How do judges assess the evidence in a case and decide what actually happened?
This process is known as finding facts and this guide explains the approach taken in civil as opposed to criminal cases.
Before going any further, it is important to remember that judges are human and it is impossible for any judge to know with certainty whether a person is telling the truth. They come to a decision by following certain procedural rules. These are set out below.
Burden of proof
This means that a person who asserts that something has happened is responsible for proving it. The other person who has the opposite case does not have to disprove it.
Standard of proof
The standard of proof required to establish that something has happened is the balance of probabilities. It must be established that it is more likely than not that something happened, meaning a greater than 50% chance. Whilst this standard remains the same for all allegations and versions of events, the more serious an allegation, the more cogent that the evidence of it must be to persuade a judge that it happened.
No investigations
Unlike in other jurisdictions, in England and Wales judges are not investigators. They review the evidence that is gathered and presented to them by each of the parties to a dispute. This takes the form of any material presented, such as witness statements and supporting documents, a witness’ live evidence in court and the arguments made by each side’s lawyers. If a person fails to provide evidence on any point, the judge can draw an adverse influence against that party. This means that that person’s version of events can be viewed as being less persuasive than the other person’s version of events.
Memories
Memories fade with time and are fallible. Where there are conflicting accounts and lots of documents, more weight is likely to be given to the documents which are objective instead of memories which could be subjective or incorrect.
Is there an objective truth?
In short, no. All of the above issues are considered together and help a judge decide who is telling the truth, who thinks they are telling the truth but might be mistaken and who is not telling the truth. A judge then sets out their decision in the form of a judgment, which must give the main reasons for that decision. In its helpful summary, the High Court explains that decisions are not necessarily the objective truth, but are a judge’s own assessment of the most likely facts. Taking legal advice and documenting important events and decisions is crucial and will help you to present your case as persuasively as possible should you ever end up in court.