BTT Advocacy Manual

BTT Advocacy Manual

Bar Transfer Test

TABLE OF CONTENTS

Part 1 – Applications and Submissions

1 Delivery

2 Structure

3 Persuasion

4 Skeleton Arguments

5 Sample skeleton arguments

Part 2 – Witness Handling and Speeches

1 Case Analysis

2 Speeches

3 Examination-in-chief

4 Cross-examination 1 – functions &requirements

5 Cross-examination 2 - techniques

6 Full worked example

Part 3 – Professional Conduct Offences List

Appendix one – some notes on assessments etc

BTT: ADVOCACY MANUAL

1. DELIVERY

1.1 INTRODUCTION

It is probably trite to say ‘speak up and stand up straight’, but it is remarkable how many people do not. It is hard in a manual to coach voice projection and voice production, but the secret is in the shoulders. If you have tension across your shoulders and they appear hunched, you are cutting off the supply of breath. RELAX and make sure that your shoulders are loose and not tense.

In criminal courts remember that your audience may include the public gallery. If this is so, then the best volume is one that reaches the front of the court and the back of the court.

1.2 EYES UP AND EYES DOWN ADVOCACY

Advocacy is an oral skill. It is, however, a poor advocate who ignores written sources. Sometimes information is more easily absorbed orally and sometimes it is best to take information from a written source. The best advocates will use both sources.

In general terms, written sources are best when the advocate needs to be particularly precise. Arranging data on a page can be much clearer and more helpful than a long oral explanation. Examples of which written documents can particularly assist are:

Chronologies

Contract terms

Statute

Case law

Skeleton arguments

Pleadings

Witness statements

Maps and plans

These documents are either carefully drafted and are therefore precise, or they use visual layout and design to assist the tribunal in absorbing the data.

The advantage that the voice has that the document does not is that the voice can express so many shades of meaning and emphasis. In many ways, the ideal piece of advocacy will use text to impart information in a highly ordered, controlled and accurate way, and the voice is then used to communicate the emphasis and reasoning, and makes the facts and arguments appear persuasive and compelling.

1.2.1 Getting the eyes down

If an advocate is going to use written sources as well as relying on the oral submission, then the advocate must be strong in the way that the documents

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MANUAL BVC: ADVOCACY

are controlled, and the way that the judge’s eyes are controlled. If the judge is not looking at a document when you want him to be so, then the document ceases to be effective. If the judge is not looking at you when you want him to be so, then you cease to be effective!

It is, therefore, essential to be strong in dictating when you want the judge to look at a document. When you want the judge to do so – say so!

o ‘Might I ask the court to refer to the Claimant’s chronology’

o ‘Could I take Your Honour to the case of Miller v. Jackson?’

Help the judge find the document:

o Your Honour should find it towards the back of the bundle just after the witness statements…’

o ‘Master, the letter is dated 14th June, and it has the Claimant’s logo in the top corner...’

o ‘The statement is in the blue bundle of documents at page 455’

The other golden rule is to wait for the judge to find the document you are referring to. Many advocate launch into their submission with no regard to the fact that the judge is struggling to find the document.

1.2.2 Getting the eyes back up again

Having successfully directed the judge to a written source, you then need to re-engage the judge in your oral performance.

The best way is simply to wait. When the judge has finished absorbing the document, he is bound to look up again. The simplest solution is simply to wait for this to happen.

If you are keen to keep momentum and not to pause to wait, you might seek to re-engage the judge in your oral advocacy by a change of tone in the voice. If the document is simply imparting information, then the tone of voice should be simple and precise. The reason why that information is important and relevant is a matter for oral persuasion. There are some key words that indicate that you are now taking the judge away from the text. Words like ‘reason’ ‘consequence’ ‘implication’ ‘conclusion’ tend to indicate that your submission is moving away from the facts and into the commentary or interpretation of those facts. Highlight these words orally and the judge should look up and pay attention.

1.3 FUNCTIONAL AND PERSUASIVE ADVOCACY

1.3.1 Defining your role

When any advocate goes to court, he or she should consider that the court will expect them to perform 2 roles. The first, and most obvious, is to act as a partisan advocate for their client. This is plainly expected. The second, less obvious but incredibly important role is that of officer of the court.

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Advocates hold both roles in their hands any time that they are in court. If you are making an application, then it is usual to give some sort of factual background so that the judge understands the context for whatever application is about to follow. If you consider it, this background is for the court’s benefit, and as you deliver a background you are really fulfilling your role and function as an officer of the court. This is why we call this sort of advocacy ‘functional’ advocacy.

Once you have set the scene, then the advocate would usually go on to start attempting to persuade. This is ‘persuasive’ advocacy.

Before we look at each type in turn, let’s just consider why it is so important to have 2 distinct advocacy styles, and what can be gained by thinking in terms of the 2 distinct roles. It is obvious that if you want to be persuasive and successful, then you need to impress the judge. One of the judge’s primary qualities will be his or her judiciousness (by definition). If a judge can sense in an advocate the ability to be judicious, then the relationship between advocate and judge develops quickly and strongly. The ability to be able to argue a partisan case, but then also be able to stand back and deal with matters as if you were entirely independent and free of bias is generally seen as a very attractive skill. What we need to consider is how to VOCALLY show which hat you are wearing and to show the court which role you are performing.

1.3.2 Functional advocacy

Functional advocacy is very important and few applications are devoid of it. Imagine, for example, prosecuting a sentence. Ethically, the prosecution is meant to be largely neutral and the advocacy does not seek to persuade, rather, it seeks to inform. Many discussions on the law are right on the balance between informative and persuasive, and it helps the court no end to know when you are making submissions to assist the court from a non-biased perspective, and when you are arguing your case.

It follows then, that to show judiciousness and the ability to be impartial, the proper tone of voice would be calm, professional and ordered. The information that you are imparting is fact and the voice should reflect that there is no doubt over what is being said. You are not dealing with argument, inference, supposition or conclusion. You are simply dealing with fact. Advocates who can master a good functional tone are very good at talking with authority and clarity.

If you are giving a factual background, in either a civil or a criminal case, you should do this in a functional way, i.e. to inform rather than persuade. Many advocates slip in argument when giving a factual background. This is bad technique and counterproductive. You want any tribunal to trust you as an advocate on whom reliance can be placed. If you tell the court that you are about to make a statement of fact, and you do not do so, but instead give a statement of argument then you risk losing the confidence of the court, and this will damage your authority.

Take the following example. Let us say that you are prosecuting a bail application. Before you try to persuade the court to remand the Defendant in custody, you will need to give the background facts of the case. Let’s assume

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that the fact that the Defendant (who we will call DONNOVAN) is charged with shoplifting. The following are facts in the case.

That Donnovan was seen in Cheep & Cheerful supermarket, That Donnovan had with her a baby and pushchair, That a store detective followed her, That Donnovan picked up one bottle of perfume which she paid for, On leaving the store, she picked out another bottle of perfume from the

folds of the retracted hood of the pushchair. By this stage she had passed through the tills, and she had not paid.

These can properly be called facts, because neither party disputes them. Let’s assume that the defence is that Donnovan’s defence is that she knocked the second bottle of perfume into the hood of her pram accidentally, and did not see that it was there until she was about to exit the store. The prosecution say that this is wrong, because the store detective saw her place the bottle in the hood of the pram, and he is sure it was no accident. As prosecutor, you should not say that the evidence in dispute is fact – and certainly not in a functional tone. What you are dealing with is a SUBMISSION, that you are able to prove a fact in issue. A submission like this belongs in the persuasive body of an application, and not in the opening background.

So, let us imagine a poor opening of fact, where the advocate is combining agreed fact with disputed fact and argument and not differentiate the two. This might go something like:

Sir, the facts are as follows. On 25th January Ms Donnovan entered the ‘Cheep and Cheerful’ supermarket. She was pushing a buggy style pushchair that had a retracting hood. She was followed to aisle 14 where she was seen to take a bottle of perfume from the shelf. She was then seen to take a second bottle of perfume from the shelf and place it in the hood of the pram. She made her way through the checkout, paying for one bottle, but dishonestly avoided paying for the second. On leaving the store, she saw the security guards and so quickly took the bottle of perfume out of the hood of the pram and abandoned it on the end of a till that she was passing.’

You will hear many advocates open a case this way. Having said that they are going to recount facts, they open a combination of fact and argument. In doing so, they have not helped the tribunal nearly as much as they might. Critically, if the judge were to re-use this ‘factual background’ the judge would actually be making findings on matters in issue. The opening is, therefore, not judge-friendly, and the judge will have to approach it with caution. It may be very difficult to open a factual background without including some contention, and if this is the case, all you need to do is to impartially identify that it is argument and not fact. Hence, a better opening of fact would indicate the true and proper status of each piece of information. For example:

‘Sir, the facts are as follows. On 25th January Ms Donnovan entered the ‘Cheep and Cheerful’ supermarket. She was pushing a buggy style pushchair that had a retracting hood. She was followed to aisle 14 where she was seen to take a bottle of perfume from the shelf. It is the evidence of the store detective that she then took a second bottle of perfume from the shelf and placed it in the hood of the pram. She made her way through the checkout, paying for one bottle. The crown’s case is

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that she dishonestly avoided paying for the second. On leaving the store, the crown will seek to prove that she saw the security guards and so quickly took the bottle of perfume out of the hood of the pram and abandoned it on the end of a till that she was passing.’

In the example above, the additional comments underlined indicate where the advocate has helped the judge by indicating what is agreed fact, and where the advocate is informing the judge of the crown’s position. With these additions, the factual background is unbiased and reliable in every way and does not muddle up what is agreed and what is in dispute. The opening has done the first sift of fact and argument for the judge. The judge will be grateful for this. If this content is delivered in a style and manner that the judge can recognise as the functional and non-partisan tone, then you will be able at any point to move between judicious officer of the court and partisan advocate.

So being a good officer of the court partly involves being careful and precise with content, and partly involves giving the information in a tone of voice that speaks authority.

THE COURT SHOULD BE ABLE TO DETECT FROM YOUR TONE OF VOICE WHEN YOU ARE BEING NEUTRAL AND ACTING AS OFFICER OF THE COURT. The ideal for an advocate to achieve, is for the tribunal to recognise your functional tone of voice, and have the trust in you to accept everything that you say whilst using that tone of voice to be unimpeachably correct. If you can attain that position you will have really established a useful tool of gaining authority and trust with the court. This will serve you very well when turning from being the court’s officer to being an advocate for ARGUMENTS in the case.

A persuasive tone is likely to be more expressive and more animated. Persuasive advocacy is the advocacy on the issues of a case where there is a contest. It sets out to seek to compel the tribunal that your case is more logical, more reasoned, more just better substantiated and more compelling than anything put forward for the other side.

Good advocates will divide (often instinctively) those parts of any application where the subject matter is purely informative and where the submission turns from fact to argument. Advocates must have a tone and manner, distinguishable from each other, to reflect these two functions.

1.3.3 Persuasive advocacy

Having addressed the court on the necessary background of the case, the advocate must really look to ‘move up a gear’ and indicate through the voice that what follows is argument based on reason and conviction. The voice will need to convey more energy, more intensity and more passion. Passion in this context does not mean theatrics or histrionics. It simply means absolute commitment and dedication to the argument being advanced. The standard to consider in this regard may be expressed as follows:TO REALLY PERSUADE SOMEONE, YOU NEED THEM TO FEEL THAT THERE IS NOWHERE ELSE YOU WOULD RATHER BE, NOTHING ELSE THAT YOU WOULD RATHER BE SAYING, AND NO ONE ELSE YOU WOULD RATHER BE SAYING IT TOO.

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If you fall short on any of those limbs, you will be draining away the interest and focus that the tribunal should be paying to you and your submissions.

There are two significant barriers to being properly persuasive, they are:

Lack of commitment, and hesitation due to INADEQUATE PREPARATION

NERVES

You will need to identify whether either of these problems afflict you, and do something about it if they do!

1.4 LANGUAGE

1.4.1 Addressing the parties

We will come on to discuss ‘judge centered advocacy’ in relation to structure below, but at this stage it is worth introducing the concept since it impacts on the right language for court. The idea is that the advocate tries, wherever possible, to reflect the language that the judge will use, and to express the case in terms that the judge can transfer into judgment with the minimum of effort. The classic language dilemma is over how to refer to the parties. There are a number of options.

Call the parties by their names

Call the parties by their character in the proceedings as a whole (Claimant and Defendant etc)

Call the parties by their character in the proceedings on the day (applicant and respondent)

Call the parties by their relationship to the disputed event (e.g., architect and builder, landlord and tenant etc)

Refer to the parties as ‘my client’.

First and foremost – try not to use a combination of all of these. This will drive the judge mad. Generally try and stick to one. It may be that it would help to use the names and the character together. There is no right or wrong except that it would always be wrong to use all of the methods of referring to the parties indiscriminately.

The best way to refer to the parties is to imagine how the judge would find it easiest to give judgment. In this regard it is a close call between using the parties’ names, and using their character in proceedings. Imagine the following two examples of judgment:

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Using ‘Claimant’ and ‘Defendant’

o This is an application to extend the time for service of a defence. The case involves the purchase of a jukebox by the Claimant from the Defendant. It is accepted by both parties that the jukebox was sold on the Defendant’s premises, but transported by the Claimant to the Claimant’s premises and unloaded there by the Claimant. It is agreed that the machine was operational when it left the Defendant’s premises, but failed to work on arrival at the Claimant’s premises. There are several issues in the case….’

Using the parties’ names

o This is an application to extend the time for service of a defence. The case involves the purchase of a jukebox by Mr English from a firm called Scut’s Leisure. It is accepted by both parties that the jukebox was sold on Scut’s Leisure premises but transported by Mr English to his premises and unloaded there by him. It is agreed that the machine was operational when it left Scut’s Leisure, but failed to work on arrival at his home. There are several issues in the case…’

Both of these work fine as judgment. The only real rule is to try not to combine both too much (if at all).

It is quite a nuisance when the applicant for interim relief is not the Claimant. You have the option of referring to the parties as the ‘applicant’ and ‘respondent’, or sticking with ‘Claimant’ and ‘Defendant’. The danger lies in the fact that when you read the papers, the pleadings will all be on the basis of ‘Claimant’ and ‘Defendant’, and these terms are quite likely to stick in your head. You can then find yourself referring to the parties as ‘Claimant’ and ‘Defendant’, when you had started off calling them the ‘applicant’ and ‘respondent’. This can cause confusion. If the application is technical, and does not need much rehearsal of the facts of the case, or much reference to the main proceedings, then it is easier to maintain the use of ‘applicant’ and ‘respondent’, without slipping backwards and forwards between the different forms of address.

Sometimes, the use of Claimant and Defendant would be a very dry and unsatisfactory way of telling a story, and it would be much better to use the parties’ names, for example:

o This is an application for interim payment for a personal injury. The Claimant is Mr Turtle who was out riding his horse. He brings this claim against a Mrs. Nutt who attempted to overtake him on a narrow part of the road, and Mr. Ross who was coming the other way and is it is alleged that he was driving in the middle of the road. Today’s dispute lies between Mr Turtle and Mrs Nutt. Mrs Nutt’s case is that Mr Turtle waved her on to overtake and that therefore he is contributory negligent.

When the parties are private individuals and where the case is primarily one of fact and not of law, it is reasonable to suppose that the parties’ names might be an easier way of describing the facts of the case.

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Another good option to consider is to describe an event by reference to the part played by the party. For example, in family proceedings, the parties are almost always referred to by their position in the family, for example:

o ‘Your Honour has 2 applications for contact, one is made by the father, and one by the maternal grandmother.’

In this example, it might be that the father is the second Defendant, and the grandmother the fourth Defendant. It is very much clearer to refer to the parties by their relationship to the child who is the subject of proceedings, rather then to give them the titles of second and fourth Defendant.

A similar situation might arise in a building dispute, where there might be numerous parties to a single project. The option would be to have, as in the last case, first Defendant, second Defendant, etc, or to use their relationship to the disputed project, eg, the architect, the builders, the contractors, and the development company. The latter is much the more helpful in understanding what is going on in the case.

No judge will give judgment referring to the parties with reference to whose client they are. It would be absurd to imagine a judge saying:

o This is an application made by Mr Jones’s client for summary judgment. Mr Smith’s clients failed to acknowledge the particulars of claim served by Mr Jones’s client on 14th July…’

If the judge would never use an expression or term, then it would seem that that term is not a good one to use. We therefore strongly discourage use of the term ‘my client’ as being the least helpful way to refer to parties.

1.4.2 Avoiding ‘I think’ etc

Advocates should be aware that they are not parties themselves, and are not there to say what they think (so the rule goes). The expressions ‘I think’ and ‘I feel’ are not really permitted in court.

‘I think’ or ‘I feel’ creeps into submissions in a few scenarios. The first is where the advocate is trying to endorse their own case, or discredit the opposition, eg ‘I think it was proper for the Claimants to wait to speak to Mr Smith before paying the invoice’. The simple solution is to replace, ‘I think’ with ‘I submit’. An alternative would be to state the position from the party’s point of view and not your own, eg ‘the Claimant’s case is that it was proper….’.

The other way to try and add emphasis is not for the advocate to add their view or opinion, but for the advocate to put the thoughts and feelings back into the person they represent. This can be quite effective in the right circumstances, eg:

o ‘Mr Jones explains that he could not consider the matter until he had had his operation, and the court may take the view that he acted reasonably in making that decision.’

o ‘The Defendant is truly sorry for this offence and I urge the court to the view that she is no longer a risk to the public.’

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If you are expressing a view on the law, stick to ‘I submit’ or ‘my understanding’ is an acceptable form of words. Hence:

o ‘My understanding of s.113 is that the court must be satisfied that….’

o ‘In my submission, s.113 establishes that the court must be satisfied that….’

1.4.3 Addressing the court

The following chart indicates how you should address the judge and your opponent in court, and how to refer to them in a written advice or pleading.

You may hear it said that there is a prohibition on the use of the word ‘you’ in court when addressing a judge. This is partially right. You would never use the word ‘you’ too directly. So, if, for example, the judge asked you a question you didn’t really hear, you wouldn’t say “what did you say?” You might ask “I’m so sorry, but I didn’t catch that Your Honour”. There’s little problem with avoiding ‘you’ before a Circuit judge, as ‘Your Honour’ works well in all circumstances. Problems arise when you have a District Judge or Master. It is very awkward to say something like ‘Does Master have a copy of the correspondence?’ This sounds horribly unnatural. So, the solution that we suggest is that ‘you’ is acceptable to use when addressing a judge, so long as the judge’s title is not far away; for example, “Might I ask, Master, if you have a copy of the correspondence?” This is fine.

The correct titles for use in the courts are as follows:

The Magistrates’ Court

ADVOCATE DISTRICT JUDGE

LAY MAGISTRATES OPPONENTS

Counsel Sir or Madam

Address the bench through the chair. The chair is again Sir or Madam. Include the other magistrates by saying, ‘Sir, if you and your colleagues….’ Or ‘Might I invite the bench…’ or ‘If I could address the court...’

My learned friend (or my friend if opponent is not counsel)

Solicitor Sir or Madam

Advocate addresses the bench as ‘Your worships’.

As above

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The Crown Court

ADVOCATE RECORDER CIRCUIT JUDGE HIGH COURT JUDGE

OPPONENTS

All advocates ‘Your Honour’ ‘Your Honour’ ‘My Lord’‘My Lady’

‘My learned friend’ (or ‘my friend’ if opponent is not counsel)

In writing (advices appeals etc.)

‘Mr./Mrs. Recorder Barnes’

‘His/Her Honour Judge Bloggs’.If you have identified them already, you could use ‘The learned Judge then said…’ but its less formal

‘His/Her Lordship’

By name, eg‘Mr. Bloggs acting for the Crown’ or simply refer to them as, eg, ‘prosecuting counsel’

Out of court (in chambers or in the car park)

Judge(eg: ‘Hello Judge, how nice to see you’)

Judge Judge

The County Court

ADVOCATES DISTRICT JUDGE CIRCUIT JUDGE OPPONENTS

All advocates Sir or Madam Your Honour My learned friend (or my friend if opponent is not counsel)

In writing District Judge Jones or ‘The learned judge’

Same as Circuit Judge in the crown court

Same as in the crown court

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2. STRUCTURE

2.1 WHAT MAKES GOOD STRUCTURE?

There is an answer to the question ‘what is best structure for an application?’ The answer is that the best structure is one that can be used as a blueprint for the judge’s judgment. If you can use your notes to make your application and if you are able to use them to give judgment in your favour, then you have probably structured your application very well.

There is no set formula for giving judgment, but the general process might go as follows:

Judge indicates who the parties are and what the application is for

Judge gives a brief background to the case

Judge indicates what the issue is (or issues are) that determine the case,

Judge will indicate the test that he is using to come to the appropriate decision,

Judge will indicate what view he takes on a particular point, and,

Explain what evidence or argument supports the decision the judge is going to take.

The best general structure is to produce for the judge an application that takes the judge sequentially through the issues and facts in such a way that the judge can hand out judgment with the minimum of deviation or need to re-arrange the submissions made by you.

What follows is a guide to building an application stage by stage. The stages reflect the order in which the judge might deal with the case in judgment.

2.1.1 Introductions

Note that when introducing yourself and your opponent, there are 2 main rules.

Do not introduce yourself. You simply say ‘I appear for the…’. This is because the judge will know who you are, as the usher will have taken your names (or you may have signed in electronically). You only need to indicate who you are appearing for.

Do not use your opponent’s first name. Use Mr, Mrs, Miss or Ms (or other title).

2.1.2 Background of the case

The issue of what to put in a ‘background’ of the case troubles many advocates. The situation to avoid is one where you launch into argument without the judge quite being up to speed on the facts of the case. If this is what happens, the judge either has to admit that he is not following the argument because he is not clear enough on the background, or the judge will not intervene, but will simply miss the force of the arguments.

As a general rule, try and set out in a clear and simple way, those facts (and only those facts) that underpin your arguments. Many advocates are not

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sufficiently selective about the facts that go into any background, and it sounds as if the advocate is not really sure what the purpose of giving any history is.

Be very clear to identify which facts are essential to understand before any of your arguments make sense. Once the short, essential background is established, the advocate can then start to argue a position knowing that the judge has a sufficient understanding of the case to follow the arguments that you make.

It is also critically important to report fact and not to disguise a fact in dispute as a fact that the court can accept as agreed.

2.1.3 Indicating the issues in a case

This is one of the most vital skills of an advocate. If a submission is to be truly ‘judge friendly’, it is essential to indicate to the judge what the issue in the case is. The judge will want to know what question it is that the parties are seeking to have answered. The issue is that point or points of difference between the parties, the resolution of which will determine the outcome of the hearing. The advocates should highlight for the judge what point it is that separates the parties.

Take, for example, a contract case. Imagine that C (Claimant) supplies goods to D (Defendant) under a contract. The date for delivery of the goods was not put in writing. C supplies the goods after 2 weeks, but D has already gone elsewhere and purchased from another supplier. D accepts but then rejects the goods. D also counterclaims as the replacement goods were more expensive and less suitable, and D contents that they have lost business as a result. C sues for the unpaid invoice. In this scenario there could be a range of different issues. Consider that the advocate has given the factual background as just set out, and then goes on to explain what the issue(s) is (are):

o ‘Your Honour, the issue in this case is whether there was an express oral term in the contract that stipulated that time was of the essence. Subject to Your Honour’s finding in terms of the contract, the quantum of damages is agreed’

o Your Honour the Claimant accepts that ‘time was of the essence’ in this contract. The issue in the case is whether the Defendant in fact affirmed the contract in accepting the goods delivered at a later date.’

o Your Honour, the Defendants have accepted liability in this case, but the issue remains over the forseeability and remoteness of the Defendant’s counterclaim for loss of business.’

o Your Honour a number of matters remain in issue in this case. So far as the contract itself is concerned, the parties are in dispute over whether there was a term in the contract in regard to the proper delivery date of the goods. It is further in issue whether the Defendant affirmed the contract in any event when the goods were first accepted. So far as quantum is concerned, the counterclaim is disputed. The first issue is whether there has been proper mitigation of loss, and secondly whether the loss of business claim is too remote.’

In the examples above, the advocate has tried to direct the judge towards the essential dispute in the case. It can be just as helpful to indicate where there is

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agreement and resolution as where there remains an issue. Similarly, there may be issues that will be relevant to parts of the proceedings other than the instant hearing.

Skeleton arguments are supposed to have an ‘issues’ heading, and this comes with the force of a Practice Direction. If it is right to include the issues in a case that requires a skeleton, it must surely be good practice throughout.

2.1.4 Indicating the test

All applications come with a test. The judge must use the right test or else be appealed. Most tests are well known and straightforward; some are more complex as they derive in part from the CPR and in part from commentary and case law. Take interim injunctions for example. The authority for granting an interim injunction is statutory with accompanying CPR. The next question is whether the case falls under the principles laid out in American Cyanimid v. Ethicon Ltd. These ‘principles’ are so well established that they are ‘the test’ for the granting of an interim injunction.

In general terms, applications should move through the limbs of the relevant test(s). Judges will often construct their judgments around the test laid down for that type of application. Indeed, many do this very explicitly and it is clear that the judge is trying to make the judgment ‘un-appealable’ by showing how the judgment satisfies the test.

When communicating what the test is to the judge, it is often effective to talk the judge through the process from the judge’s own point of view. For example:

o Your Honour, the test laid down for the court is set out CPR rule 13.3, and might I indicate that the court will be asked to decide this case under both limbs of that test. Under the first limb of the test, the court must consider whether…’.

The focus here is upon the court and this generally makes the judge well disposed to the advocate.

2.1.5 Propositions and evidence

Having established the test, or part of the test, that must be satisfied, it then comes down to the arguments that you want to advance, and the reason for the arguments. As a rule we take the view that it is better practice to make a proposition, which can then be supported by evidence, rather than review the evidence and build to a proposition.

An example of the better practice would be:

o Master the Claimant’s case is that there is no merit to the Defendant’s purported defence. This is because there are manifest inconsistencies on the face of the Defendant’s own case. These include…’

The alternative would be to deal with the evidence first and then propose that there is no merit in the purported defence. The advantage of putting the proposition first is that makes it perfectly clear what your case and position is. It is then perfectly clear why you are going on to cite evidence and the judge

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will entirely appreciate what you are attempting to draw from it. If the judge is well disposed to accept the proposition, (and expresses as much) you know that you can move on quickly. If the judge frowns at the proposition, then you know that you will have to look at the evidence carefully to substantiate it.

Judges are impatient as a rule and if the direction of a submission is not clear, the judge is likely to interrupt. If you make the proposition first and then support, it will help the judge understand the direction of the submission.

Most judges make findings first and then give their reasons. Eg:

o ‘In my view this is an unsupportable defence. I have been helpfully referred to a number of contradictions that appear in the witness statement and these include…’

In the same way, it is recommended that when quoting authorities, make the point first, and then look at the authority. Eg:

o The Claimant’s case is that the escape of golf balls into private land is an established head of nuisance. The case that establishes this is…’

It is much less good practice to announce that you want the judge to look at a case without indicating the reason. Once the judge knows the point of the reference the judge will often help and guide you on the extent to which you need to take the court through the authority. In the above example, the judge might reply by saying ‘I am quite content that you are right about that and I don’t need to be taken to the authority.’ You can then simply move on.

2.1.6 Summary of good structure

In summary, although every case is different and there is no absolute right or wrong way to structure an application, the following is recommended:

Introduce the parties. Do not introduce self, and do not use first names.

Say what the application is for and who makes it.

Give a background that is neutral and introduces the case in succinct and pithy terms.

Indicate the issues in the case.

Make submissions under the headings of any relevant test set out by statute, common law, CPR, case law or Practice Direction.

Under each limb of the test, state your position and argument.

Justify your position with evidence, common sense and authority whenever you have any of those in support.

If you do it this way, you SHOULD have created an application that could act as a template for the judge to give you judgment.

2.2 SIGNPOSTS

When you have gone to the trouble of constructing an argument, you must be in a position to express that structure orally. This is usually called ‘signposting’.

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The simplest and most often used form of signpost is simply indicating the number of submissions that are going to be offered to the court, eg ‘Master, I have 3 submissions’.

This is not the only form of signpost. Whenever your argument contains any form of sequence or progression, there should be signposts. Here are some examples of the structure being indicated orally.

o Sir, if the court find that the Defendant acted fairly, then there are 3 consequences which I would seek to put before the court..’

o ‘Might I deal with the effect of the delay first…’

o If Your Honour is against me on that point then might I turn to the Claimant’s alternative position…’

o ‘My lord, the appellant’s position in the round is…’

o ‘I raise a smaller supplemental point which goes to the rather more narrow issue of…’

All of these are examples of the advocate trying to find oral equivalents of all the textual tools such as new paragraphs, indents, new chapter headings etc. The signpost is an indication of progression and direction of the submission. They really help when the judge is trying to take a note of the submission. The signposts indicate where the submission has got to, which facts are being quoted in support of which propositions, which arguments are those most vigorously put forward and so forth.

3. PERSUASION

3.1 GOLDEN RULES OF PERSUASION

Here is a set of ‘golden rules’ of persuasion.

3.1.1 Define the issue on which you seek to persuade

A submission is not simply a discussion of a case. The judge will want to know what point you are trying to get across. The ability to define the point that you are trying to communicate is one of the essential ingredients of persuasion. If you fail to communicate the point or the issue at hand, the result is likely to be a judicial intervention. The judge may ask where you are going with the submission or he/she may fail to appreciate the relevance of the submission.

Everything that you say must have relevance and focus, and you should indicate very clearly what the issue at hand is, and define the point to which your submissions go. Be clear and direct in opening the topic on which you are going to address the court. For example:

o ‘The point on which I seek to persuade Your Honour is….’

o ‘The Claimant’s position is that the auditors were negligent and I turn now to address why the Claimant submits that that is so’

o ‘The Defendant would seek to address in court on the issue of …’

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3.1.2 Headlining

This is not a rule without exception, but it serves well as a general principal. If you imagine a newspaper with a headline in bold and the article below, this might help. Few people would be naturally drawn to an article without knowing the headline. If you know the headline, then you can decide how much of the article you want to read. The judge is likely to take much the same view. If the judge hears the point on which you are going to address the court, the court can indicate the extent to which it wishes to hear the subsequent argument. The judge might say:

o ‘I can help you that I accept that the Claimant must be right about that’ or

o ‘You will need to persuade me of that because on my initial view of the case….’

In either event, the judge is happy because he/she is kept involved and knows what points you are tackling, and it is helpful for the advocate to be able to react to any indication from the judge either to take the point more quickly (because the point is already accepted) or to take the point in more detail (because the judge has indicated some scepticism).

Recent graduates tend to have worked on the basis of writing essays that discuss a topic and work towards a conclusion. It can be hard to reverse the process and state a conclusion and then justify it, but for practical oral advocacy, the latter is much the better process.

3.1.3 Use ‘signposts’ and lists

There is no substitute for well-structured argument. If you can present a series of arguments, each of which show no flaw in logic, which take the judge from the exposition of the case through the test for granting the application, then the application would seem bound to succeed.

If you have a strong structure and rigour to your argument, the crucial point is to make this structure plain. To that end, signpost your submissions to make them persuasive. Indicate the stages of the argument as you go through them. Indicate where your submissions build upon each other and where they act as alternatives to one another.

You will give maximum effect to your arguments where they are presented precisely, and where the structure of the argument is well controlled by signposting.

Lists can be very effective in oral advocacy. It is much easier to take a note of a list, rather than have to distill the points from a wider and more rambling submission. You might say, for example:

o ‘Your Honour, might I run through the mitigating features in the case? I have identified seven features of the case with which I seek to persuade the court that this case is less serious than it may, at first, seem. They are….’.

3.1.4 Use your voice!

When delivering any submission, keep using the tone of your voice to persuade. In the section on delivery, we discussed the idea that an advocate

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should have at least two tones of voice. The primary and basic division is between ‘functional’ advocacy (which seeks to impart information without persuasion) and ‘persuasive’ advocacy, (where the advocate is trying to add reason and expression to the argument).

The first thing that gets lost when an advocate is nervous is the expressive and persuasive tone of voice. With nervous advocates, all the submissions tend to be delivered in the same tone and manner, and it is very hard for a judge to concentrate and listen to a submission that is delivered in one tone of voice throughout.

In any normal or natural conversation, people use different tones of voice to express what needs to be in the ‘foreground’ (ie those matters that are directly relevant and pertinent) and those that are a necessary formality and can be committed to the ‘background’. The same should be true for advocacy.

To be persuasive, the tone of voice must reflect the content of the application, and terms of persuasion, the key is to distinguish those arguments that are really your strongest and on which you really seek to rely, and do not let them get lost in a featureless and unvaried submission.

3.1.5 Eye contact

Eye contact is essential to persuasion. The judge has to feel engaged with the advocate. It is optimistic to think that a judge will ever engage with an advocate if there is no eye contact between them.

Eye contact is increasingly hard to maintain if the advocate is working from a script, or from notes that are too full or chaotically set out. Good notes are therefore essential. Reading a script is not advocacy. Reading from a script will almost certainly destroy any eye contact (or at least any meaningful eye contact).

3.1.6 Encourage the court to identify with the argument wherever possible and appropriate

The technique of trying to make the tribunal identity with a position is one that we all use naturally and instinctively. You hear all the time people say things like, ‘imagine what it must have been like…’ or other phrases designed to involve the listener more actively and with more imagination. Advocates must be careful not to appear to be overly theatrical or sensational, but on the other hand, the advocate should look to engage the judge wherever it is relevant and appropriate. For example:

o The Defendant in this case was acting under a degree of duress. I invite the court to consider how hard it would have been for an 18 year old young man, living on that estate, without a father or strong figure to turn to, refusing the demands of 2 men who have both been convicted of serious assaults and armed robbery…’

o The Defendant’s case is that the Claimant failed to mitigate her losses by taking taxis rather than using public transport. You have heard from her how awkward life would have been for her, shopping for a large family, and suffering, as you have heard, from headaches and backaches as a result of the accident. The court, I hope, will take the view that she acted perfectly reasonably in all the circumstances.

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In these examples, the advocate has tried to paint a picture in simple and direct terms and attempted to engage the court in the scenario.

3.1.7 Use exhibits whenever they would be of use

A picture can paint a thousand words. Do not confine yourself to oral advocacy if there are other sources of information that will communicate a point faster, with more clarity, or with more impact. A photograph of mangled car remains would communicate the severity of a crash with much more impact, for example. Sometimes the documents that you might use are in the papers and to hand, otherwise you may have to generate them yourself. You may think that chronologies, photographs, maps, plans, schedules etc could and would assist the tribunal. If this is so, you should do what you can to make sure that they are supplied and ready for the court.

4. SKELETON ARGUMENTS

4.1 INTRODUCTION

With ever increasing pressures to make the legal system as efficient and cost effective as possible, there has been a steady shift towards thinking of advocacy in terms of a written skill as much as an oral skill when it comes to making submissions. Skeleton arguments used to be quite rare in practice, and reserved only for the big cases. They used to be almost unheard of in crime. Now, almost any time where the court knows that there is to be legal argument, a skeleton argument will be expected, if it is not actually ordered.

A skeleton argument is the written core of the submissions on which you are intending to rely. It allows the court to pre-read and to consider the merits of your case before the oral hearing. In practice, some judges expect the skeleton argument to effectively stand as the application, and the oral hearing is reduced to a set of questions from the judge on any point of the skeleton that the judge wishes to discuss further.

It is hard to teach skeleton arguments, as they are a tool which are used very differently in practice by practitioners and appreciated very differently by judges. Techniques that one judge might applaud, will be criticised by other judges. Some judges will be pleased to read long and full skeletons, others will want the skeleton to be more pithy and succinct. The short answer is that you will develop, over time, a sense of how you most like to balance what you do orally with what you do on paper. We will give you a set of guidelines which should set you off with a decent starting point from which you can develop your own practices according to the sort of work that you do and the sort of advocate you want to be. We will not be overly prescriptive, and give you a basic guide which is designed with basic practice and the assessments in mind.

There are examples here of skeleton arguments in the next section. We have concentrated on the sort of skeleton that you might write for the assessment

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on an interim application. We have given you skeletons for 2 cases that you do on the civil module – this means that you have all the papers in your civil bundle of materials, and you will be reading the cases in detail for that part of the programme.

For interim applications (which will be the assessment type for advocacy 1) we recommend a skeleton which is reasonably short and punchy, and allows the judge to see the overview of the argument and the structure of the submissions can be distilled ‘at a glance’. When you have a case listed for a hearing like an interim payment or summary judgment, you are usually competing in a long and heavy list of cases, and dealing with a judge who has a heavy work-load and who is trying to keep the facts of lots of cases in mind. The best approach to take is to make the skeleton dynamic and punchy. If you can make a lot of progress in expressing the essence of your case simply, then do so – leave the flourish and the detail for the oral submission. Don’t lose the clarity and simplicity of the point by burying it in a long and arduous to read skeleton!

By contrast, the advice on appeal is really a full submission. The advocate in an appeal won’t even get a full hearing if the written work is not persuasive. Consequently, the content should be pretty full. Also, the appeal court judges will take the written work more seriously and understand that in matters of appeal, the issues are usually more complicated and need to be expressed more fully in order to make sense of the advocate’s argument.

THE STRUCTURE IN TERMS OF HEADINGS AND LOGIC IS VERY SIMILAR REGARDLESS OF HOW FULL AND WORDILY THE SKELETON IS EXPRESSED.

Both documents take the reader through the background, the law, the issues, and the argument under each heading. The difference comes in the accompanying detail. The skeleton on the interim application really needs an advocate to come and fill out all the arguments. The second skeleton is designed to be a complete argument on the papers.

Many practitioners dealing with complex cases would write their skeletons in the manner of the advice on appeal. This is why we include it.

You should imagine a spectrum, where the basic and short skeleton for a short interlocutory application is at one end of the spectrum, and at the other end is the skeleton, which is argued fully and leaves little left to say in the oral application.

We include an example of both styles, but for the purposes of the BVC WE ARE LOOKING FOR YOU TO WRITE A SKELETON ALONG THE LINES OF THE FIRST SKELETON (the interim injunction). The assessment will be an interlocutory application, and you should combine the skeleton with the oral application. We guarantee that you will have SOME intervention from the judge in a BVC advocacy assessment, but not much. You will need to show the ability to make a reasonably full oral submission, and so we strongly recommend that you don’t write your skeleton as a more or less verbatim script. You will undermine your oral performance if you do!

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4.2 STRUCTURE

The skeleton structure should be a clear set of directions for how and why you are asking for judgment. To that extent, it is identical to any application that you make, with or without a skeleton. The skeleton should, therefore, follow the basic structure of:

The introductory part of the skeleton. This will vary slightly according to the needs and complexity of the case. It would be normal to find the following in most skeletons:

- What the application is for- A brief introduction to the parties - A brief introduction to the case topic- Reference to the governing law and procedure- A list of documents referred to - A chronology (if one would materially assist the court).

A statement of the issues in the case.

The limbs of the test under which argument is to be made underneath which should come,

Brief indication of the argument on which you seek to rely, underneath which should come,

The evidence or authority that tends to support the argument.

4.3 OTHER GOLDEN RULES

There are other ‘golden rules’ of skeleton arguments and how the writer should set them out.

They are as follows:

Use acknowledged and accepted abbreviations (e.g. C for Claimant, D for Defendant). In practice, some judges dislike abbreviations, but on balance, we encourage it. It appears as recommended practice in a Practice Direction. Ideally, you will know your judge and whether he or she likes abbreviations or not. If the skeleton is longer and more involved, then abbreviations would seem to be less appropriate. We encourage use of appropriate abbreviations in interlocutory applications.

Only cite authorities that actually go to determine a genuine issue in the case. There is a tendency from University to make bibliographies as long as possible. Some people keep up this tendency and sprinkle authorities all over their skeleton. If the authority is not really essential to the case, DO NOT CITE IT. The judge will be furious if he or she is directed to an authority that he or she reads only to find that this was time completely wasted.

Cite authorities accurately and fully, including the page reference for any point on which you are intending to rely.

Write in a clear and direct style. No flourish or fancy language. Some skeletons you will see in practice go so far as to write in incomplete sentences. We do not advocate this, but rather writing as clearly, simply and directly as possible. The flourish and choice language should be saved for your oral advocacy.

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When citing evidence, give the reference to the documents in the papers. Some judges will want to read your skeleton BEFORE reading the papers. If you make an important statement of fact on the skeleton, then the judge may wish to go and find that directly in the papers. You should, therefore, cross-refer the fact to the place in the papers where that fact is given in evidence. It is important at the start of the skeleton to indicate which documents the judge should read, and to ascribe a way of referring to that document in the skeleton. This may not be relevant in a criminal case, but would be more or less standard in civil cases. Please see the Kirkwood v. Glenfeather sample skeleton for an example of listing the documents in support of an application, followed by a way of referring to that document in the skeleton.

4.4 THE LOOK OF THE SKELETON

A skeleton argument is most helpful when it really shows off the structure of the argument. In practice, many skeleton arguments simply look like essays broken down into numbered paragraphs. To set them out this way is to miss the opportunity to make an impact by showing that your argument has logic and structure about it.

To make an impression with a skeleton, it is vital to set it out consistently and logically. Try so far as possible to ascribe one formatting tool (eg, CAPS, italics, bold, underlining, bullet points, brackets etc) to one function (eg, test headings, references to CPR, quoting authorities etc).

Take the following extract from a skeleton argument:

5. Summary Judgment on contract 1

Is there a link between the contracts?

5.1 Contract 1 should be accepted as completed and the money due because any fault with the yarn has been remedied by the issuing of a credit note. This is a plain and equitable solution. The remaining 80% of yarn has been used.

5.2 Payment is due under contract 1 unless D can show some evidence of a term purporting to link the payment of contract 1 to the performance of contract 2. D

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will fail to establish such a term because it is not in writing, and; 1) All the other contract terms of both contracts are written, plain and distinct

[RAM1 page 1 & 9];1) D had from July 4th to July 21st to reduce any additional terms into writing; 2) The existence of such a purported term is expressly denied [DP para2]; 3) Paragraph 6 of each contract 1 AND contract 2, specify that the contracts

are separate ‘stand alone’ contracts;4) Mr Morecambe for D is a managing director. Presumably he has funds for

legal advice, and should understand the need to reduce agreements to writing.

In the above example, there is a clear logic to the formatting. The primary heading is in bold, the subheading is in italics. The argument is in ‘plain’ script, and the evidence in support is numbered and indented. References to the papers are in square brackets. It is not necessary to do all skeleton arguments the same way, but there should be logic and consistency within the same skeleton.

Having set up a system for devoting a formatting tool a function, the judge should then be able to pick up this system quickly and consequently the judge should be able to extract the information from it much faster than if it is essentially just a script with numbered paragraphs.

Some people dislike bullet points, and prefer plainer text. There are few rights and wrongs. The essential rules are (1) not to produce a script or essay (2) format consistently.

4.5 USING A SKELETON ARGUMENT

The great test in a case where there is a skeleton argument not to use the skeleton as a script. The skeleton and the oral submission should work together wherever possible, and you need to launch your oral submissions on the basis of the skeleton. Here are some examples of some situations that you will encounter when balancing your content between the skeleton and the oral performance.

Situation 1 – you have nothing to add to the skeleton

Your Honour will see that I have produced a short synopsis of the background of the case at paragraph 2.1. Your Honour, I would not propose to take the court through the background unless Your Honour would wish me to do so.

Situation 2 – You want to show the logic and structure of your skeleton

‘Your Honour will see at paragraph 4.1 that I deal with the principle that there is a ‘serious issue to be tried’. Your Honour will also see that I have taken the component elements of a binding contract and dealt with each in turn – starting with ‘offer and acceptance’ at paragraph 4.1.1.’

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Situation 3 – the skeleton is plain and simple, and you want to add some more persuasion

‘Your Honour will see that I indicate at paragraph 3.1 that the Claimant contends that damages would not be an adequate remedy to repay her for the suffering and anxiety to which she is currently exposed. Your Honour, might I just take that submission a little further and explain what it would mean in practical terms if this order were not granted?’

Situation 4 – you have listed reasons in the skeleton, some are more important than others

‘Your Honour will see listed at paragraph 4.2 the elements of consideration that the Claimant says existed in this contract. Your Honour I do not intend to trouble you by rehearsing all of them, but might I just take a moment to explain the particular importance of the third item listed?’

You will notice that in each of the examples above that the submission began with a reference to the skeleton argument. You do not need to do this to the point of distraction, but the general rule should be that your oral advocacy and the skeleton should work together, and that any submission should be based upon, and launched by, the corresponding paragraph in the skeleton argument.

It is quite amazing how easy it is for a tribunal to miss a point that an advocate is making. If the tribunal is following the advocate both orally AND on paper, and the paper argument is clearly and precisely laid out, it is consequently very much harder for the judge to lose the thread of what the advocate is saying. Using both the written argument and the oral argument in tandem is a very strong tool of persuasive advocacy.

If you simply READ the skeleton out, you are not adding anything to it, and your presence as an oral advocate is completely wasted. Advocacy does not equate to reading out documents!

5. Sample briefs and skeleton arguments

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Case study 1

Perfect Yarns

-v-

Handcraft Knitting

___________________________________________

SKELETON ARGUMENT FOR THE APPLICANT____________________________________________

IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISION

BETWEEN:

PERFECT YARNS LIMITEDClaimant

and

HANDCRAFT KNITTING LIMITEDDefendant

_________________________________________

SKELETON ARGUMENT OF THE CLAIMANT_________________________________________

1. Introduction

1.1 This is C’s application for Summary Judgment (SJ) under CPR 24.

1.2 The claim is for the sum of £223,720 being the price of goods [cotton yarn] sold and delivered by C to D pursuant to two written contracts [contracts 1 and 2]. In contract 1, 20% of the yarn was defective. A credit note for the defective yarn was issued by way of compensation. The parties contracted again (contract 2). The yarn in contract 2 was subjected to a ‘new dying process’. D argues that the yarn under contract 2 was not fit for this purpose, and that acceptance of the credit note was conditional on contract 2 being fit for purpose. C’s case is that there were no such terms.

1.3 The documents referred to in support of the application are: Witness statements: Roger Morcambe [Morecambe] & exhibit [RAM 1]

Derek Paul [Paul].

2. Relevant dates

12.6.09 – date of contract 126.6.09 – delivery of yarn under contract 129.6.09 – complaint about yarn under contract 104.7.09 – credit note issued for % of substandard yarn21.7.09 – date of contract 225.7.09 – delivery under contract 219.9.09 – complaint about quality of yarn under contract 2

3. The test

This application falls to be considered under the ‘no realistic prospects of success’ principal in rule 24.2 a) ii).

4. The issues in the case

4. There is no dispute that some yarn under contract 1 was faulty, and that a credit note was issued in response. The exact agreement about how to remedy the problem is in dispute. The issues therefore appear to be:1) In addition to the credit note, is there a link between payment of contract

1 and performance of contract 2?2) Was there a term in contract 2 that required the yarn to be fit to be dyed

using the ‘new dying process’? 3) Was the yarn actually unfit to be dyed? 4) Does the delay in the complaint under contract 2 imply affirmation of it?

5. No realistic prospects of defending judgment for sums under contract 1

Is there a link between the contracts?

5.1 Contract 1 should be accepted as completed and the money due because any fault with the yarn has been remedied by the issuing of a credit note. This is a plain and equitable solution. The remaining 80% of yarn has been used.

5.2 Payment is due under contract 1 unless D can show some evidence of a term purporting to link the payment of contract 1 to the performance of contract 2. D will fail to establish such a term because it is not in writing, and; 1) All the other contract terms of both contracts are written, plain and distinct

[RAM1 page 1 & 9];5) D had from July 4th to July 21st to reduce any additional terms into writing; 6) The existence of such a purported term is expressly denied [DP para2]; 7) Paragraph 6 of each contract 1 AND contract 2, specify that the contracts

are separate ‘stand alone’ contracts;8) Mr Morecambe for D is a managing director. Presumably he has funds for

legal advice, and should understand the need to reduce agreements to writing.

5.3 Where parties disagree about the existence of an oral term in a contract which is otherwise essentially written, the court is bound to accept the written terms and dismiss the alleged oral term. This is presumed by law following the Parol Evidence rule.

6. No realistic prospects of defending judgment for sums under contract 2

Was there a term that required the yarn to be fit to be dyed under the new process?

6.1 D’s exposed the yarn to a ‘new dying process’ [Morecambe para 8c]. The issue is whether there was a variation in the contract to accommodate this new requirement for the yarn.

No express term

6.2 There is no express term of fitness for the ‘new dying process’. There is a written contract with definite terms. D cannot successfully introduce evidence of a

purported additional oral term as to what was required of the yarn. The reasons set out above (4.2 and 4.3) apply.

6.3 As this is a VARIATION from a previous course of business, the onus to reduce the variation to writing is even greater. The absence of a written term is fatal.

No implied term

6.4 The courts should not imply terms against the written contract. 1) The term as to the specification of the yarn is written and states only that

the yarn is ‘carded cotton’ [RAM1 page 9].2) No evidence that yarn was not carded cotton.

6.5 Derek Paul denies advising that the yarn would be suitable for a particular dying process. There is no evidence that he was asked to view the process, or given full particulars about the process, and so it would be unreasonable to rely on his judgment even if he had given it.

Was the yarn fit for purpose?

6.6 Even if D can establish that the yarn needed to be fit to be dyed by this ‘new process’, there is no reliable evidence that the yarn was not actually fit to be dyed. The problem may have been the process, not the yarn. The lab report which tends to blame the yarn has little value. 1) The lab report is not independent [MORECAMBE para10];2) The report is preliminary [RAM1 p13];3) It appears from reading the report that the lab received the yarn at 2:30pm

on day report written [as above];4) The yarn tested was not what had been delivered – the yarn tested had

been through the dying process [as above]5) Instructions to lab appear to be leading [as above];6) The report has no firm conclusions [as above].

Has the contract been affirmed in any event?

6.7 AND, in EITHER event, there was such a delay in complaining about contract 2, D has either AFFIRMED the contract, or is incredible in complaining about it.1) Complaint on contract 1 was almost immediate [RAM1 p4-6]2) Complaint on contract 2 not for 2 months [RAM1 p18]

C therefore seeks SJ upon the whole of its claim on the basis that D has no prospect of successfully defending the claim in respect of either contract.

[dated]BPP Chambers68-70 Red Lion StreetLondon

COMMENTARY ON THE SKELETON ARGUMENT

1. You will often have to consider whether you need a chronology, or an extract of a few relevant dates, or neither. In this case, a short digest of dates seemed just about worth it. Reading the dates gives the clear impression of 2 sets of transactions, and it just looks like 2 separate dealings. The other advantage of doing a short chronology is that it supports the submissions made later on about affirmation. This submission relies upon a review of the dates and so the short chronology might prove useful. If you think that a full chronology would be the useful, then it would be usual to have one appended to the back of the skeleton.

2. This case is quite challenging in terms of expressing the issues shortly and succinctly. We have done our best here. The issues themselves are expressed as questions. This is the normal way of doing it. The alternative is to use the formulation, ‘whether…’ as a way of expressing the issues in the case.

3. The test for summary judgment applicable to this case is the ‘no realistic prospects of success’ test. This is a one limb test, so we would normally have all the submissions under a single test heading. We have only split the submissions under 2 headings because it is quite possible that the judge could give summary judgment on one amount of money (under contract 1) but not give judgment for the rest (under contract 2). Theoretically, the reverse is also possible (i.e. judgment for contract 2, but not for contract 1 – although this would make no logical sense in the context of this case). So, for all practical purposes, there are actually 2 applications here – one for summary judgment under contract 1, and one for summary judgment for contract 2. Hence the 2 main test headings.

4. You will see that we have brought the issues into play under the test headings. THIS IS ALWAYS OUR PREFERED STRUCTURE. The issues fall to be considered under the appropriate test heading. Here, there are 4 issues, and only 1 arises in relation to contract 1. The other 3 all belong under contract 2.

5. This case has up to 3 levels of headings. We have tried to make this easy to follow in our choice of formatting. The test headings are ALL bold and underlined. The sub-headings which introduce the relevant issues are all in italics. One of the issues requires further sub-headings. You will see that we have divided the issue of whether the yarn had to be fit to be dyed into whether the term might be ‘express’ or ‘implied’. The sub-heading is indented and underlined. There is no magic formula to what formatting technique you give to what kind of heading. The only essential point is to keep it consistent. The nicer it looks the better, but consistency is the big priority.

6. If you look at paragraph 5, you will see that there are 2 paragraphs in what we would call ‘plain text’ – i.e. there is no particular formatting applied. In

this skeleton, once we have passed through the background sections, the main argument is in ‘plain text’. If there is evidence in support of the argument, then the evidence is presented as a numbered list, and is indented. Anyone reading this skeleton should pick up quite quickly that the formula is ‘proposition +support’ in construction. Anything indented and numbered is supportive of the text that precedes it. The ‘proposition + support’ model underpins our teaching of how to build submissions.

Case study 2

Rupert Turtle

-v-

Anita Nutt & Andrew Ross

___________________________________________

SKELETON ARGUMENT FOR THE APPLICANT____________________________________________

IN THE HIGH COURT OF JUSTICE 2008 T No. 3213QUEEN’S BENCH DIVISION

BETWEEN:

RUPERT TURTLE Claimant

and

(1) ANITA NUTT & Defendant(2) ANDREW ROSS

______________________________________

SKELETON ARGUMENT ON BEHALF OF THE CLAIMANT___________________________________________________

1. Introduction

1.1 This is C’s application for an interim payment pursuant to CPR 25.7(1)(e) and the Supreme Court Act 1981 s.32, for injuries sustained in a road accident on 2nd

March 2008. The figure requested is £30,000 (see below, para 7).

1.2 The documents relied upon in this application are:

Statements of case: [POC], [D1’s Def and CC], [D2’s Defence]

Witness statements: Rupert Turtle [Turtle], Anita Nutt [Nutt],

Andrew Ross [Ross], Jocelyn Willbourne [Willbourne].

Medical reports: [Dr Evans] [Dr Singh]

Other: The Highway Code Clarke v Winchurch [1969] 1 All ER 275 (a driver giving a signal is does not assume the full risk for the person to whom the signal is given).

Grange Motors v Spencer [1969] 1All ER 340 (a person who is offered a signal must use his own discretion in deciding whether to accept it).

Stringman v McArdle [1994] 1 WLR 1653 (C does not have to show need for the IP, but it may influence the court’s discretion)

2. Background

2.1 C was riding a horse on a country lane without road markings. D1 (Nutt) began to overtake the horse on a sharp bend but then had to swerve to avoid D2 (Ross) coming the other way. D1 collided with the horse. Prior to D1 overtaking, C had made a hand signal to D1. C’s case is that the signal was for D1 to remain behind him; D1’s case is that the signal was to overtake. C sustained injury, and the horse was destroyed at the scene.

3. The test for Interim Payments where there are multiple insured Defendants

3.1 Applications under r.25.7 (1)(e) require both Ds to be insured (not in dispute)Primary test:1) C would obtain judgment from at least one defendant; [r. 25.7(1)(e)(i)]2) The judgment would be for a substantial amount of money; [r. 25.7(1)(e)(i)]3) Set offs, contributory negligence and cc’s are all relevant; [r 25.7(5)]4) The court must not order more than a reasonable proportion of the likely final

award. [r.25.7(4)]

4. The issues in the case

4.1 It is not in dispute that judgment will be entered against one of the parties. This is not a ‘no fault’ accident, or the fault of an unknown party.

4.2 The only allegation against C and his part in the accident relates to C’s hand signal. This is the only apparent obstacle to C obtaining judgment. It the court’s interpretation of the hand signal is the real issue for this application.

5. Will C obtain judgment against at least one defendant?

5.1 Primary liability lies against D1 because she overtook when it was unsafe to do so. This admission is made in the statements of case [D1’s D and CC para 4].

5.2 D1 may not transfer primary liability onto C even if she was relying on a signal to

overtake. Relying on a signal does not absolve a driver of his or her own duty to take care – the primary duty remains on the driver who proposes to overtake to take care. This is shown by:

1) Highway Code on reacting to a signal’Proceed only when you are satisfied that it is safe’ (para 86)

‘use your own judgment and proceed carefully.’(para 91)

2) Grange Motors (as above) (the same point is made in Clarke)‘the driver to whom the signal is given has a duty of care in deciding whether to rely on that signal’(headnote)

5.3 The accident was caused by D1 not checking that the road ahead was clear, and/or deciding to rely on a signal even though she could not establish if the road was clear or not. The hand signal can only be a contributing factor, not the cause.

5.4 The overwhelming impression is that D1 was simply driving badly and not actually paying attention.

1) The independent evidence is that D1 was on the phone, and impatient to overtake (revving her engine and driving too fast) [Willbourne para 2];

2) D1 was convicted of careless driving.

5.5 It is immaterial to this application whether D1 can establish that the road was wide enough for her to pass, and although she was negligent, D2 was as well.

6. Will damages be substantial?

SPECIAL DAMAGES

6.1 £40,106.90 claimed in the schedule remains a good estimate, considering:

1) That the loss of earnings are corroborated by C’s employers,2) Whilst there might an issue about the exact value of the horse, any reduction

to reflect this would be more than made up for because, 3) Since the schedule, there have been further medical bills.

GENERAL DAMAGES

6.2 The figure for recovery at trial should be in the region of £18,000, taking into account ‘double recovery’. Estimates of recovery of damages appear below. (all cases from kemp and kemp).

Elbow Fracture. Plaster shoulder to wrist 10 weeks. Wires inserted in elbow. Physio for several months. JSB guidelines suggest:Also see Neuman v White attached.

£12,000

Leg Crushed by horse. Severe soft tissue injury. Unsightly scars. Aching and stiffness ongoing. JSB guidelines suggest:Also see Long v Cornwall CC attached.

£8,000

Nose Fractured nose. Considerable pain 3-4 months. Some pain ongoing. JSB guidelines suggest: £2,000

TOTAL

6.3 The figure of £58,000 is clearly sufficient to indicate a substantial claim.

7. Reduction for contributory negligence, counterclaim etc?

7.1 D1’s case is that C waved her on to overtake, and that any award for damages will be substantially reduced. This is most improbable because:

1) The independent witness says that the signal was to stop [willbourne para 3];2) There is no such thing as a hand signal to overtake [highway code]; 3) It is inconceivable that C would invite a car to overtake on a blind bend;4) D1 was paying little attention to the signal [see para 5.4 above].

7.2 The misinterpretation of the signal is plainly D1’s error entirely. As such, there is unlikely to be any finding of contributory negligence at all, and therefore no reduction in the claim or any allowance of the counterclaim.

8. The amount sought as a ‘reasonable proportion’ of the final award

8.1 The amount sought is £28,000 - £31,000. Any figure in that range would clearly represent a reasonable proportion of the expected recovery, and is less than the special damages in the case. The entire amount of general damages plus about £10,000 in special damages acts to protect the court from any risk that C’s recovery is not as much as expected.

9. The discretion of the court 9.1 C does not have to show that he has a need for the money, but showing that he

has a good reason for asking for the money may be persuasive in asking the court to exercise its discretion (stringman – as above). This application is based on need.

1) £8,000 to cover mortgage arrears and overdraft [turtle para 8];2) £5,000 for operations. 2 operations, (nose and elbow) [turtle para 7];3) £15,000 (estimate) for a replacement horse [turtle para 10];4) C asks on instruction for some additional funds for travel and decorating and

physiotherapy. An additional statement could be taken. (£3,000).

10. Conclusion

10.1 This is a suitable case for an interim payment on the basis that the main dispute in terms of negligence lies between 2 insured Ds. C is only liable to account for his hand signal, which seems to have been properly given, and for which the court is likely to attach very little, if any, blame. By asking for only about half of the expected recovery, the court can be confident that this interim payment can be safely awarded.

(Dated)BPP chambers 68 – 70 Red Lion Street

COMMENTARY ON THE SKELETON ARGUMENT

1. Note that in this case we have 3 authorities. They are listed as ‘documents in support’ of the application. You will see that the essential proposition for which the authority is being cited appears in brackets following the citation. This is in compliance with the Practice Direction. Avoid simply listing authorities without making it clear WHY you are listing them. We find that some students think that a long list of authorities looks impressive. Well, if the judge went away to read all of them on your recommendation only to find that it was unnecessary to do so, you’d find yourself in a lot of trouble. The list of authorities should be as short as possible in order to make the point that you want to make. If the judge agrees with the proposition in brackets, then the judge knows that it is unnecessary to read the case as this is the only point that you are using the case to demonstrate.

2. With 2 defendants, the shorthand of D1 and D2 is immeasurably more helpful than having to write ‘the first defendant’ or ‘the second defendant’ each time.

3. The relationship between the issues and the test is very interesting in this case. Interim payments where there are multiple insured defendants has a test of its own, and it is, essentially, that in order to save time, you can have an interim payment so long as it is clear that you will recover against SOMEBODY. It doesn’t matter who. The reason being that if the wrong defendant pays up at the interim payment hearing, the adjustment can be made between the insurers in due course. So, in this case, there is the odd quirk that the dispute between D1 and D2 becomes irrelevant for the sake of the interim payment hearing.

4. The test in the CPR for interim payments is not well drafted. There is a single sentence ‘would the claimant obtain judgment for substantial damages’. As this is just one sentence, it would appear to be one limb of the test. However, ‘would obtain judgment’ is about liability and ‘substantial damages’ seems to be about quantum. We strongly recommend that these 2 are split. You then need to read around the rules a bit to unearth the remainder of ‘the test’ and it seems that there are 2 more hurdles. You need to assess whether the ‘substantial damages’ are liable to be reduced for ‘counterclaims, set-off, contributory negligence etc’. The final consideration is whether the application is for a ‘reasonable proportion’. So, you will see that our ‘test’ section is not a verbatim record of what the CPR says, but contains a bit of interpretation too. Not every judge in the land would see the test in quite the way that we have interpreted the limbs of it, but we think that we have made an awkwardly worded test much more manageable and workable, and would hope that most tribunals would find our interpretation a good one to follow.

5. This case is also interesting in that it seems to us that D1 has no defence to a finding of liability against her. She has conceded that she overtook when it was unsafe to do so. She has 2 lines of ‘defence’. The first is to say that she was waved on. The case law suggests that the act of waving

on is only something that CONTRIBUTES to the accident. The CAUSE of the accident was the decision of D1 to act on the signal even though she could not see for herself that the road ahead was clear. This decision to act on the signal was negligent, and it caused the accident. It seems that liability must be hers in the first instance. She only brings in the hand signal from C as a contributing factor, i.e. under contributory negligence. Her second line of defence is that the road was wide enough for the horse and 2 cars. This seems unlikely to be true, but we don’t even need to worry about that, as the squabbles between D1 and D2 are immaterial to C on his application for an interim payment (as discussed).

6. This skeleton is also based on the idea that we want the judge to be able to see the propositions in the case, and to see the support for the propositions. The support for any proposition is normally EVIDENCE, but you will see that this is not invariably the case. The proposition in paragraph 5.2 that the person who receives a signal cannot transfer liability for an accident onto the signal giver is a proposition of law, and the support comes from case law and the highway code. The same formatting is adopted – i.e. to have the support for the proposition in numbered paragraphs and indented. The other example of support for a proposition being something other than evidence is in paragraph 7.1. The proposition is that the likelihood is that the signal was to stop. There is some evidence for this, but there is also the common sense observation that it would be very odd for someone to wave a car on to overtake on a blind bend. We would classify this as an ‘common sense observation’ and there is nothing wrong with arguing that common sense supports your proposition. It is often the best support of all.

7. Please note that in THIS CASE we are called on to show that the ‘substantial damages’ would not be reduced on account of contributory negligence. Giving a misleading signal could be an act of contributory negligence. We have had some students in the past make submissions on contributory negligence (using this sample skeleton as a template) in cases of breach of contract. Plainly the issue of contributory negligence only arises in negligence cases.

8. This skeleton has a conclusion. Not all short skeletons benefit from conclusions. It is a matter of style. Be careful of conclusions in short cases – especially orally, as saying ‘so in conclusion…’ usually sounds to the judge as being another way of saying ‘so in case you didn’t follow me the first time…’ and is regarded as being repetitive and insulting to the judge’s ability to follow your arguments. We thought on balance that this short conclusion helped.

Example of a ‘full submission’ skeleton argument

Bishop v. Regina

Case Summary

This case involves a prosecution witness in a criminal trial who did not attend court as a witness.

We have called the witness Mr Bishop. Bishop witnessed one friend of his hitting another friend of his with a pickaxe handle. He was very reluctant to be a witness in the trial that alleged GBH against the man with the pickaxe.

The trial date was set. The usual practice is for the Criminal Justice Unit (CJU) to ‘warn’ witnesses to attend. Sometimes the CJU will specify a particular day of the trial for the witness to attend. For example, if the trial is due to start on date X then only some witnesses are asked to attend on day X and others attend on day X + 1 and so on so that the witnesses are staggered and waste as little time waiting at court as possible. On the trial date, Bishop did not turn up. He did not turn up on the second day either.

The judge – who we have called His Honour Judge Dean – adjourned the case. When a case comes to court for any reason other than one of the formal plea, trial or sentence, the hearing is normally called a ‘mention’. HHJ Dean listed the case for a mention in August. He directed the police to call on Bishop, and hand him a summons that would demand his attendance at the mention hearing. The intention was that Bishop would attend the mention hearing and explain why he did not turn up at the trial.

Officers went repeatedly to Bishop’s home and left him many messages about the August mention. He was mysteriously never home. The day before the mention an officer managed to speak to Bishop’s mother who called her son and said that there was an officer warning Bishop to attend court.

Bishop did not attend the mention hearing.

At the mention hearing, the judge had to discharge the case against the Defendant on the GBH case, on the basis that Bishop was never going to come to court. Now it was Bishop who became the Defendant for Contempt of Court. There were two contempts that needed investigating. The first was the non-attendance at the trial, and the second was the non-attendance at the mention.

So far as the trial was concerned, it transpired that there were problems with other witnesses too, and it seemed perfectly possible that someone telephoned Bishop to say that there was no point attending the trial, as other witnesses were ill.

The August mention was another matter. The only defence to not attending then was that Bishop claimed that no one ever told him the actual date to attend. That seemed most unlikely given the numerous messages left and the telephone call with his mother.

The Judge found that Contempt of Court was proven in relation to the August mention, and not proved in relation to July. The Judge sentenced Bishop to 6 months imprisonment for the Contempt.

The appeal point was in relation to the legality of the sentence. There is a statutory provision that states that the maximum penalty for not appearing as a witness is 3 months. The judge passed a sentence of 6 months, saying that the persistent and wilful refusal to come to court could be sentenced as a common law contempt to court, and that he was not bound by the statute.

As we have indicated earlier, the 2 case studies are here to demonstrate the 2 extremes of written advocacy. The first case study shows a short and succinct summary of the essential structure and argument in a case. This case study shows what a fully argued case might look like.

For those involved in MOOTING, the Court of Appeal and House of Lords expect skeleton arguments to look more like THIS EXAMPLE.

You will read the basis of the appeal in the advice/skeleton that follows.

IN THE CROWN COURT AT GLADBURY

REGINA

-V-

ROBERT BISHOP

____________________________________

ADVICE ON APPEAL_____________________________________

INTRODUCTION

1. I represented Robert BISHOP (hereinafter ‘BISHOP’) in proceedings at Gladbury

Crown Court in relation to an alleged Contempt of Court. The proceedings arose

because BISHOP disobeyed a witness summons for a case in which he was a

witness. On 22nd December 2008, HHJ Dean sentenced him to a term of

imprisonment of six months.

2. This sentence was passed under the court’s inherent powers to deal with contempt

under the common law. HHJ Dean rejected the defence submissions that the court

should be bound to follow the statutory provisions for non-attendance of

witnesses. The provision of the Criminal Procedure (Attendance of Witnesses)

Act 1965, s3(2) limits sentences passed by virtue of the section to three months.

3. I write this advice on the following issues:

(i) Whether HHJ Dean erred in law by failing to follow the statutory provisions

and thereby passed an unlawful sentence exceeding the statutory maximum

of three months.

(ii) In the alternative, whether the sentence is manifestly excessive in any event.

THE LAW

4. The courts have long recognised a general power to deal in summary manner

with acts of contempt in ‘the face of the court’. This power is routinely exercised

in situations such as people in court behaving in a disorderly manner, witnesses

ignoring instructions given by the judge (eg not to give inadmissible evidence),

and other behaviour that undermines the dignity or authority of the court.

5. Some parts of the common law power have been codified in statute. The

attendance of witnesses is such an area. Criminal Procedure (Attendance of

Witnesses) Act 1965. Section 3 states:

‘3. –(1) Any person who without just excuse disobeys a witness summons requiring him to

attend before any court shall be guilty of contempt of that court and may be punished summarily

by that court as if the contempt had been committed in the face of the court.

(2) No person shall by reason of any disobedience mentioned in subsection (1) above be liable to

imprisonment for a period exceeding three months.

I will refer to this Act throughout the following advice as ‘the Act’.

6. The primary issue in this advice is whether this section should have governed

BISHOP’s case, or whether there are grounds to avoid the maximum penalty set

down. It is my view that the Act should plainly have defined the ‘offence’ and

regulated its sentence.

BACKGROUND

7. BISHOP was a witness in an assault case (s.18 wounding). The Defendant in

that case (Vickers) struck another man with a pickaxe handle. The issue in the

case was whether Vickers was acting to prevent the complainant from attacking

a third party. BISHOP was an essential witness of fact for the Crown. Without

BISHOP, the Crown was in no position to prove that Vickers was not acting to

prevent an unlawful attack on anther. BISHOP knew both the complainant and

the Defendant Vickers.

8. The chronology attached deals with the dates and progress of the case. In short,

there were two hearing dates for BISHOP to attend, they were:

(i) A trial in July, at which BISHOP did not attend, and

(ii) A mention hearing in August set down at the aborted trial as a return date

for summonses issued for BISHOP and the complainant. The

complainant did attend court in answer to the summons in August -

BISHOP did not.

9. There were, therefore, two potential acts contempt, the first being non-

attendance at the July trial; the second possible contempt was for not attending

the Mention hearing in August in answer to a summons to do so.

10. The court heard evidence in relation to both the July trial and the August

Mention. The evidence relating to the August Mention was heard first. Two

officers gave evidence of their efforts to leave messages at BISHOP’s mother’s

address during a 10-day period leading up to the August hearing. BISHOP was

never at home. The most compelling evidence that BISHOP had had notification

of the court date was that the day before the hearing, officers attended

BISHOP’s address and BISHOP’s mother called through to BISHOP and said

that there was an officer on the doorstep saying that he had to attend court.

BISHOP’s case (and the only dispute) was that in the whole conversation, he

was only told that he had to attend court - he was not told when.

11. Then there was evidence about the July trial. It was confirmed that the witnesses

were staggered, and that BISHOP was not warned to attend until 2pm on day

two of the trial. Furthermore, BISHOP might have been told not to attend on day

two of trial (which was his appointed time) because of problems with another

witness on day one. BISHOP had always said that he had been warned to attend

day two, but that that instruction had been cancelled by a later telephone call.

12. Given the evidence that BISHOP’s order to attend may indeed have been

cancelled, the learned Judge, having heard representations, accepted that the

court would not consider the July date any further, and BISHOP was not called

upon to defend his non-attendance.

13. That left the issue of whether BISHOP had had notice of the August hearing.

The evidence against BISHOP was strong, and HHJ Dean had no hesitation in

finding that the officers had done enough to inform BISHOP of his duty to

attend in principle, and had managed to communicate the date in particular. It

followed that BISHOP was in contempt of his duty to attend court at the August

Mention. Having made that finding, HHJ Dean did not proceed directly to

sentence, but adjourned to 22nd December for pre-sentence reports to be

prepared.

14. The sentence passed after the consideration of those reports was one of six

months imprisonment. I now consider and advise on whether the sentence was

subject to a statutory maximum, which has been exceeded, and whether or not,

in any event, the penalty is excessive.

WHETHER THE SENTENCE IS UNLAWFUL

15. Due to the summary nature of the hearing, the question of whether the

proceedings were under statute or under common law was not addressed until

the sentence had been passed. There was no contention that proceedings per se

were lawful.

16. Reading the section from the Act set out in paragraph 5 above, the section would

appear to deal with precisely the circumstances of this case. The July trial might

have been different since there was no summons for BISHOP for that hearing,

but as I have described, the issue of the non-attendance at the July trial had been

resolved in the BISHOP’s favour by the time of sentence.

17. When HHJ Dean passed the sentence of six months; I submitted that the

maximum penalty was three months on account of s.3 of the Act. HHJ Dean

indicated that he was passing sentence under his inherent powers under the

common law, and that the Act did not apply in this case.

18. I understand HHJ Dean to have given the following reason for finding that the

Act was not applicable to BISHOP’s case. That is that the course of conduct of

BISHOP was too long and protracted to be described as simply ‘disobeying a

summons’.

19. It is my respectful view that HHJ Dean has erred in regard to this reason. I make

this submission for 2 reasons:

(i) The reasoning behind the sentence (i.e. that there was a more protracted

and deliberate avoidance of the police than is described in the Act as

‘disobedience of a witness summons’) was a wider reasoning than the

investigation that preceded it. The court should be bound to sentence in

accordance with the ambit of the evidence heard.

(ii) Even if it were proper to make a finding that BISHOP had been wilfully

and persistently avoiding the police, s.3 of the Act still applies to the

case. The avoidance of the police should be looked at as an

aggravating feature of the contempt. It is not a separate contempt.

There is authority for this position, which I deal with below.

I will consider these arguments in more detail.

The justification of the sentence did not reflect the nature of the evidence

20. I make two propositions about the proper factual ambit of sentence in the case.

The first is that the court was bound only to deal with failing to attend the

August Mention, and the second is that the hearing about the August Mention

was about whether BISHOP had had notice of it – not whether BISHOP was ‘on

the run’ or involved in any wider malicious avoidance of the authority of the

court.

21. It is certainly the case that the enquiries about BISHOP’s non-attendance for the

July trial was concluded in BISHOP’s favour when the witness called to deal

with the events of the trial conceded that it was perfectly possible that BISHOP

did not attend as a result of instructions given to him on the telephone by the

Criminal Justice Unit. HHJ Dean accepted the defence submission on the point,

and when BISHOP was called, he did not give evidence about the trial in July,

nor was he asked or challenged about that date. Any sentence must be confined

to reflect the non-attendance in August.

22. So far as the evidence about the August hearing is concerned, the court heard

that a number of messages had been left at the house, with members of

BISHOP’s family in the ten days leading up to the summons date. All my

questions, and indeed all my submissions on that period of time related to the

single issue of whether the police had effected service of the summons or not.

23. The court heard evidence that BISHOP was one of eight children and two adults

living in a house with only a few bedrooms. BISHOP was eighteen and to ease

the pressure of space, he often stayed with his girlfriend’s family. The questions

put to BISHOP seemed to reflect an enquiry about whether any of the messages

left at his mother’s address had reached him.

24. HHJ Dean asked very few questions of any witness, and the Crown conducted

the cross-examination on the court’s behalf. The Crown sought only to establish

the point about notice of the summons, and did not appear to be seeking to

establish that BISHOP was pursuing a wider and more malicious course of

conduct of deliberate evasion.

25. Any purported reasons given by HHJ Dean to take the sentence outside of the

ambit of the Act did not reflect the enquiry that preceded it. There was no

evidence of where BISHOP was over the ten days preceding the August

Mention, other than BISHOP’s evidence that he was staying with his partner and

friends to relieve the pressure of space at his home. HHJ Dean did not cause any

question to be put, or enquiry to be made to go behind BISHOP’s account.

26. It is my respectful view that the only criminality properly alleged and proven

against BISHOP was that he disobeyed a summons to attend court in August.

BISHOP attempted to argue that he did not have notification of the requirement

to attend, and he failed to establish this defence. The sum of the evidence heard

fell within sort of enquiry described in S.3 of the Act.

Avoiding the service of a summons remains within the scope of s.3 of the Act

27. There is case law to the effect that even when one is ‘lying low’ to attempt to

avoid the service of a summons, it is still perfectly correct to punish a witness

who then fails to attend under s.3 of the Act. These were the fact in the case of

R. v. Yusuf [2003] EWCA Crim 1488.

28. In the case of Yusuf, the Defendant disobeyed a summons having been found to

be ‘deliberately lying low’ (per Lord Justice Rose) in an attempt to avoid the

summons. The Crown Court Judge at first instance passed a sentence of three

months, deeming that to be the maximum in the case by virtue of the Act. The

Court of Appeal worked from the same presumption, i.e. that this case was

governed by s.3 of the Act, and that three months was the maximum penalty.

The Court of Appeal thereby endorsed the use of s.3 of the Act, notwithstanding

that there had been a finding that the disobedience of the summons was

accompanied by an attempted avoidance of the summons.

29. There is a startling similarity in the Yusuf case and the instant case in that in

both cases the Defendant was away from the home address given, and both

Defendants only received notice via telephone calls from their mothers. Both

courts found that this constituted proper service, and that the Defendants knew

of their obligations to attend court. Both failed to attend in answer to summons.

There do not appear to be any grounds for distinguishing between Yusuf’s case

and the instant case, in terms of how the contempt for non-attendance should be

dealt with when there is an additional element of an attempt to avoid the

summons. The precedent is in favour of following the Act.

WHETHER THE SENTENCE IS MANIFESTLY EXCESSIVE

30. This Defendant is nineteen years old, and has no qualifications. He has a modest

set of previous convictions, three in total, all in the Magistrates’ or Youth Court,

and he has never received a custodial sentence before. He knew both the

Defendant and the complainant of the original offence, and expressed reluctance

to be involved from the outset.

31. It is relevant to a sentence of contempt to consider what the value of the

contemnor’s evidence might have been on the trial. I never saw the original trial

bundle, but I was able to speak to counsel instructed by the Crown to prosecute

the July trial. I understand there was CCTV available of the original offence, and

BISHOP was being called to give an account that, in many ways, contradicted

the CCTV evidence.

32. BISHOP was not an independent witness, he is not in any way articulate or

educated, and he was not a witness of good character. Whilst he had relevant

evidence to give, his evidence, even if freely given, may not have proven to be

compelling.

38. BISHOP was also not the only witness to fail to attend court. The complainant

failed to attend the July trial. If BISHOP’s non-attendance in August was the

only perceived obstacle to a conviction, the court might have waited for the

warrant to be executed and proceeded to trial with BISHOP in custody if

necessary.

39. Although BISHOP contested the contempt proceedings and was ultimately

unsuccessful, he was successful in part insofar as the court found in his favour in

relation to his non-attendance at the July trial.

40. A sentence of six months is twice that imposed in the case of Yusuf (as above).

In that case, the Defendant failed to attend trial in very similar circumstances.

The offence was murder, and he had apparently heard a confession. In that case,

the trial was not dismissed, and Yusuf eventually gave some evidence, but

nonetheless the actual disobedience was similar, the case was much more

important, and his sentence was one of three months.

41. Even if the court is against the suggestion that the maximum penalty is

determined by s.3 of the Act in law, in all the circumstances six months is

excessive, and would make this sentence inconsistent with others of a similar

nature where the court has been bound by the statutory maximum.

CONCLUSION

42. It is my advice that Robert BISHOP should appeal to the Court of Appeal by

way of the Administration of Justice Act 1960 s.13 on the grounds that HHJ

Dean failed to take account of s.3 Criminal Procedure (Attendance of

Witnesses) Act 1965 and thereby passed a sentence that exceeded the statutory

maximum. In the alternative, the sentence was manifestly excessive.

BPP Chambers

68 – 70 Red Lion Street

BVC: ADVOCACY MANUAL

PART TWO

WITNESS HANDLING AND SPEECHES

Law School 85


1. CASE ANALYSIS

1.1 OVERVIEW OF THE CASE ANALYSIS METHOD

Any advocate starting a trial should have an idea of what he or she is going to attempt to achieve in the trial. The advocate’s aims and objectives for the trial should be arrived at before the trial starts. This might appear self-evident, but in practice many advocates approach evidence on a ‘suck it and see basis’ and see what they end up with by the end of the trial. All the reputable providers of advocacy training condemn this approach. Whilst advocates need to be flexible and able to adapt to evidence as it is given, the better advocates are those who have analysed the evidence in a case, and have a clear strategy for achieving a verdict or result in their favour.

The ideas that are used in the pre-trial preparation arena are:

(1) Case analysis This is the critical analysis of a case before the trial that informs and directs the advocate towards their case theory.

(2) Case theory This is the advocate’s concept of what the case is about and how the advocate proposes to sell their case to the tribunal. Having arrived at a case theory, the advocate can then devise a trial strategy plan.

(3) Trial strategy plan This is the advocate’s plan for how to manage and control the witnesses and their evidence so that the advocate can extract from that witness the evidence that will feed their closing speech and feed their case theory.

Case analysis is taught in slightly different ways by different institutions. Some institutions (most notably the Inns of Court) encourage practitioners to arrive at a case theory after a written analysis of the facts of a case. The system that we promote involves the advocate arriving at a provisional case theory having read the papers, and then testing, challenging and reviewing the case theory in light of the evidence. What follows is an overview of the stages of the process that we recommend.

[Preparation Read the papers thoroughly and review the law that governs the case]

Stage one Identify the key points that you would like to make in a closing speech in the case. Try to reduce what you think the case is about into a short list of propositions, which, if accepted, would lead to a verdict or judgment in your favour. This synopsis of your case is called your ‘case theory.’

Stage two Take each of your prospective conclusions/arguments, and work out which facts

Law School 87


tends to support the elements of your case theory, and which facts tends to contradict those elements.

Stage three Review the source and quality of the facts that work for or against you. Identify how sure you think you are that that fact will be given in the witness box and what weight you think it will carry.

Stage four Having looked at the facts, review your initial case theory, and see whether you are really likely to establish your case at the trial. Rework your propositions/arguments until you are comfortable that you have enough sufficient evidence to make the point you want to make, and to counter the evidence against you. Make sure that each element of your case theory assists a logical and cohesive whole.

Stage five Review and check your final propositions very carefully with your instructions and with the law. Make sure that your case theory comports with the law and with your instructions. You may need to revise the case theory again to make sure that it is consistent with your instructions and is legally sound.

Stage Six Prepare your trial strategy plan. Now that you have identified your arguments, and you have identified the facts that support your case and those that do damage to your case, you can begin to put together a plan for how you are going to tackle each of the witnesses to make the evidence come out in the most advantageous manner.

1.2 STAGE ONE – ARRIVING AT YOUR PRELIMINARY THEORY

In stage one, you take all the evidence that you have read in the case, and you begin to attempt to distill it into some form of short and cohesive argument that will inform your approach to the trial and to the witnesses.

You should start your considerations by casting a wide net over the case, and by thinking through any possible interpretation of the case. Think widely and expansively at the beginning – you don’t want to miss anything by being too blinkered about your perception of events at this early stage.

Visualize in your mind’s eye the key events and try and build up a logical and practical view of events which you think would stand up to testing by the other side.

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Debate the issues in your mind and discard the arguments that on reflection appear groundless and unsustainable. Challenge yourself critically and put the points against you and see if you can come up with an answer for them.

Begin to write down some of the arguments that you consider may end up being a part of your final theory of the case. The better you have analysed the facts at this early stage, the less you will need to review your theory.

Try to refine your theory down to a manageable number of simple and defined arguments. There is no problem at all at this stage in having some alternative propositions. The idea is that you will analyse which propositions have the support of the evidence, and you may well wish to start with more than one variant of how you think you should put your case, and see which one fares better in the review stages.

Once you have done this, you have reached the first draft of your theory of the case. You have been dealing with impression, argument and conclusion, and this MAY have led you to the right theory of the case, but now you need to test the theory with the facts.

1.3 STAGE TWO – TESTING THE THEORY WITH FACTS

Take your propositions, and re-read the case. As you go through the case again, you can start to make lists of the facts in the evidence that either tend to support or contradict the case theory that you had originally come up with.

You may find that you need to amend your case theory right away as it becomes plain that although it may appear that something might have taken place for the reason you thought to argue, you just don’t have any facts to prove it.

The purpose of this stage is to see which arguments are really grounded in fact. List the facts on both sides of the argument. You may find that by slightly altering the argument, you can neutralize a fact against you or even bring it onto your side.

In practice advocates always need to reassess and revise a case theory. If the initial case theory was poor, it will need more revision than if it was good, but the fact remains that advocates do need to get into the practice of revising and updating case theory throughout the process of disclosure, conference and trial. This is just the first revision point.

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1.4 STAGE THREE – REVIEW THE SOURCE AND QUALITY OF THE FACTS

Having made a list of the facts in favour of, and facts against a particular proposition, it is worth reviewing the source of the facts, and the expectation that those facts identified on the papers will emerge as credible evidence. In civil cases, once a fact is given in a witness statement or affidavit, the fact will, in almost all cases, become evidence at trial without more ado. This is not the case with crime where the witness will have to give the evidence in the witness box.

In crime in particular, there may be issues about the admissibility of the evidence, there may be a question about whether witnesses will attend, and if there are defence witnesses, do the defence want to risk calling the witness. Also, the advocate needs to consider whether the evidence will be credible in light of the known character of the witness.

In this stage of the analysis, the advocate should be looking to enquire deeper still into the merits of the proposed case theory by looking not only at if there are facts in support, but whether those facts are likely to become evidence in the trial and whether that evidence is credible. As with every other challenge and review of the case theory, feel free to amend and alter the case theory to maximize the evidence in support and neutralize the evidence that contradicts.

The practical consequence of this part of the analysis is often that the advocate will need to go back to the lay client in conference to ask about the credibility of some of the characters involved. Clients will often say ‘what are my chances of winning?’ and the answer to that is quite often dependant upon the credibility of the witnesses for the other side. The Defendant routinely has the advantage over the advocate of knowing the character of the witness for the other side, and it is sometime necessary to ask the client to give you an honest and frank idea of how witness X is likely to sound when giving evidence.

So wherever possible, it is a good idea to analyse the facts in light of any intelligence you may have about the credibility, reliability, and admissibility of the evidence in the case. As always, make whatever adjustments you need to in light of the analysis to the case theory so that it does not break either of the two following golden rules:

A case theory should avoid, wherever possible, asking a credible witness to be disbelieved.

A case theory should avoid, wherever possible, asking an incredible witness to be believed.

1.5 STAGE FOUR – REWORKING THE CASE THEORY

You may have found that during the last two stages you have changed and amended parts of your case theory. You need to check that you now have a cohesive whole, where each of the component parts of the theory build up towards a complete picture that you are confident gives you the greatest chance of winning the trial available.

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It may be that you looked at some alternative positions, and that you reviewed each of the alternative positions in light of the facts. You will now need to consider which line to take, or how to play it if you are going to attempt to run an alternative position. You should be in a position to formulate quite a strong sense of where your case is going and the evidence upon which your case theory depends. Make sure at this stage that the component parts of the case theory are all working together and that the overall picture has as much logic and common sense operating in its favour as possible.

This then will form your theory of the case, and this is the basis on which you can now plan your trial strategy – subject to 2 further checks.

1.6 STAGE FIVE – CHECKING YOUR THEORY AGAINST THE LAW AND YOUR INSTRUCTIONS

Hopefully you will have started with a case theory that properly comports with the law, and is constructed on the basis of the instructions that you have actually received. If you have revised the case theory along the way, the chances are that you are still within the law and within your instructions – but it is best to check!

No advocate wants to be in the position of putting forward a case that is fine on the evidence, but does not actually give you a case that is sufficient in law to get the judgment or verdict sought. The area of law may be very straightforward, and this check may be an irrelevance, but in some cases the legal analysis is extremely important and subtle changes in evidence can change whether the case succeeds in judgment or not. Make quite sure that any propositions in law are well founded and that the case theory brings the evidence and the legal arguments into line with one another.

The final check is just to ensure that the case theory does not depart at any point from your instructions. Sometimes the client’s own instructions are the ruination of a perfectly good case, but you are only there to run the client’s case, not the case that you might have been able to construct for them. There may be a degree of flexibility in the way that you are instructed, but at the end of the day you cannot disregard your own instructions.

1.7 STAGE SIX – PREPARE A TRIAL STRATEGY PLAN

There is no right or wrong ‘trial strategy plan’ and, in all honesty, most practitioners do them in their head, or make jottings all over the brief, or all over a notebook (or both).

We recommend a grid with the areas to fill in the following:

The proposition(s) that form the basis of the theory of the case,

The evidence for that proposition,

The counter evidence, and

A plan for how to present the evidence as compellingly as possible.

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An extract for how a trial strategy plan might look appears below. This is taken from the case of Ellis, which we are working on in the SGS’s. It just looks at a couple of propositions for the prosecution.

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Proposition Evidence for Source Other side’s likely approach to the

evidence

Plan for trial

TE has historic dislike for OC

TE lost AC to OC OCACXX of TE

Not much for defence to say. ‘Water under the bridge’ is their best response?

AC holds the key. Need to give her opportunity to show that TE was quite deeply jealous.

TE disrupts OC’s wedding.

OCACXX of TE

Will say that evidence cuts both ways, OC angry at TE too.

Let OC deal with this incident in XIC, hope that he comes over as reasonably calm about it. He got the girl at the end of the day. Attack TE in XX about how jealous he must have been to do this.

TE had no reason for being at the party other than to cause trouble.

TE turns up uninvited

OCACLN

TE unable to deny this, may say that he was not malicious but rather he was made careless by the influence of drink and drugs.

Use LN to express how she was most uncomfortable about TE coming at all. Need her (as independent witness) to express just how inappropriate it was for TE to go to party.

Not in fancy dress

OCACLN XX of TE

As above. Will also surely argue that OC got annoyed by TE.

Want to paint a picture of just how out of place TE looked, and by inference, just how brazen he was being by staying at the party. OC and AC need to describe the effort that people had gone to. Drop the point quickly if other guests were not in fancy dress either. Should XX TE about how he could he could be so brazen.

TE – Tom EllisOC – Ozay ChettyAC – Audrey ChettyLN – Lisa Naylor

XIC – Examination-in-chiefXX – Cross-examination

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2. SPEECHES

2.1 THE OPENING SPEECH

2.1.1 Civil cases

There is little use for opening speeches in civil cases. The judge will have pre-read the papers, including potentially a skeleton argument. It will be rare for there to be any press or other interested party in the public gallery who would benefit from an opening address before the evidence.

There is no rule as to whether the judge will hear an opening speech or not, and so, rather tediously, the advocate will normally have to prepare one, but will seldom have to deliver it!

If the judge does call for an opening speech, the primary purposes of the speech will be to:

Introduce the parties.

State the issues in the case that need to be determined in the course of the trial.

Indicate where the parties are agreed, and indicate which issues are already resolved between the parties and can be accepted by the judge.

Indicate your position in relation to the issues in trial – but do so shortly and succinctly.

Indicate whether any issues of law are likely to be raised in the trial.

2.1.2 Criminal opening speeches

In the magistrates’ court, opening speeches made by the prosecution tend to be quite short. They act as a digest of the upcoming case, giving the Bench of magistrates or District Judge a short synopsis of the case. It is helpful to indicate what the issue is in the case (eg identification) if the issue is known.

Opening speeches in the Crown Court require significantly more art, since the tribunal of fact is a jury, which will be more likely to really take account of the first speech of a court case.

It is very important to strike the right balance with a jury. Juries hate to be patronized, but it is right that they have little experience, and so you must avoid running ahead and leaving the jury behind.

The best way to conduct an opening speech to the jury, is to start as simply and directly as possible. The jury will be eager and curious. Use this natural enthusiasm and let the jury know very early on what the case is about. Conversely, the jury may be a little apprehensive about ‘the law’ and if you start your opening with a digest of law, you may well bring all the juryman’s worries to the fore.

So, we recommend that you start simply, start dynamically, and start on the facts, not the law.

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You might simply open with a statement such as ‘members of the jury, you are here to try a robbery.’ This is a simple, informative and tangible start. Then you simply build the picture up piece by piece, for example:

o The type of robbery involved in this case, is what is often called a ‘mugging’. The prosecution’s case is that this Defendant mugged a man on a train of £70 and his mobile telephone. He did not do this alone. He was with another man, and that man has already accepted conducting the mugging. This case is about whether this Defendant was involved, or whether he was not. The robbery took place on an empty train. Two men approached the victim, and they started to talk to him….’

Try to only introduce one point at a time. If you throw an opening sentence at the jury that introduces a whole raft of names, places and legal principals, you could lose some of the members of the jury very quickly. You will see in the example above, that the names of the victim and even of the Defendant have not been introduced yet. This is quite deliberate. In this case, the advocate has decided to paint the picture as simply as possible first. Why do the jury need to know the names right away? Once they have a clear picture of how the prosecution says that the offence takes place, then the names, dates, places and all the detail can follow. Do not get bogged down in detail from the outset.

By taking the facts of the case first, the hope is that the jury will feel that they are on top of the case, and will be ready to listen to something on the law. It may be that you need to explain the elements of an offence to the jury. You can take each element of the offence and relate it back to the account that you have just given, eg:

o I have mentioned that this case is a ‘robbery’ and I need just to explain what robbery means in terms of the law. The first part of the offence is that property must be stolen. There is no dispute in this case that property was stolen, it is a question of who stole it. The second part of the definition is whether that theft was accompanied by the use or threat of force…’

In the above extract, the advocate has dealt with the theft part of the offence very briefly, and omitted such elements as ‘intention to permanently deprive’. This is because, in this hypothetical scenario, there is no dispute that property was stolen. Do not create work for the jury by introducing concepts that are not actually relevant to the case in hand.

It is usual to give the members of the jury a copy of the indictment for their reference, and explanations of the law are often performed whilst the members of the jury have the indictment in front of them.

There is no checklist for what must be in an opening speech. It would be normal to review the facts and the basic applicable law. Thereafter, some counsel like to tackle the burden and standard of proof. Otherwise, it depends on the case, but in general terms, do not seek to say too much or to promise too much from the evidence, as you may be made to look a fool if the evidence turns out to be less impressive than you told the jury it would be.

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Defence opening speeches are so rare that we do not seek to deal with them here.

2.2 THE CLOSING SPEECH

You should know before you start the case, how you would ideally like to close it. Your closing speech is, essentially, the expression of your theory of the case. All that is added between the planning and the end of the trial is the opportunity to add the evidence that came out in trial to the theory. Hence, you might have had the theory that an eye witness was honestly mistaken about what he saw. You should make the point, and then add the evidence that came out in trial to support the theory, for example:

o ‘Members of the jury, you heard Mr Bloggs say that he thought that he saw the Defendant throw the first punch. The defence suggests to you that he may be honestly mistaken about that. You will recall the evidence he gave about the circumstances in which he made that observation. There were many difficulties, for example, he accepted that he had drunk 6 pints of larger earlier that night…’

It is generally a better technique to make the point first and then explain why you say so, rather than review the evidence before you come to a conclusion. In the example above, the defence makes the proposal that the witness may be wrong, and then goes on to review why that is a supportable proposition on the evidence. Putting the proposition first is recommended for all tribunals. If the tribunal of fact is a judge, he or she will be anxious to know the point that you are trying to make, and it is best to make it first and then explain why that point is valid on the evidence. If your tribunal is a jury, you may find that their attention will wander unless you are plain and up front and tell them what it is you are getting at.

When you are addressing a judge, be careful to be very concise. You will normally get some idea from the judge how he or she is thinking. Be responsive and do not tire or irritate the judge by blundering on with a submission ignoring whether the judge is with you or against you on a particular point.

When you are addressing a jury, watch your tone of voice, and do not talk down to them. It is a trite thing to say, but true enough, that juries are employed to bring common sense to a case, and you can rarely do better than to appeal to a jury’s common sense.

3. EXAMINATION IN CHIEF

3.1 TO CONTROL OR NOT TO CONTROL – THAT IS THE QUESTION

The aim of examination-in-chief is to elicit from your witness evidence establishing and supporting your case. There is a real conflict in any

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examination-in-chief, because of 2 rival and competing aims and desired outcomes. The 2 outcomes can be summarised as follows:

As an advocate you want the witness to be logical, ordered, precise, structured and to the point.

You also want the witness to persuade the tribunal of fact, and to be persuasive, the witness should use their own natural form of expression, their own inflection and to take the story at a pace and style that will allow them to express themselves in a natural and engaging way.

Both of the above 2 aims are laudable – but here is the catch. If you control the witness to promote order and precision, then the witness tends to speak less freely and less expressively. The reverse is plainly going to be true in many cases too. The more freely witnesses express themselves, the greater the danger that they will not be so ordered and logical. Advocates hope that their witnesses will be able to be precise, ordered, logical AND confident natural and expressive – but this is a lot to ask unless the advocate is an expert in good examination-in-chief.

As a general rule you find advocates have a bias towards being either very good at keeping witnesses ordered, measured and precise (and examine all their witnesses that way), or very good at giving the witness a good open platform to express themselves. The real skill is combining the techniques of BOTH and varying the examination style to suit each case.

So it seems the key to a good examination-in-chief is knowing when and how to take control of a witness for the purpose of ensuring that the witness is ordered and precise, AND knowing how to give control back to the witness and facilitate the witness expressing themselves in a natural and unprompted way.

We will come on to look at the techniques for questioning and for taking control and handing control back again, but before we get there, we need to consider WHEN it is appropriate to do so.

3.2 WHEN TO TAKE CONTROL, AND WHEN TO GIVE CONTROL

Before you call any witness, you will need to consider what that witness is there to do. In basic terms, the witness is likely to be doing one or other (or a combination) of the following:

Educating the court about the facts within the witness’s knowledge Persuading the court that the witness is a reliable narrator of fact Persuading the court that the witness is a reliable narrator of impression,

emotion, and instinct.Looking at each of the categories above in turn.

3.2.1 The witness that educates the court

The first category will apply in its purest form to witnesses who are likely to be believable and credible without the advocate having to attempt to prove this. For example, a doctor may be called for an expert opinion or clarification on a matter on which he or she holds some expertise. The evidence is not going to call for the witness to give any form of emotional narrative or for the witness to

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seek to prove that they are honest. The honesty of the witness is taken for granted.

Sometimes police officers in criminal cases will fall into this category. The officer makes a notebook entry of all the events that took place, and there may be very little challenge about what the officer has noted. In this situation, the evidence is largely educative and the examination-in-chief style can reflect this.

When the essence of the evidence is educative and the best outcome for examination-in-chief will be for the advocate to ensure that the evidence is adduced clearly, succinctly and logically. For this sort of witness, there is little danger in the advocate and the witness sharing the court’s attention and for the advocate to be pro-active in directing the witness, asking narrow and closed questions, and leading whenever permissible.

3.2.2 The witness as a reliable narrator of fact

The next category of witness is the witness who is likely to be honest, but there is a question about whether the witness is reliable.

Take for example a road traffic accident. Many road traffic accidents end up in litigation, with parties who are all absolutely good and honest people, but they argue hugely about what took place. This is because accidents by their very nature are unexpected and over very suddenly. The human memory is a complicated facet and prone to be unreliable in some instances. The witness to a road traffic accident goes to court to educate the court as to the facts of as the witness perceives them, BUT in order to win the case, it is usually necessary to persuade the court that this perception of the facts is actually accurate and reliable. For this to happen, the advocate will need to offer the witness the chance to give evidence that persuades the court of the reliability of the factual evidence. This will involve the advocate handing over a bit of control to the witness and allowing the witness to grow in stature and confidence in selling their account.

Taking this example further, let us imagine a case of two cars colliding on a country lane. BOTH drivers say that they were paying attention and that they were stationary at the point of collision. The fact is simply ‘I saw the other car and came to a halt before impact’. This fact is going to be given by both witnesses, and plainly they can’t both be right. The advocate in this case is going to have to get more from the witness than a plain statement of fact. If the witness is asked to explain in a more full, open and unrestricted way what took place, the witness might say something that really gives the fact that ring of truth. The witness may give an answer along the following lines.

‘I came to a halt and for a moment I just sat there in my car. It can’t have been for more than a split second, but time seemed to slow down. I saw the other car coming and I thought to myself, ‘Oh my God it’s going to hit me’. I watched the other car and willed it to stop, but it was plainly going too fast and there was nothing that I could do but just to sit and watch and I brace myself for the inevitable impact.’

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The witness has given evidence that is a combination of fact and a narrative of the witness’s impressions and mental reaction to what is going on. The first sentence is the simple statement of fact, and the advocate who controls their witness too tightly might think that having established the fact, it is time to move onto the next fact. But the witness has gone on to give much freer and unconfined evidence, and as a result has expressed the agony of the moment that many people feel moments before an accident. By giving this evidence the tribunal might think that the witness’s factual evidence a supported by the witness’s instinctive mental reaction to the facts that he has claimed as being true.

Judges often refer to whether the witness’s evidence had ‘the ring of truth about it’, and as an advocate it is up to you to let the witness express not only the fact, but also the humanity of the witness that allows the fact to register as being narrated accurately.

An advocate really needs to know whether the witness is going to be able to give any evidence over and above the statement of mere fact that is going to assist the case. Ideally, this is what the advocate tries to achieve in conference.

3.2.3 The witness as a narrator of impression and emotion

Sometimes a witness is actually called for the very purpose of giving a highly personalised account of thought, feeling, impression and emotion. If this is the case, the advocate must be prepared and able to create the environment where the witness is able to do so.

The sort of case where the witness will be asked to perform in this manner is most usually where the witness is a ‘victim’ in a criminal case where the offence charged relies upon proving that someone was in fear, alarm or distress etc.

In this sort of case, the mental dialogue and emotional reaction to an incident is not a collateral matter, called only to assist in establishing veracity (as in the section above), but rather the mental dialogue is the very reason for calling the witness at all. There are many prosecutions under the Protection from Harassment Act that involve the victims of harassment explaining in terms the effect of the Defendant’s behaviour upon them. This narrative will lack any real impact if the witness is being too tightly controlled and does not have any confidence that they are permitted to really express themselves.

3.3 QUESTION TYPES

In general terms, you pick a question type to try and dictate the type of answer you want. If you want the witness to be under your control, you will want to ask narrow, focused and specify questions. If you want more of a narrative, then you will want to ask rather more open questions. There are 2 main divisions to think about. The first is leading and not leading, the second is open and closed. These are dealt with below.

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3.3.1 Leading

A leading question is any question that seeks to DIRECT, INFLUENCE OR CIRCUMSCRIBE a witness’s answer by the way the question is phrased. The most obvious example is a question that actually gives the answer as part of the question. Say, for example that there is a suggestion that the man accused of robbery had a tattoo. The really leading question would be:

Do you remember whether the man had a tattoo?

This question specifies the answer hoped for (i.e. that the man had a tattoo). The next level down would be to ask:

Do you recall any marking on his arm?

This is nearly as bad. The word ‘tattoo’ has been removed, so the witness will have to give this evidence, but the prompt is very evident. The next level down would be to ask:

Did he have any distinctive features?

The question is becoming much more acceptable now. The only remaining area of potential objection is that the question does, perhaps, presuppose that there was a distinctive feature - otherwise why ask this question?

This leads us to the important conclusion that ALMOST ALL questions are leading to SOME EXTENT. Even the great clichéd question ‘what happened next?’ presupposes that something else did happen and influences the witness away from the possibility of the witness saying that NOTHING happened next. It is reasonably helpful to consider that a question is either leading or non-leading but BETTER STILL to consider that most questions are leading to some degree, the question is whether the degree is acceptable or not.

The rules on leading and not leading

The primary rule is that an advocate must not lead on any matter IN ISSUE. If there is a dispute of fact between the parties to litigation, then the party seeking to prove the fact must have their witness give the fact without any prompting or without influence being exerted.

There is a sliding scale of what is in issue in a case and what is not. It may be that a fact is hotly contested, or it may be that there is a mild disagreement about the precise detail of the fact, or it may be that the other party really has no view on whether that fact is true or not. The more hotly contested the fact is – the less leading the question must be.

The second rule comes at the other end of the spectrum. It is generally GOOD practice to lead on the basic UNCONTROVERSIAL FACTS. If all the prosecution witnesses have said that the event took place on the 5 th

November and the Defendant agrees that the event took place on the 5th

November there is no need at all to avoid leading on the date and an advocate can say to the witness

I understand that you were part of an incident on 5th November?

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By the end of the prosecution case it should be very plain which facts are agreed and which are in dispute. Indeed it is often the case that a trial begins to accelerate as the essence of the factual dispute becomes clear and all parties become increasingly confident in leading on the issues that are not controversial.

3.3.2 Not leading

The great bulk of examination-in-chief should be made up of questions that do not suggest the answer in the question. The general way to accomplish this is to ask questions that start with the words, ‘how’ ‘what’ ‘why’ ‘where’ ‘who’ ‘when’. This formulation tends to let the witness supply the answer.

Questions that start ‘did’ are more dangerous, since what will normally follow the word ‘did’ is a statement that the witness is asked to comment upon. For example, ‘Did the man then hit you?’ This is a proposition, and the advocate, not the witness, has raised the idea that someone hit someone. Let the witness give the information by asking a question such as ‘What did the man do?’ Questions that start with ‘Did’ can be essential, usually not to establish a fact in the case, but to clarify whether the witness can take the evidence any further, eg,

Q: What was happening outside?A: There were 2 men shouting.Q: Do you recall what they were shouting about?

The last of those questions is not suggesting the answer but just checking whether there is any more evidence to explore.

Simple questions are almost always best. When used at the right time with the right emphasis, one of the most devastatingly effective questions in examination in chief is simply ‘Why?’

The other way to avoid leading is not to ask a question at all, but rather INVITE the witness to NARRATE, eg:

Could you tell the court…? Please could you explain…? Please could you describe…? Could you show the court…?

3.3.3 Open and closed questions

Open and closed questions are distinct from leading and non-leading, although they are often confused. The idea of an open question is simply one where the question offers the chance to answer very broadly. This works down to a very narrow question. Here is an example of the sort of range. If we assume that it is not in dispute that the witness was at work at the bank in the afternoon when an incident took place, then none of the questions are objectionable, even though they start to lead as they get more narrow. So, from open to narrow, the range of questions might go as follows:

Can you describe what you were doing on January 25th this year? What were you doing on the afternoon of January 25th this year? Where were you on the afternoon of January 25th this year? Were you at work on the afternoon of January 25th this year?

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The first question invites the witness to describe the whole day – the last question should simply be answered ‘yes’. If the date is in issue, then all these questions are leading as the question supplies the controversial date, and the advocate would have to start by asking about the event, and then ask the witness to say what the date was. As we have accepted that the date of the incident is not in dispute, then the questions cease to be leading in any objectionable way.

3.4 SEPARATE THE ISSUES FROM THE CHRONOLOGY

The easiest way for any tribunal to take in an account of an incident is if the incident is related CHRONOLGICALLY. You should be quite strong in telling the witness how you would like the evidence. For example:

o ‘Could I ask you to explain step by step what you recall of what you saw take place between Smith and Jones.’

By asking for the account ‘step by step’ or ‘stage by stage’ you are asking for a chronology. You can maintain this with questions such as,

o ‘At what stage did that happen?’

o ‘How long did that take place for?’

Hopefully you will only need to ask a few questions in this way before the witness understands from you that the account should be very carefully ordered and chronological.

Given that you are looking to establish a clear order of events, it is best if you do not interrupt the chronological flow with other evidence. For example, it may be important to know about lighting conditions in an identification case. It is much better to establish the lighting conditions etc before you get the witness to deal with the sequence of events. This is really just setting the scene ahead of the action. You should do this clearly eg:

o ‘Before I ask you about the 5th November itself, could I ask you to describe the Faint Rat public house?’

There may be several items of scene setting that would be necessary to make the subsequent chronology run more smoothly, and the structure of the examination-in-chief might look as follows:

3.5 INSULATING A WITNESS

The advocate should also ‘insulate’ the witness from cross-examination. Many junior practitioners think that if there is a weakness in a case it is best left alone. This is rarely a good idea since your opponent will not leave the

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Issue 2T I M E L I N E

Issue 1


weakness alone, and if you leave it alone then you are effectively leaving an open door for your opponent.

There are basically 3 situations to consider. The first is where there is an evident weakness in your case. The witness has an explanation, but it is not a very good one. In this situation it would be best to allow the witness to explain himself in examination-in-chief. It is by far the best opportunity to allow the witness to tackle the weak area of his account and to do his very best to lessen the impact of the cross examination by dealing with the problem upfront.

The second situation is where the weakness is subtler and you are not sure that the other side will notice it. In these circumstances you will have to look at the odds. If the point is seen and taken then you may be in a worse position for not having allowed the witness to deal with it in the relative comfort of examination-in-chief. If the point is not spotted then you will do well not to raise the point of your own volition.

The third situation is where there is a weakness and the witness is absolutely dreadful and incomprehensible when trying to explain his behaviour in regard to this point. You may take the view that you will not be able to get any sense out of the Defendant and you are just going to leave the point for your opponent to struggle with.

3.6 DON’T COMMENT

You may not mean to actually pass comment, but any incidental remark such as ‘thank you’, ‘I see’, ‘right’, ‘good’, or ‘OK’ can be construed as comment. Even if the remark is incidental it is likely to irritate the court. Therefore saying ‘OK’ etc is irritating at best and professionally objectionable as comment at worst.

3.7 LET THE DEFENDANT COMMENT ON THE PROSECUTION’S CASE

In a criminal case, the Defendant is in the unique position in that he or she has heard the whole case. It is generally wrong to ask witnesses to comment upon each other, but in the case of the Defendant, this can be necessary for the sake of clarity. The court needs to know exactly what the Defendant’s response is to the allegations.

Let the Defendant give his account without reference to the prosecution’s case first and at the end put the actual allegations clearly and directly. For example,

o ‘You have heard that the crown allege that you threw the first punch. What do you say about that?’

This is not a leading question. The question is ‘what do you say about that?’ which does not suggest the answer.

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3.8 THE TECHNICAL ELEMENTS

3.8.1 Identifying a professional witnesses (rank and station etc)

Rather than asking a civilian his or her name and address, one would ask a professional witness their name, occupation and their place of work. The party calling the witness may be relying on that witnesses expertise, and if so, it may be helpful to ask the witness how long they have been in their chosen profession or job, and what their duties normally involve.

If the witness is a police officer in uniform, it would seem odd to ask their occupation, but some officers attend court in civilian clothes. Officers are all trained in giving evidence, and often it is enough to simply ask the officer to identify him or herself. The officer will reply with name, rank and number, and their current attachment (eg ‘I am PC 4155 Pacifico, attached to Gladbury Central Police Station.)

3.8.2 Memory refreshing documents

Lay witnesses normally have good memories for the subject matter of a trial, because usually the fact of litigation is quite unusual and memorable for the person involved. The witness is entitled to refresh his or her memory from their witness statement before they come into court. We will deal with the situation of what happens in court shortly.

With professional witnesses, especially police officers, the witness will often have forgotten the incident in all but the most vague impression, since the witness will have dealt with many very similar situations. The witness will need help at 2 stages. Firstly, the officer will need to read his or her statement before coming into court. This should remind the officer of the basic facts of his or her evidence.

The witness may also need to have access to their notes in inside court whilst giving evidence, and the advocate needs to know how to apply to allow this to take place.

In principle, witnesses should be discouraged from simply coming into court and reading out their statement. Too many prosecutors are lazy and allow this to happen. When a witness simply starts to read from the statement the evidence becomes very bland. The law provides little bar to a witness referring to their statement, but this does NOT mean that one seek to use the statement too readily.

Until the Criminal Justice Act 2003, a witness could only use an earlier written statement to help them in the witness box is that statement was made more or less contemporaneously to the events that the statement describe. This acted as an incentive for the police to make sure that records of what was happening in an investigation were made promptly. A typical scenario would involve an officer making an arrest, and as soon as the suspect was booked in the officer would go to the canteen and write up his notes. Witnesses would usually be contacted within a day or so the arrest and asked to make their statements. In this way, all the statements would be considered to be more or less contemporaneous and the courts would permit witnesses to use their statements in court.

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The need for the statement to be contemporaneous has been abolished in favour of a new (and lower) test. The new test now is that a witness can refer to a document in the witness box provided that the document provides a ‘substantially better’ account than the witness would be able to provide without it.

The relaxation of the memory-refreshing rule now means that the police do not need to take contemporaneous notes, and indeed recent experience anecdotally is that the police are becoming increasingly lax about when they take statements. We know of one case, for example, where the crown’s witness was 15 years old, and in his statement he described a fight that he had seen. The statement was made 3 months after the event. The witness asked to refresh his memory from this document in court at trial 9 months after the event. The statement was certainly not contemporaneous and so the request would have failed the old test. The crown argued that the statement was 6 months fresher than the witness’s memory at trial, and the witness was given leave to look back at his statement. However, the more fundamental question is surely whether that statement was reliable at all in the first place. The LAW does not require a prosecutor to establish that the memory-refreshing document is a reliable document, but we encourage advocates to seek to prove the value of the document on which they seek to rely as a policy of good practice (and one consistent with the code of conduct).

So, to summarise, the advocate MUST establish that the memory-refreshing document provides a ‘substantially better’ account than the witness’s memory alone, and that the advocate SHOULD be prepared to examine the circumstances of surrounding the creation of the document, so that the court can properly measure the weight of any evidence that is given as a consequence of that document being used to refresh the witness’s memory.

There are several reasons why a delay in making a statement could damage the value of the evidence that it contains. The main headings are as follows:

Contamination with another witnessWitness 1 is one of a number of witnesses to an incident. Witness 1 talks to witness 2 about what happened BEFORE making a statement. By the time the statement is made, witness 1 unconsciously includes details from what he has heard from witness 2.

Corruption of memory through the influence of an interested partyWitness 1 is witnesses an incident. BEFORE making a statement, witness 1 is called to describe what happened to someone who is not impartial. Witness 1 recounts the story in a way to accommodate the feelings of the non-impartial person and in doing so witness 1’s memory becomes corrupted.

Contamination of memory by other similar memoriesWitness 1 has set duties (eg taking breath specimens from motorists). Witness 1 is involved in an incident about which he makes a statement. Not much time passes before he makes the statement, but during that time he performs very similar duties on repeated occasions. As a result of the similarity of the duties, witness 1’s memory contaminates with other incidents.

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Corruption of memory due to the passage of timeThis one speaks for itself. But, be very careful to distinguish facts that corrupt quickly as opposed to those that corrupt more slowly. For example, if witness 1 is asked to recall the licence plate number of a passing car, this memory is so hard to retain that unless it is recorded almost immediately, one would not think that memory would be reliable. Other memories (eg the colour of the car) would last much longer before corrupting. Each memory is a bit like a bit of food that has a ‘sell by’ date! Advocates need to think about whether the statement has preserved the memory before the sell by date.

So, in advocacy terms, you HAVE to ask questions to establish that the memory-refreshing document is ‘substantially better’ than unaided memory, and the advocate SHOULD consider establishing whether the evidence in the document is afflicted by any of the possible considerations above. Both prosecution and defence should be alive to all the corruption and contamination points, and to raise them BEFORE the witness is given permission to refer to the document.

We recommend the following general template to gain permission to refer to a document in order to refresh memory. 1. Ask whether a document exists that might assist the witness’s memory2. Ask what sort of document it is (it will usually be a statement – but it

could be any form of document, e.g. a diary)3. Ask if the witness would be assisted by referring to the document for

DETAIL (i.e. not to give the impression that the document can become a script for the witness)

4. Explore WHEN the document was created since the passage of time is always going to a relevant factor

5. Explore any of the issues about corruption or contamination that might affect the quality of the evidence in the statement. This will vary from case to case and you will need to think which (if any) issues are relevant

6. Ask the witness to compare the quality of the evidence that is in the statement with the evidence that the witness would be able to give unaided.

Here is an example of the process in action. Let us suppose that the only issue that might arise out of using the statement is that the officer might have completed similar duties before making his statement.

Q: ‘Officer, in relation to this incident, did you make any form of note or statement?’

A: ‘Yes I did’Q: ‘What type of document did you make?’A: ‘I wrote a statement’Q: ‘Would it help you to refer to your statement for matters of detail?’A: ‘Yes Sir, it would’Q: ‘Could you then assist the court by saying when you made the

statement?’A: ‘The incident concluded at 11pm, and I started my statement at just

after midnight.’Q: ‘Did you attend any incidents between the one in question and starting

to write up your statement?’A: ‘Yes Sir’

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Q: ‘How similar was that in nature to the incident that you recorded in your statement?’

A: ‘It was entirely different’Q: ‘How would you describe the quality of your memory when you made

your statement?’A: ‘It was good when I made my statement.Q: ’How would you compare you memory when you made that statement

with your memory now?’A: ‘My memory then was lots better’Q: {To the court} ‘Might the officer have leave to refresh his memory from

his notes one any point of detail that he may not otherwise be able to recall?’

{Objections will be heard if there are any}

There is no magic formulation, and in practice if the advocate does not suspect that there will be any objection you may find that prosecutors tend to dash through the process by leading and without really going into any details about the provenance of the document. We encourage you to take the process carefully and fully.

3.8.3 Avoiding inadmissible evidence

For this, the advocate must prepare carefully. The witness may have written something in their statement, which is inadmissible. Classic examples include hearsay, or revealing the Defendant’s antecedents (or bad character more generally). A witness may also be tempted to perform a ‘dock identification’. Any of these could prove fatal to the trial, and if you have not controlled the witness it could be seen as your fault that the inadmissible evidence came out.

The easy answer is to go and see your witness and warn them that their statement includes evidence that they are simply not permitted to give. It is a very good idea to check with your opponent first, to confirm that there is no objection to your speaking to the witness only to instruct them to avoid giving the evidence that has been agreed as being inadmissible.

In addition to this, the advocate should also be listening carefully and be prepared to LEAD to avoid the inadmissible evidence. For example, if the witness is an officer who records a conversation with is hearsay, you should be ready to step in when the witness reaches that point and lead the witness past the problem, eg:

Q: ‘Officer, can I stop you there please. I understand that you then had a conversation. I do not want you to say what was said in that conversation. Can I ask you to carry on your evidence with what you did following that conversation.’

It may be that the indication that there was a conversation and X then took place, is going to be tantamount to letting the tribunal know the hearsay evidence anyway. If this is the case, a subtler approach will be required. It may be that the problem is what the officer hears: so ask a question that precludes the officer referring to that sense. Eg:

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Q: If I can ask you officer to continue, but only in reference to what you actually DID.

Or if the problem is that the officer has formed an inadmissible opinion, try:Q: Officer, without indicating what you thought about the Defendant, can you give evidence simply of what you were able to actually observe about him.’

It is simply a matter of anticipation and control. You must LISTEN to the witness and be ready to step in the moment you fear that the witness is going to say something that they should not.

3.8.4 Introducing plans and exhibits

Police officers will often have maps, plans, photographs or other real evidence to adduce in a case. The technique for making the object a piece of evidence is straightforward. Either you or the witness will have possession of the item. Accordingly, you will either have to pass the item up to the witness, or you will have to rely on the witness telling you that the item exists. What follows are the questions and answers for each of the different scenarios, both on the basis that the exhibit is a plan of the scene:

Q: ‘Officer, might I ask you to take a look at this document’A: ‘Yes’Q: ‘Can you identify what that document is please?’A: ‘This is a plan that I made of the scene’Q: ‘Please can you tell the court of the circumstances in which you made it?’A: ‘Yes, on the 21st, at about 3pm, I returned to the scene and I made a

sketch plan of the property.’ Q: {To the court} ‘Could the plan please become exhibit 1 please?’ {Objections will be heard if there are any}

If the officer has the exhibit, it would be as above save for the initial discovery of the document, which may be harder to fit in to the case without leading. This is rarely a problem, since existence of an exhibit is very rarely contentious in any way.

Q: ‘Officer, the premises at Laburnum Avenue, is there, to your knowledge a plan of the building?’

A: ‘Yes’Q: ‘Can you describe the circumstances in which that plan was made?’A: ‘Yes, I returned the following day to make a sketch plan.’Q: ‘Do you have that sketch plan with you in court today?’A: ‘Yes I do’{Officer produces sketch plan}Q: {To the court} ‘Could this please become exhibit 1?’{Objections will be heard if there are any}

If the exhibit needs to be described or explained, always get the person whose exhibit it is to describe or explain it. E.g. ‘Could you show us on the plan where you say you were when….’ An exhibit can be shown to more than one witness, but it must be entered into evidence under the procedure above first. This might affect the order in which witnesses are called. Sometimes, as the introduction of exhibits is so rarely disputed, the parties will simply agree that a

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document or thing is what the advocates say it is, and if the judge is happy with this, the exhibit need not be formally introduced in the manner described above.

4. CROSS-EXAMINATION 1 – FUNCTIONS & REQUIREMENTS

4.1 INTRODUCTION

Cross-examination has two basic functions. Firstly, through the cross-examination you can communicate what your case is to the tribunal of fact. This function only applies to Defendants and respondents, as these parties cross-examine prior to calling any evidence of their own. If you are the applicant, Claimant or the prosecution, the court will know what your case is through the evidence that you have called. If you are defending in a criminal case, the tribunal of fact will not pre-read the papers, and your cross-examination will be the tribunal’s first opportunity to hear what your case actually is.

The second function is to discredit the evidence given by the witness. This could be anything from gently raising a small doubt about the reliability of the actual evidence, to a full-scale assault on the reliability of the witnesses themselves.

In addition to these two functions, there is a requirement for the advocate to put their case. This will be dealt with in substance below.

4.2 USING THE CROSS-EXAMINATION TO COMMUNICATE YOUR CASE

As explained above, this function is really the preserve of defence advocates in criminal cases. In civil cases, the judge will have pre-read the papers, and will already know what your case is. In criminal cases, the prosecution leads its evidence first, and so the court will know the prosecution’s case before the prosecution advocate is called upon to cross-examine.

The prosecution witness will have had an opportunity to paint a picture for the magistrate(s) or jury, and this image will be the one very much to the fore. In your cross-examination, you need to begin to paint a picture of your own. You need to do this in such a way that you are not accused of making a speech, so take the process one stage at a time, and keep the witness involved, but remember that the onus is on you to express your client’s case.

Imagine, for example, you are defending a case where there is an eyewitness to an assault in The Faint Rat Public House. The prosecution has not really asked the witness to describe the physical environment. Your case is that the physical environment makes witnessing anything a difficult task. Your instructions are that it was smoky, full of people, and dimly lit. This is a part of

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your case, which you need to build up and communicate to the court, for example (I only include the questions):

o ‘Might I just explore with you what the Faint Rat pub was like that night?’

o ‘The Faint Rat public house is not very brightly lit is it?’

o ‘In fact, it would be fair to describe it as ‘dimly lit’?’

o ‘On the (night in question) do you recall that it was a busy night?’

o ‘Consequently, it was smoky wasn’t it?’

The advocate here is performing two functions; firstly he or she is building up a picture. This picture of a smoky and busy pub will then be used to undermine the reliability of the witness’s evidence. It is rare, therefore, for an advocate to build up the defence case without also attempting to undermine the prosecution case at the same time, but plenty of advocates are insufficiently detailed and careful in building up and communicating their case.

4.3 DISCREDITING THE WITNESS

When you are preparing to cross-examine a witness, you need to pitch your challenge just right. There is little worse than seeing an advocate launch into an attack of a witness which proves to be an unmerited and unsustainable attack. You do not want to have to back down and accept that you made an unwarranted attack.

You need to consider a range of types of ‘attack’ on a witness:

Witness is honest but mistaken.

Witness is wrong (no comment about the witness’s honesty).

Witness has exaggerated (for whatever reason).

Witness can be shown to be wrong on a collateral matter, and so cannot be trusted on the main issue(s).

Witness can be shown to be inconsistent when giving their account, and so their evidence cannot be relied upon.

Witness can be shown to be at odds with other reliable witness and so their evidence cannot be relied upon.

Witness has a reason to lie to the court and so their evidence cannot be relied upon.

Witness is generally of dishonest character and the witness him/herself should not be relied upon.

It may be that you seek to attack a witness on a number of grounds. We will look at actual techniques in the next chapter, but at this stage it is critical to observe two rules.

Firstly, the higher you aim, the harder you will fall if you do not successfully prove what you set out to do. If you are going to attempt to show that the witness’s evidence is a pack of lies from start to finish, you will need extensive and/or compelling evidence for saying so. It may be that a less extravagant

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attack would serve perfectly well, and would be a much more sustainable and convincing attack.

The second rule is not to be too ambiguous about what form of attack you are putting. If you are being ambiguous about the case that you are putting, you may well find an intervention from the judge or your opponent. A judicial intervention might go along the lines of:

o What are you putting to this witness Mr Brown? You seem to be implying that he is lying. Is that what your case is, or are you saying its an honest mistake?

Sometimes there may be good reason why you are seeking to be ambiguous about what you are putting, and you would rather not put your allegation to the witness at all because you are not sure of the consequences of the question. The rule on putting your case, however, does extend to characterizing the nature of the attack that you are making on the witness so that the witness can properly respond. ‘Putting your case’ is dealt with below.

4.4 PUTTING YOUR CASE

Putting your case is the basic minimum requirement of a piece of cross-examination. What ‘putting your case’ means giving the witness that you are cross-examining an opportunity to respond to any piece of evidence that you are intending to call or rely upon. If, for example, you are going to call evidence to the effect that the robbers made off in a blue car, and the witness before the court has given evidence that the car was red, then the court is entitled to hear the witness’s response to the assertion that the car was red.

There are 2 distinguishable reasons for having to put the case. The first is that the court is entitled to the evidence that is produced by the advocate putting the case. The witness may have a perfect explanation or response to the opposition case, which may never have come out in evidence if the opposition case was not put to the witness. The second reason is that a witness can be critisised if he or she gives evidence that is inconsistent with the way their case was put to other witnesses.

4.4.1 The court’s entitlement

When your case is credible, there is rarely any harm done by putting one’s case. The witness will probably reject the case that you put, but that rejection may not be entirely credible as a result of the cross-examination. The temptation not to put the case arises when your case is so stupid that you are really quite embarrassed to put it. Most criminal advocates will have had to run ludicrous defences from time to time. Usually this includes making some staggering allegations against police officers. You cannot avoid the unpalatable duty of making a ridiculous allegation to a plainly honest witness, even if you will lose the case the moment the suggestion the made. This is because it is the right of the court to hear and observe the reaction to the case being put.

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4.4.2 The test of consistency

This test is particularly relevant in criminal cases. This is how the logic goes. A Defendant sits in court for the duration of the trial. He or she is able to hear everything that is said by the prosecution. It may strike the Defendant part way through the case that he or she should change their story to better challenge the evidence of the prosecution. To take an extreme example, the Defendant may have originally thought to run the defence of ‘self defence’, but on hearing how compelling the first witness was on the issue, the Defendant decides to run a different defence, for example identification. The problem with the Defendant doing this, is that his or her advocate will have cross-examined the first witness and put the ‘self-defence’ case to that witness for them to answer. It would then look bizarre if the Defendant changed the defence, and the prosecution would be entitled to suggest that the Defendant had only just changed his or her mind about what case it was that he or she was going to run.

This is an extreme example for the purposes of illustration, and would it would rare indeed to encounter such major changes in the way a case was being put. However, more subtle changes take place all the time. The careful advocate will make a very careful note of how X’s case was put to each witness, and then see what X himself says. If X is not consistent with the way his case was put, then he can be cross-examined on this inconsistency. The cross-examination might be as follows:

o You have just said in evidence that ‘someone’ came up and hit you?

o But your barrister suggested to Mr Green that it was Mr Green who hit you?

o And Mr Green denied hitting you, didn’t he?

o He was very firm in his denial wasn’t he?

o I suggest to you that having heard him deny it; you have now changed your story from ‘Mr Green hit me’ to ‘someone hit me’?

In this example, the Defendant has shifted his position more subtly, but nonetheless has altered his position in response to the quality of a witness’s evidence. It is a useful tool to be able to put to a witness that they have changed their account between the cross-examination performed on their behalf and the evidence-in-chief of the subsequent witness.

5. CROSS-EXAMINATION 2 - TECHNIQUES

5.1 LEADING

The best way to control a witness and to communicate your case to the court is to ask leading questions. ‘Leading questions’ is something of a misnomer, since the line gets blurred between when the advocate is asking questions, and when the advocate is making a statement. Both forms are acceptable, and in many ways it is desirable to ask as little as possible, and to tell as much

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as possible. Cross-examination tends to be a matter of making statements thinly disguised as questions.

For example, take a scenario where a witness has given evidence that he saw Mr X commit an offence, but Mr X disputes identification. The basis of the contest is that (1) the witness was drunk, (2) the lighting was poor, and, (3) there were many people in the way of the witness’s view and therefore (4) the witness is mistaken. These are defence assertions, and the witness is not really being asked if these assertions are correct, but rather the witness is being given the opportunity to rebut these assertions as they are put to the witness during cross-examination. The questions on this area could be phrased in a few different ways as the table below shows:

Non-leading question Leading ‘question’ Statement

(1) Had you had any drink? You had been drinking hadn’t you?

You had been drinking that night.

(2) What was the lighting like?

Isn’t it right that the lighting conditions were not good?

The lighting was poor.

(3) What was the quality of your view?

It was crowded at the scene wasn’t it?

The scene was crowded.

(4) How sure are you that you have identified the right person?

Surely it is possible that you have made a mistake?

It is perfectly possible that you are mistaken.

The first column is what advocates should avoid. If you do not know if the witness had drunk or not, then you would, of course, need to ask. If you are instructed that the witness had been drinking, then you can move to the type of leading question in the second column. These are really just statements with a ‘tag’ like ‘hadn’t you’ or ‘wasn’t it’ which changes the sentence from being a statement into a question.

The problem with asking questions in a non-leading format is that the witness is at liberty to answer in whatever manner the witness sees fit. The question imparts no information, and so the question has not advanced the case at all, and the advocate is at the mercy of the answer. A leading question has the advantage in that it does at least communicate a fact. The witness may then dispute the fact, but the witness is responding to the advocate’s agenda. If the question is asked in a non-leading way, the agenda will be set by the answer to the question, and the advocate will have to respond to the witness being in control of the facts.

The third column on the table above shows the raw statement without even an attempt at formulating a question. Beware of making too many statements, as the witness may retort ‘are you asking me or telling me?’ or some similar remark. It is, however, perfectly good technique to put statements as boldly as this when you have an entirely undisputable fact to put. For example, it may

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be that the witness has already accepted that the lighting was poor. If the evidence has already been given, then no question is really necessary at all, and the advocate can simply state the point, ie ‘You have already told the court that the lighting was poor!’

So the general rule is that you should ask leading questions in order to communicate facts that are part of your case, and to try and control the witness. This technique should be combined with momentum building, which we come on to deal with below.

5.2 Structure – building momentum through facts to conclusions

In your case analysis, you will have identified the facts in your case that lead to the inferences that establish your case. In the example in the paragraph above, there are 3 facts being asserted by the defence [(1) the witness was drunk, (2) the lighting was poor, and, (3) there were many people in the way of the witness’s view] and the conclusion that follows as the logical inference from the facts, that is that the witness is mistaken in making the identification.

The general rule to follow is that you should build through facts towards conclusions.

If you can assert a number of facts that all tend to point to a particular conclusion, you then have the best chance of registering the possibility that the conclusion is right.

To take the example above, you want to hold back the conclusion that the witness is mistaken about the identification until you have explored all the facts that tend to support that conclusion. If the witness agrees more or less with the factual assertions that he had been drinking, that the lighting was poor, and that the area was crowded then the advocate has the best chance to pounce and put the conclusion that the witness is mistaken about the identification. The witness is under some pressure to agree with the conclusion if the witness has already agreed with a number of facts that make that conclusion look plausible. It is the factual build up that creates the momentum and pressure on the witness.

Most cross-examinations involve building towards a whole set of sub-conclusions which the advocate will draw together in the closing speech. It is important to refrain from making the whole closing speech to the witness, but to only put the matters to the witness that are necessary for establishing the basis of your case, and are consistent with your duty to put your case.

Where you have a set of smaller conclusions for one witness, take the cross-examination issue by issue. It is probably a good idea to take each issue as they arise chronologically, but unlike examination-in-chief, the questions should be organized around the conclusions – ie take the cross-examination issue by issue.

Think about the cross-examination as a series of blocks of questions, each one ending with the conclusion and preceded by the facts that tend to

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establish that conclusion. The table below shows the general generic structure of a piece of cross-examination and next to it, there is an illustration using the same example that we have been working with. Only the questions have been included, we are hoping that the witness will be more or less compliant!

The case that is being put in cross-examination will usually rest upon a SET of points that make up the cornerstone of the case theory and the planned closing speech. We have been dealing with an example where a witness (lets call him witness 1) makes an identification of someone carrying a knife. Let’s add to that the other evidence against the Defendant is that another witness heard him brag about committing an offence, and that the police found a knife (like the one used in the offence) in bins at the back of the Defendant’s flat. The defence case rests, therefore, on establishing:

1. That the identification could be mistaken.

2. That the witness who reports him bragging is an ex-partner who cannot be trusted as she is bitter and has a grudge.

3. That the knife cannot be attributed to him.

These are the conclusions of the defence case. The cross-examination must build towards establishing that these conclusions are credible. The building process should be by building a case on the facts that make these conclusions plausible.

The structure of the cross-examination should basically take an issue in the case, introduce the issue, put the facts that suggest that the conclusion is correct, and once the factual case is properly built, then put the conclusion so far as you need to comply with your duty of putting your case.

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o Introduce issue

Fact Fact Fact Fact

* Conclusion

o Mr X, I would like to ask you some questions about the conditions in Jesters nightclub.

At the time that you made the observation, you had been drinking for most of the night hadn’t you?

So, to some extent at least, you were drunk? The lighting in the club is typical of nightclubs isn’t it? Strobe lights were being used, as well as there being ultra-violet?

{Continue to build up factual picture in relation to conclusion}

* So I suggest that these are not circumstances in which you can be sure about who it was that you say was carrying a knife?


5.3 BOILING THE FROG

It is said (and it is probably not true) that there is only one way to boil a frog. If you put the frog into boiling water, it will simply jump out again. If, however, you put a frog into cold water and turn the heat up gently, the frog never notices.

The same theory can be applied to cross-examination. If you have a strong conclusion that you think the witness should have to agree with, it is almost invariably best to turn up the heat on the witness bit by bit.

In order to really apply pressure to the witness into agreeing with the conclusions that you are building, you need to encourage the witness to agreeing with you as much as possible. To do this, you need to think about the pitch of each question, and to put each question in such a way so as to secure agreement. Take the point about the witness being drunk. You could pitch the question hard or soft. The harder you pitch, the better it is IF you get agreement. The lower you pitch, the more likely it is that you will get agreement, but the point has less impact. The aim, is to ask the question as strongly as possible but where you feel confident that you can get agreement. What follows is a series of questions on the point of alcohol, but ranging in the pitch. I have supposed how a witness might respond to each of the suggestions.

Hard

Question Anticipated response

You were so drunk you were almost unconscious you weren’t you!

Certainly not! That’s a ridiculous suggestion..

You were very drunk. I wouldn’t say ‘very’ drunk at all, I was no more than a bit tipsy really.

You were a bit drunk I suppose I was a bit drunk.

You were not absolutely sober Not absolutely sober no.

Soft

In the above example, the witness will ardently deny the first suggestion, argue a bit with suggestion 2, and accept suggestions 3 and 4 with little fuss. The best question is probably the third, in that the witness is still fighting a bit with the advocate in the second question, and unless the advocate has some more evidence, the witness may end up establishing his account rather than the advocate establishing their original proposition.

Two rules emerge from this. The first is:

Seek agreement before dispute where possible. Keep control and command of a witness by establishing a pattern whereby the witness feels compelled to agree with the great majority of what you put to them. This

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pattern becomes harder and harder for the witness to break and the advocate’s credibility rises as the witness surrenders to the advocate’s account. Once the advocate has established him or herself as the reasonable and fair advocate and has occupied ‘the middle ground’ it can be very hard for the witness to undermine the cross-examination.

Pitch each question with great care. The better evidence you have, the higher you can pitch. If the witness were to have said earlier that he was ‘very drunk’ or if there was some other credible evidence that he was very drunk, then you can aim for a more demanding proposition of the witness. In boxing terms – ‘Punch your weight’. Do not punch too high if you have weak evidence to support you, nor should you punch too soft if you have good evidence to support you.

5.4 CROSS-EXAMINATION ON A PREVIOUS INCONSISTENT STATEMENT

This is the real bread and butter of many cross-examinations. Witnesses are often asked to repeat their evidence a number of times before trial, and advocates should look very carefully at the thread of consistency or inconsistency in the accounts that the witness gives.

In criminal cases, the opportunities to examine consistency or otherwise of a Defendant might arise from:

What the Defendant said on arrest (if anything)

What was said in interview (if anything)

What is put on the defence case statement (if anything)

What was put to the prosecution witnesses

What the Defendant said in examination-in-chief.

Prosecution witnesses should be examined in relation to their consistency in the following possible regards:

What was said at the time of the incident

The record of any 999 call

What was said on the arrival of police officers that might have been noted in the officer’s notebook

What was said in the statement taken by the police

What was said in evidence-in-chief.

In civil cases, look out for how the parties express their position in:

Any correspondence

Pleadings

Statements

Evidence-in-chief

When you look at the issue of inconsistency, it may matter very much which account is right and which is wrong. Conversely, it may be the case that the

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truth of the matter is immaterial; it is the fact that the witness has changed the account that is significant. In some cases, both elements will be important; ie it is important to work out which account is correct and it is significant that the account has changed between telling.

When accounts are inconsistent, it is almost always more plausible to suggest that the earlier account is more reliable. This is because memory can play tricks on us, and because an account can become contaminated by hearing other things. This is precisely why the courts encourage people to give statements as soon as is reasonably practicable and whilst events are fresh in the memory. The original, fresh, unrehearsed memory is likely to be better than any account given at a later date.

There are the rare cases when an account given later on might be preferred to an earlier account. These situations might include where the earlier statement was given to a person who coached the witness’s account and the statement given was not an accurate reflection of what the witness wanted to say. It may be that the witness was under pressure to protect another person and gave an unreliable account in circumstances that have now passed.

If a witness deviates in the accounts given at any point, the advocate must try and consider why this might be so. There is no science in this, and the advocate must be a keen judge of character and circumstance to try and ascertain why the witness’s account has not been consistent. It may be that the client for whom you act can give you a reason for why they think the account has varied, but it may be a matter of pure deduction and inference on your part to think why a witness is not being consistent.

In general terms, there are a number of stages to go through:

1. Check that there really is an inconsistency. It may be that the witness has used 2 turns of phrase, and the witness means the same thing by them both. Be careful to confirm that the discrepancy is actual and not merely apparent.

2. Point out the fact of the inconsistency to the court by confirming with the witness that the inconsistency exists.

3. Promote the reliability of the account that you want to accept from the witness. It may just be that you wish to suggest that neither account is correct, but more usually the discrepancy has arisen because the witness is attempting to conceal some sort of weakness and admission.

4. Challenge the witness about the reason for the inconsistency.

Let’s look at a basic example. You are acting for the Defendant in a nuisance claim. The Claimant worked from home and in his witness statement he describes there being noise that made working ‘frustrating and slow’. The witness then hired premises (at an unusually high price) for work and is claiming the cost of the hire premises in damages. At trial, the witness says in evidence that working was ‘effectively impossible’. It appears that the witness has inflated the evidence at trial from what it was in the witness statement. The cross-examination (questions only) might go as follows (following the 4 stages outlined above).

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Stage Question

1 Can I confirm something in your evidence please?

You stated I think in your evidence-in-chief, that the level of noise was so bad that work was ‘effectively impossible’?

You then actually stopped work?

So what you appear to be saying to the court today is that you could not work because of the noise?

Can I confirm that you really mean that work was impossible?

Can I confirm that between months X and Y there was no significant change in the level of noise?

2 You recall, I suppose, making a statement in this case?

Your Honour, could I refer the witness to their statement?

Do you see at para A on page B you deal with the level of noise and the effect on your ability to work?

Do you see that you describe the level of noise made working ‘FRUSTRATING AND SLOW’?

You clearly indicate in the statement that you were working through the noise and that work was possible?

You accept surely that this is an entirely different emphasis than you have given today?

3 The account that you gave in the statement was made before you knew the extent of the expenses that you later ran up when you relocated?

The account in the statement is therefore less contaminated by subsequent events?

I suggest that the account in the statement is a much more accurate reflection of the position?

The truth is that you were able to carry on working, albeit it was less comfortable that it would have been if you were in perfect silence?

4 The reason that you have given a stronger account of the noise here today is that you are trying to justify the expenses that you then incurred?

I suggest that you have not been entirely straightforward in saying that work was’ impossible’ – it clearly was.

In the above example, the advocate has tried to establish the truth of the position (ie that work was possible) and that the witness is not trustworthy and has not been ‘entirely straightforward’.

Note the importance of making sure that there is no ‘easy get out’ for the inconsistency. It would have completely defeated the point of this cross-

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examination if the witness had been able to say that the noise levels had changed, and that the witness had simply changed the description of the noise because the noise itself had got worse. Before the advocate really committed himself to whole issue of the inconsistency, you will see that there was a question just to check that there was no material change in circumstances. This is a basic example of ‘shutting down escape routes’ and this will be dealt with separately below.

5.4.1 Verbatim records of witness’s evidence

It should be evident that in order to really secure a point about a witness being inconsistent in the two or more accounts given, you must be absolutely accurate in quoting the witness. Most often the witness is inconsistent in live evidence with an earlier statement. It follows that it is absolutely imperative to take down the exact words of the witness that you intend to say are inconsistent.

It would be a poor cross-examination if you were reduced to putting the point along the following lines:

o Mr Jones, earlier, in evidence-in-chief you said something along the lines of….’

5.5 SHUTTING DOWN ESCAPE ROUTES

Whenever you challenge a witness with a fact or a conclusion, you want, where possible, for there to be no escape from the force of the point that you have put. To that end, you always need to think about any possible escape that the witness might have from agreeing with the point that you are going to make. If the witness has a genuine escape from the question, it is better to know this in advance, before you make a fool of yourself by thinking that you had the witness trapped.

When you plan any cross-examination, consider how a witness might try and evade the conclusion that you are going to work towards. You should then plan how to shut down those escape routes if you can. The best policy is to use the other witnesses to shut down the escape route. If the witness then tries to take the escape route, they end up contradicting other witnesses.

A classic example is a prosecution witness who makes a statement to the police. The witness then rehearses their evidence in their head over and over, and then gives an inflated account in evidence at trial, and recalls some detail that is not in their witness statement. The defence wants to put the point that the new evidence is not reliable; the witness probably picked it up from someone else between making the statement and coming to court. The following exchange always seems to take place,

o Q: You did not put it in your witness statement, because it didn’t happen!

o A: It did happen, I missed it from my witness statement because I was still in shock from the incident.

As soon as the witness gives evidence that is inconsistent, you need to try and anticipate any potential escape route that the witness might try to take. The

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popular escape route of ‘I was still in shock’ is so common that you should consider trying to shut it down as a matter of course.

The witness him or herself might shut the escape route if you take the point before the witness realizes the importance. The advocate could, at the start of the cross-examination, ask a set of questions along the following lines:

o Can I just clarify the sequence of events with you?

o You witnessed the incident at 12:15am?

o You spoke to a police officer at the scene?

o But your statement was not taken until the next day?

o I suppose that was to give you time to calm down and steady your nerves before you gave the statement?

o You then gave the statement, and we have no indication that you complained and said that you were not fit to give the statement?

If these questions were put at the start of the cross-examination, before there was any argument between the advocate and the witness, it would be quite hard for the witness to dispute this account. If the witness finds that he or she has agreed with these questions, it would then be very hard for the witness to later argue that he or she was ‘still in shock’. The advocate has quietly and efficiently shut down the escape route (or one of them) before coming on to tackle the point about the inconsistency.

The other way of shutting the escape route is to do so with another witness. There may be other witnesses who saw the character and demeanour of the witness and could give evidence about that. Most obviously, you would want to ask the police officer who took the statement. Police officers should not take statements from people who are plainly in shock and not ready to give a statement. The officer is, therefore, unlikely to accept that they took a statement from someone who was in shock. If the witness has insisted that he or she was in shock and refutes your attempt to shut down the escape route, then the advocate may be able to generate conflict between the witnesses.

5.6 CROSS-EXAMINATION ON A COLLATERAL MATTER OF CREDIBILITY

In almost any trial, there will be peripheral matters of fact that are not especially important themselves, but can become important when witnesses describe them in different ways. This raises the issue as to why the witnesses are inconsistent with one another. One answer is that the witness has been shown to be unreliable.

A classic example would be a road traffic accident. One of the cars involved contains a husband and wife. It is inevitable that they will have discussed the accident, and no criticism can attach to them for discussing the case. However, if one of them denies that they have talked about it, and one of them coaxed into accepting that they have talked about it, suddenly there is a strong suggestion that one of them has lied on oath. This could be damaging to the witnesses and to their case.

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The great advantage is that cross-examination of this sort is rarely damaging to the advocate asking the question, and sometimes very fruitful. So imagine with the example above that witness one goes into the witness box and gives their account. The advocate then looks slightly stern and asks:

o Have you been discussing this case with [witness two]?

The witness has to think quickly. The witness may think that he or she has done something wrong in discussing the case, and may give a panicked or reflex denial that they have discussed the case. Then witness two comes into court and gives evidence. The witness might be asked, in a pleasant tone of voice:

o I imagine that you have discussed what happened that day with your partner [witness one]?

If witness two answers the same as witness one, then the cross-examination has showed that the witnesses have been honest in the witness box on the collateral matter. This is not hugely significant and does only a little damage. But imagine if witness two accepts that they have discussed the case, whereas witness one denied it. Out of nowhere, a discrepancy has arisen, which might put the reliability and credibility of at least one of them in doubt.

Prosecutors regularly face defence witnesses who have talked together to concoct evidence (for example a false alibi). The witnesses will have carefully rehearsed the main points of the evidence that they expect to give. It is hard to show up discrepancies on these central points, as that is where the witnesses’ efforts have been directed. You are much more likely to have success in trying to expose a discrepancy by picking a more collateral or peripheral point which is not necessarily central to the case, but becomes important in indicating whether the witnesses are lying or honest in giving their evidence.

It is always worth having a good look at the case, to see whether there is any collateral matter that lends itself to testing the parties. The best points to take are where the issue is really not very significant, but where a witness might think that one answer might be preferable to another and consequently panics and give an untruthful answer that you can prove as being untruthful by contrasting it with the answer to the same question given by a different witness.

6. FULL WORKED EXAMPLE

What follows is a set of papers on a Robbery case. This case has been used for BVC assessment purposes in the past. The papers in the case follow this page. There will then be a page on case theory relating to case, and notes for a prosecution examination-in-chief, and a defence cross-examination.

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INDICTMENT

IN THE CROWN COURT AT GLADBURY

THE QUEEN –v- ALI RAFATI

Ali Rafati is charged with:

COUNT 1

STATEMENT OF OFFENCE

Robbery, contrary to section 8(1) Theft Act 1968.

PARTICULARS OF OFFENCE

ALI RAFATI, on the 25th day of January 2009 robbed Robert Linford of a mobile telephone and £70 in money.

Officer of the court

Mary Whitehouse

GLADBURY POLICE

Witness Statement(CJ Act 1967, s.9 MC Act 1990, s.5A(3)(B) & 5B, MC Rules 1991, r.70)

Statement of Robert Linford

Age if under 18 Over 18 (if over 18 insert ‘over 18’)

Occupation Self-employed builder

This statement (consisting of 2 pages each signed by me) is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.

Dated the 30th January 2009

Signature Rob Linford

I am the above named, and I live at an address known to the police.

On 25th January this year, I had been out drinking in Gladbury with some friends. At about 11pm when the bars closed, I decided to go home as I had to work the next day early on a conservatory that I was helping to put in. My friends wanted to carry on drinking and clubbing, so I went home by myself.

I caught the train at 11:20pm from the centre of Gladbury. I like to go to the front coach so I can have a cigarette and I can see if the guard is coming. The platform is not all under cover and to catch the front coach you need to stand in the rain or walk up through the carriage. Consequently, the front coach is normally fairly empty.

I had been on the train for a couple of minutes where a couple of young Asian men came through the doors of the next coach and came up towards where I was sitting. One of them was wearing what looked like a baseball outfit, and the other was wearing shiny black trousers and a hooded top, which was up. In the way they were dressed and walking, I thought that they had ‘attitude’. They did not sit down quietly, but rather they took up all the area by the doors and stood talking loudly about some ‘bitch’ that I think that they had just been talking to. I was in the very front seat of the train, and so there was only half a compartment and then the sealed off area for the driver. There were no other passengers between the two men and me. Indeed, I think that it was only the three of us in the whole compartment.

The males kept looking up and down the carriage, and once the train had moved on a few minutes, they both came over and sat near to me. One of them, who I will call Male

1, said, ‘my phone has run out of battery, can I make a call on yours?’ I answered ‘sorry mate, I don’t have a phone on me’. The other male, who I will call male 2, said ‘bullshit!’ Male 1 then said something like, ‘I don’t like the way you’ve been looking at us!’ I was starting to get scared at this point. I replied, ‘I haven’t been looking at you, I’m just going home.’ Male 1 then said, ‘give me your money, or I’ll smash your face’. I replied ‘just leave me alone’. I turned away to look out the window to try and make them just give up on me and leave me alone. Male 1 said, ‘OK, OK’, and then he stood up as if to leave to go to another part of the train. However, just when I thought he was about to leave, he suddenly turned and swung his fist and punched me hard in the side of my face, by my left ear.

I was very stunned and for a second I did not know what was going on as my head was ringing. I instinctively put my hands in front of my face. I felt sick. I was aware of voices being raised but I was not sure what was being said. I felt that I was still being attacked as I could feel blows on both my arms. My impression was that Male 1 was standing over me and was hitting me with both his fists but that he was mainly just hitting my arms. Then I felt someone go through my pockets and pull out my phone and some bank notes that I had loose in my jacket. I assume that this was Male 2 as Male 1 was hitting me at the same time.

The train then began to slow down as it came into Radcliffe station. The blows stopped, and I opened my eyes and took my arms from in front of my face to see the 2 males running out of the door and into the night.

A moment later, a lady came up to me to see if I was OK. She said that she had phoned the police, and that we should wait for them at the next stop. I told her that I was fine and that she did not have to wait with me, although she said that she wanted to. She left me her details and asked me to call to let her know if the police caught the men. After a short time I met PC Pacifico who took me in a police car to drive around the Radcliffe area. It must have been about 11:45pm when we drove past a fish and chip shop where I noticed the 2 males. I told PC Pacifico that I was sure that it was the same two men. I understand that they were arrested. I was then taken home.

I checked in my pockets and confirmed that my phone had been taken, and also the cash that I had that was £70. I know it was £70 because I had it on me especially to buy a second hand bike for my little boy the next day. I had some loose change also, but this was not taken. The phone has been returned to me, but not the money.

Since the incident, I have been suffering from ringing in my ears and bad headaches.

I did not give anyone permission to take this money from me. I am willing to attend court to give evidence.

GLADBURY POLICE


Statement of Sarah Harding


Occupation retail assistant



Signature Sarah Harding

I am the above named, and I live at an address known to the police.

On the 25th January 2009, I was on the train to go home with a couple of friends. We had been out drinking. I had to get home as I had a baby sitter who is only 16 and I don’t like to ask her to work past midnight.

I was sitting talking to my friends just a minute or so after the train had left Gladbury, when 2 men came walking past. I would describe them as being Asian males, between the ages of 20-25. One was dressed in a baseball top which had the logo ‘pass the roc’ written on it. The other one was in dark clothing with a hooded top.

As they came past me, I thought that the one in the baseball top was looking at me too much and so I said to him ‘Oi, keep your eyes to yourself’. He looked back as if thinking of something to say in reply. The train then jolted and he lost his footing and stumbled onto me. I think it was an accident, but I was annoyed to have him all over me, especially after he had been looking at me. I was angry and said, ‘just get off me will you!’ The second men just looked on and laughed. He shook his head and said ‘slag’ under his breath. I heard it although I did not respond at the time.

The two of them then moved into the next carriage/coach. I was still angry at the behaviour of the two of them. I heard them laughing in the next carriage. After a minute or so, I had got more and more angry, so I decided to go and tell them to get some manners. I got up and walked into the next compartment, I saw the two men standing with their back to me at the far end of the compartment. After a second I realized to my horror that they were attacking someone. I know this because I could see the right arm of the man with the baseball top was swinging his elbows. The other man was more crouched down, and it was harder to see him as he was lower and the other seats were

in the way, but I think that he was also attacking the man. Nothing was really being said by anyone.

I thought that the best thing that I could do was to call the police. I did not want the males to see me, so I went back into the next carriage and called the police on my mobile phone. As I was on the phone, the train pulled into Radcliffe station. I noticed the two males outside the train running past us towards the exit of the station. I saw the man with the hooded top put his hand in the air and the other man gave him a ‘high five’. They were both smiling and looking very pleased with themselves. They ran off and I did not see them again that night.

I finished the call with the police and then went to go and see if the man was OK. He was very shaken. He was not making very much sense and I was a bit worried about him. I told him that I had called the police and that they would meet the train at the next station, which was Portside. I felt sorry for him and I gave him my phone number in case he wanted to talk about it more later.

I saw the man get off the train at Portside, and I carried on to the next stop and went home.

I am willing to attend court and give evidence.

GLADBURY POLICE


Statement of PC Pacifico


Occupation Police Officers



Signature

I am the above named officer attached to Gladbury Central Police Station. On the 25 th

January at 11:26pm I received instructions to make my way to Portside Train Station on the outskirts of Gladbury immediately to attend the scene of an alleged robbery.

I made my way to the station where I arrived at about 11:30pm, where I met a man who identified himself as Robert Linford. He explained what had happened to him, and as a consequence we decided to take a drive in the Radcliffe area to try and find the males about whom he had made a complaint.

At about 11:50pm that night we were in Roundwood Road when Mr Linford pointed out to me two men who were outside the ‘Heart and Sole’ fish and chip shop. Mr Linford said, ‘that is definitely him, I recognise the baseball top.’ I asked about the other man and Mr Linford replied, ‘I am sure that that is both of them.’

I stopped the car and approached the men. I introduced myself and showed them my warrant card. I said, ‘I am investigating a complaint of robbery on the train about half an hour ago, conducted by 2 Asian males fitting your description’. To this, the man wearing the baseball top who was initially identified to me said, ‘I’m Persian you ignorant pig’. I apologised and said that nonetheless, he had been pointed out as the suspect in the case. He replied ‘Save us the earache, I robbed the fucker because he’s a racist bastard and was staring at me like I was a piece of shit’. He then pulled out a mobile phone and said, ‘You can give him his poxy phone back, I only took it for a laugh anyway’.

I asked the man his name, and he said ‘Amin Jaffar’. The other man identified himself as Ali Rafati. Both men gave their addresses. I then arrested both men on suspicion of robbery. Neither man made any comment on arrest.

I called for another unit to assist to returning the two men to the police station, and to assist in taking Mr Linford home.

At 10:00 hrs on the 26th I was present when Mr Rafati was interviewed, in the presence of his solicitor Mr Nash. The Defendant made no answer to all questions put to him.

At 11:30 hrs on the same day, I attended Gladbury train station to inspect the layout of the trains on the route used during the alleged robbery. The carriages have groups of seats so that everyone sits facing a person(s) opposite them. There are doors in the middle of the coach. In the central area by the doors, there are vertical poles for standing passengers to hold on to. Between the poles and the wall, there is a glass type of screen, with three stripes etched across the glass. I produce an aerial view plan of the coach.

* *Pillars

* *

Aerial view of the train compartment.

= seats

= the position of Mr Linford in the train

TRAIN DRIVER

DoorsDoors

Proof of evidence for Ali Rafati

I am a 22-year-old man of good character living at home with my parents at 12 Sixth Street, Gladbury.

On the 25th January I had been out with my friend Amin Jaffar in Gladbury, and we were going back to his flat to watch some DVDs. He lives on Roundwood Road in Radcliffe were we were arrested.

We were on the train, and we were trying to call a couple of our mates to see if they wanted to come and watch the DVDs with us. Unfortunately, I had lost my mobile, and Amin was having problems with his, I think the battery was run out or something. Amin knows loads of people so we thought that we would walk through the train to see if we could find someone who might let us use their phone. I remember that we went past some girls and Amin and this one girl had a bit of a flirt. I was not involved at all. He fell on her and she was annoyed at that. I did not say ‘slag’ to her at all, but I guess that she got herself very angry at us both and she is probably happy if we get into trouble.

We went into the end carriage, and so we had no one left to ask to use the phone. There was this guy in there who was starring at us like we were total criminals or something. It was horrible. I could tell that Amin was annoyed too. Anyway, Amin likes to give everyone the benefit of the doubt, so he went over and asked to use his phone. I stayed back a bit, as there was no reason for both of us to go right up to him.

I don’t remember exactly what was said, but the guy was very rude to us. Amin asked if he could borrow the phone, and the guy said ‘fuck off, I don’t even know you!’ Amin said ‘There’s no need to be like that, just thought you could help us out, it would only take a second!’ I don’t remember what he said to that, but it was something like we should just piss off and leave him alone. Amin stood up, and he was about to go, but I could tell the guy had really annoyed him, and Amin suddenly turned and attacked him. I was a bit shocked, so I stood stunned for a moment and then shouted to Amin to ‘leave it out’. I shouted that the guy wasn’t worth it. Amin would not listen to me, so I went over and tried to pull him off. It was all a bit of chaotic. Amin was a bit crazed and he even hit me once.

We are all scuffling for a minute or so, maybe even less. I was only trying to pull Amin off the man. Then the train arrived at Radcliffe, which was a relief, so I said to Amin that it was our stop and that we

should go now. Amin looked up and saw that this was right so we got off the train.

I do not know what that lady is talking about us doing a ‘high five’ I do not recall doing anything like that. The station at Radcliffe has no lighting at all really. It was raining when we got out and windy and I think that I might have put my hand up by my head to put my hood up. That is all that I can think of that I might have done which she might have mistaken for me doing a high five.

We went to Amin’s house and made the calls. A couple of mates said that they would come and watch the DVD with us, and we said that we would meet them at the chip shop. We were standing there when the police turned up.

I agree with most of the police statement. When Amin pulled out the phone I was totally surprised, as I had no idea that Amin had taken anything from the man.

I accept that I was there that night, but I deny that I was involved at all. Amin did this by himself. I never said anything to the man; I never took his money or phone. I therefore want to plead ‘Not Guilty’.

I am not on very good terms with Amin at the moment, and he will not act as a witness for me, although I understand he will not be a prosecution witness either.

IN THE GLADBURY CROWN COURT

BETWEEN:

REGINA

V.

ALI RAFATI

_______________________________

ADMISSIONS__________________________________

The following facts are agreed pursuant to s.10 Criminal Justice Act 1967, and may be admitted as evidence in the trial by either prosecution or defence.

1. On 7th April 2009, Amin Jaffar pleaded Guilty to the robbery of Robert Linford. He made ‘no comment’ in interview and has not said anything about the involvement of Ali Rafati in this case.

2. The plan of the train provided by PC Pacifico is agreed.

3. Ali Rafati agrees that he was present at the scene; the issue in the case is whether he participated in the robbery.

4. The transcript of the 999 call made includes the passage:

Caller‘Yeah, can you help, there is this guy attacking someone on the train, it looks really bad’Control Where are you?Caller The 11:20 from Gladbury, we’re just pulling into Radcliffe now.Control Have you seen any weapon? Caller No, but the beating looks badControl Can you describe the man?Caller Well, there’s 2 of them, but the main one is dark skinned, about

20 I’d say, dressed in baseball kitControl Did you catch any name being used?Caller No – oh shit, I’ve just seen them out the window, they’ve got off

at Radcliffe.Control Can you describe them? What are they doing?Caller Just running offControl Do you see the victim?Caller No, I think he must be still on the train

5. Ali Rafati is of good character.

6.1 Worked example – prosecution case theory

Robbery:

Use or threat of force – easily proved by both RL and SH.Theft – admitted by the defence

Issue in the case – Participation of AR

Theory on participation

This robbery seems to be planned. MO is that Defendants walk up carriage until they find someone isolated, start conversation that quickly turns aggressive. Both attack, steal, and both run off the train as it comes into the station.

The evidence of pre-planning and co-operation seems to be:

- Walking through train to find carriage with only one person. - Both were loud and deliberately intimidating- Both males looking up and down carriage- Both males move towards RL BEFORE they start asking about using RL’s phone- Male one keeps victim’s hands out of the way by attacking head and then arms- Male two goes through pockets

Must be very careful to make sure that all the evidence in the list above is given in evidence.

Control of witness

I am assuming that this was a case of the Defendants really bullying and intimidating, and it may be that it would be powerful to have the witness try and re-create the tones of voice etc. I would like to see and hear the witness first, and the better he comes over generally, the more licence I would be inclined to give him in describing the attack.

6.2 Worked example – defence case theory

2 main attacks on the prosecution case:

1. That there are real difficulties in knowing to what extent AR was or was not involved

2. There are reasons to distrust the reliability and accuracy of the accounts given, especially of SH

1. Extent of AR’s involvement

RL is unable to be sure that AR was involved in the robbery upon him. At the time he was shocked and concentrating on protecting himself. He presumes that both men were working in tandem, but really there is no direct evidence from RL that would allow any certainty that this was the case.

Sarah Harding is unreliable in saying that AR was involved in the robbery. She was already ill disposed to both men on account of the earlier incident. She has a view over quite a long distance and obstructed by the seating, the etched glass etc. Her view is of short duration. She only gives direct evidence of an assault from male 1. What she saw COULD still be consistent with male 2 trying to stop male 1.

2. Consistency & Reliability

There are several potential weaknesses to explore with the witnesses

Whether words were spoken during the attackContrast ‘I could hear voices’ (RL) with ‘nothing was really being said’ (SH). There are 2 possibilities. Either SH observed for such a short time that she simply missed any words used, or that she heard male 2 discourage male 1, and she would rather not give that evidence in male 2’s favour and so has denied hearing anything. Either explanation helps, so it is vital to re-enforce that RL heard voices and SH didn’t.

The state of RL after attackSH says that when she found RL, he was ‘not making much sense’. If RL agrees that he was not making much sense, this really re-enforces RL’s inability to remember accurately what was going on. If he denies that he was not making much sense, we have a very useful discrepancy between the witnesses. I will take this point early, to see which way it falls.

The witnesses’ involvement with each otherIt seems likely that the witnesses have talked about the incident. It is only natural that they would talk in the moments after the robbery. It would be ideal if one of them accepted that they had, and the other denied it. SH is likely to accept that they talked at the scene, as in her statement she says she gave her number to RL in case he wanted to talk some ‘more’. It will be hard for her to deny talking at all – why else say ‘more’? The motivation for giving out her number is also suspicious. SH says it is out of sympathy, but RL records that she wanted to know the outcome of the investigation. It is well worth seeing if there has been any contact since the event, especially since statements are not taken for 5 days, and it would plainly be best if there were collusion prior to making the statements.

The high five This could be a really vulnerable spot for SH. She has recorded in her statement that AR and AJ do a ‘high five’ having left the train. However, she was on the phone at the time to the police. She is asked by the controller to give a live commentary, and she comes up with no more than ‘just running off’. Seems extraordinary that she would fail to describe the ‘high five’ when giving a live commentary if it had really happened.

Plan for the witnesses

For RL, I would much rather concentrate on how difficult it would be for a man in his position to know exactly what was happening to him, and what part male 2 may or may not have played. I am wary of trying to portray RL as a racist or someone who just didn’t like these 2 from the outset.

I plan to treat RL sympathetically at first. I want to see whether he will agree to the difficulties that existed in knowing what male 2 was doing. He may be fair and concede that it was very hard for him and if so, we are a long way to an acquittal. If he agrees that he was hardly sensible at the end of the attack (that being my first question), then I would be encouraged that this witness could be coaxed gently into agreeing that he doesn’t know about male 2.

If he seems more belligerent and disinclined to agree, then I should put my case more robustly. It would be more chronological to look at RL’s view of the 2 youths first, but this is a more antagonistic line of cross-examination, and in my view, if I have done well in securing agreement to the fact that it is hard to know what male 2 was actually doing, then I would not bother trying to prove that RL was poorly disposed to both men even before the robbery started.

I have to put some matters about the conversation that lead up to the attack. I don’t see much profit in this area and will put my case in a fairly low-key manner. I suppose that I have to put that RL was dismissive (and racist?) in his view of the 2 men. This is really dangerous, and will backfire if RL seems like a fair and honest witness. I will have to assess RL and see if I think I can get away with this. If not, I shall put my case in its bare minimum on this point, and I do not think that I shall really want to rely on these allegations in closing speech.

I would treat SH very differently. I would be minded to start with the ‘high five’, which just seems to be an embellishment of the truth, seeing as it is not in the ‘999’ call. I could start there and seek to show that she has simply given unbelievable evidence. The jury would be bound to wonder why she would do so, so I would move onto the earlier incident of male 1 falling onto her and her thinking that they were being rude and insulting. Having attacked her reliability and impartiality I would move onto the attack itself.

6.3 Worked example – RL examination-in-chief

TIMELINE (SEE BELOW)

2. Set scene (RL’s evening prior to incident)

- Where had he been- Where was he going- What possessions did he have on him

1. Set scene (train)

- RL uses this train regularly- Get RL to describe layout- Length of train- Lighting- Order of stations - Time between stations

3. Identification

- Confirms 2 men

- Recovers phone and cash

4. Injuries (update)

MEN ARRIVE IN CARRIAGE

- Came to where RL sittingDescriptions (establish MALE 1 & MALE 2)Talking loudlyTaking up lots spaceTalking about ‘bitch’Come up to RLMale 1 asks about phoneRL says ‘don’t have phone’Male 2 says ‘bullshit!’ (ask for tone and manner)Male 1 says ‘I don’t like the way…’RL getting scaredMale 1 ‘give me money or I’ll smash your face’RL ‘just leave me alone’Male 1 ‘OK, OK’ (as if he was going to leave)

ASSAULT BEGINS

Male 1 punches to left ear RL stunned, sick, ringing to ears etc Voices raised Male 1 standing over Male 1 hitting arms, using both of his arms Someone (male 2) going through pockets Hitting & going through pockets

AT THE SAME TIME Phone and wallet taken

ASSAULT ENDS

- 2 males run out the door- Woman arrives- PC Pacifico arrives- Takes RL on a drive

TRAIN LEAVES11:20

- Goes to front carriage- Has cigarette- Only one in carriage

6.4 Worked example – Extract of XX of Robert Linford

Prelim question:

See what RL says about suggestion that he was so badly beaten by male 1 that, by the end of it, he was ‘not making very much sense’. If he agrees, then add in at point marked ** below. If DENIED then keep for closing speech point about consistency.

Issue – AR’s participation

- Had been drinking (through to 11pm)- Was punched to ear- ‘Stunned’ - ‘Did not know what was going on’- ‘Ringing’- Hands covering face- Felt sick - STILL suffering from ringing in the ears- Eyes are shut (only opens eyes when blows stop)- ** if relevant (see above)- ‘Impression’ that male 1…- ‘Assumption’ that male 2…

* Uncertain as to what male 2 was doing

- After assault, with PC Pacifico, saw both Defendants, but said ‘that’s HIM’

* Only really one person involved in the robbery

If the above is successful, then skip the next box.

Issue – RL’s appreciation of the character of the Defendants

- Wanted the carriage to self - Thought they had ‘attitude’- Used word ‘bitch’- RL was aggressive to them- RL was demeaning and rude

* RL disliked both men

Put case

That the conversation before the robbery went as follows:

- AJ asks to borrow phone- RL says ‘fuck off, I don’t know you’- AJ asks again- RL tells them to piss off

That during the robbery by AJ

- AR says ‘leave it out’ to AJ and that ‘he wasn’t worth it’

Test consistency

Explore with witness:

- Have the witnesses spoken?- If so, who initiated, what was said, when was it?- Confirm that RL heard the men say/shout something during attack

PROFESSIONAL CONDUCT

What follows is a table of the potential ‘offences’ of professional conduct may occur, and would be penalised in an assessment.

Efforts have been made to make this list full and comprehensive, but we retain the right to penalise plain infringements of the Code of Conduct in relation to proper etiquette in court where circumstances or behaviours arise that were not envisaged at the time of compiling this list.

PROFESSIONAL CONDUCT OFFENCE PENALTY COMMENTARY

1.CLOTHING

Jacket undone(includes showing shirt just above trousers)

-1 Ideally, men’s jackets should be DOUBLE BREASTED or 3-PIECE. If you wear a single-breasted jacket, you do need to do it up. You are not supposed to show your shirt over the stomach.

Inappropriate shirt -1 or -2 depending on severity (DOS)

All dress for court should be sober and discreet. Shirts should ideally be plain. A simple and subtle stripe is OK. Solid coloured shirts are discouraged, but pale blue is probably acceptable.

Inappropriate tie As above Ties should be sober and discreet. Avoid black or white ties.

Top button of shirt undone (men) -2

Too much shirt undone (women) -1 or -2-3 if bra shows

Shirts should be predominantly done UP. Cleavage should not be on show.

Colourful socks (men) -1 Socks should be dark and plain.

Inappropriate tights/stockings -1 Plain or simple and subtle pattern.

Suit Colour -1 Suits should be dark. Either dark blue, dark grey or black.

Short skirts (women) -2 Nothing above the knee.

2. SHOES

Non-black shoes for men -2 Shoes must be black

Coloured shoes for women -1 or -2 (DOS) There’s a little more flexibility, but to keep it safe, you should stick to black or navy.

It is rare, but student COULD be penalised under more than one heading, and whilst each penalty is limited to a 3-mark deduction, multiple indiscretions could attract a larger penalty. With compound penalties, a ‘totality principle’ will be enforced to ensure that the total penalty does not become disproportionately high, and allowance is made for the fact that the penalties are compound.

‘Kinky boots’ (women) -2 Boots for women are OK, but they should avoid stiletto heels, buckles, straps etc

Boots with short skirts -3 This is an inappropriate combination for court.

Open toes -2 Not for court.

3. PUNCTUALITY

Not being ready when called from the preparation room (Adv Assessments 2 and 3)

-1 or -2 (DOS)-3 if writing after

being called

In court, when you’re called on you cannot keep the court waiting.

Being late (for Adv Assessment 1) -1 to -3 (DOS) As above.

4. GENERAL CONDUCT

Swigging from bottles -2-3 if water &

cups provided

We will endeavour to ensure that there is water available & cups for you to use. The assessments are never longer than 12 minutes. It is never appropriate to swig from a bottle in court.

Hands in pockets whilst addressing the judge -1 to -3 (DOS) Severity here is determined by how long the hand is in the pocket, and whether it is one or both hands.

Mobile phone goes off -3 With some judges you would actually forfeit your phone. Other judges have threatened contempt action!

Calling the judge the wrong name -1 or -2 (if a higher title used)

-2 or -3 (if a lower title used)

We will overlook a single ‘slip of the tongue’ but if the judge is repeatedly referred to the wrong way, a penalty will ensue. It is better to promote a judge than to demote the judge, (e.g. it’s better to call a DJ ‘Your Honour’ by mistake than to call a Circuit Judge ‘Sir’.

5. MISCELLANEOUS

Generally poor appearance -1 or -2 Under this heading, we may penalise poor personal appearance (e.g. scruffy hair, shirt un-tucked, dirty clothes or hands etc)

Inappropriate jewellery, studs and rings -1 to -3 (DOS) Counsel should not draw attention to themselves with anything more than simple and discreet jewellery.

DOS = ‘Dependant on severity’

Documents

BTT Advocacy Manual