Smith, the SDT and unenlightened majorities

A second sexual misconduct case from the SDT has hit the news: SRA v Richard Daniel Smith.

Mr. Smith was alleged to have “touched Person A’s bottom on more than one occasion in circumstances in which: 1.1.1 the Respondent knew or ought to have known that Person A had given no indication that such conduct was wanted; and/or 1.1.2 the Respondent knew or ought to have known that his conduct was inappropriate; and/or 1.1.3 the conduct occurred in the Firm’s office while the Respondent and Person A were engaged in their professional roles; and/or 1.1.4 the Respondent was in a position of seniority over Person A in that he was a partner in the Firm; and/or 1.1.5 the Respondent knew or ought to have known that his conduct was an abuse of his position of seniority.”

Person A was a Practice Director (or as the Chairman of the SDT saw her as an administrative facilities manager). A rarity of this case is that the alleged victim of sexual misconduct left the firm after the alleged assailant:

The Respondent was asked to leave the Firm following its investigation into the complaint made against him by Person A. The Firm further referred the Respondent to the Applicant on 15 September 2017. Person A left the Firm by reason of redundancy, for reasons unrelated to the allegations, in February 2018.

Two of the tribunal’s members expressed doubts about the credibility of Person A:

There were inconsistencies in the initial statement and the formal statement that the Majority of the Tribunal found difficult to reconcile.

The Majority of the Tribunal noted and had due regard to the fact that despite Person A presenting as a capable witness, it was plain to the Majority of the Tribunal that giving evidence was an ordeal for her. However, having observed Person A giving evidence and being tested under cross examination, the Majority of the Tribunal found her to be clear, articulate, able to respond and able to express an opinion.

The Majority of the Tribunal found it to be significant that Person A conceded that she had doubts over the index offence [the first incident she alleged] as she told Person B that she could not be sure whether the Respondent had intentionally touched her inappropriately. The Majority of the Tribunal noted that those doubts were not translated into her formal statement provided to the Applicant.

The Majority of the Tribunal noted that in Person A’s initial statement she stated that after the index offence there had been “a couple of other incidents” of inappropriate touching between March and 4 August 2017. In contrast, Person A’s evidence in her formal statement to the Applicant and in her evidence before the Tribunal that the Respondent inappropriately touched her on a weekly basis over that 5 month period.

The Majority of the Tribunal found it inexplicable that she would not have mentioned the weekly occurrence to Person B at the material time bearing in mind their close friendship and Person B’s status within the Firm.

The Majority of the Tribunal concluded that the inconsistencies in Person A’s evidence demonstrated that she was prone to exaggeration and embellishment which detrimentally impacted on her credibility. The Majority of the Tribunal found that it could not rely upon Person A’s evidence to prove the allegations beyond reasonable doubt.

And of the respondent, they said this:

The Majority of the Tribunal considered that the Respondent had consistently denied the allegations throughout the Firm’s investigation and the proceedings before the Tribunal. He remained clear that the incidents did not occur, remained unshaken under extensive cross examination and the answers that he gave were credible.

The Majority of the Tribunal found that the concession he made, with regards to discussions with female colleagues regarding intimate areas of the body, was to his credit as it demonstrated honesty on his part.

Whilst the Majority of the Tribunal found the Respondent to have been, at times, pejorative in his demeanour, it was not surprised in light of the fact that he denied all allegations made against him. The Majority of the Tribunal determined that the potential motives advanced by the Respondent in respect of Person A were speculative as opposed to conclusive but had no bearing on his credibility. The judgments on Person A’s credibility stand in contrast to those made on the respondent.

The concession may relate to the hint of a smoking gun lying somewhere on the SRA’s file (which the SDT would not allow them to adduce late into evidence):

During the course of cross examination, Ms Bruce sought confirmation from the Respondent that he had “never inappropriately breached boundaries” verbally.  The Respondent confirmed that he never had.  As a consequence of that answer Ms Bruce sought leave from the Tribunal to adduce rebuttal evidence to “correct the position and false impression” that, she submitted, the Respondent had given to the Tribunal.

We get some hint of the possibilities from this further exchange noted in the judgment:

Ms Bruce asked the Respondent whether he was “flirty” with female colleagues to which he replied that he “wouldn’t go that far.” Ms Bruce asked how far he would go to which he replied “I don’t know, give me examples.” Ms Bruce asked what line he wouldn’t cross to which he replied “touching.” Ms Bruce asked where he drew the line at what he would and would not say. The Respondent replied “[you] need to be specific.” Ms Bruce asked if he would talk about a colleague’s body. The Respondent replied “[it] depends how long [he’d] known them and how well.” Ms Bruce asked whether he considered it appropriate to discuss an intimate area of the body with a colleague that he knew well. The Respondent replied that it “depended on the conversation.” Ms Bruce clarified that by ‘intimate’ she was referring to a female’s bottom, breasts and genitalia. The Respondent accepted that he had conversations with female colleagues about those intimate areas.

Ms Bruce put to the Respondent that his witness statement, in which he commented on Person A’s weight and appearance, demonstrably showed that he objectified women in that he assessed them by way of physical attraction. The Respondent stated that “everyone does” just that.

Ms Bruce put to the Respondent that Person A was junior to him to which the Respondent replied that she “sat on the management committee.” He subsequently accepted that Person A performed an administrative function on the management committee, note taker, as opposed to holding any decision making responsibilities.

The Tribunal Chair took a diametrically opposed view to the majority. This is only the second known occasion of the SDT issuing a split decision (the other one being the famous Leigh Day case):

In less enlightened times, there was a view that the uncorroborated evidence of a female in cases of unwanted groping and inappropriate touching should be approached with caution. Such views, rightly, are now regarded as having been misconceived.

Lack of Any Motive for Person A to lie: The quintessential evidential aspect of this case is the absence of any motive or reason for Person A to lie. Indeed, Person A must have realised that she would have suffered severe detriment as a result of any such lie as it would have become difficult for her to continue to work at the firm after having complained about one of its partners and there was no guarantee that she would be believed.

The suggestions put forward by the Respondent as to Person A’s motive for lying lack any credibility. He suggested four possible reasons which may have caused Person A to be hostile towards him – (i) an alleged altercation over the arrangements for a parking space; (ii) her belief that he may have started a rumour that she was having an affair with another employee or contractor responsible for information technology; (iii) that, on 4 August 2017, there was a difference of opinion between the Respondent and Person A as to the advancement within the firm of a trainee archivist; and finally (iv) that she was jealous of his lifestyle. The alleged dispute concerning the parking space occurred in 2015, two years prior to the alleged incidents of unwanted groping. The alleged reasons are all far too trivial to be credible as motives for Person A to lie on oath and to fabricate such serious allegations.

Person A’s expression of uncertainty in relation to the first incident: I do not consider that any significance should be attached to the fact that Person A told Person B immediately after the first incident, that she could not be sure whether the Respondent had intentionally touched her inappropriately. It seems to me to be obvious that Person A initially had doubts on the first occasion on which the Respondent allegedly touched her bottom precisely because it was the first occasion on which this had occurred. Unsurprisingly, she found it difficult to believe that a person in his position would behave in such a manner. She says in her statement of 15 October 2019 to the SRA, she was “confused, surprised and taken aback”, which, of course, is natural. She clearly does not anywhere indicate that she remained in any doubt after the repetition of such behaviour by the Respondent.

The Issue of Inconsistencies In the Statements of Person A: I am also of the view that little weight should be given to the fact that Person A mentioned only two occasions of inappropriate touching during this period when she initially complained to the Firm on 4 August 2017, but when JR attended at her home to take an initial statement on 11 August 2017, Person A stated that inappropriate touching occurred “approximately once a week” and she reiterated that in her formal statement to the Applicant in October 2018. It should be noted that the mention of two occasions of inappropriate touching was not, in fact, in Person A’s initial complaint to the Firm, but in a secondary complaint, in an e-mail to JR timed at 1630 on 4 August 2017. In her prior e-mail of the same day timed at 1529 to PR, described by Person A as “personnel partner”, which she copied to JR, she said “Richard Smith has been increasingly touching my bottom over the last few months”. I therefore do not consider that it can be deduced merely from the second e-mail of 4 August 2017 that Person. A was prone to exaggeration and embellishment which detrimentally impacted on her credibility.

In my opinion, too much store should not be placed by the fact that Person A did not report the incidents which are alleged to have occurred between March 2017 and 4 August 2017 for five months. Due weight should, instead, be given to the fact that Person A may have felt that her position in the Firm would become very difficult for her if she, as a relatively junior facilities manager, were to complain about a partner.

And also, this:

The Equivocation of the Respondent on cross-examination: The Respondent was a singularly unimpressive witness. He equivocated when asked simple questions by Ms Bruce. For instance, when asked if he discussed “intimate areas” of a woman’s body with members of staff, he replied by questioning what might be meant by “intimate areas” and postulating that facial hair growth might be its meaning before finally, after repeated questioning, admitting that he had indeed discussed breasts and genitalia with female colleagues. This equivocation is not mentioned by my fellow members.

Sexual Objectification of Women by the Respondent: The attitude of the Respondent towards women and his tendency to view them as sexual objects is, in my opinion, significant. In his witness statement he states that he found Person A to be “over-weight and very far from the kind of woman I had dated before I was married”. And in his oral evidence he repeated the point, stating that he had an attractive wife.* In any event the Applicant has not relied on sexual gratification as the sole possible motive for the inappropriate touching and groping. The Respondent may also have been motivated by a perverted desire to obtain gratification by the exercise of power – the power wielded by a partner in a law firm in his ability to humiliate a relatively junior employee.

Well. Well said.

I have written previously of the difficulties posed by memory studies to adversarial cross-examination (in the context of the tragic case of Frances Andrade)

…we should look conscientiously at the probative value of cross-examination techniques.  I was intrigued to read a study published by British Psychological  Society, “Guidelines on Memory and the Law Recommendations from the Scientific Study of Human Memory”.  It aims to provide, “a far more  rigorously  informed understanding of human memory  than  that available from commonly  held  beliefs. In this respect  they give courts  a much  firmer  basis for accurate decision-making.”

Consider these examples from the executive summary, and how an advocate might cross-examine against them:

 “Memories are records of people’s experiences  of events and are not a record of the events themselves. In this respect,  they are unlike  other recording media  such as videos or audio  recordings, to which they should  not be compared.

“…memory  is prone to error and  is easily influenced by the recall environment, including police  interviews and  cross-examination in court.

“Memories  are time- compressed fragmentary records  of experience. Any account of a memory  will feature forgotten details and  gaps, and  this must not be taken  as any sort of indicator of accuracy. Accounts of memories that do not feature forgetting and gaps are highly unusual.

“Memories typically contain only a few highly specific details. Detailed  recollection of the specific time and  date  of experiences is normally  poor,  as is highly specific information such as the precise  recall of spoken  conversations. As a general rule, a high  degree of very specific detail  in a long-term memory  is unusual.

“Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish  the truth of a memory  is with independent corroborating evidence….

So this report suggests that, in terms of questioning witness credibility, one should be wary of comparing a witnesses recollection with other records; what they say in the police station compared with what is said in court; or labouring gaps in accounts.  One should be wary of being persuaded by highly specific and detailed recall.

That the SDT majority fall into the traps that the BPS identify is concerning, to put it mildly. That does not mean they should have found the respondent guilty beyond all reasonable doubt (although their analysis does not persuade me of their critical acumen or that they are well trained); but they do give surprising credence and latitude to the respondent compared to the applicant. As for Mr. Smith admitting cultures where “everyone does it” all I could think of was my school in… well … a long, long time ago. We did not seem to hear if Richard thought that everyone did it, but it was wrong. That would have been an interesting take from a pejorative man.

It is to be hoped that an unenlightened SDT majority supporting an antedeluvian culture of everyone being an arse on ropey understandings of credibility is an embarassment that should not stand for long.

_________________________________

*I was struck that in Beckwith, the respondent recalls the incongruity of him kissing his former associate, “They were downstairs kissing for quite some time. He did not know what he was thinking. He had a beautiful wife and a great marriage.” Reads like a bad novel, huh?