The Demeanour of Witnesses in Fitness to Practise Proceedings

The recent High Court decision in Khan v GMC [2021] EWHC 374 addresses the important issue of whether the demeanour of a witness can be taken into account when assessing their credibility.

At the time of the alleged incidents, Mr Khan was a consultant orthopaedic surgeon at Barnsley Hospital NHS Foundation Trust. A Medical Practitioners Tribunal (‘MPT’) found that Mr Khan had behaved in an inappropriate and sexually motivated way towards three female members of staff. In June 2020, the MPT found that his fitness to practise was impaired and in July 2020 the MPT determined that Mr Khan’s name should be erased from the Medical Register.

Mr Khan appealed the decision on the basis that, inter alia, the MPT placed undue reliance on witnesses’ demeanour in judging their credibility in contravention of the principles outlined in R (Dutta) v GMC [2020] EWHC 1974 (Admin), namely that:

• Objective evidence, such as contemporaneous documents, should be considered before other factors;
• The reliability of evidence should not be considered in isolation;
• The confident delivery and demeanour of a witnesses’ evidence is not a reliable guide to whether they are telling the truth; and
• Witness evidence (in most cases) is not the only relevant part of the evidence.

In Mr Khan’s case, the MPT started by assessing whether the witnesses were credible and, in so doing, appears to have largely based its decision on their demeanour when giving evidence. The Judge, Mr Justice Knowles, noted the following:

"[t]he Tribunal’s language shows that its reasons were based in significant part on the twin fallacies that 'the more confident another person is in their recollection, the more likely it is to be accurate' and 'because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth' (per Gestmin, supra). I also consider its reasons violated Warby J's second stricture in Dutta, supra, [42], that 'Reliance on a witness's confident demeanour is a discredited method of judicial decision making'."

It was only after the MPT reached a decision on the credibility of the witnesses that the MPT went on to consider the other evidence in the case. On this issue, Mr Justice Knowles commented that: "…by then [the Tribunal’s] conclusions were foregone because of what it had already decided in the first section that [the witness] was 'genuine'. When [the Tribunal’s] reasons for concluding that [the witness] was 'credible' are examined, it is clear that the Tribunal fell into the precise trap which Dutta, supra, warned against."

Mr Justice Knowles found that the MPT, "adopted a fundamentally erroneous methodology in its approach to the evidence, such that its Determination cannot stand". The Court allowed the appeal and the sanction of erasure was quashed.

Summary

This decision reminds Tribunals that, when considering witness credibility, they must take particular care not to adopt an approach of finding that (i) the stronger and more vivid the recollection; and/or (ii) the more confident a witness is in their demeanour, the more likely the witnesses account is to be accurate. Further, witness evidence should not be considered by a Tribunal in isolation, but as part of the case as a whole.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.