The way witness statements are prepared in the Business and Property Courts of England and Wales was substantially reformed by Practice Direction 57AC, introduced in April 2021. The Practice Direction was a serious attempt to address something that judges and psychologists had been saying for years: the process by which witnesses are prepared to give evidence in civil proceedings is liable to corrupt their recollection of relevant events.
A paper published in May this year in Civil Justice Quarterly by Mark Steele SC offers the first detailed empirical look at how the Practice Direction is working in practice. Steele interviewed 35 participants who are actively involved in litigation in the Business and Property Courts: 11 judges (predominantly Commercial Court judges, with an average of seven years on the bench), 19 solicitors (litigators practising in the Business and Property Courts, with an average of 22 years’ experience) and 5 counsel (four King’s Counsel and one junior barrister, with an average of 29 years’ experience). His findings suggest that, while PD 57AC has achieved meaningful change – witness statements are generally shorter and more focused on disputed facts – the witness preparation process continues to be vulnerable to contamination in ways the Practice Direction did not fully anticipate.
One finding in particular stands out, because it reveals something that only becomes visible when you look at the interview data through the lens of memory science.
The document problem
One of the provisions of PD 57AC that appears, according to Steele’s interviews, to have had a real impact on practice requires solicitors to list any documents that have been used to refresh a witness’s recollection on important disputed matters of fact. According to the study, this transparency requirement has changed behaviour in litigation: solicitors reported being much more cautious about which documents they show a witness, precisely because listing them creates what several interviewees described as a “red flag” for the opposing side to try to exploit in cross-examination.
That strategic caution, albeit aimed at preventing a different risk, could be a positive development from the perspective of reducing memory contamination. The concern is what appears to have emerged in its place.
Steele’s interviews reveal that some solicitors, rather than showing a witness a document they would then have to list, are instead conveying the contents of that document to the witness orally – describing what the document says, or framing questions that draw on its contents, without putting the document itself in front of the witness. As one solicitor put it when asked about this use of oral prompts drawn from documents: “I think that’s fair game to be honest”. Another said “I think people definitely use documents to prompt a witness without showing them the document”, by asking something like “is it possible at the meeting that something like this was discussed?”.
It is not difficult to see how this practice would evolve naturally: solicitors are working within the system the Practice Direction has created, balancing its transparency requirements against what they see as their duty to test the evidence effectively and to prepare a witness properly for trial. The shift to oral prompts is, in many cases, a pragmatic response to that tension rather than a deliberate attempt to circumvent the rules – though it doesn’t sit easily with the solicitor’s duty not to lead or coach a witness, or with the Practice Direction’s overarching requirement to avoid influencing recollection. From the perspective of the Practice Direction’s transparency requirements, this “oral prompts” approach avoids the need to disclose the document in question. From the perspective of memory science, it is almost certainly worse.
Easier said than written
Several decades of research on memory contamination point clearly in one direction: spoken communication is generally more likely than written material to distort a witness’s recollection, particularly when it is interactive, repeated or delivered by someone the witness perceives as authoritative.
Several factors explain why this is the case. One is what psychologists call “source monitoring” – the process by which our brains keep track of where a memory came from. When a witness reads something in a document, their brain is more likely to retain a trace of the source: a sense that this information was encountered in writing, on a particular occasion. When the same information is conveyed in conversation, the source is less reliably encoded. This isn’t to say that we never remember who told us what – we often do. But the research suggests that the contextual markers attached to spoken information are, on average, weaker and more easily confused with those attached to the witness’s own first-hand experience of the events. Information received in conversation – particularly conversation with someone the witness perceives as knowledgeable and authoritative, such as a solicitor who has studied the case file and spoken to other witnesses – integrates more readily into what feels like the witness’s own recollection.
Source monitoring confusion is compounded by the dynamics of face-to-face interaction. A conversation with a solicitor is socially interactive. It involves credibility cues – tone, confidence, the implicit authority of someone with detailed knowledge of the case. It may also carry an implicit pressure towards agreement, and it adapts dynamically to the witness’s responses in ways that a static document cannot. Each of these features makes it more likely that the information conveyed will be absorbed into the witness’s memory and later recalled as though it were part of their original experience. In the language of the “misinformation effect” – one of the most well-replicated findings in memory research – spoken post-event information is a particularly potent source of contamination precisely because it is harder for the witness to identify, after the fact, as having come from someone else.
The rule-practice gap
The result is that the Practice Direction, in restricting the use of documents and mandating transparency about their use, has inadvertently created conditions in which solicitors may shift towards a form of communication that is more contaminating and less transparent.
The Working Group that developed PD 57AC comprised judges and senior practitioners, and while the Practice Direction draws on psychological research, the process of translating that research into practical rules for witness preparation appears to have been undertaken without direct input from memory scientists. The overarching requirement that witness statements should be prepared so as “to avoid so far as possible any practice that might alter or influence the recollection of the witness” is, as Steele’s interviews reveal, a provision to which most solicitors have devoted little attention. As one counsel observed: “[W]e’ve all got Gestmin and Lord Leggatt’s observations in mind, but beyond that I think that the profession is pretty simplistic in its understanding”. Another solicitor was more blunt on the absence of legal education in this area: “[t]here is no training really on any of that. I suspect most litigators worth their salt will have a high level view…but in terms of detailed working or training, I don’t think that exists”.
The training gap the interviews identify is a specific one: not familiarity with the Practice Direction’s requirements, but understanding of the memory science that underpins them. A requirement to avoid influencing a witness’s recollection is of limited practical value if the people tasked with implementing it have not been equipped with an understanding of what influences recollection – for instance, that the way a question is framed can alter the detail a witness recalls, that pressing for specificity where memory has faded tends to produce reconstructed rather than retrieved information, or that simply repeating an interview can cause the witness to become more confident in a recollection that has not become more accurate.
The work of the Working Group was a serious and largely successful reform, as Steele’s research confirms. What the study also offers is a rare glimpse inside what one judge described as “a black box” – showing how solicitors are actually navigating the new system the Practice Direction has created, and where the gaps between intention and practice have developed.
The science of memory is not intuitive, however, and its implications for witness preparation are not obvious. Steele himself proposes expanding the Practice Direction’s transparency requirements to cover oral prompts as well as documents. This would be a welcome development for those attempting to identify potential sources of contamination. But transparency itself does not prevent the underlying risk of contamination. Reducing the underlying contamination depends on understanding how it occurs – and adjusting practice accordingly.
It is worth noting that in criminal proceedings, police officers receive dedicated training in interview techniques designed to minimise the risk of contaminating witness memory, and even that training does not produce perfect results. The difficulty of the task is not a reason to leave litigation solicitors without training; if anything, it is a reason to invest in it, particularly where the outcome of the case may turn on the reliability of a witness’s recollection of events that occurred years before.