2020-06-24

Some people are better at lying than others: fraud and remote hearings

In order to keep the wheels of justice moving, the courts have been hearing cases remotely during the COVID-19 pandemic.

But, could a remote hearing ever be a suitable platform for fundamental dishonesty allegations?

Let’s explore the arguments for and against.

The case against

Witnesses ... may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression...which can never be reproduced in the printed page. Lord Shaw, Clark v Edinburgh & District Tramways Co Ltd (1919)

To find a claimant fundamentally dishonest, a judge must ascertain a claimant’s knowledge or belief as to the facts. The question is whether or not those beliefs are genuinely held. There is then an objective assessment of a claimant’s conduct and if that conduct was honest or dishonest.

Careful thought goes into making such a decision especially where a finding of fundamental dishonesty can lead to contempt of court proceedings and a criminal sentence.

Part of making that decision is to make an assessment of the claimant’s demeanour. Demeanour refers to the appearance and behaviour of a claimant when giving oral evidence as opposed to the content of written evidence. Essentially it is a credibility assessment.

That assessment is not easy, it has to be balanced with the written evidence and the generally accepted view that memories fade. This is a delicate balance that could never be justly dealt with at a remote hearing. Via video, it is more difficult if not impossible, to see any non-verbal cues and assess if a claimant is lying.  

A remote hearing would give a claimant an opportunity to receive off-camera coaching on how to respond. Often, a thorough cross examination of a claimant results in further lies and conflicting evidence. That process is naturally slower via video, giving opportunity for a claimant to think a little further and get the story straight.

We see claims management company’s representatives sitting at the back of a court indicating to a claimant when to agree or disagree. The catch is that a judge sees exactly that and is likely to take a negative view. All of that is lost on a video.

Recording a hearing is a criminal offence but would be near impossible to detect via video. For those fraudsters with a more organised approach to fraud, they could easily record the hearing to use as a learning tool.

The case for

Justice is best served when those in dispute assemble in the time honoured set-up – a public, physical space where everyone accommodated can look fellow participants in the eye. Richard Susskind, Online Courts and the Future of Justice (OUP, 2019)

Professor Richard Susskind, the IT advisor to the Lord Chief Justice, challenges this assumption. His views are that technology and artificial intelligence have a place in the legal world. He proposes that disputes should be resolved by judges working remotely and predicts that virtual reality will come to dominate the court service.

Susskind repeated his views recently at a Constitution Committee on 3 June 2020 where he was keen not to make too many assumptions based on limited evidence gathered during the Covid-19 pandemic. He raised the point that perhaps a judge is closer to looking into the whites of someone’s eyes by using speaker view on Zoom or that barristers may develop new and equally effective forms of remote cross examination.

Mrs Justice Lieven in A Local Authority v Mother & others [2020] considered the question of deciding if a witness is telling the truth using a remote platform:

demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court.

Some people are experienced at lying, very good at appearing relaxed and controlling any non-verbal cues. That “charm” could be less visible via a video platform and a judge is less likely to be persuaded that a claimant is honest. Equally, a judge has no idea about a claimant’s demeanour outside of court and less reliance on non-verbal cues could be beneficial in reaching a just outcome.

It does not follow that the weakest part of a fraudulent claim is when a person is put on the spot and asked difficult questions; the documentary evidence is as important, if not more so. The inability to explain a version of events, repeatedly change a version, fail to provide any substantive detail or provide oral evidence conflicting with the written evidence are far more reliable indicators of lying. All of this is possible remotely.  

We could even see more findings of fundamental dishonesty if judges are more reliant on conflicts between written and oral evidence – especially with the new rules on statements of truth reminding claimants that a possible consequence is contempt of court.

The Fundamentally Honest judgment

Whilst the courts have welcomed the use of technology to hear cases on a remote basis during the COVID-19 pandemic, the judiciary guidance is that allegations of fundamental dishonesty are unlikely to be suitable for a remote hearing.

The Civil Justice Council conducted a survey of over 1000 court users (predominantly legal practitioners) about their experiences of remote hearings between 1 and 15 May 2020. The feedback was positive but the consensus is that contested matters are largely not suitable for remote hearings. The report does not address matters of fraud, arguably the most contentious issue.

It remains to be seen if remote hearings will become commonplace, how the justice system will build on the experiences during the COVID-19 pandemic and then if fundamental dishonesty issues can be justly dealt with remotely.

There is an arguable case either way and reform may happen regardless of any initial view that remote hearings are not suitable for contentious issues, let alone fundamental dishonesty.

Although the method of testing a claimant’s evidence may change, reliance on documentary evidence is likely to remain constant and an effective way to defeat fraudulent claims.

Compensators can continue to apply the following:

  • Commit the claimant to a version of events
  • Do not allow those enabling the claim to skirt the issues 
  • Put credibility into issue where suitable 
  • Disclose supporting evidence where appropriate
  • Know your claimant – do the representations they have made conflict with your investigations?
  • Know your insured and proof them over a video conference - start directly observing how people react to difficult questions over a remote platform.

Related content:

The possibility that more hearings will be conducted remotely once the pandemic is over, are explored by Kennedys’ motor team here and by Kennedys’ commercial team here.

Fundamentally Honest blog
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