The assessment of credibility and sufficiency of reasons: an appeal on the facts: Hindle v NMC [2025] EWHC 373 (Admin)

For most of its history, the common law legal system has regarded live answers from the witness box as the ultimate form of evidence, looking down its nose at other sources, above all the often-despised hearsay. Cross-examination of witnesses was the gold standard method of testing evidence, jealously guarded particularly in criminal trials. The process of an accused confronting their accuser, with the tribunal of fact judging the witness’s honesty or reliability, was invested with almost magical powers of revelation.

Modern scientific research has undermined faith in that process. Experiments in lie-detection reveal that human beings deciding, from an oral presentation, whether a person is lying would do only slightly worse if they simply guessed. In October 2022, Lord Leggatt JSC gave a lecture based in part on the book ‘Duped’ by the psychologist Timothy Levine. Lord Leggatt’s talk warned, among other things, of over-reliance on demeanour, and overconfidence in our lie-detecting abilities. He referred to his own 2013 judgment in Gestmin v Credit Suisse which reminded fact-finders of these issues. Gestmin itself was then extensively cited in R (Dutta) v GMC which elevated contemporaneous documents to the status of gold standard evidence, and endorsed Gestmin in relegating oral cross-examination to an “opportunity … to subject the documentary record to critical scrutiny and to gauge the personality, motivation and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events” [Dutta at 39].

This idea that questioning at a trial was fundamentally a secondary process to test documentary evidence was questioned by Lord Popplewell in his November 2023 Combar lecture. He argued that Lord Leggatt’s comment in Gestmin that judges should place “little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations” went too far. Contemporaneous documents are also often subject to the same distortions of memory as later accounts and in his view the accuracy of human memory had suffered an unjustifiably bad press.

If that is right then judgments made about which witnesses are credible and which are not, based on their oral evidence, may assume a more prominent role again. That is even more the case where the suggestion from the defence is not that the complainants are mistaken, but that their grievances are fabricated. Where there is little documentary evidence to help, the tribunal must decide from the witness evidence itself, prey to the danger of drifting back into the scientifically dubious game of ‘pick the liar’.

Hindle v NMC was such a case. Ms Hindle was a nurse who managed the healthcare staff at Stonyhurst School in Clitheroe in Lancashire. When she took up the job, she faced stubborn resistance to any change from four nurses, two of whom had applied for her job. They went on what the Deputy Head described to the hearing as a “witch-hunt”, making multiple complaints against Ms Hindle without ever formalising them, before coming up with a “collective grievance” which they submitted to the School and to Ms Hindle’s regulator, the Nursing and Midwifery Council. As a result Ms Hindle faced 32 misconduct charges at the NMC including bullying, intimidating and even manhandling some of the pupils, and failures of record keeping and medicines management.

She admitted three record keeping/medicines management charges and denied everything else. The bulk of the remaining charges were found proved. She appealed and the High Court overturned all the factual findings on charges which amounted to misconduct. The court found that she was not currently impaired.

The Deputy Judge, Alan Bates, made wide-ranging criticisms of the approach adopted by the Panel to making findings of fact. In particular he found that they had failed to conduct an overarching analysis of “the extent to which the Key Witnesses [the hostile nurses, Ms Hindle herself, and a paramedic who was largely supportive of her] were generally credible and reliable” before considering the charges one by one [at para 8]. It was not sufficient for the Panel merely to set out the witnesses’ respective accounts and then say “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”.

The Deputy Judge said the Panel had committed this error on multiple occasions. In a passage which will strike a chord with many defence practitioners working in this field he stated: “On my first reading of the Reasons, I repeatedly wrote “Why?” in the margin, signifying my inability to understand why the Panel had chosen to prefer the evidence of one or more of the Complainant Nurses over the contrary evidence of the Appellant and, where relevant, the Paramedic” [at 53]. This is, perhaps, a timely reminder that the comment in Southall (and similar in other cases) that “setting out the facts to be proved … and finding them proved or not proved will generally be sufficient … to demonstrate to the parties why they won or lost …” is qualified by the phrase “in straightforward cases”. Often, much more will be required.

The Deputy Judge was clear that the process he was suggesting should not be confused with the sort of demeanour-based decision-making which got the tribunal in Dutta into so much trouble. What the Deputy Judge felt was missing was a general evaluation of factors in the case relevant to each witness that might lead the Panel to have concerns for their honesty, or reliability, combined with an assessment of their performance when being questioned.

Crucially, the Panel had failed to evaluate the impact of the context of the complaints on the general credibility of the nurses concerned. There was their evident hostility to Ms Hindle, and their attitude to the investigation. It seemed that once Ms Hindle had been forced out of her job, they lost interest in helping the investigation into her conduct. One of the nurses had to be summonsed to give evidence to the hearing.

In an endorsement of the importance of oral evidence, the Deputy Judge said it was a mistake for the Panel to rely on the written statement of one of the nurses when, in her oral evidence, she had not “‘come up to proof’” [at 91]. In a criminal trial the jury would not have the statement, and so the evidence would have to be obtained live from the witness but even here, where the Panel did have it, to rely on it undermined the right of Ms Hindle to cross-examine the witness.

On another charge, CCTV directly contradicted the rather overblown account of the complainant nurses, but the Panel had not considered whether that might undermine their other assertions where CCTV was not available.

Hindle is a reminder that the live testimony of witnesses at a hearing, and robust challenge to them in cross-examination, can still be the decisive factor in the outcome of a case. In situations like Hindle, the tribunal must make a general assessment of credibility, including as an important element the performance of the witnesses under cross-examination.  It will remain difficult to challenge a tribunal’s findings on the facts (even if they are not quite “virtually unassailable” as was said in Southall) however, Hindle shows that deference to the tribunal goes only so far and in the right case the court will interfere to quash an unjust determination.

References:

Lord Leggatt’s lecture: https://supremecourt.uk/uploads/at_a_glance_keynote_address_lord_leggatt_99c358f5a3.pdf

Lord Justice Popplewell’s Combar Lecture: https://www.judiciary.uk/wp-content/uploads/2023/11/Combar-lecture-for-website-November-2023.pdf

CASES: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm); R (Dutta) v GMC [2020] EWHC 1974 (Admin); Southall v GMC [2010] EWCA Civ 407