Memory Loss Part 1
One area which is always difficult for the barrister is when the client claims to have no memory of the events in question. This usually arise is in criminal contexts, but can also arise in civil ones. Again the usual scenario will be this will be the effect of drink or drugs, but it could be because of trauma to the head or other trauma (whether alone or combined with these other factors).
This may appear to be self-serving and convenient drivel, and may be just that in any particular case, but is not necessarily so. You may have experiences yourself where you cannot remember what happened. I can think of two. One was a particularly good Friday pre-Christmas lunch, where due to work commitments I arrived too late to have any of the food but since it was my last day before the break joined in with the drinking. Arriving home at about 3 a.m. the following morning I had only the sketchiest recollection of what had happened in the interim. I vaguely recalled drinking with colleagues in various hostelries over a prolonged period of time, and knew that I had got a taxi home, but that was about it. However you might say that memory lapse in such a situation is not the same because nothing dramatic happened. Nothing in particular to remember, nothing traumatic to make you forget.
Just before my 10th birthday I was hit by a car, thrown up in the air and landed on my head. The last thing I remember was the car hitting me, the next thing waking up, on the road, surrounded by people, with blood everywhere. When I saw the car I had tried to run out of the way and had nearly made it. Apparently when I hit the floor I was still trying to crawl to the pavement. I remember none of that. It is a complete blank. Needless to say I had consumed no alcohol. I therefore cannot say whether those who've been drinking are even more likely to be susceptible to blanking out through trauma if they have had.
A barrister I know was once mugged at a Tube station. When he was taken to hospital the police interviewed him. He had been drinking heavily, and had been punched about the head. His wallet was gone. Responses to question showed that he was unable to say whether one or more people had attacked him, anything about their appearance (clothing, size, race) or indeed anything about the circumstances of the attack. Drink alone was unlikely to have done that so the trauma was likely to have been a contributory feature. Perhaps the most dramatic example recently was the British man attacked in the Dominican Republic where someone apparently tried to sever his penis and he has no memory of the attack. It is inconceivable that drink alone could have caused him to blank out events in that way, so again it is likely to be the traumatic impact of events.
There is therefore no doubt that recollection can genuinely be affected by drink and trauma. Also no doubt that in some circumstances someone can claim that as a convenient way to avoid answering difficult questions. The question is, how does the barrister approach this conundrum?