In his groundbreaking 1925 work, Die Verneinung, psychoanalyst Sigmund Freud postulated the existence of the psychological defence mechanism ‘denial’, whereby facts too painful to process or accept are rejected. Examples of its applications abound. It provided the starting point for Ernest Becker’s The Denial of Death – in which he observes how we manage our fear of mortality by ‘tranquilising with the trivial’ or pursuing ‘an immortality project’. We see it on the stage in Arthur Miller’s All My Sons in Kate Keller’s denial of what she knows to be true about her husband Joe’s shipping of defective aircraft parts. And we see it throughout history as explored by Catherine Hall and Daniel Pick in their excellent article ‘Denial in History; Thinking about Denial’ in History Workshop Journal, Volume 84, Autumn 2017, 1–23. But do we find it closer to home?

Our system of fact finding is predicated on the ability of judges to differentiate the truthteller from the liar, not just by reference to analysis of documentation and the corroboration or otherwise which such material provides, but by that special judicial skill of being able to analyse demeanour and identify a liar on the back of it. It embraces Freud’s 1905 aphorism, ‘No mortal can keep a secret. If his lips are silent, he chatters with his finger-tips; betrayal oozes out of him at every pore’.

But what if that wasn’t true?

What if demeanour was no guide to truth telling? What if the odds of telling a dishonest witness from an honest witness on the back of how they present in the witness box was little better than predicting the toss of a coin?

The issue arose for consideration in front of Mostyn J in Cazalet v Abu-Zalaf [2022] EWFC 119, sub nom OC v WAZ [2023] 1 FLR 1132, in which he made findings of fact about reconciliation (based on his assessment of the oral and written evidence, alongside many hundreds of pages of texts, WhatsApp messages and emails, which he had read), and where he observed at [46] and [47]:

‘[46] The wife was by far the better witness. Her evidence was generally clear and given in reasonable tones. She generally answered questions directly. In contrast the quality of the evidence of the husband was poor. He was combative, evasive, rhetorical, strident and in some respects obviously untruthful. For example, he flatly denied that the wife had a key to his home in Belgravia. Yet there is a WhatsApp message from him in which he is expressly states that she has the keys to his house.

[47] However, this case is a good example of the perils of placing emphasis on the demeanour of a witness, or placing too great a reliance on a witness’s irrelevant lies or other low conduct, when finding facts or exercising a discretion. In my judgment, the demeanour of a witness when giving evidence is unlikely to be a reliable aid either to finding facts, or exercising a discretion on uncontested facts. It is not just that a dishonest witness may have a very persuasive demeanour – that is of course, the first trick in a conman’s repertoire. But the opposite side of the coin is equally problematic in that a truthful witness may unfortunately have a classically dishonest demeanour. It is obvious to me that over-reliance on the “quality” of the evidence of a witness, good or bad, can lead to facts being found, or discretion exercised, by reference to influences that are irrelevant.’

It was a topic to which the learned judge retuned in Baker v Baker [2023] EWFC 136, [2024] 1 FLR 1081 at [15]–[18] where he cited [46] and [47] of Cazalet and said (at [17]):

‘What I was trying to say was that, in common with Lord Bingham and Lord Leggatt, I consider demeanour to be a highly unreliable method of judging veracity. The court has to decide the case on the evidence, and the evidence comprises the documentary material and the spoken words of the witnesses. I cannot accept that, in any material way, the evidence includes the thespian performance with which witnesses speak the words of their oral testimony. Thus, in Cazalet v Abu-Zalaf, although that wife was by far the better witness in terms of demeanour, I found on the evidence of both parties that (a) the court had correctly found that the wife could not reasonably be expected to live with the husband and had therefore rightly pronounced decree nisi on her behaviour petition, and (b) the fact that over a year later they chose to resume their dismal, toxic, cohabitation did not undermine in the slightest the objective judgment enshrined in the decree that they could not reasonably be expected to live together.’

When Cazalet was appealed (Cazalet v Abu-Zalaf [2023] EWCA Civ 1065, [2024] 2 WLR 890), King LJ (at [59]–[64]) was critical of Mostyn J for not placing more weight on the demeanour and ostensible credibility of the witnesses, and not following the Court of Appeal in Kogan v Martin & Ors [2019] EWCA Civ 1645, [2020] FSR 3 which critiqued the decision of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) and concluded that:

‘It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.’

Mostyn J, the court suggested, had fallen into error by mirroring the trial judge in Kogan, a case in which,

‘as a consequence of his understanding of Gestmin, the first instance judge had regarded Leggatt J’s observations as “an admonition that the best approach for a judge is to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations and instead base factual findings on inferences drawn from documentary evidence and known or probable facts”.’

But to these authors (admittedly two of whom were on the losing side in Cazalet in the Court of Appeal) the criticism of Mostyn J’s wise reminder to himself of the warning of over-reliance on ‘demeanour’ (expressed as cautioning himself against ‘over-reliance on the “quality” of the evidence of a witness, good or bad, [which] can lead to facts being found, or discretion exercised, by reference to influences that are irrelevant)’ seems unfair. The approach of Mostyn J to consider six of the seven principal tests or factors applicable in assessing whether a witness is lying (listed in Phipson on Evidence (Sweet & Maxwell, 20th edn, 2022), paras 45–18), namely ‘The demeanour of the witness’, was a model of its kind. Referred to in Phipson at paras 45–22 as ‘probably having been given too much emphasis in assessing the credibility of a witness’, the limitations of fact-finding based too heavily on demeanour are increasingly acknowledged.1 As Atkin LJ observed in Société d’Avances Commerciales (SA Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’) (1924) 20 Ll L Rep 140 at 152, ‘I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’ Similar views were expressed by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403:

‘“Credibility” involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.’

So when King LJ concludes at [62] of Cazalet, ‘In my judgement, the judge’s assessment of the parties’ credit was an important feature which should have fed into the judge’s determination, alongside objective findings of fact, of whether the parties had reconciled following the making of the decree nisi’, ought we not now to ask, why? What empirical basis is there for the received wisdom that ‘credit’ or ‘demeanour’ help judges identify truth telling? And is there consistency of approach in this most important of areas?

In SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 (a case not relied upon by the respondent before the Court of Appeal in Cazalet or referred in argument), a differently constituted Court of Appeal (through the judgment of Leggatt), expressed greater scepticism about the merit of reliance on demeanour alongside consideration of the research that undermines its reliability:

‘[36] Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”. That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth. …

[40] This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, “Detecting Lies Using Demeanor, Bias and Context” (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories.’

Thus the research, and the iteration of the Court of Appeal in SS (Sri Lanka) v Secretary of State for the Home Department, caution against over-reliance upon demeanour. And nor is it just the Court of Appeal that expresses different approaches to this issue. At first instance Sir Andrew McFarlane P, in Re P (A Child: Remote Hearing) [2020] EWFC 32, [2020] 2 FLR 726 (concerning fabricated or fictitious illness in a child, and the role of the parents in this) was clear (albeit in a case which he identified as being fact-specific) in his view that the courts should place weight on physical demeanour and the manner in which witnesses gave evidence – at [26] he said:

‘The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.’

Similarly, in A Local Authority v AA [2022] EWHC 2321 (Fam) at [110] demeanour was influential in the trial judge’s conclusion that the father in giving evidence was an ‘honest’ and ‘wholly believable’ witness.

But other judges differ in approach. In A Local Authority v A Mother [2020] EWHC 1086 (Fam) (a case concerning a child in care proceedings who had suffered potential non-accidental injuries) Lieven J heard medical evidence via Zoom about the injuries to the child, and the issue arose of whether the hearing should continue via Zoom for the parents’ evidence (who were accused by the local authority of inflicting the injuries). At [23] she observed:

‘One important factor in a decision whether to proceed, particularly in a fact finding case, is the question of whether the judge will be in a less good position to judge whether or not the witnesses are telling the truth if the case is conducted remotely. This was clearly an issue of particular concern to the President in Re P at [26] where he refers to the benefits of seeing the witness in court. The issue of the weight that a judge should give to the demeanour of witnesses is an intensely complex one and has been the subject of considerable judicial debate.’

At [27] she went on to conclude, in reliance on SS (Sri Lanka) v Secretary of State for the Home Department:

‘Having considered the matter closely, my own view is that is not possible to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely. It is clear from Re A that the Court of Appeal is not saying that all fact-finding cases should be adjourned because fact finding is an exercise which it is not appropriate to undertake remotely. I agree with Leggatt LJ that demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.’

The science would suggest that the approach of Lieven J was correct. In their seminal paper, ‘Accuracy of Deception Judgments’,2 Charles F Bond, Jr (Department of Psychology Texas Christian University) and Bella M DePaulo (Department of Psychology University of California at Santa Barbara) observed the ability of ‘experts’ to differentiate between truth tellers and liars:

‘Receiver expertise. In most research, college students function as the judges of deception. Perhaps people who had more experience would be better at judging deceit. To assess this possibility, we identified studies of deception experts. These are individuals whose occupations expose them to lies. They include law enforcement personnel, judges, psychiatrists, job interviewers, and auditors – anyone whom deception researchers regard as experts. In 19 studies, expert and nonexpert receivers judged the veracity of the same set of messages. From these studies, we extracted 20 independent expert-nonexpert comparisons and expressed each as a standardized mean difference. This cumulation yields no evidence that experts are superior to nonexperts in discriminating lies from truths; weighted mean d = -.025, 95% confidence interval = -.105 to.055. Indeed, the direction of the within-study difference favors higher nonexpert accuracy, though this difference is not statistically significant, Z = -.6 1, n.s. Within-study comparisons also reveal no statistically significant difference between experts and nonexperts in the tendency to perceive others as truthful; weighted mean percentage truth judgments = 54.09% and 55.74% for experts and nonexperts, respectively; t’(246) = 1.41. For a broader assessment of experts’ deception judgments, see Table 7. From the between-study evidence, it would appear that experts are more skeptical than nonexperts, being less inclined to believe that people are truthful. Having been targets of deceit in their professional roles, experts may have surmounted the usual reluctance to imply that people are liars. If raw between-study comparisons suggest that experts may be better than nonexperts at discriminating lies from truths, it is clear that experts are not good lie detectors. On the average, they achieve less than 55% lie-truth discrimination accuracy. In any case, experts’ apparent superiority in lie-truth discrimination disappears when means are statistically adjusted.’

Lord Leggatt’s exemplary drawing together of the strands of scientific research in his At A Glance keynote address3 on 12 October 2022,4 highlights the pitfalls of over-reliance on demeanour:

‘Let me seek to draw this material together and summarise what seem to me the key conclusions that emerge from the research I have described: (1) On average, accuracy in judging veracity from demeanour is 54%. (2) There is a general “truth” bias, which varies somewhat between individuals, towards believing other people to be honest. (3) Individual variation in ability to judge veracity from demeanour is negligible and “experts” are no more accurate than others. (4) Some individuals are more transparent than others, though most people are pretty good liars. (5) Having an honest demeanour has much more impact on whether a speaker is believed than whether the speaker is in fact telling the truth. If you try to infer veracity from demeanour, you are likely to be fooled by witnesses who have an honest demeanour but are lying and to disbelieve witnesses who have a poor demeanour but are in fact giving honest evidence.’

So what are we to do? Continue, in denial of the facts, to rely on incorrect notions that judges are endowed with abilities to divine truth telling from demeanour, when the research says otherwise? Or embrace an evidence-driven, Mostynian caution about witness demeanour? It is an issue of real importance; not just (1) because of the uncertainty and different outcomes to which these conflicting approaches (including conflicting approaches in the Court of Appeal) give rise, or (2) because of the real risk of professional judges succumbing to anecdotalism or received wisdom in making findings of fact, but also (3) because of the practical issues that flow from it day in day out across the land. Why should a Muslim woman be obliged to remove her niqab if empirically there is no evidence that sight of her face will assist in gauging whether she is a truth teller – Re S (Practice: Muslim Women Giving Evidence) [2006] EWHC 3743 (Fam), [2007] 2 FLR 461? Why should fact finding hearings be held in person, rather than remotely (to gauge demeanour or body language), if there is no logical, evidenced justification? Why should judges be encouraged to rely on a perceived ability that is no such thing? In early October 2024, recently retired High Court Judge, Sir Nicholas Francis, speaking to The Times newspaper, cautioned against reliance on demeanour given the potential impact on witnesses of trauma and domestic abuse. He concluded, ‘The more I have learnt about the effects of trauma, the more I realise that judging a witness because of blushing, sweating, hesitancy, forcefulness etc can risk reaching the wrong conclusion’. The simple explanation that this is how we have always done things, is no justification for doing things or emphasising approaches that are wrong. Denial of this reality should not be an option.