“It may surprise you to know that, even after 30 years of listening to witnesses, I still start with the assumption that I am being told the truth in the sense that what the witness is telling me, he believes to be true. There are perhaps three common indicators of dishonesty: evidence that is tinged with malice, evidence that is inconsistent with the agreed background and evidence that is inconsistent with what that witness has said before.”
He also discussed how different conclusions to the same case can be arrived at by the criminal and family courts.
Sir Mark stated that a system in which fallible judges hearing fallible witnesses give fallible evidence is one in which great caution and care are required and yet decisions have to be made. This may result in outcomes which are logically sound but are very difficult for the citizen to comprehend and accept.
He added: “I try to confront this dilemma with new judges by suggesting that the two qualities most needed by the family judge are humility and confidence. Humility is essential once we appreciate the inherent fallibility of the system and humility requires courage: the courage to acknowledge that, however hard we try and however conscientiously we apply ourselves, we are bound to get some cases wrong. What is more we will rarely, if ever, discover which ones they are. At the same time each judge needs confidence: how otherwise can decisions be made? My advice is this: approach every case with humility, decide every case with confidence and then sleep well so that you can do it again and again.”