Lawyers: can editing witness statements be a criminal act?

The recent Crown Court finding that Peter Metcalf, solicitor for South Yorkshire Police in the aftermath of the Hillsborough tragedy, had 'no case to answer' for perverting the course of justice has proved controversial. The full judgment can be found here.

This detailed ruling offers an insight into how reviewing, advising on and editing witness statements might amount to the common law offence of perverting the course of justice. The judgment also starkly demonstrates the limitation of the public inquiry as a mechanism of finding the truth, given Mr Justice William Davis’ recognition that no duty of candour exists in such a forum.

Mr Metcalf, who is now a retired solicitor, stood trial alongside two senior police officers, Donald Denton and Alan Foster, charged with two counts of doing acts which tended to pervert the course of public justice.  This is a serious offence which usually results in a prison sentence (indeed, the maximum sentence is life imprisonment).

The charges arose from the aftermath of the Hillsborough football stadium disaster when 96 Liverpool fans lost their lives on 15 April 1989.  At the time, Mr Metcalf was a senior solicitor with Hammond Suddards in West Yorkshire.  He was instructed by the insurers of South Yorkshire Police to, amongst other tasks, advise on the provision of witness statements of police officers to disclose to West Midlands Police for onward provision to the Inquiry being run by Lord Justice Taylor.
In summary, the prosecution case against Mr Metcalf failed because Mr Justice William Davis ruled:-

(i) that the Taylor Inquiry was not ‘a course of public justice’, and
(ii) that the possibility that the statements amended by Mr Metcalf might pervert a subsequent criminal or civil hearing was nowhere near strong enough to constitute a “tendency” or “likelihood”.

From the solicitor’s regulatory perspective, the most interesting point is the appropriateness of Mr Metcalf’s interventions and edits to police witness testimony, and what the court said about it.
Mr Metcalf’s amending work started on 10 May 1989 - seemingly because the Treasury Solicitor had served a “Salmon letter” one day beforehand. This was a letter containing six preliminary indications of criticisms which might be levelled at South Yorkshire Police. These were:-

(i) failing to take adequate steps to control supporters outside the Leppings Lane end,
(ii) lack of liaison between offers inside and outside the ground,
(iii) radio problems, tannoy problems, and lack of police presence to stop overcrowding in the central tunnel,
(iv) failing to monitor the state of the central pens of the terraces,
(v) inadequate contingency plans to deal with the emergency as it unfolded, and
(vi) no consideration given to postponing kick-off until it was too late.

Presumably having considered that letter, Mr Metcalf promptly started work on his amendments to the police witness statements, the first drafts of which had been written by each police officer without legal input. Mr Metcalf undertook this task without assistance from counsel (William Woodward QC).

On 11 May 1989 Mr Metcalf formally instructed Mr Woodward QC to appear at the Inquiry writing:
“the objective to be pursued at the Inquiry is the presentation of South Yorkshire Police in the best possible light consistent with the facts that are brought out”.

Of course, the facts that might be ‘brought out’ would depend, in part, on Mr Metcalf’s own work over the following months. Between 10 May 1989 and 1 August 1989 Mr Metcalf gave advice in relation to 437 police statements provided to him. Of those, he advised some sort of alteration to 167 of them. To a large extent, Mr Metcalf made redactions where the officers were stating their opinions rather than simply the facts of what they saw and heard. Indeed, 110 of his amendments were said to be inconsequential. But the Prosecution relied on 57 witness accounts where it is said Mr Metcalf took steps to reduce or remove criticisms of South Yorkshire Police from the accounts of its own officers.

In his judgment, Mr Justice William Davis gave three concerning examples of factual alterations made by Mr Metcalf:

“There were three accounts from (police witnesses) Finnerty, Smyk and Fillingham, - from which references to factual matters were removed: a PC arguing with an Inspector about opening a gate (Fillingham), no senior officers being on the playing area (Smyk), and a lack of personal radios (Finnerty).”

Pausing there to reconsider the six likely criticisms disclosed to police in the “Salmon letter” at the outset, it is apparent that all three of these factual observations were key in assessing whether those criticisms were justified.  Despite this, it was common ground that Mr Metcalf removed them from the officers’ statements.  All three men then duly signed the amended versions (although one seemed more unhappy that his opinions had been removed), which were then sent on to the Taylor Inquiry.

Mr Justice William Davis ruled that these acts did not amount to perverting the course of justice. It should be noted that his rationale was more concerned with the status of the Taylor Inquiry, and also the lack of any indication, in Summer 1989, that those same amended statements would be used in future civil or criminal proceedings.  In relation to subsequent civil or criminal proceedings, the Judge rather bluntly ruled:-

“The problem is that there is little or no evidence about those other proceedings and/or there is no basis upon which to say that anything done by any of these defendants had a tendency to pervert the course of public justice in relation to other proceedings”.

However, Mr Justice William Davis also set out a solicitor’s proper role in regard to representing their clients including the preparation of witness statements. He phrased the role in this way:-

“The primary duty of any solicitor is to act in the best interests of his client. In the absence of good and proper reason to the contrary, a solicitor must follow his client’s instructions. However, a solicitor is also an officer of the court. As such he has a duty to the court which takes precedence over any duty owed to his client. A solicitor must not mislead the court in representing the client and presenting the client’s case. This duty to the court relates to any act by the solicitor which is positively misleading. In conventional proceedings a solicitor may be in a position where he realises that the court is acting on a false basis. Provided the solicitor does not contribute to the misapprehension of the court, he has no duty to correct the court or to draw the court’s attention to the true position”

Most solicitors will be familiar with this summary and it should prove largely uncontentious. The legal process is adversarial. There is no general duty on the litigator to disclose the truth and the whole truth. A litigator is entitled to be selective, to put her client’s best foot forward and in so doing, provided there is no active misleading, to quietly take advantage of an error or omission by her opponent.

However, the next passage of the Metcalf judgment is more interesting:

“In relation to the calling of witnesses, the solicitor is under no duty to call a witness whom he knows will correct any misapprehension if to do so will not be in the best interests of his client. Further, the solicitor is entitled to adduce only such evidence from a witness which assists his client’s case so long as the omission of other matters does not render misleading the evidence being given”

This point is specifically about editing what a witness puts in their statement. A witness statement can be deliberately and selectively edited by a litigating solicitor. However, the key words are “so long as the omission of other matters does not render misleading the evidence being given”.

At this stage it might be helpful to consider two straightforward criminal scenarios:

Scenario 1

A is accused of laundering the proceeds of crime by receiving large cash deposits into his bank account. A’s business partner (B) provides a witness statement to A’s solicitor. B’s statement explains the deposited money is the lawful income from their business, and that A is an honest man with whom B has worked for years. However, B’s statement ends with the sentence that A and B have not declared any of their income to HMRC for the purpose of tax avoidance.
If the solicitor were to delete that last troublesome sentence, then have B sign it, and serve it on the court, does this act constitute “an omission of other matters which renders misleading the evidence being given”? Arguably it does, because the solicitor has allowed the Court to gain a false impression of A’s honesty when in fact B's original draft suggested otherwise.

Scenario 2

C is accused of a violent sexual offence against his estranged wife. C denies this, and the matter is listed for trial. D, a former girlfriend of C, provides a witness statement in support of C’s character. In it, she says C has never once sexually assaulted her and that he is very gentle with a ‘heart of gold’. D then adds that C physically assaulted her once whilst he was drunk, but there was no sexual element to it and he profusely apologised to her afterwards. Suppose C's solicitor were to remove that troublesome last section, have D sign the sanitised version, and serve it on the court, do those acts constitute “an omission of other matters which renders misleading the evidence being given”? Arguably they do, because the solicitor has allowed the Court to gain the false impression that C is a peaceful and loving partner, when D actually gave a specific example of his violence.

Set in the light of these two examples, we should re-apply this principle to the critical factual evidence of officers Finnerty, Smyk and Fillingham - all removed by Mr Metcalf after he had specifically considered the preliminary criticisms of his client, South Yorkshire Police. It seems feasible that those redactions could have rendered the remainder of their statements misleading i.e. Mr Metcalf removed specific failings of South Yorkshire Police. For example, Smyk's statement which cited no senior police leadership present on the pitch was changed into one which made no such criticism. This was done by a lawyer who had expressly said he wanted to put his client "in the best possible light consistent with the facts that are brought out". But the key point is that removing unhelpful references can change the way the entire witness statement is perceived, and the use to which it is put in future. Mr Metcalf's aim is circular because the evidence that is "brought out" has been deliberately changed, and thus so has it's usefulness.  

Of course, in this case the question of regulatory compliance was side-lined by the “public course of justice” point, and so Mr Metcalf's criminal charges were dismissed in any event.

Nevertheless, criminal defence solicitors of today should be very careful before indulging in selective tactical amendments to witness testimony.  This sort of manipulation may well lead to consequences.  Although none will ultimately follow for Mr Metcalf, it has taken some 30 years for him to find that out.

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