0
In this article, Samantha Broadfoot KC reflects on the key practice points on corporate witness statements to be drawn from recent High Court case law.
Background
This case arose from two sets of High Court proceedings relating to the activities of a man, “X”, who was alleged to be an MI5 covert human intelligence source (CHIS). It was alleged that X had been authorised and handled by MI5 despite a serious criminal history, including domestic abuse. In 2021 the BBC intended to broadcast an exposé revealing these claims. One of the women that he was said to have abused (“Beth”) stated that X used the alleged fact that he worked for MI5 in order to terrorise and control her.
The Attorney General (“the AG”) sought an injunction to prevent publication, citing national security risks. Beth also brought proceedings in the Investigatory Powers Tribunal (IPT), alleging that MI5 had failed to manage her properly as a CHIS and had violated her human rights.
In support of the injunction, the AG filed a corporate witness statement from a senior MI5 officer which asserted that throughout its dealings with the investigative BBC journalist, MI5 had adopted its usual “neither confirm nor deny” (“NCND”) stance as to whether X was a CHIS. MI5 affirmed this evidence, and added further detail, in response to enquiries from the special advocates.
It subsequently became apparent that this was untrue, and that another MI5 officer had been authorised to tell the BBC journalist that X was a CHIS and had done so in a series of conversations over June 2020. The journalist later produced recordings and notes of the relevant conversations. By that time, however, various proceedings relying on that evidence had concluded [6].
The matter came back before the Divisional Court to consider, inter alia, how the AG and MI5 came to deploy false evidence before the court and what further steps (if any) should now be taken by the court [7].
In considering what steps to take, the Court took the opportunity to re-emphasise the rules on corporate witness statements. It noted that a “corporate witness statement”, i.e. a statement conveying the collective evidence of a company or other body, is often given on behalf of a government department or agency in this form. Whilst this can be a convenient way to present an “institutional view”, it has its dangers [97].
Practice Note:
(1) There are specific rules on the contents of witness statements contained in the Practice Direction to CPR Part 32. Paragraph 18.2 provides:
18.2 A witness statement must indicate:
(1) Which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and
(2) The source for any matters of information or belief.
(2) The Court, at [99]-[100], approved the statement of Chief Master Marsh in Punjab National Bank (International) Ltd v Techtrek India Ltd [2020] EWHC 539 (Ch), who said:
‘In my judgment, where the maker of a statement is relying on evidence provided by a witness who is an officer of, or employed by, an incorporated body, the requirements of paragraph 18 of Practice Direction 32 to provide the source of the evidence is not complied with merely by saying that the source is the entity or officers of the entity. If the source of the evidence is a person, as opposed to being from documents, the person or persons must be identified and named. A corporate entity cannot experience events and can only operate through the medium of real persons. A failure to identify the source in a manner that complies with paragraph 18.2 will mean that the court has to consider whether to place any weight on the evidence, especially where it touches on a central issue.’
(3) “Serious consideration” should be given to obtaining a statement from a factual witness themselves, but where evidence is to be given by someone else, as part of a corporate witness statement, para.18.2 of the PD to CPR Part 32 must be complied with. Depending on the nature of the issue, this may require:
(a) Identifying the sources of information by name;
(b) Identifying the date of the conversation with individuals and the degree of confidence they expressed in their recollections;
(c) Asking the sources to read the passage of the witness statement which purported to record or summarise their recollections, and to confirm that the relevant part of the witness statement was correct and then recording that confirmation.
(d) Stating whether the recollections had been the subject of any independent scrutiny or testing, including by the deponent of the corporate statement.
This case underlines that institutional reliability in corporate statements is no less critical than in individual witness statements. Courts depend on the candour of those before them. Incomplete or inadequately attributed statements risk not only credibility, but may trigger contempt proceedings.
This article was written by Samantha Broadfoot KC.
