ADVOCACY THE JUDGE’S VIEW VI: HOW A JUDGE ASSESSES WITNESS EVIDENCE

“One of Lord Bingham’s essays in “The Business of Judging” is “The Judge as Juror: The Judicial Interpretation of Factual Issues”. There he quotes an extra-curial speech by Lord Justice Browne, who makes the same argument as Leggatt J, but more laconically:

“The human capacity for honestly believing something which bears no relation to what actually happened is unlimited.”

12. I was reading over the weekend the review in the 4 December 2014 edition of the New York Review of Books of the latest work by the masterful storyteller Aleksandar Hemon “The Book of My Lives”. In an interview Hemon said this:

“If I try to tell you what happened to me in ’91, I’ll have to guess about certain things, I’ll have to make up certain things because I can’t remember everything. And certain memories are not datable. You and I might remember our lunch, but some years from now we won’t remember it was on a Friday. I will not connect it with what happened this morning because they are discontinuous events. To tell a story, you have to—not falsify— but you have to assemble and disassemble. Memories are creative. To treat memory as a fact is nonsense. It’s inescapably fiction.”

In my opinion, a trier of facts should bear this firmly in mind when weighing a witness’s memory.”

Civil Litigation Brief

We have covered many countries so far in this series which looks at the advice that judges give on advocacy.  For the next few posts I have decided to stay closer to home.   I want to look at the talk given at Bristol University Law School  in December 2014 by Mr Justice Mostyn “The Craft of Judging and Legal Reasoning”.  The talk is about fact finding and the exercise of the discretion after that. I will concentrate on the fact finding. (Again the main object of the exercise is to encourage readers to read the original. You will find some interesting issues of fact being considered…)

“The ability to tell a coherent, plausible and assured story, embellished with snippets of circumstantial detail and laced with occasional shots of life-like forgetfulness, is very likely to impress any tribunal of fact. But it is also the hallmark of the…

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