withdrawn witness statements

I have an overpayment case which has, as a significant part of the evidence, two witness statements and some photographs taken by those witnesses.

I understand that the witnesses have now withdrawn these statements as being untrue and seemingly made for malicious reasons ( as yet I haven’t actually seen the withdrawals , but this is what I am told they say).

I don’t think there is much that can be done about the photos, no one has suggested they are in any way fake or photoshopped to alter them but I was wondering about the written statements - If they are fabrications (and there is proof that they are)  should they be in the appeal bundle at all?

I was wondering if there was any precedent for a direction that these statements be removed from the appeal bundle before the hearing - (perhaps by asking for an interlocutory decision to remove them with a direction that the Sec of State provides a revised Submission , leaving out references to these statements)-or will we just have to submit that in the light of the withdrawals they are effectively worthless as evidence.

I am also concerned should we or the DWP ask that the witnesses come to the hearing to be questioned. Their statements seem to have been deliberately false, malicious in intent and directed against a vulnerable disabled person who they barely knew.

If these actions could be construed as a ‘hate crime’ the witnesses are presumably not obliged to answer any question that might incriminate them and this might leave us in the unfortunate position of having evidence which we know to be false but which we are not able to counter as the witnesses have the right not to incriminate themselves.

Any ideas gratefully recieved!

I’m not sure that getting the witness statements removed from the evidence is necessarily for the best - if it’s beyond doubt that they were fabricated/made maliciously and evidence of that will be before the tribunal and the rest of the SoS’s submission is pretty thread-bare evidence wise, then it may actually be to your client’s advantage to have them included.

On the other hand, if the photographic evidence is damning (though how damning can photographic evidence on its own be?) then it might be worthwhile getting the statements removed as I’d have thought that if this were to happen the photographs would have to go too.

As for summoning witnesses…..

Recently had a large overpayment case myself where client held significant sums (£80k plus) on behalf of her brother. To cut a (very) long story short he had been trying to hide a second income from HMRC to avoid paying tax - and though he admitted this to me, then got cold feet about giving evidence at tribunal. I took the decision that I would include his (verbal) statement to me in my submission, but did have the safety of knowing that the case was going to be heard by a specific District Tribunal Judge who I’ve appeared in front of many times and who would accept that statement had in fact been made (which is different from accepting the statement itself as truthful).

In the end the brother did turn up at the last minute to give evidence - again, I took the view that my client was going to be fine either way - either he’d tell the truth and come across as truthful, or he’d try to flannel the judge and that would be obvious. The latter would only add weight to my submission that his purpose in getting my client to hold the capital was his attempt to avoid paying tax.

Different from asking for a direction summoning the witnesses, I know, but the judge (who absolutely knows his onions) did formally put him on notice that he was not required to answer questions that might incriminate him.

We won, by the way.

I’d say that if the statements are to be included in the evidence then I’d absolutely go for a direction for a witness summons - most likely the accusers will fail to attend and if they do, both their intentions and mendacity will be revealed by any evidence they give. And in any event, you’re going to have the written admissions that the statements were false and made out of spite.

Don’t know what your senior regional judges are like - we’re lucky in having a couple of very good ones. Directions requests and requests for directions hearings are a good way of ensuring that more difficult/complex cases end up in front of these judges, but I don’t know how it works down your way…..

Thanks for the reply, it has helped me firm up my approach. I have now been read the witnesses withdrawals (althoughI haven’t seen copies yet) and they are rather ambiguous, from what I have heard they seem to be more of a refusal to take part in any proceedings than a clear and unambiguous statement that the statements were false. I think that we will have to ask that they are called as witnesses.