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 itness !andlin" and Speec#es
1 Case Analysis
2 Speeches
3 Examinationinchie!
4 Crossexamination 1 " !unctions #re$uirements
5 Crossexamination 2 techni$ues
% &ull 'orke( example
Part $ Professional Conduct Offences List
Appendi% one some notes on assessments etc
)**+ AD,-CAC. /A01A2
1& 'EL()E*+
1&1 (NT*O',CT(ON
3t is pro4a4ly trite to say 5speak up an( stan( up straight67 4ut it is remarka4le
ho' many people (o not8 3t is har( in a manual to coach voice pro9ection an(
voice pro(uction7 4ut the secret is in the shoul(ers8 3! you have tension across
your shoul(ers an( they appear hunche(7 you are cutting o!! the supply o!
4reath8 :E2A; an( make sure that your shoul(ers are loose an( not tense8
3n criminal courts remem4er that your au(ience may inclu(e the pu4lic gallery8
3! this is so7 then the 4est volume is one that reaches the !ront o! the court an(
the 4ack o! the court8
1&2 E+ES ,P AN' E+ES 'ON A')OCAC+
A(vocacy is an oral skill8 3t is7 ho'ever7 a poor a(vocate 'ho ignores 'ritten
sources8 Sometimes in!ormation is more easily a4sor4e( orally an(
sometimes it is 4est to take in!ormation !rom a 'ritten source8 *he 4est
a(vocates 'ill use 4oth sources8
3n general terms7 'ritten sources are 4est 'hen the a(vocate nee(s to 4e
particularly precise8 Arranging (ata on a page can 4e much clearer an( more
help!ul than a long oral explanation8 Examples o! 'hich 'ritten (ocuments can
particularly assist are+
Chronologies
Contract terms
Statute
Case la'
Skeleton arguments
Plea(ings
<itness statements
/aps an( plans
*hese (ocuments are either care!ully (ra!te( an( are there!ore precise7 or
they use visual layout an( (esign to assist the tri4unal in a4sor4ing the (ata8
*he a(vantage that the voice has that the (ocument (oes not is that the voice
can express so many sha(es o! meaning an( emphasis8 3n many 'ays7 the
i(eal piece o! a(vocacy 'ill use text to impart in!ormation in a highly or(ere(7
controlle( an( accurate 'ay7 an( the voice is then use( to communicate the
emphasis an( reasoning7 an( makes the !acts an( arguments appear
persuasive an( compelling8
2a' School 1
/A01A2 ),C+ AD,-CAC.
1&2&1 -ettin" t#e e.es do/n
3! an a(vocate is going to use 'ritten sources as 'ell as relying on the oral
su4mission7 then the a(vocate must 4e strong in the 'ay that the (ocuments
are controlle(7 an( the 'ay that the 9u(ge6s eyes are controlle(8 3! the 9u(ge is
not looking at a (ocument 'hen you 'ant him to 4e so7 then the (ocument
ceases to 4e e!!ective8 3! the 9u(ge is not looking at you 'hen you 'ant him to
4e so7 then you cease to 4e e!!ective=
3t is7 there!ore7 essential to 4e strong in (ictating 'hen you 'ant the 9u(ge to
look at a (ocument8 <hen you 'ant the 9u(ge to (o so " say so=
o Might I ask the court to refer to the Claimants chronology
o Could I take Your Honour to the case of Miller v. Jackson?
Help the 9u(ge !in( the (ocument+
o Your Honour should find it toards the !ack of the !undle "ust after the
itness statements#
o Master$ the letter is dated %&th June$ and it has the Claimants logo in the
top corner...
o 'he statement is in the !lue !undle of documents at page &((
*he other gol(en rule is to wait !or the 9u(ge to !in( the (ocument you are
re!erring to8 /any a(vocate launch into their su4mission 'ith no regar( to the
!act that the 9u(ge is struggling to !in( the (ocument8
1&2&2 -ettin" t#e e.es bac0 up a"ain
>aving success!ully (irecte( the 9u(ge to a 'ritten source7 you then nee( to
reengage the 9u(ge in your oral per!ormance8
*he 4est 'ay is simply to 'ait8 <hen the 9u(ge has !inishe( a4sor4ing the
(ocument7 he is 4oun( to look up again8 *he simplest solution is simply to 'ait
!or this to happen8
3! you are keen to keep momentum an( not to pause to 'ait7 you might seek to
reengage the 9u(ge in your oral a(vocacy 4y a change o! tone in the voice8 3!
the (ocument is simply imparting in!ormation7 then the tone o! voice shoul( 4e
simple an( precise8 *he reason 'hy that in!ormation is important an( relevant
is a matter !or oral persuasion8 *here are some key 'or(s that in(icate that
you are no' taking the 9u(ge a'ay !rom the text8 <or(s like 5reason6
5conse$uence6 5implication6 5conclusion6 ten( to in(icate that your su4mission
is moving a'ay !rom the !acts an( into the commentary or interpretation o!
those !acts8 >ighlight these 'or(s orally an( the 9u(ge shoul( look up an( pay
attention8
1&$ F,NCT(ONAL AN' PE*S,AS()E A')OCAC+
1&$&1 'efinin" .our role
<hen any a(vocate goes to court7 he or she shoul( consi(er that the court 'ill
expect them to per!orm 2 roles8 *he !irst7 an( most o4vious7 is to act as a
2 2a' School
)**+ AD,-CAC. /A01A2
partisan a(vocate !or their client8 *his is plainly expecte(8 *he secon(7 less
o4vious 4ut incre(i4ly important role is that o! o!!icer o! the court8
A(vocates hol( 4oth roles in their han(s any time that they are in court8 3! you
are making an application7 then it is usual to give some sort o! !actual
4ackgroun( so that the 9u(ge un(erstan(s the context !or 'hatever application
is a4out to !ollo'8 3! you consi(er it7 this 4ackgroun( is !or the court6s 4ene!it7
an( as you (eliver a 4ackgroun( you are really !ul!illing your role an( !unction
as an o!!icer o! the court8 *his is 'hy 'e call this sort o! a(vocacy 5!unctional6
a(vocacy8
-nce you have set the scene7 then the a(vocate 'oul( usually go on to start
attempting to persua(e8 *his is 5persuasive6 a(vocacy8
)e!ore 'e look at each type in turn7 let6s 9ust consi(er 'hy it is so important to
have 2 (istinct a(vocacy styles7 an( 'hat can 4e gaine( 4y thinking in terms
o! the 2 (istinct roles8 3t is o4vious that i! you 'ant to 4e persuasive an(
success!ul7 then you nee( to impress the 9u(ge8 -ne o! the 9u(ge6s primary
$ualities 'ill 4e his or her 9u(iciousness ?4y (e!inition@8 3! a 9u(ge can sense in
an a(vocate the a4ility to 4e 9u(icious7 then the relationship 4et'een a(vocate
an( 9u(ge (evelops $uickly an( strongly8 *he a4ility to 4e a4le to argue a
partisan case7 4ut then also 4e a4le to stan( 4ack an( (eal 'ith matters as i!
you 'ere entirely in(epen(ent an( !ree o! 4ias is generally seen as a very
attractive skill8 <hat 'e nee( to consi(er is ho' to ,-CA22. sho' 'hich hat
you are 'earing an( to sho' the court 'hich role you are per!orming8
1&$&2 Functional ad1ocac.
&unctional a(vocacy is very important an( !e' applications are (evoi( o! it8
3magine7 !or example7 prosecuting a sentence8 Ethically7 the prosecution is
meant to 4e largely neutral an( the a(vocacy (oes not seek to persua(e7
rather7 it seeks to inform8 /any (iscussions on the la' are right on the
4alance 4et'een in!ormative an( persuasive7 an( it helps the court no en( to
kno' 'hen you are making su4missions to assist the court !rom a non4iase(
perspective7 an( 'hen you are arguing your case8
3t !ollo's then7 that to sho' 9u(iciousness an( the a4ility to 4e impartial7 the
proper tone o! voice 'oul( 4e calm7 pro!essional an( or(ere(8 *he in!ormation
that you are imparting is !act an( the voice shoul( re!lect that there is no (ou4t
over 'hat is 4eing sai(8 .ou are not (ealing 'ith argument7 in!erence7
supposition or conclusion8 .ou are simply (ealing 'ith !act8 A(vocates 'ho
can master a goo( !unctional tone are very goo( at talking 'ith authority an(
clarity8
3! you are giving a !actual 4ackgroun(7 in either a civil or a criminal case7 you
shoul( (o this in a !unctional 'ay7 i8e8 to in!orm rather than persua(e8 /any
a(vocates slip in argument 'hen giving a !actual 4ackgroun(8 *his is 4a(
techni$ue an( counterpro(uctive8 .ou 'ant any tri4unal to trust you as an
a(vocate on 'hom reliance can 4e place(8 3! you tell the court that you are
a4out to make a statement o! !act7 an( you (o not (o so7 4ut instea( give a
statement o! argument then you risk losing the con!i(ence o! the court7 an(
this 'ill (amage your authority8
2a' School 3
*ake the !ollo'ing example8 2et us say that you are prosecuting a 4ail
application8 )e!ore you try to persua(e the court to reman( the De!en(ant in
custo(y7 you 'ill nee( to give the 4ackgroun( !acts o! the case8 2et6s assume
that the !act that the De!en(ant ?'ho 'e 'ill call D-00-,A0@ is charge( 'ith
shopli!ting8 *he !ollo'ing are !acts in the case8
*hat Donnovan 'as seen in Cheep # Cheer!ul supermarket7
*hat Donnovan ha( 'ith her a 4a4y an( pushchair7
*hat a store (etective !ollo'e( her7
*hat Donnovan picke( up one 4ottle o! per!ume 'hich she pai( !or7
-n leaving the store7 she picke( out another 4ottle o! per!ume !rom the
!ol(s o! the retracte( hoo( o! the pushchair8 )y this stage she ha( passe(
through the tills7 an( she ha( not pai(8
*hese can properly 4e calle( !acts7 4ecause neither party (isputes them8 2et6s
assume that the (e!ence is that Donnovan6s (e!ence is that she knocke( the
secon( 4ottle o! per!ume into the hoo( o! her pram acci(entally7 an( (i( not
see that it 'as there until she 'as a4out to exit the store8 *he prosecution say
that this is 'rong7 4ecause the store (etective sa' her place the 4ottle in the
hoo( o! the pram7 an( he is sure it 'as no acci(ent8 As prosecutor7 you shoul(
not say that the evi(ence in (ispute is !act " an( certainly not in a !unctional
tone8 <hat you are (ealing 'ith is a S1)/3SS3-07 that you are a4le to prove
a !act in issue8 A su4mission like this 4elongs in the persuasive 4o(y o! an
application7 an( not in the opening 4ackgroun(8
So7 let us imagine a poor opening o! !act7 'here the a(vocate is com4ining
agree( !act 'ith (ispute( !act an( argument an( not (i!!erentiate the t'o8 *his
might go something like+
)ir$ the facts are as follos. *n +(
th
January Ms ,onnovan entered the
Cheep and Cheerful supermarket. )he as pushing a !uggy style
pushchair that had a retracting hood. )he as folloed to aisle %&
here she as seen to take a !ottle of perfume from the shelf. )he as
then seen to take a second !ottle of perfume from the shelf and place it
in the hood of the pram. )he made her ay through the checkout$
paying for one !ottle$ !ut dishonestly avoided paying for the second. *n
leaving the store$ she sa the security guards and so -uickly took the
!ottle of perfume out of the hood of the pram and a!andoned it on the
end of a till that she as passing.
.ou 'ill hear many a(vocates open a case this 'ay8 >aving sai( that they are
going to recount !acts7 they open a com4ination o! !act an( argument8 3n (oing
so7 they have not helpe( the tri4unal nearly as much as they might8 Critically7
i! the 9u(ge 'ere to reuse this 5!actual 4ackgroun(6 the 9u(ge 'oul( actually
4e making !in(ings on matters in issue8 *he opening is7 there!ore7 not 9u(ge
!rien(ly7 an( the 9u(ge 'ill have to approach it 'ith caution8 3t may 4e very
(i!!icult to open a !actual 4ackgroun( 'ithout inclu(ing some contention7 an( i!
this is the case7 all you nee( to (o is to impartially i(enti!y that it is argument
an( not !act8 >ence7 a 4etter opening o! !act 'oul( in(icate the true an(
proper status o! each piece o! in!ormation8 &or example+
)ir$ the facts are as follos. *n +(
th
January Ms ,onnovan entered the
Cheep and Cheerful supermarket. )he as pushing a !uggy style
pushchair that had a retracting hood. )he as folloed to aisle %&
4 2a' School
)**+ AD,-CAC. /A01A2
here she as seen to take a !ottle of perfume from the shelf. It is the
evidence of the store detective that she then took a second !ottle of
perfume from the shelf and placed it in the hood of the pram. )he made
her ay through the checkout$ paying for one !ottle. 'he crons case
is that she dishonestly avoided paying for the second. *n leaving the
store$ the cron ill seek to prove that she sa the security guards and
so -uickly took the !ottle of perfume out of the hood of the pram and
a!andoned it on the end of a till that she as passing.
3n the example a4ove7 the a((itional comments un(erline( in(icate 'here the
a(vocate has helpe( the 9u(ge 4y in(icating 'hat is agree( !act7 an( 'here
the a(vocate is in!orming the 9u(ge o! the cro'n6s position8 <ith these
a((itions7 the !actual 4ackgroun( is un4iase( an( relia4le in every 'ay an(
(oes not mu((le up 'hat is agree( an( 'hat is in (ispute8 *he opening has
(one the !irst si!t o! !act an( argument !or the 9u(ge8 *he 9u(ge 'ill 4e grate!ul
!or this8 3! this content is (elivere( in a style an( manner that the 9u(ge can
recognise as the !unctional an( nonpartisan tone7 then you 'ill 4e a4le at any
point to move 4et'een 9u(icious o!!icer o! the court an( partisan a(vocate8
So 4eing a goo( o!!icer o! the court partly involves 4eing care!ul an( precise
'ith content7 an( partly involves giving the in!ormation in a tone o! voice that
speaks authority8
*>E C-1:* S>-12D )E A)2E *- DE*EC* &:-/ .-1: *-0E -&
,-3CE <>E0 .-1 A:E )E30A 0E1*:A2 A0D AC*30A AS -&&3CE: -&
*>E C-1:*8 *he i(eal !or an a(vocate to achieve7 is !or the tri4unal to
recognise your !unctional tone o! voice7 an( have the trust in you to accept
everything that you say 'hilst using that tone o! voice to 4e unimpeacha4ly
correct8 3! you can attain that position you 'ill have really esta4lishe( a use!ul
tool o! gaining authority an( trust 'ith the court8 *his 'ill serve you very 'ell
'hen turning !rom 4eing the court6s o!!icer to 4eing an a(vocate !or
A:A1/E0*S in the case8
A persuasive tone is likely to 4e more expressive an( more animate(8
Persuasive a(vocacy is the a(vocacy on the issues o! a case 'here there is a
contest8 3t sets out to seek to compel the tri4unal that your case is more
logical7 more reasone(7 more 9ust 4etter su4stantiate( an( more compelling
than anything put !or'ar( !or the other si(e8
Aoo( a(vocates 'ill (ivi(e ?o!ten instinctively@ those parts o! any application
'here the su49ect matter is purely in!ormative an( 'here the su4mission turns
!rom !act to argument8 A(vocates must have a tone an( manner7
(istinguisha4le !rom each other7 to re!lect these t'o !unctions8
1&$&$ Persuasi1e ad1ocac.
>aving a((resse( the court on the necessary 4ackgroun( o! the case7 the
a(vocate must really look to 5move up a gear6 an( in(icate through the voice
that 'hat !ollo's is argument 4ase( on reason an( conviction8 *he voice 'ill
nee( to convey more energy7 more intensity an( more passion8 Passion in this
context (oes not mean theatrics or histrionics8 3t simply means a4solute
commitment an( (e(ication to the argument 4eing a(vance(8 *he stan(ar( to
consi(er in this regar( may 4e expresse( as !ollo's+
2a' School 5
*- :EA22. PE:S1ADE S-/E-0E7 .-1 0EED *>E/ *- &EE2 *>A*
*>E:E 3S 0-<>E:E E2SE .-1 <-12D :A*>E: )E7 0-*>30A E2SE
*>A* .-1 <-12D :A*>E: )E SA.30A7 A0D 0- -0E E2SE .-1
<-12D :A*>E: )E SA.30A 3* *--8
3! you !all short on any o! those lim4s7 you 'ill 4e (raining a'ay the interest
an( !ocus that the tri4unal shoul( 4e paying to you an( your su4missions8
*here are t'o signi!icant 4arriers to 4eing properly persuasive7 they are+
2ack o! commitment7 an( hesitation (ue to 30ADEB1A*E
P:EPA:A*3-0
0E:,ES
.ou 'ill nee( to i(enti!y 'hether either o! these pro4lems a!!lict you7 an( (o
something a4out it i! they (o=
1&2 LAN-,A-E
1&2&1 Addressin" t#e parties
<e 'ill come on to (iscuss 59u(ge centere( a(vocacy6 in relation to structure
4elo'7 4ut at this stage it is 'orth intro(ucing the concept since it impacts on
the right language !or court8 *he i(ea is that the a(vocate tries7 'herever
possi4le7 to re!lect the language that the 9u(ge 'ill use7 an( to express the
case in terms that the 9u(ge can trans!er into 9u(gment 'ith the minimum o!
e!!ort8
*he classic language (ilemma is over ho' to re!er to the parties8 *here are a
num4er o! options8
Call the parties 4y their names
Call the parties 4y their character in the procee(ings as a 'hole ?Claimant
an( De!en(ant etc@
Call the parties 4y their character in the procee(ings on the (ay ?applicant
an( respon(ent@
Call the parties 4y their relationship to the (ispute( event ?e8g87 architect
an( 4uil(er7 lan(lor( an( tenant etc@
:e!er to the parties as 5my client68
&irst an( !oremost " try not to use a com4ination o! all o! these8 *his 'ill (rive
the 9u(ge ma(8 Aenerally try an( stick to one8 3t may 4e that it 'oul( help to
use the names an( the character together8 *here is no right or 'rong except
that it 'oul( al'ays 4e 'rong to use all o! the metho(s o! re!erring to the
parties in(iscriminately8
*he 4est 'ay to re!er to the parties is to imagine ho' the 9u(ge 'oul( !in( it
easiest to give 9u(gment8 3n this regar( it is a close call 4et'een using the
parties6 names7 an( using their character in procee(ings8 3magine the
!ollo'ing t'o examples o! 9u(gment+
% 2a' School
)**+ AD,-CAC. /A01A2
1sing 5Claimant6 an( 5De!en(ant6
o 'his is an application to e.tend the time for service of a defence. 'he case
involves the purchase of a "uke!o. !y the Claimant from the ,efendant.
It is accepted !y !oth parties that the "uke!o. as sold on the
,efendants premises$ !ut transported !y the Claimant to the Claimants
premises and unloaded there !y the Claimant. It is agreed that the
machine as operational hen it left the ,efendants premises$ !ut
failed to ork on arrival at the Claimants premises. 'here are several
issues in the case#.
1sing the parties6 names
o 'his is an application to e.tend the time for service of a defence. 'he case
involves the purchase of a "uke!o. !y Mr /nglish from a firm called
)cuts 0eisure. It is accepted !y !oth parties that the "uke!o. as sold
on )cuts 0eisure premises !ut transported !y Mr /nglish to his
premises and unloaded there !y him. It is agreed that the machine as
operational hen it left )cuts 0eisure$ !ut failed to ork on arrival at his
home. 'here are several issues in the case#
)oth o! these 'ork !ine as 9u(gment8 *he only real rule is to try not to com4ine
4oth too much ?i! at all@8
3t is $uite a nuisance 'hen the applicant !or interim relie! is not the Claimant8
.ou have the option o! re!erring to the parties as the 5applicant6 an(
5respon(ent67 or sticking 'ith 5Claimant6 an( 5De!en(ant68 *he (anger lies in the
!act that 'hen you rea( the papers7 the plea(ings 'ill all 4e on the 4asis o!
5Claimant6 an( 5De!en(ant67 an( these terms are $uite likely to stick in your
hea(8 .ou can then !in( yoursel! re!erring to the parties as 5Claimant6 an(
5De!en(ant67 'hen you ha( starte( o!! calling them the 5applicant6 an(
5respon(ent68 *his can cause con!usion8 3! the application is technical7 an(
(oes not nee( much rehearsal o! the !acts o! the case7 or much re!erence to
the main procee(ings7 then it is easier to maintain the use o! 5applicant6 an(
5respon(ent67 'ithout slipping 4ack'ar(s an( !or'ar(s 4et'een the (i!!erent
!orms o! a((ress8
Sometimes7 the use o! Claimant an( De!en(ant 'oul( 4e a very (ry an(
unsatis!actory 'ay o! telling a story7 an( it 'oul( 4e much 4etter to use the
parties6 names7 !or example+
o 'his is an application for interim payment for a personal in"ury. 'he
Claimant is Mr 'urtle ho as out riding his horse. He !rings this claim
against a Mrs. 1utt ho attempted to overtake him on a narro part of
the road$ and Mr. 2oss ho as coming the other ay and is it is
alleged that he as driving in the middle of the road. 'odays dispute
lies !eteen Mr 'urtle and Mrs 1utt. Mrs 1utts case is that Mr 'urtle
aved her on to overtake and that therefore he is contri!utory negligent.
<hen the parties are private in(ivi(uals an( 'here the case is primarily one o!
!act an( not o! la'7 it is reasona4le to suppose that the parties6 names might
4e an easier 'ay o! (escri4ing the !acts o! the case8
2a' School C
Another goo( option to consi(er is to (escri4e an event 4y re!erence to the
part playe( 4y the party8 &or example7 in !amily procee(ings7 the parties are
almost al'ays re!erre( to 4y their position in the !amily7 !or example+
o Your Honour has + applications for contact$ one is made !y the father$
and one !y the maternal grandmother.
3n this example7 it might 4e that the !ather is the secon( De!en(ant7 an( the
gran(mother the !ourth De!en(ant8 3t is very much clearer to re!er to the
parties 4y their relationship to the chil( 'ho is the su49ect o! procee(ings7
rather then to give them the titles o! secon( an( !ourth De!en(ant8
A similar situation might arise in a 4uil(ing (ispute7 'here there might 4e
numerous parties to a single pro9ect8 *he option 'oul( 4e to have7 as in the
last case7 !irst De!en(ant7 secon( De!en(ant7 etc7 or to use their relationship to
the (ispute( pro9ect7 eg7 the architect7 the 4uil(ers7 the contractors7 an( the
(evelopment company8 *he latter is much the more help!ul in un(erstan(ing
'hat is going on in the case8
0o 9u(ge 'ill give 9u(gment re!erring to the parties 'ith re!erence to 'hose
client they are8 3t 'oul( 4e a4sur( to imagine a 9u(ge saying+
o 'his is an application made !y Mr Joness client for summary "udgment.
Mr )miths clients failed to acknoledge the particulars of claim served
!y Mr Joness client on %&
th
July#
3! the 9u(ge 'oul( never use an expression or term7 then it 'oul( seem that
that term is not a goo( one to use8 <e there!ore strongly (iscourage use o!
the term 5my client6 as 4eing the least help!ul 'ay to re!er to parties8
1&2&2 A1oidin" 3( t#in04 etc
A(vocates shoul( 4e a'are that they are not parties themselves7 an( are not
there to say 'hat they think ?so the rule goes@8 *he expressions 53 think6 an( 53
!eel6 are not really permitte( in court8
53 think6 or 53 !eel6 creeps into su4missions in a !e' scenarios8 *he !irst is 'here
the a(vocate is trying to en(orse their o'n case7 or (iscre(it the opposition7
eg I think it as proper for the Claimants to ait to speak to Mr )mith !efore
paying the invoice8 *he simple solution is to replace7 53 think6 'ith 53 su4mit68
An alternative 'oul( 4e to state the position !rom the party6s point o! vie' an(
not your o'n7 eg the Claimants case is that it as proper#.8
*he other 'ay to try an( a(( emphasis is not !or the a(vocate to a(( their
vie' or opinion7 4ut !or the a(vocate to put the thoughts an( !eelings 4ack into
the person they represent8 *his can 4e $uite e!!ective in the right
circumstances7 eg+
o Mr Jones e.plains that he could not consider the matter until he had had
his operation$ and the court may take the vie that he acted reasona!ly
in making that decision.
o 'he ,efendant is truly sorry for this offence and I urge the court to the
vie that she is no longer a risk to the pu!lic.
D 2a' School
)**+ AD,-CAC. /A01A2
3! you are expressing a vie' on the la'7 stick to 53 su4mit6 or 5my
un(erstan(ing6 is an accepta4le !orm o! 'or(s8 >ence+
o My understanding of s.%%3 is that the court must !e satisfied that#.
o In my su!mission$ s.%%3 esta!lishes that the court must !e satisfied
that#.
1&2&$ Addressin" t#e court
*he !ollo'ing chart in(icates ho' you shoul( a((ress the 9u(ge an( your
opponent in court7 an( ho' to re!er to them in a 'ritten a(vice or plea(ing8
.ou may hear it sai( that there is a prohi4ition on the use o! the 'or( 5you6 in
court 'hen a((ressing a 9u(ge8 *his is partially right8 .ou 'oul( never use the
'or( 5you6 too (irectly8 So7 i!7 !or example7 the 9u(ge aske( you a $uestion you
(i(n6t really hear7 you 'oul(n6t say E'hat (i( you sayFG .ou might ask E36m so
sorry7 4ut 3 (i(n6t catch that .our >onourG8 *here6s little pro4lem 'ith avoi(ing
5you6 4e!ore a Circuit 9u(ge7 as 5.our >onour6 'orks 'ell in all circumstances8
Pro4lems arise 'hen you have a District Hu(ge or /aster8 3t is very a'k'ar(
to say something like 5Does /aster have a copy o! the correspon(enceF6 *his
soun(s horri4ly unnatural8 So7 the solution that 'e suggest is that 5you6 is
accepta4le to use 'hen a((ressing a 9u(ge7 so long as the 9u(ge6s title is not
!ar a'ayI !or example7 E/ight 3 ask7 /aster7 i! you have a copy o! the
correspon(enceFG *his is !ine8
*he correct titles !or use in the courts are as !ollo's+
T#e 5a"istrates4 Court
A')OCATE '(ST*(CT
6,'-E
LA+ 5A-(ST*ATES OPPONENTS
Counsel Sir or
/a(am
A((ress the 4ench through the chair8
*he chair is again Sir or /a(am8
3nclu(e the other magistrates 4y saying$
)ir$ if you and your colleagues#. -r
Might I invite the !ench# or 5If I could
address the court...
/y learne(
!rien( ?or my
!rien( i!
opponent is not
counsel@
Solicitor Sir or
/a(am
A(vocate a((resses the 4ench as 5.our
'orships68
As a4ove
2a' School J
T#e Cro/n Court
A')OCATE *ECO*'E* C(*C,(T 6,'-E !(-!
CO,*T
6,'-E
OPPONENTS
All a(vocates 5.our >onour6 5.our >onour6 5/y 2or(6
5/y 2a(y6
5/y learne(
!rien(6 ?or 5my
!rien(6 i!
opponent is
not counsel@
3n 'riting
?a(vices
appeals etc8@
5/r8K/rs8
:ecor(er
)arnes6
5>isK>er >onour
Hu(ge )loggs68
3! you have i(enti!ie(
them alrea(y7 you
coul( use 5*he
learne( Hu(ge then
sai(L6 4ut its less
!ormal
5>isK>er
2or(ship6
)y name7 eg
5/r8 )loggs
acting !or the
Cro'n6 or
simply re!er to
them as7 eg7
5prosecuting
counsel6
-ut o! court
?in cham4ers
or in the car
park@
Hu(ge
?eg4 Hello
Judge$ ho
nice to see
you@
Hu(ge Hu(ge
T#e Count. Court
A')OCATES '(ST*(CT 6,'-E C(*C,(T 6,'-E OPPONENTS
All a(vocates Sir or /a(am .our >onour /y learne( !rien(
?or my !rien( i!
opponent is not
counsel@
3n 'riting District Hu(ge Hones or
5*he learne( 9u(ge6
Same as Circuit
Hu(ge in the
cro'n court
Same as in the
cro'n court
1M 2a' School
)**+ AD,-CAC. /A01A2
2& ST*,CT,*E
2&1 !AT 5A7ES -OO' ST*,CT,*E8
*here is an anser to the $uestion 5'hat is 4est structure !or an applicationF6
*he ans'er is that the 4est structure is one that can 4e use( as a 4lueprint !or
the 9u(ge6s 9u(gment8 3! you can use your notes to make your application an(
i! you are a4le to use them to give 9u(gment in your !avour7 then you have
pro4a4ly structure( your application very 'ell8
*here is no set !ormula !or giving 9u(gment7 4ut the general process might go
as !ollo's+
Hu(ge in(icates 'ho the parties are an( 'hat the application is !or
Hu(ge gives a 4rie! 4ackgroun( to the case
Hu(ge in(icates 'hat the issue is ?or issues are@ that (etermine the case7
Hu(ge 'ill in(icate the test that he is using to come to the appropriate
(ecision7
Hu(ge 'ill in(icate 'hat vie' he takes on a particular point7 an(7
Explain 'hat evi(ence or argument supports the (ecision the 9u(ge is
going to take8
*he 4est general structure is to pro(uce !or the 9u(ge an application that takes
the 9u(ge se$uentially through the issues an( !acts in such a 'ay that the
9u(ge can han( out 9u(gment 'ith the minimum o! (eviation or nee( to re
arrange the su4missions ma(e 4y you8
<hat !ollo's is a gui(e to 4uil(ing an application stage 4y stage8 *he stages
re!lect the or(er in 'hich the 9u(ge might (eal 'ith the case in 9u(gment8
2&1&1 (ntroductions
0ote that 'hen intro(ucing yoursel! an( your opponent7 there are 2 main
rules8
Do not intro(uce yoursel!8 .ou simply say 53 appear !or theL68 *his is
4ecause the 9u(ge 'ill kno' 'ho you are7 as the usher 'ill have taken
your names ?or you may have signe( in electronically@8 .ou only nee( to
in(icate 'ho you are appearing !or8
Do not use your opponent6s !irst name8 1se /r7 /rs7 /iss or /s ?or other
title@8
2&1&2 Bac0"round of t#e case
*he issue o! 'hat to put in a 54ackgroun(6 o! the case trou4les many
a(vocates8 *he situation to avoi( is one 'here you launch into argument
'ithout the 9u(ge $uite 4eing up to spee( on the !acts o! the case8 3! this is
'hat happens7 the 9u(ge either has to a(mit that he is not !ollo'ing the
argument 4ecause he is not clear enough on the 4ackgroun(7 or the 9u(ge 'ill
not intervene7 4ut 'ill simply miss the !orce o! the arguments8
2a' School 11
As a general rule7 try an( set out in a clear an( simple 'ay7 those !acts ?an(
only those !acts@ that un(erpin your arguments8 /any a(vocates are not
su!!iciently selective a4out the !acts that go into any 4ackgroun(7 an( it
soun(s as i! the a(vocate is not really sure 'hat the purpose o! giving any
history is8
)e very clear to i(enti!y 'hich !acts are essential to un(erstan( 4e!ore any o!
your arguments make sense8 -nce the short7 essential 4ackgroun( is
esta4lishe(7 the a(vocate can then start to argue a position kno'ing that the
9u(ge has a su!!icient un(erstan(ing o! the case to !ollo' the arguments that
you make8
3t is also critically important to report !act an( not to (isguise a !act in (ispute
as a !act that the court can accept as agree(8
2&1&$ (ndicatin" t#e issues in a case
*his is one o! the most vital skills o! an a(vocate8 3! a su4mission is to 4e truly
59u(ge !rien(ly67 it is essential to in(icate to the 9u(ge 'hat the issue in the
case is8 *he 9u(ge 'ill 'ant to kno' 'hat $uestion it is that the parties are
seeking to have ans'ere(8 *he issue is that point or points o! (i!!erence
4et'een the parties7 the resolution o! 'hich 'ill (etermine the outcome o! the
hearing8 *he a(vocates shoul( highlight !or the 9u(ge 'hat point it is that
separates the parties8
*ake7 !or example7 a contract case8 3magine that C ?Claimant@ supplies goo(s
to D ?De!en(ant@ un(er a contract8 *he (ate !or (elivery o! the goo(s 'as not
put in 'riting8 C supplies the goo(s a!ter 2 'eeks7 4ut D has alrea(y gone
else'here an( purchase( !rom another supplier8 D accepts 4ut then re9ects
the goo(s8 D also counterclaims as the replacement goo(s 'ere more
expensive an( less suita4le7 an( D contents that they have lost 4usiness as a
result8 C sues !or the unpai( invoice8 3n this scenario there coul( 4e a range o!
(i!!erent issues8 Consi(er that the a(vocate has given the !actual 4ackgroun(
as 9ust set out7 an( then goes on to explain 'hat the issue?s@ is ?are@+
o Your Honour$ the issue in this case is hether there as an e.press oral
term in the contract that stipulated that time as of the essence. )u!"ect
to Your Honours finding in terms of the contract$ the -uantum of damages
is agreed
o Your Honour the Claimant accepts that time as of the essence in this
contract. 'he issue in the case is hether the ,efendant in fact affirmed
the contract in accepting the goods delivered at a later date.
o Your Honour$ the ,efendants have accepted lia!ility in this case$ !ut the
issue remains over the forseea!ility and remoteness of the ,efendants
counterclaim for loss of !usiness.
o Your Honour a num!er of matters remain in issue in this case. )o far as
the contract itself is concerned$ the parties are in dispute over hether
there as a term in the contract in regard to the proper delivery date of the
goods. It is further in issue hether the ,efendant affirmed the contract in
any event hen the goods ere first accepted. )o far as -uantum is
concerned$ the counterclaim is disputed. 'he first issue is hether there
has !een proper mitigation of loss$ and secondly hether the loss of
!usiness claim is too remote.
12 2a' School
)**+ AD,-CAC. /A01A2
3n the examples a4ove7 the a(vocate has trie( to (irect the 9u(ge to'ar(s the
essential (ispute in the case8 3t can 4e 9ust as help!ul to in(icate 'here there is
agreement an( resolution as 'here there remains an issue8 Similarly7 there
may 4e issues that 'ill 4e relevant to parts o! the procee(ings other than the
instant hearing8
Skeleton arguments are suppose( to have an 5issues6 hea(ing7 an( this
comes 'ith the !orce o! a Practice Direction8 3! it is right to inclu(e the issues in
a case that re$uires a skeleton7 it must surely 4e goo( practice throughout8
2&1&2 (ndicatin" t#e test
All applications come 'ith a test8 *he 9u(ge must use the right test or else 4e
appeale(8 /ost tests are 'ell kno'n an( straight!or'ar(I some are more
complex as they (erive in part !rom the CP: an( in part !rom commentary an(
case la'8 *ake interim in9unctions !or example8 *he authority !or granting an
interim in9unction is statutory 'ith accompanying CP:8 *he next $uestion is
'hether the case !alls un(er the principles lai( out in 5merican Cyanimid v.
/thicon 0td8 *hese 5principles6 are so 'ell esta4lishe( that they are 5the test6
!or the granting o! an interim in9unction8
3n general terms7 applications shoul( move through the lim4s o! the relevant
test?s@8 Hu(ges 'ill o!ten construct their 9u(gments aroun( the test lai( (o'n
!or that type o! application8 3n(ee(7 many (o this very explicitly an( it is clear
that the 9u(ge is trying to make the 9u(gment 5unappeala4le6 4y sho'ing ho'
the 9u(gment satis!ies the test8
<hen communicating 'hat the test is to the 9u(ge7 it is o!ten e!!ective to talk
the 9u(ge through the process !rom the 9u(ge6s o'n point o! vie'8 &or
example+
o Your Honour$ the test laid don for the court is set out C62 rule %3.3$ and
might I indicate that the court ill !e asked to decide this case under !oth
lim!s of that test. 7nder the first lim! of the test$ the court must consider
hether#.
*he !ocus here is upon the court an( this generally makes the 9u(ge 'ell
(ispose( to the a(vocate8
2&1&9 Propositions and e1idence
>aving esta4lishe( the test7 or part o! the test7 that must 4e satis!ie(7 it then
comes (o'n to the arguments that you 'ant to a(vance7 an( the reason !or
the arguments8 As a rule 'e take the vie' that it is 4etter practice to make a
proposition7 'hich can then 4e supporte( 4y evi(ence7 rather than revie' the
evi(ence an( 4uil( to a proposition8
An example o! the 4etter practice 'oul( 4e+
o Master the Claimants case is that there is no merit to the ,efendants
purported defence. 'his is !ecause there are manifest inconsistencies on
the face of the ,efendants on case. 'hese include#
*he alternative 'oul( 4e to (eal 'ith the evi(ence !irst an( then propose that
there is no merit in the purporte( (e!ence8 *he a(vantage o! putting the
2a' School 13
proposition !irst is that makes it per!ectly clear 'hat your case an( position is8
3t is then per!ectly clear 'hy you are going on to cite evi(ence an( the 9u(ge
'ill entirely appreciate 'hat you are attempting to (ra' !rom it8 3! the 9u(ge is
'ell (ispose( to accept the proposition7 ?an( expresses as much@ you kno'
that you can move on $uickly8 3! the 9u(ge !ro'ns at the proposition7 then you
kno' that you 'ill have to look at the evi(ence care!ully to su4stantiate it8
Hu(ges are impatient as a rule an( i! the (irection o! a su4mission is not clear7
the 9u(ge is likely to interrupt8 3! you make the proposition !irst an( then
support7 it 'ill help the 9u(ge un(erstan( the (irection o! the su4mission8
/ost 9u(ges make !in(ings !irst an( then give their reasons8 Eg+
o In my vie this is an unsupporta!le defence. I have !een helpfully
referred to a num!er of contradictions that appear in the itness
statement and these include#
3n the same 'ay7 it is recommen(e( that 'hen $uoting authorities7 make the
point !irst7 an( then look at the authority8 Eg+
o 'he Claimants case is that the escape of golf !alls into private land is an
esta!lished head of nuisance. 'he case that esta!lishes this is#
3t is much less goo( practice to announce that you 'ant the 9u(ge to look at a
case 'ithout in(icating the reason8 -nce the 9u(ge kno's the point o! the
re!erence the 9u(ge 'ill o!ten help an( gui(e you on the extent to 'hich you
nee( to take the court through the authority8 3n the a4ove example7 the 9u(ge
might reply 4y saying 53 am $uite content that you are right a4out that an( 3
(on6t nee( to 4e taken to the authority86 .ou can then simply move on8
2&1&: Summar. of "ood structure
3n summary7 although every case is (i!!erent an( there is no a4solute right or
'rong 'ay to structure an application7 the !ollo'ing is recommen(e(+
3ntro(uce the parties8 Do not intro(uce sel!7 an( (o not use !irst names8
Say 'hat the application is !or an( 'ho makes it8
Aive a 4ackgroun( that is neutral an( intro(uces the case in succinct an(
pithy terms8
3n(icate the issues in the case8
/ake su4missions un(er the hea(ings o! any relevant test set out 4y
statute7 common la'7 CP:7 case la' or Practice Direction8
1n(er each lim4 o! the test7 state your position an( argument8
Husti!y your position 'ith evi(ence7 common sense an( authority
'henever you have any o! those in support8
3! you (o it this 'ay7 you S>-12D have create( an application that coul( act
as a template !or the 9u(ge to give you 9u(gment8
14 2a' School
)**+ AD,-CAC. /A01A2
2&2 S(-NPOSTS
<hen you have gone to the trou4le o! constructing an argument7 you must 4e
in a position to express that structure orally8 *his is usually calle(
5signposting68
*he simplest an( most o!ten use( !orm o! signpost is simply in(icating the
num4er o! su4missions that are going to 4e o!!ere( to the court7 eg 5/aster7 3
have 3 su4missions68
*his is not the only !orm o! signpost8 <henever your argument contains any
!orm o! se$uence or progression7 there shoul( 4e signposts8 >ere are some
examples o! the structure 4eing in(icate( orally8
o )ir$ if the court find that the ,efendant acted fairly$ then there are 3
conse-uences hich I ould seek to put !efore the court..
o Might I deal ith the effect of the delay first#
o If Your Honour is against me on that point then might I turn to the
Claimants alternative position#
o My lord$ the appellants position in the round is#
o I raise a smaller supplemental point hich goes to the rather more narro
issue of#
All o! these are examples o! the a(vocate trying to !in( oral e$uivalents o! all
the textual tools such as ne' paragraphs7 in(ents7 ne' chapter hea(ings etc8
*he signpost is an in(ication o! progression an( (irection o! the su4mission8
*hey really help 'hen the 9u(ge is trying to take a note o! the su4mission8 *he
signposts in(icate 'here the su4mission has got to7 'hich !acts are 4eing
$uote( in support o! 'hich propositions7 'hich arguments are those most
vigorously put !or'ar( an( so !orth8
$& PE*S,AS(ON
$&1 -OL'EN *,LES OF PE*S,AS(ON
>ere is a set o! 5gol(en rules6 o! persuasion8
$&1&1 'efine t#e issue on /#ic# .ou see0 to persuade
A su4mission is not simply a (iscussion o! a case8 *he 9u(ge 'ill 'ant to kno'
'hat point you are trying to get across8 *he a4ility to (e!ine the point that you
are trying to communicate is one o! the essential ingre(ients o! persuasion8 3!
you !ail to communicate the point or the issue at han(7 the result is likely to 4e
a 9u(icial intervention8 *he 9u(ge may ask 'here you are going 'ith the
su4mission or heKshe may !ail to appreciate the relevance o! the su4mission8
Everything that you say must have relevance an( !ocus7 an( you shoul(
in(icate very clearly 'hat the issue at han( is7 an( (e!ine the point to 'hich
2a' School 15
your su4missions go8 )e clear an( (irect in opening the topic on 'hich you
are going to a((ress the court8 &or example+
o 'he point on hich I seek to persuade Your Honour is#.
o 'he Claimants position is that the auditors ere negligent and I turn no
to address hy the Claimant su!mits that that is so
o 'he ,efendant ould seek to address in court on the issue of #
$&1&2 !eadlinin"
*his is not a rule 'ithout exception7 4ut it serves 'ell as a general principal8 3!
you imagine a ne'spaper 'ith a hea(line in 4ol( an( the article 4elo'7 this
might help8 &e' people 'oul( 4e naturally (ra'n to an article 'ithout kno'ing
the hea(line8 3! you kno' the hea(line7 then you can (eci(e ho' much o! the
article you 'ant to rea(8 *he 9u(ge is likely to take much the same vie'8 3! the
9u(ge hears the point on 'hich you are going to a((ress the court7 the court
can in(icate the extent to 'hich it 'ishes to hear the su4se$uent argument8
*he 9u(ge might say+
o I can help you that I accept that the Claimant must !e right a!out that or
o You ill need to persuade me of that !ecause on my initial vie of the
case#.
3n either event7 the 9u(ge is happy 4ecause heKshe is kept involve( an( kno's
'hat points you are tackling7 an( it is help!ul !or the a(vocate to 4e a4le to
react to any in(ication !rom the 9u(ge either to take the point more $uickly
?4ecause the point is alrea(y accepte(@ or to take the point in more (etail
?4ecause the 9u(ge has in(icate( some scepticism@8
:ecent gra(uates ten( to have 'orke( on the 4asis o! 'riting essays that
(iscuss a topic an( 'ork to'ar(s a conclusion8 3t can 4e har( to reverse the
process an( state a conclusion an( then 9usti!y it7 4ut !or practical oral
a(vocacy7 the latter is much the 4etter process8
$&1&$ ,se 3si"nposts4 and lists
*here is no su4stitute !or 'ellstructure( argument8 3! you can present a series
o! arguments7 each o! 'hich sho' no !la' in logic7 'hich take the 9u(ge !rom
the exposition o! the case through the test !or granting the application7 then
the application 'oul( seem 4oun( to succee(8
3! you have a strong structure an( rigour to your argument7 the crucial point is
to make this structure plain8 *o that en(7 signpost your su4missions to make
them persuasive8 3n(icate the stages o! the argument as you go through them8
3n(icate 'here your su4missions 4uil( upon each other an( 'here they act as
alternatives to one another8
.ou 'ill give maximum e!!ect to your arguments 'here they are presente(
precisely7 an( 'here the structure o! the argument is 'ell controlle( 4y
signposting8
2ists can 4e very e!!ective in oral a(vocacy8 3t is much easier to take a note o!
a list7 rather than have to (istill the points !rom a 'i(er an( more ram4ling
su4mission8 .ou might say7 !or example+
1% 2a' School
)**+ AD,-CAC. /A01A2
o Your Honour$ might I run through the mitigating features in the case? I
have identified seven features of the case ith hich I seek to persuade
the court that this case is less serious than it may$ at first$ seem. 'hey
are#..
$&1&2 ,se .our 1oice;
<hen (elivering any su4mission7 keep using the tone o! your voice to
persua(e8 3n the section on (elivery7 'e (iscusse( the i(ea that an a(vocate
shoul( have at least t'o tones o! voice8 *he primary an( 4asic (ivision is
4et'een 5!unctional6 a(vocacy ?'hich seeks to impart in!ormation 'ithout
persuasion@ an( 5persuasive6 a(vocacy7 ?'here the a(vocate is trying to a((
reason an( expression to the argument@8
*he !irst thing that gets lost 'hen an a(vocate is nervous is the expressive
an( persuasive tone o! voice8 <ith nervous a(vocates7 all the su4missions
ten( to 4e (elivere( in the same tone an( manner7 an( it is very har( !or a
9u(ge to concentrate an( listen to a su4mission that is (elivere( in one tone o!
voice throughout8
3n any normal or natural conversation7 people use (i!!erent tones o! voice to
express 'hat nee(s to 4e in the 5!oregroun(6 ?ie those matters that are (irectly
relevant an( pertinent@ an( those that are a necessary !ormality an( can 4e
committe( to the 54ackgroun(68 *he same shoul( 4e true !or a(vocacy8
*o 4e persuasive7 the tone o! voice must re!lect the content o! the application7
an( terms o! persuasion7 the key is to (istinguish those arguments that are
really your strongest an( on 'hich you really seek to rely7 an( (o not let them
get lost in a !eatureless an( unvarie( su4mission8
$&1&9 E.e contact
Eye contact is essential to persuasion8 *he 9u(ge has to !eel engage( 'ith the
a(vocate8 3t is optimistic to think that a 9u(ge 'ill ever engage 'ith an
a(vocate i! there is no eye contact 4et'een them8
Eye contact is increasingly har( to maintain i! the a(vocate is 'orking !rom a
script7 or !rom notes that are too !ull or chaotically set out8 Aoo( notes are
there!ore essential8 :ea(ing a script is not a(vocacy8 :ea(ing !rom a script
'ill almost certainly (estroy any eye contact ?or at least any meaning!ul eye
contact@8
$&1&: Encoura"e t#e court to identif. /it# t#e ar"ument /#ere1er possible and
appropriate
*he techni$ue o! trying to make the tri4unal i(entity 'ith a position is one that
'e all use naturally an( instinctively8 .ou hear all the time people say things
like7 5imagine 'hat it must have 4een likeL6 or other phrases (esigne( to
involve the listener more actively an( 'ith more imagination8 A(vocates must
4e care!ul not to appear to 4e overly theatrical or sensational7 4ut on the other
han(7 the a(vocate shoul( look to engage the 9u(ge 'herever it is relevant
an( appropriate8 &or example+
o 'he ,efendant in this case as acting under a degree of duress. I invite
the court to consider ho hard it ould have !een for an %8 year old
young man$ living on that estate$ ithout a father or strong figure to turn
2a' School 1C
to$ refusing the demands of + men ho have !oth !een convicted of
serious assaults and armed ro!!ery#
o 'he ,efendants case is that the Claimant failed to mitigate her losses !y
taking ta.is rather than using pu!lic transport. You have heard from her
ho akard life ould have !een for her$ shopping for a large family$
and suffering$ as you have heard$ from headaches and !ackaches as a
result of the accident. 'he court$ I hope$ ill take the vie that she acted
perfectly reasona!ly in all the circumstances.
3n these examples7 the a(vocate has trie( to paint a picture in simple an(
(irect terms an( attempte( to engage the court in the scenario8
$&1&< ,se e%#ibits /#ene1er t#e. /ould be of use
A picture can paint a thousan( 'or(s8 Do not con!ine yoursel! to oral
a(vocacy i! there are other sources o! in!ormation that 'ill communicate a
point !aster7 'ith more clarity7 or 'ith more impact8 A photograph o! mangle(
car remains 'oul( communicate the severity o! a crash 'ith much more
impact7 !or example8 Sometimes the (ocuments that you might use are in the
papers an( to han(7 other'ise you may have to generate them yoursel!8 .ou
may think that chronologies7 photographs7 maps7 plans7 sche(ules etc coul(
an( 'oul( assist the tri4unal8 3! this is so7 you shoul( (o 'hat you can to make
sure that they are supplie( an( rea(y !or the court8
2& S7ELETON A*-,5ENTS
2&1 (NT*O',CT(ON
<ith ever increasing pressures to make the legal system as e!!icient an( cost
e!!ective as possi4le7 there has 4een a stea(y shi!t to'ar(s thinking o!
a(vocacy in terms o! a 'ritten skill as much as an oral skill 'hen it comes to
making su4missions8 Skeleton arguments use( to 4e $uite rare in practice7
an( reserve( only !or the 4ig cases8 *hey use( to 4e almost unhear( o! in
crime8 0o'7 almost any time 'here the court kno's that there is to 4e legal
argument7 a skeleton argument 'ill 4e expecte(7 i! it is not actually or(ere(8
A skeleton argument is the 'ritten core o! the su4missions on 'hich you are
inten(ing to rely8 3t allo's the court to prerea( an( to consi(er the merits o!
your case 4e!ore the oral hearing8 3n practice7 some 9u(ges expect the
skeleton argument to e!!ectively stan( as the application7 an( the oral hearing
is re(uce( to a set o! $uestions !rom the 9u(ge on any point o! the skeleton
that the 9u(ge 'ishes to (iscuss !urther8
3t is har( to teach skeleton arguments7 as they are a tool 'hich are use( very
(i!!erently in practice 4y practitioners an( appreciate( very (i!!erently 4y
9u(ges8 *echni$ues that one 9u(ge might applau(7 'ill 4e criticise( 4y other
9u(ges8 Some 9u(ges 'ill 4e please( to rea( long an( !ull skeletons7 others 'ill
'ant the skeleton to 4e more pithy an( succinct8 *he short ans'er is that you
'ill (evelop7 over time7 a sense o! ho' you most like to 4alance 'hat you (o
1D 2a' School
)**+ AD,-CAC. /A01A2
orally 'ith 'hat you (o on paper8 <e 'ill give you a set o! gui(elines 'hich
shoul( set you o!! 'ith a (ecent starting point !rom 'hich you can (evelop
your o'n practices accor(ing to the sort o! 'ork that you (o an( the sort o!
a(vocate you 'ant to 4e8 <e 'ill not 4e overly prescriptive7 an( give you a
4asic gui(e 'hich is (esigne( 'ith 4asic practice an( the assessments in
min(8
*here are examples here o! skeleton arguments in the next section8 <e have
concentrate( on the sort o! skeleton that you might 'rite !or the assessment
on an interim application8 <e have given you skeletons !or 2 cases that you
(o on the civil mo(ule " this means that you have all the papers in your civil
4un(le o! materials7 an( you 'ill 4e rea(ing the cases in (etail !or that part o!
the programme8
&or interim applications ?'hich 'ill 4e the assessment type !or a(vocacy 1@ 'e
recommen( a skeleton 'hich is reasona4ly short an( punchy7 an( allo's the
9u(ge to see the overvie' o! the argument an( the structure o! the
su4missions can 4e (istille( 5at a glance68 <hen you have a case liste( !or a
hearing like an interim payment or summary 9u(gment7 you are usually
competing in a long an( heavy list o! cases7 an( (ealing 'ith a 9u(ge 'ho has
a heavy 'orkloa( an( 'ho is trying to keep the !acts o! lots o! cases in min(8
*he 4est approach to take is to make the skeleton (ynamic an( punchy8 3! you
can make a lot o! progress in expressing the essence o! your case simply7
then (o so " leave the !lourish an( the (etail !or the oral su4mission8 Don6t
lose the clarity an( simplicity o! the point 4y 4urying it in a long an( ar(uous to
rea( skeleton=
)y contrast7 the a(vice on appeal is really a !ull su4mission8 *he a(vocate in
an appeal 'on6t even get a !ull hearing i! the 'ritten 'ork is not persuasive8
Conse$uently7 the content shoul( 4e pretty !ull8 Also7 the appeal court 9u(ges
'ill take the 'ritten 'ork more seriously an( un(erstan( that in matters o!
appeal7 the issues are usually more complicate( an( nee( to 4e expresse(
more !ully in or(er to make sense o! the a(vocate6s argument8
*>E S*:1C*1:E 30 *E:/S -& >EAD30AS A0D 2-A3C 3S ,E:.
S3/32A: :EAA:D2ESS -& >-< &122 A0D <-:D32. *>E SNE2E*-0 3S
E;P:ESSED8
)oth (ocuments take the rea(er through the 4ackgroun(7 the la'7 the issues7
an( the argument un(er each hea(ing8 *he (i!!erence comes in the
accompanying (etail8 *he skeleton on the interim application really nee(s an
a(vocate to come an( !ill out all the arguments8 *he secon( skeleton is
(esigne( to 4e a complete argument on the papers8
/any practitioners (ealing 'ith complex cases 'oul( 'rite their skeletons in
the manner o! the a(vice on appeal8 *his is 'hy 'e inclu(e it8
.ou shoul( imagine a spectrum7 'here the 4asic an( short skeleton !or a
short interlocutory application is at one en( o! the spectrum7 an( at the other
en( is the skeleton7 'hich is argue( !ully an( leaves little le!t to say in the oral
application8
2a' School 1J
<e inclu(e an example o! 4oth styles7 4ut !or the purposes o! the ),C <E
A:E 2--N30A &-: .-1 *- <:3*E A SNE2E*-0 A2-0A *>E 230ES -&
*>E &3:S* SNE2E*-0 ?the interim in9unction@8 *he assessment 'ill 4e an
interlocutory application7 an( you shoul( com4ine the skeleton 'ith the oral
application8 <e guarantee that you 'ill have S-/E intervention !rom the
9u(ge in a ),C a(vocacy assessment7 4ut not much8 .ou 'ill nee( to sho'
the a4ility to make a reasona4ly !ull oral su4mission7 an( so 'e strongly
recommen( that you (on6t 'rite your skeleton as a more or less ver4atim
script8 .ou 'ill un(ermine your oral per!ormance i! you (o=
2&2 ST*,CT,*E
*he skeleton structure shoul( 4e a clear set o! (irections !or ho' an( 'hy you
are asking !or 9u(gment8 *o that extent7 it is i(entical to any application that
you make7 'ith or 'ithout a skeleton8 *he skeleton shoul(7 there!ore7 !ollo'
the 4asic structure o!+
*he intro(uctory part o! the skeleton8 *his 'ill vary slightly accor(ing to the
nee(s an( complexity o! the case8 3t 'oul( 4e normal to !in( the !ollo'ing
in most skeletons+
<hat the application is !or
A 4rie! intro(uction to the parties
A 4rie! intro(uction to the case topic
:e!erence to the governing la' an( proce(ure
A list o! (ocuments re!erre( to
A chronology ?i! one 'oul( materially assist the court@8
A statement o! the issues in the case8
*he lim4s o! the test un(er 'hich argument is to 4e ma(e un(erneath
'hich shoul( come7
)rie! in(ication o! the argument on 'hich you seek to rely7 un(erneath
'hich shoul( come7
*he evi(ence or authority that ten(s to support the argument8
2&$ OT!E* -OL'EN *,LES
*here are other 5gol(en rules6 o! skeleton arguments an( ho' the 'riter
shoul( set them out8
*hey are as !ollo's+
1se ackno'le(ge( an( accepte( a44reviations ?e8g8 C !or Claimant7 D !or
De!en(ant@8 3n practice7 some 9u(ges (islike a44reviations7 4ut on 4alance7
'e encourage it8 3t appears as recommen(e( practice in a Practice
Direction8 3(eally7 you 'ill kno' your 9u(ge an( 'hether he or she likes
a44reviations or not8 3! the skeleton is longer an( more involve(7 then
a44reviations 'oul( seem to 4e less appropriate8 <e encourage use o!
appropriate a44reviations in interlocutory applications8
-nly cite authorities that actually go to (etermine a genuine issue in the
case8 *here is a ten(ency !rom 1niversity to make 4i4liographies as long
2M 2a' School
)**+ AD,-CAC. /A01A2
as possi4le8 Some people keep up this ten(ency an( sprinkle authorities
all over their skeleton8 3! the authority is not really essential to the case7
D- 0-* C3*E 3*8 *he 9u(ge 'ill 4e !urious i! he or she is (irecte( to an
authority that he or she rea(s only to !in( that this 'as time completely
'aste(8
Cite authorities accurately an( !ully7 inclu(ing the page re!erence !or any
point on 'hich you are inten(ing to rely8
<rite in a clear an( (irect style8 0o !lourish or !ancy language8 Some
skeletons you 'ill see in practice go so !ar as to 'rite in incomplete
sentences8 <e (o not a(vocate this7 4ut rather 'riting as clearly7 simply
an( (irectly as possi4le8 *he !lourish an( choice language shoul( 4e
save( !or your oral a(vocacy8
<hen citing evi(ence7 give the re!erence to the (ocuments in the papers8
Some 9u(ges 'ill 'ant to rea( your skeleton )E&-:E rea(ing the papers8
3! you make an important statement o! !act on the skeleton7 then the 9u(ge
may 'ish to go an( !in( that (irectly in the papers8 .ou shoul(7 there!ore7
crossre!er the !act to the place in the papers 'here that !act is given in
evi(ence8 3t is important at the start o! the skeleton to in(icate 'hich
(ocuments the 9u(ge shoul( rea(7 an( to ascri4e a 'ay o! re!erring to that
(ocument in the skeleton8 *his may not 4e relevant in a criminal case7 4ut
'oul( 4e more or less stan(ar( in civil cases8 Please see the 9irkood v.
:lenfeather sample skeleton !or an example o! listing the (ocuments in
support o! an application7 !ollo'e( 4y a 'ay o! re!erring to that (ocument
in the skeleton8
2&2 T!E LOO7 OF T!E S7ELETON
A skeleton argument is most help!ul 'hen it really sho's o!! the structure o!
the argument8 3n practice7 many skeleton arguments simply look like essays
4roken (o'n into num4ere( paragraphs8 *o set them out this 'ay is to miss
the opportunity to make an impact 4y sho'ing that your argument has logic
an( structure a4out it8
*o make an impression 'ith a skeleton7 it is vital to set it out consistently an(
logically8 *ry so !ar as possi4le to ascri4e one !ormatting tool ?eg7 CAPS7
italics7 bold7 un(erlining7 4ullet points7 4rackets etc@ to one !unction ?eg7 test
hea(ings7 re!erences to CP:7 $uoting authorities etc@8
*ake the !ollo'ing extract !rom a skeleton argument+
2a' School 21
9& Summar. 6ud"ment on contract 1
Is there a link !eteen the contracts?
581 Contract 1 shoul( 4e accepte( as complete( an( the money (ue 4ecause any
!ault 'ith the yarn has 4een reme(ie( 4y the issuing o! a cre(it note8 *his is a
plain an( e$uita4le solution8 *he remaining DMO o! yarn has 4een use(8
582 Payment is (ue un(er contract 1 unless D can sho' some evi(ence o! a term
purporting to link the payment o! contract 1 to the per!ormance o! contract 28 D
'ill !ail to esta4lish such a term 4ecause it is not in 'riting7 an(I
1@ All the other contract terms o! 4oth contracts are 'ritten7 plain an( (istinct
P:A/1 page 1 # JQI
1@ D ha( !rom Huly 4
th
to Huly 21
st
to re(uce any a((itional terms into 'ritingI
2@ *he existence o! such a purporte( term is expressly (enie( PDP para2QI
3@ Paragraph % o! each contract 1 A0D contract 27 speci!y that the contracts
are separate 5stan( alone6 contractsI
4@ /r /orecam4e !or D is a managing (irector8 Presuma4ly he has !un(s !or
legal a(vice7 an( shoul( un(erstan( the nee( to re(uce agreements to
'riting8
3n the a4ove example7 there is a clear logic to the !ormatting8 *he primary
hea(ing is in 4ol(7 the su4hea(ing is in italics8 *he argument is in 5plain6 script7
an( the evi(ence in support is num4ere( an( in(ente(8 :e!erences to the
papers are in s$uare 4rackets8 3t is not necessary to (o all skeleton arguments
the same 'ay7 4ut there shoul( 4e logic an( consistency 'ithin the same
skeleton8
>aving set up a system !or (evoting a !ormatting tool a !unction7 the 9u(ge
shoul( then 4e a4le to pick up this system $uickly an( conse$uently the 9u(ge
shoul( 4e a4le to extract the in!ormation !rom it much !aster than i! it is
essentially 9ust a script 'ith num4ere( paragraphs8
Some people (islike 4ullet points7 an( pre!er plainer text8 *here are !e' rights
an( 'rongs8 *he essential rules are ?1@ not to pro(uce a script or essay ?2@
!ormat consistently8
2&9 ,S(N- A S7ELETON A*-,5ENT
*he great test in a case 'here there is a skeleton argument not to use the
skeleton as a script8 *he skeleton an( the oral su4mission shoul( 'ork
together 'herever possi4le7 an( you nee( to launch your oral su4missions on
the 4asis o! the skeleton8 >ere are some examples o! some situations that you
'ill encounter 'hen 4alancing your content 4et'een the skeleton an( the oral
per!ormance8
22 2a' School
)**+ AD,-CAC. /A01A2
Situation 1 " you have nothing to a(( to the skeleton
Your Honour ill see that I have produced a short synopsis of the
!ackground of the case at paragraph +.%. Your Honour$ I ould not
propose to take the court through the !ackground unless Your Honour
ould ish me to do so.
Situation 2 " .ou 'ant to sho' the logic an( structure o! your skeleton
Your Honour ill see at paragraph &.% that I deal ith the principle that
there is a serious issue to !e tried. Your Honour ill also see that I have
taken the component elements of a !inding contract and dealt ith each
in turn ; starting ith offer and acceptance at paragraph &.%.%.
Situation 3 " the skeleton is plain an( simple7 an( you 'ant to a(( some more
persuasion
Your Honour ill see that I indicate at paragraph 3.% that the Claimant
contends that damages ould not !e an ade-uate remedy to repay her
for the suffering and an.iety to hich she is currently e.posed. Your
Honour$ might I "ust take that su!mission a little further and e.plain hat it
ould mean in practical terms if this order ere not granted?
Situation 4 " you have liste( reasons in the skeleton7 some are more
important than others
Your Honour ill see listed at paragraph &.+ the elements of
consideration that the Claimant says e.isted in this contract. Your Honour
I do not intend to trou!le you !y rehearsing all of them$ !ut might I "ust
take a moment to e.plain the particular importance of the third item
listed?
.ou 'ill notice that in each o! the examples a4ove that the su4mission 4egan
'ith a re!erence to the skeleton argument8 .ou (o not nee( to (o this to the
point o! (istraction7 4ut the general rule shoul( 4e that your oral a(vocacy an(
the skeleton shoul( 'ork together7 an( that any su4mission shoul( 4e 4ase(
upon7 an( launche( 4y7 the correspon(ing paragraph in the skeleton
argument8
3t is $uite amaRing ho' easy it is !or a tri4unal to miss a point that an a(vocate
is making8 3! the tri4unal is !ollo'ing the a(vocate 4oth orally A0D on paper7
an( the paper argument is clearly an( precisely lai( out7 it is conse$uently
very much har(er !or the 9u(ge to lose the threa( o! 'hat the a(vocate is
saying8 1sing 4oth the 'ritten argument an( the oral argument in tan(em is a
very strong tool o! persuasive a(vocacy8
3! you simply :EAD the skeleton out7 you are not a((ing anything to it7 an(
your presence as an oral a(vocate is completely 'aste(8 A(vocacy (oes not
e$uate to rea(ing out (ocuments=
9& Sample briefs and s0eleton ar"uments
2a' School 23
Case stud. 1
Perfect +arns
=1=
!andcraft 7nittin"
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
S7ELETON A*-,5ENT FO* T!E APPL(CANT
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

(N T!E !(-! CO,*T OF 6,ST(CE
?,EEN4S BENC! '()(S(ON
BETEEN@
PE*FECT +A*NS L(5(TE'
Claimant
and
!AN'C*AFT 7N(TT(N- L(5(TE'
'efendant
_________________________________________
SKELETON ARGUMENT OF THE CLAIMANT
_________________________________________
1& (ntroduction
181 *his is C6s application !or Summary Hu(gment ?SH@ un(er CP: 248
182 *he claim is !or the sum o! S2237C2M 4eing the price o! goo(s Pcotton yarnQ sol(
an( (elivere( 4y C to D pursuant to t'o 'ritten contracts Pcontracts 1 an( 2Q8 3n
contract 17 2MO o! the yarn 'as (e!ective8 A cre(it note !or the (e!ective yarn
'as issue( 4y 'ay o! compensation8 *he parties contracte( again ?contract 2@8
*he yarn in contract 2 'as su49ecte( to a 5ne' (ying process68 D argues that
the yarn un(er contract 2 'as not !it !or this purpose7 an( that acceptance o!
the cre(it note 'as con(itional on contract 2 4eing !it !or purpose8 C6s case is
that there 'ere no such terms8
183 *he (ocuments re!erre( to in support o! the application are+
<itness statements+ :oger /orcam4e P/orecam4eQ # exhi4it P:A/ 1Q
Derek Paul PPaulQ8
2& *ele1ant dates
128%8MJ " (ate o! contract 1
2%8%8MJ " (elivery o! yarn un(er contract 1
2J8%8MJ " complaint a4out yarn un(er contract 1
M48C8MJ " cre(it note issue( !or O o! su4stan(ar( yarn
218C8MJ " (ate o! contract 2
258C8MJ " (elivery un(er contract 2
1J8J8MJ " complaint a4out $uality o! yarn un(er contract 2
$& T#e test
*his application !alls to 4e consi(ere( un(er the 5no realistic prospects o!
success6 principal in rule 2482 a@ ii@8

2& T#e issues in t#e case
48 *here is no (ispute that some yarn un(er contract 1 'as !aulty7 an( that
a cre(it note 'as issue( in response8 *he exact agreement a4out ho' to
reme(y the pro4lem is in (ispute8 *he issues there!ore appear to 4e+
1@ 3n a((ition to the cre(it note7 is there a link 4et'een payment o!
contract 1 an( per!ormance o! contract 2F
2@ <as there a term in contract 2 that re$uire( the yarn to 4e !it to
4e (ye( using the 5ne' (ying process6F
3@ <as the yarn actually un!it to 4e (ye(F
4@ Does the (elay in the complaint un(er contract 2 imply
a!!irmation o! itF
9& No realistic prospects of defendin" Aud"ment for sums under contract 1
Is there a link !eteen the contracts?
581 Contract 1 shoul( 4e accepte( as complete( an( the money (ue 4ecause any
!ault 'ith the yarn has 4een reme(ie( 4y the issuing o! a cre(it note8 *his is a
plain an( e$uita4le solution8 *he remaining DMO o! yarn has 4een use(8
582 Payment is (ue un(er contract 1 unless D can sho' some evi(ence o! a term
purporting to link the payment o! contract 1 to the per!ormance o! contract 28 D
'ill !ail to esta4lish such a term 4ecause it is not in 'riting7 an(I
1@ All the other contract terms o! 4oth contracts are 'ritten7 plain an( (istinct
P:A/1 page 1 # JQI
5@ D ha( !rom Huly 4
th
to Huly 21
st
to re(uce any a((itional terms into 'ritingI
%@ *he existence o! such a purporte( term is expressly (enie( PDP para2QI
C@ Paragraph % o! each contract 1 A0D contract 27 speci!y that the contracts
are separate 5stan( alone6 contractsI
D@ /r /orecam4e !or D is a managing (irector8 Presuma4ly he has !un(s !or
legal a(vice7 an( shoul( un(erstan( the nee( to re(uce agreements to
'riting8
583 <here parties (isagree a4out the existence o! an oral term in a contract 'hich
is other'ise essentially 'ritten7 the court is 4oun( to accept the 'ritten terms
an( (ismiss the allege( oral term. *his is presume( 4y la' !ollo'ing the Parol
Evi(ence rule8
:& No realistic prospects of defendin" Aud"ment for sums under contract 2
<as there a term that re-uired the yarn to !e fit to !e dyed under the ne process?
%81 D6s expose( the yarn to a 5ne' (ying process6 P/orecam4e para DcQ8 *he issue
is 'hether there 'as a variation in the contract to accommo(ate this ne'
re$uirement !or the yarn8
0o express term
%82 *here is no express term o! !itness !or the 5ne' (ying process68 *here is a 'ritten
contract 'ith (e!inite terms8 D cannot success!ully intro(uce evi(ence o! a

purporte( a((itional oral term as to 'hat 'as re$uire( o! the yarn8 *he reasons
set out a4ove ?482 an( 483@ apply8

%83 As this is a ,A:3A*3-0 !rom a previous course o! 4usiness7 the onus to re(uce the
variation to 'riting is even greater8 *he a4sence o! a 'ritten term is !atal8
0o implie( term
%84 *he courts shoul( not imply terms against the 'ritten contract8
1@ *he term as to the speci!ication o! the yarn is 'ritten an( states only that
the yarn is 5car(e( cotton6 P:A/1 page JQ8
2@ 0o evi(ence that yarn 'as not car(e( cotton8
%85 Derek Paul (enies a(vising that the yarn 'oul( 4e suita4le !or a particular (ying
process8 *here is no evi(ence that he 'as aske( to vie' the process7 or given
!ull particulars a4out the process7 an( so it 'oul( 4e unreasona4le to rely on his
9u(gment even i! he ha( given it8
<as the yarn fit for purpose?
%8% Even i! D can esta4lish that the yarn nee(e( to 4e !it to 4e (ye( 4y this 5ne'
process67 there is no relia4le evi(ence that the yarn 'as not actually !it to 4e
(ye(8 *he pro4lem may have 4een the process7 not the yarn8 *he la4 report
'hich ten(s to 4lame the yarn has little value8
1@ *he la4 report is not in(epen(ent P/-:ECA/)E para1MQI
2@ *he report is preliminary P:A/1 p13QI
3@ 3t appears !rom rea(ing the report that the la4 receive( the yarn at 2+3Mpm
on (ay report 'ritten Pas a4oveQI
4@ *he yarn teste( 'as not 'hat ha( 4een (elivere( " the yarn teste( ha(
4een through the (ying process Pas a4oveQ
5@ 3nstructions to la4 appear to 4e lea(ing Pas a4oveQI
%@ *he report has no !irm conclusions Pas a4oveQ8
Has the contract !een affirmed in any event?
%8C A0D7 in E3*>E: event7 there 'as such a (elay in complaining a4out contract 27
D has either A&&3:/ED the contract7 or is incre(i4le in complaining a4out it8
1@ Complaint on contract 1 'as almost imme(iate P:A/1 p4%Q
2@ Complaint on contract 2 not !or 2 months P:A/1 p1DQ
C there!ore seeks SH upon the 'hole o! its claim on the 4asis that D has
no prospect o! success!ully (e!en(ing the claim in respect o! either
contract8
P(ate(Q
)PP Cham4ers
%DCM :e( 2ion Street
2on(on

CO55ENTA*+ ON T!E S7ELETON A*-,5ENT
18 .ou 'ill o!ten have to consi(er 'hether you nee( a chronology7 or an
extract o! a !e' relevant (ates7 or neither8 3n this case7 a short (igest o!
(ates seeme( 9ust a4out 'orth it8 :ea(ing the (ates gives the clear
impression o! 2 sets o! transactions7 an( it 9ust looks like 2 separate
(ealings8 *he other a(vantage o! (oing a short chronology is that it supports
the su4missions ma(e later on a4out a!!irmation8 *his su4mission relies
upon a revie' o! the (ates an( so the short chronology might prove use!ul8
3! you think that a !ull chronology 'oul( 4e the use!ul7 then it 'oul( 4e usual
to have one appen(e( to the 4ack o! the skeleton8
28 *his case is $uite challenging in terms o! expressing the issues shortly an(
succinctly8 <e have (one our 4est here8 *he issues themselves are
expresse( as $uestions8 *his is the normal 'ay o! (oing it8 *he alternative
is to use the !ormulation7 5'hetherL6 as a 'ay o! expressing the issues in
the case8
38 *he test !or summary 9u(gment applica4le to this case is the 5no realistic
prospects o! success6 test8 *his is a one lim4 test7 so 'e 'oul( normally
have all the su4missions un(er a single test hea(ing8 <e have only split the
su4missions un(er 2 hea(ings 4ecause it is $uite possi4le that the 9u(ge
coul( give summary 9u(gment on one amount o! money ?un(er contract 1@
4ut not give 9u(gment !or the rest ?un(er contract 2@8 *heoretically7 the
reverse is also possi4le ?i8e8 9u(gment !or contract 27 4ut not !or contract 1 "
although this 'oul( make no logical sense in the context o! this case@8 So7
!or all practical purposes7 there are actually 2 applications here " one !or
summary 9u(gment un(er contract 17 an( one !or summary 9u(gment !or
contract 28 >ence the 2 main test hea(ings8
48 .ou 'ill see that 'e have 4rought the issues into play un(er the test
hea(ings8 *>3S 3S A2<A.S -1: P:E&E:ED S*:1C*1:E8 *he issues
!all to 4e consi(ere( un(er the appropriate test hea(ing8 >ere7 there are 4
issues7 an( only 1 arises in relation to contract 18 *he other 3 all 4elong
un(er contract 28
58 *his case has up to 3 levels o! hea(ings8 <e have trie( to make this easy
to !ollo' in our choice o! !ormatting8 *he test hea(ings are A22 4ol( an(
un(erline(8 *he su4hea(ings 'hich intro(uce the relevant issues are all in
italics8 -ne o! the issues re$uires !urther su4hea(ings8 .ou 'ill see that 'e
have (ivi(e( the issue o! 'hether the yarn ha( to 4e !it to 4e (ye( into
'hether the term might 4e 5express6 or 5implie(68 *he su4hea(ing is
in(ente( an( un(erline(8 *here is no magic !ormula to 'hat !ormatting
techni$ue you give to 'hat kin( o! hea(ing8 *he only essential point is to
keep it consistent8 *he nicer it looks the 4etter7 4ut consistency is the 4ig
priority8
%8 3! you look at paragraph 57 you 'ill see that there are 2 paragraphs in 'hat
'e 'oul( call 5plain text6 " i8e8 there is no particular !ormatting applie(8 3n

this skeleton7 once 'e have passe( through the 4ackgroun( sections7 the
main argument is in 5plain text68 3! there is evi(ence in support o! the
argument7 then the evi(ence is presente( as a num4ere( list7 an( is
in(ente(8 Anyone rea(ing this skeleton shoul( pick up $uite $uickly that the
!ormula is 5proposition Tsupport6 in construction8 Anything in(ente( an(
num4ere( is supportive o! the text that prece(es it8 *he 5proposition T
support6 mo(el un(erpins our teaching o! ho' to 4uil( su4missions8

Case stud. 2
*upert Turtle
=1=
Anita Nutt B Andre/ *oss
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
S7ELETON A*-,5ENT FO* T!E APPL(CANT
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

(N T!E !(-! CO,*T OF 6,ST(CE 2CCD T No& $21$
?,EEN4S BENC! '()(S(ON
BETEEN@
*,PE*T T,*TLE Claimant
and
E1F AN(TA N,TT B 'efendant
E2F AN'*E *OSS
______________________________________
S7ELETON A*-,5ENT ON BE!ALF OF T!E CLA(5ANT
UUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU
1& (ntroduction
181 *his is C6s application !or an interim payment pursuant to CP: 258C?1@?e@ an( the
Supreme Court Act 1JD1 s8327 !or in9uries sustaine( in a roa( acci(ent on 2
n(
/arch 2MMD8 *he !igure re$ueste( is S3M7MMM ?see 4elo'7 para C@8
182 *he (ocuments relie( upon in this application are+
Statements o! case+ PP-CQ7 PD16s De! an( CCQ7 PD26s De!enceQ
<itness statements+ :upert *urtle P*urtleQ7 Anita 0utt P0uttQ7
An(re' :oss P:ossQ7 Hocelyn <ill4ourne P<ill4ourneQ8
/e(ical reports+ PDr EvansQ PDr SinghQ
-ther+ *he >igh'ay Co(e
Clarke v <inchurch =%>?>@ % 5ll /2 +A( ?a (river giving a
signal is (oes not assume the !ull risk !or the person to
'hom the signal is given@8
:range Motors v )pencer =%>?>@ %5ll /2 3&B ?a person
'ho is o!!ere( a signal must use his o'n (iscretion in
(eci(ing 'hether to accept it@8
)tringman v Mc5rdle =%>>&@ % <02 %?(3 ?C (oes not have
to sho' nee( !or the 3P7 4ut it may in!luence the court6s
(iscretion@
2& Bac0"round
281 C 'as ri(ing a horse on a country lane 'ithout roa( markings8 D1 ?0utt@
4egan to overtake the horse on a sharp 4en( 4ut then ha( to s'erve to avoi(
D2 ?:oss@ coming the other 'ay8 D1 colli(e( 'ith the horse8 Prior to D1
overtaking7 C ha( ma(e a han( signal to D18 C6s case is that the signal 'as
!or D1 to remain 4ehin( himI D16s case is that the signal 'as to overtake8 C
sustaine( in9ury7 an( the horse 'as (estroye( at the scene8

1& $& T#e test for (nterim Pa.ments /#ere t#ere are multiple insured
'efendants
381 Applications un(er r8258C ?1@?e@ re$uire 4oth Ds to 4e insure( ?not in
(ispute@
Primary test+
1@ C 'oul( o4tain 9u(gment !rom at least one (e!en(antI Pr8 258C?1@?e@?i@Q
2@ *he 9u(gment 'oul( 4e !or a su4stantial amount o! moneyI Pr8
258C?1@?e@?i@Q
3@ Set o!!s7 contri4utory negligence an( cc6s are all relevantI Pr
258C?5@Q
4@ *he court must not or(er more than a reasona4le proportion o! the likely !inal
a'ar(8 Pr8258C?4@Q
2& T#e issues in t#e case
481 3t is not in (ispute that 9u(gment 'ill 4e entere( against one o! the parties8 *his is
not a 5no !ault6 acci(ent7 or the !ault o! an unkno'n party8
482 *he only allegation against C an( his part in the acci(ent relates to C6s han(
signal8 *his is the only apparent o4stacle to C o4taining 9u(gment8 3t the court6s
interpretation o! the han( signal is the real issue !or this application8
9& ill C obtain Aud"ment a"ainst at least one defendant8
581 Primary lia4ility lies against D1 4ecause she overtook 'hen it 'as unsa!e to (o so8
*his a(mission is ma(e in the statements o! case PD16s D an( CC para 4Q8

582 D1 may not trans!er primary lia4ility onto C even i! she 'as relying on a signal to
overtake8 :elying on a signal (oes not a4solve a (river o! his or her o'n (uty to
take care " the primary (uty remains on the (river 'ho proposes to overtake to
take care8 *his is sho'n 4y+
1@ >igh'ay Co(e on reacting to a signal
66roceed only hen you are satisfied that it is safe Cpara 8?D
use your own judgment and proceed carefully.Cpara >%D
2@ :range Motors ?as a4ove@ ?the same point is ma(e in Clarke@
the driver to hom the signal is given has a duty of care in deciding hether to rely on that
signalCheadnoteD
583 *he acci(ent 'as cause( 4y D1 not checking that the roa( ahea( 'as clear7
an(Kor (eci(ing to rely on a signal even though she coul( not esta4lish i! the roa(
'as clear or not8 *he han( signal can only 4e a contri4uting !actor7 not the cause8
584 *he over'helming impression is that D1 'as simply (riving 4a(ly an( not actually
paying attention8
1@ *he in(epen(ent evi(ence is that D1 'as on the phone7 an( impatient to
overtake ?revving her engine an( (riving too !ast@ P<ill4ourne para 2QI
2@ D1 'as convicte( o! careless (riving8
585 3t is immaterial to this application 'hether D1 can esta4lish that the roa( 'as
'i(e enough !or her to pass7 an( although she 'as negligent7 D2 'as as 'ell8

:& ill dama"es be substantial8
)6/CI50 ,5M5:/)
%81 S4M71M%8JM claime( in the sche(ule remains a goo( estimate7 consi(ering+
1@ *hat the loss o! earnings are corro4orate( 4y C6s employers7
2@ <hilst there might an issue a4out the exact value o! the horse7 any re(uction
to re!lect this 'oul( 4e more than ma(e up !or 4ecause7
3@ Since the sche(ule7 there have 4een !urther me(ical 4ills8
:/1/250 ,5M5:/)
%82 *he !igure !or recovery at trial shoul( 4e in the region o! S1D7MMM7 taking into
account 5(ou4le recovery68 Estimates o! recovery o! (amages appear 4elo'8 ?all
cases !rom kemp an( kemp@8
El4o' &racture8 Plaster shoul(er to 'rist 1M 'eeks8 <ires inserte(
in el4o'8 Physio !or several months8 HS) gui(elines suggest+
Also see 1euman v <hite attache(8
S127MMM
2eg Crushe( 4y horse8 Severe so!t tissue in9ury8 1nsightly scars8
Aching an( sti!!ness ongoing8 HS) gui(elines suggest+
Also see 0ong v Cornall CC attache(8
SD7MMM
0ose &racture( nose8 Consi(era4le pain 34 months8 Some pain
ongoing8 HS) gui(elines suggest+ S27MMM
'*'50
%83 *he !igure o! S5D7MMM is clearly su!!icient to in(icate a su4stantial claim8
<& *eduction for contributor. ne"li"enceG counterclaim etc8
C81 D16s case is that C 'ave( her on to overtake7 an( that any a'ar( !or (amages
'ill 4e su4stantially re(uce(8 *his is most impro4a4le 4ecause+
1@ *he in(epen(ent 'itness says that the signal 'as to stop P'ill4ourne para 3QI
2@ *here is no such thing as a han( signal to overtake Phigh'ay co(eQI
3@ 3t is inconceiva4le that C 'oul( invite a car to overtake on a 4lin( 4en(I
4@ D1 'as paying little attention to the signal Psee para 584 a4oveQ8
C82 *he misinterpretation o! the signal is plainly D16s error entirely8 As such7 there is
unlikely to 4e any !in(ing o! contri4utory negligence at all7 an( there!ore no
re(uction in the claim or any allo'ance o! the counterclaim8
D& T#e amount sou"#t as a 3reasonable proportion4 of t#e final a/ard
D81 *he amount sought is S2D7MMM S317MMM8 Any !igure in that range 'oul( clearly
represent a reasona4le proportion o! the expecte( recovery7 an( is less than the
special (amages in the case8 *he entire amount o! general (amages plus a4out
S1M7MMM in special (amages acts to protect the court !rom any risk that C6s
recovery is not as much as expecte(8

H& T#e discretion of t#e court
J81 C (oes not have to sho' that he has a nee( !or the money7 4ut sho'ing that he
has a goo( reason !or asking !or the money may 4e persuasive in asking the
court to exercise its (iscretion ?stringman " as a4ove@8 *his application is 4ase(
on nee(8
1@ SD7MMM to cover mortgage arrears an( over(ra!t Pturtle para DQI
2@ S57MMM !or operations8 2 operations7 ?nose an( el4o'@ Pturtle para CQI
3@ S157MMM ?estimate@ !or a replacement horse Pturtle para 1MQI
4@ C asks on instruction !or some a((itional !un(s !or travel an( (ecorating an(
physiotherapy8 An a((itional statement coul( 4e taken8 ?S37MMM@8
1C& Conclusion
1M81 *his is a suita4le case !or an interim payment on the 4asis that the main (ispute
in terms o! negligence lies 4et'een 2 insure( Ds8 C is only lia4le to account !or
his han( signal7 'hich seems to have 4een properly given7 an( !or 'hich the
court is likely to attach very little7 i! any7 4lame8 )y asking !or only a4out hal! o!
the expecte( recovery7 the court can 4e con!i(ent that this interim payment can
4e sa!ely a'ar(e(8
?Date(@
)PP cham4ers
%D " CM :e( 2ion Street

CO55ENTA*+ ON T!E S7ELETON A*-,5ENT
18 0ote that in this case 'e have 3 authorities8 *hey are liste( as 5(ocuments
in support6 o! the application8 .ou 'ill see that the essential proposition !or
'hich the authority is 4eing cite( appears in 4rackets !ollo'ing the citation8
*his is in compliance 'ith the Practice Direction8 Avoi( simply listing
authorities 'ithout making it clear <>. you are listing them8 <e !in( that
some stu(ents think that a long list o! authorities looks impressive8 <ell7 i!
the 9u(ge 'ent a'ay to rea( all o! them on your recommen(ation only to
!in( that it 'as unnecessary to (o so7 you6( !in( yoursel! in a lot o! trou4le8
*he list o! authorities shoul( 4e as short as possi4le in or(er to make the
point that you 'ant to make8 3! the 9u(ge agrees 'ith the proposition in
4rackets7 then the 9u(ge kno's that it is unnecessary to rea( the case as
this is the only point that you are using the case to (emonstrate8
28 <ith 2 (e!en(ants7 the shorthan( o! D1 an( D2 is immeasura4ly more
help!ul than having to 'rite 5the !irst (e!en(ant6 or 5the secon( (e!en(ant6
each time8
38 *he relationship 4et'een the issues an( the test is very interesting in this
case8 3nterim payments 'here there are multiple insure( (e!en(ants has a
test o! its o'n7 an( it is7 essentially7 that in or(er to save time7 you can
have an interim payment so long as it is clear that you 'ill recover against
S-/E)-D.8 3t (oesn6t matter 'ho8 *he reason 4eing that i! the 'rong
(e!en(ant pays up at the interim payment hearing7 the a(9ustment can 4e
ma(e 4et'een the insurers in (ue course8 So7 in this case7 there is the o((
$uirk that the (ispute 4et'een D1 an( D2 4ecomes irrelevant !or the sake
o! the interim payment hearing8
48 *he test in the CP: !or interim payments is not 'ell (ra!te(8 *here is a
single sentence 5'oul( the claimant o4tain 9u(gment !or su4stantial
(amages68 As this is 9ust one sentence7 it 'oul( appear to 4e one lim4 o!
the test8 >o'ever7 5'oul( o4tain 9u(gment6 is a4out lia4ility an( 5su4stantial
(amages6 seems to 4e a4out $uantum8 <e strongly recommen( that these
2 are split8 .ou then nee( to rea( aroun( the rules a 4it to unearth the
remain(er o! 5the test6 an( it seems that there are 2 more hur(les8 .ou
nee( to assess 'hether the 5su4stantial (amages6 are lia4le to 4e re(uce(
!or 5counterclaims7 seto!!7 contri4utory negligence etc68 *he !inal
consi(eration is 'hether the application is !or a 5reasona4le proportion68
So7 you 'ill see that our 5test6 section is not a ver4atim recor( o! 'hat the
CP: says7 4ut contains a 4it o! interpretation too8 0ot every 9u(ge in the
lan( 'oul( see the test in $uite the 'ay that 'e have interprete( the lim4s
o! it7 4ut 'e think that 'e have ma(e an a'k'ar(ly 'or(e( test much
more managea4le an( 'orka4le7 an( 'oul( hope that most tri4unals
'oul( !in( our interpretation a goo( one to !ollo'8
58 *his case is also interesting in that it seems to us that D1 has no (e!ence
to a !in(ing o! lia4ility against her8 She has conce(e( that she overtook

'hen it 'as unsa!e to (o so8 She has 2 lines o! 5(e!ence68 *he !irst is to
say that she 'as 'ave( on8 *he case la' suggests that the act o! 'aving
on is only something that C-0*:3)1*ES to the acci(ent8 *he CA1SE o!
the acci(ent 'as the (ecision o! D1 to act on the signal even though she
coul( not see !or hersel! that the roa( ahea( 'as clear8 *his (ecision to
act on the signal 'as negligent7 an( it cause( the acci(ent8 3t seems that
lia4ility must 4e hers in the !irst instance8 She only 4rings in the han(
signal !rom C as a contri4uting !actor7 i8e8 un(er contri4utory negligence8
>er secon( line o! (e!ence is that the roa( 'as 'i(e enough !or the horse
an( 2 cars8 *his seems unlikely to 4e true7 4ut 'e (on6t even nee( to
'orry a4out that7 as the s$ua44les 4et'een D1 an( D2 are immaterial to C
on his application !or an interim payment ?as (iscusse(@8
%8 *his skeleton is also 4ase( on the i(ea that 'e 'ant the 9u(ge to 4e a4le
to see the propositions in the case7 an( to see the support !or the
propositions8 *he support !or any proposition is normally E,3DE0CE7 4ut
you 'ill see that this is not invaria4ly the case8 *he proposition in
paragraph 582 that the person 'ho receives a signal cannot trans!er
lia4ility !or an acci(ent onto the signal giver is a proposition o! la'7 an( the
support comes !rom case la' an( the high'ay co(e8 *he same !ormatting
is a(opte( " i8e8 to have the support !or the proposition in num4ere(
paragraphs an( in(ente(8 *he other example o! support !or a proposition
4eing something other than evi(ence is in paragraph C818 *he proposition
is that the likelihoo( is that the signal 'as to stop8 *here is some evi(ence
!or this7 4ut there is also the common sense o4servation that it 'oul( 4e
very o(( !or someone to 'ave a car on to overtake on a 4lin( 4en(8 <e
'oul( classi!y this as an 5common sense o4servation6 an( there is nothing
'rong 'ith arguing that common sense supports your proposition8 3t is
o!ten the 4est support o! all8
C8 Please note that in *>3S CASE 'e are calle( on to sho' that the
5su4stantial (amages6 'oul( not 4e re(uce( on account o! contri4utory
negligence8 Aiving a mislea(ing signal coul( 4e an act o! contri4utory
negligence8 <e have ha( some stu(ents in the past make su4missions on
contri4utory negligence ?using this sample skeleton as a template@ in
cases o! 4reach o! contract8 Plainly the issue o! contri4utory negligence
only arises in negligence cases8
D8 *his skeleton has a conclusion8 0ot all short skeletons 4ene!it !rom
conclusions8 3t is a matter o! style8 )e care!ul o! conclusions in short cases
" especially orally7 as saying 5so in conclusionL6 usually soun(s to the
9u(ge as 4eing another 'ay o! saying 5so in case you (i(n6t !ollo' me the
!irst timeL6 an( is regar(e( as 4eing repetitive an( insulting to the 9u(ge6s
a4ility to !ollo' your arguments8 <e thought on 4alance that this short
conclusion helpe(8
Example of a full submission
s!eleton argument
Bishop v" #egina

Case Summar.
*his case involves a prosecution 'itness in a criminal trial 'ho (i( not atten(
court as a 'itness8
<e have calle( the 'itness /r )ishop8 )ishop 'itnesse( one !rien( o! his
hitting another !rien( o! his 'ith a pickaxe han(le8 >e 'as very reluctant to 4e
a 'itness in the trial that allege( A)> against the man 'ith the pickaxe8
*he trial (ate 'as set8 *he usual practice is !or the Criminal Hustice 1nit ?CH1@
to 5'arn6 'itnesses to atten(8 Sometimes the CH1 'ill speci!y a particular (ay
o! the trial !or the 'itness to atten(8 &or example7 i! the trial is (ue to start on
(ate ; then only some 'itnesses are aske( to atten( on (ay ; an( others
atten( on (ay ; T 1 an( so on so that the 'itnesses are staggere( an( 'aste
as little time 'aiting at court as possi4le8 -n the trial (ate7 )ishop (i( not turn
up8 >e (i( not turn up on the secon( (ay either8
*he 9u(ge " 'ho 'e have calle( >is >onour Hu(ge Dean " a(9ourne( the
case8 <hen a case comes to court !or any reason other than one o! the !ormal
plea7 trial or sentence7 the hearing is normally calle( a 5mention68 >>H Dean
liste( the case !or a mention in August8 >e (irecte( the police to call on
)ishop7 an( han( him a summons that 'oul( (eman( his atten(ance at the
mention hearing8 *he intention 'as that )ishop 'oul( atten( the mention
hearing an( explain 'hy he (i( not turn up at the trial8
-!!icers 'ent repeate(ly to )ishop6s home an( le!t him many messages a4out
the August mention8 >e 'as mysteriously never home8 *he (ay 4e!ore the
mention an o!!icer manage( to speak to )ishop6s mother 'ho calle( her son
an( sai( that there 'as an o!!icer 'arning )ishop to atten( court8
)ishop (i( not atten( the mention hearing8
At the mention hearing7 the 9u(ge ha( to (ischarge the case against the
De!en(ant on the A)> case7 on the 4asis that )ishop 'as never going to
come to court8 0o' it 'as )ishop 'ho 4ecame the De!en(ant !or Contempt o!
Court8 *here 'ere t'o contempts that nee(e( investigating8 *he !irst 'as the
nonatten(ance at the trial7 an( the secon( 'as the nonatten(ance at the
mention8
So !ar as the trial 'as concerne(7 it transpire( that there 'ere pro4lems 'ith
other 'itnesses too7 an( it seeme( per!ectly possi4le that someone
telephone( )ishop to say that there 'as no point atten(ing the trial7 as other
'itnesses 'ere ill8
*he August mention 'as another matter8 *he only (e!ence to not atten(ing
then 'as that )ishop claime( that no one ever tol( him the actual (ate to
atten(8 *hat seeme( most unlikely given the numerous messages le!t an( the
telephone call 'ith his mother8
*he Hu(ge !oun( that Contempt o! Court 'as proven in relation to the August
mention7 an( not prove( in relation to Huly8 *he Hu(ge sentence( )ishop to %
months imprisonment !or the Contempt8

*he appeal point 'as in relation to the legality o! the sentence8 *here is a
statutory provision that states that the maximum penalty !or not appearing as a
'itness is 3 months8 *he 9u(ge passe( a sentence o! % months7 saying that
the persistent an( 'il!ul re!usal to come to court coul( 4e sentence( as a
common la' contempt to court7 an( that he 'as not 4oun( 4y the statute8
As 'e have in(icate( earlier7 the 2 case stu(ies are here to (emonstrate the
2 extremes o! 'ritten a(vocacy8 *he !irst case stu(y sho's a short an(
succinct summary o! the essential structure an( argument in a case8 *his
case stu(y sho's 'hat a !ully argue( case might look like8
&or those involve( in /--*30A7 the Court o! Appeal an( >ouse o! 2or(s
expect skeleton arguments to look more like *>3S E;A/P2E8
.ou 'ill rea( the 4asis o! the appeal in the a(viceKskeleton that !ollo's8
IN THE CROWN COURT AT GLADBURY
REGINA
-V-
ROBERT BISHOP
____________________________________
ADVICE ON APPEAL
_____________________________________
INTRODUCTION
1. I represented Robert BISHOP (hereinafter BISHOP) in proceedings at Gladbr!
"ro#n "ort in relation to an alleged "onte$pt of "ort. %he proceedings arose
becase BISHOP disobe!ed a #itness s$$ons for a case in #hich he #as a
#itness. On &&
nd
'ece$ber &(()* HH+ 'ean sentenced hi$ to a ter$ of
i$prison$ent of si, $onths.
&. %his sentence #as passed nder the corts inherent po#ers to deal #ith conte$pt
nder the co$$on la#. HH+ 'ean re-ected the defence sb$issions that the cort
shold be bond to follo# the stattor! pro.isions for non/attendance of
#itnesses. %he pro.ision of the Criminal Proce!re "A##enance o$ Wi#ne%%e%&
Ac# '()*+ %,"-& li$its sentences passed b! .irte of the section to three $onths.
0. I #rite this ad.ice on the follo#ing isses1
(i) 2hether HH+ 'ean erred in la# b! failing to follo# the stattor! pro.isions
and thereb! passed an nla#fl sentence e,ceeding the stattor! $a,i$$
of three $onths.

(ii) In the alternati.e* #hether the sentence is $anifestl! e,cessi.e in an! e.ent.
THE LAW
3. %he corts ha.e long recognised a general po#er to deal in s$$ar! $anner
#ith acts of conte$pt in the face of the cort. %his po#er is rotinel! e,ercised
in sitations sch as people in cort beha.ing in a disorderl! $anner* #itnesses
ignoring instrctions gi.en b! the -dge (eg not to gi.e inad$issible e.idence)*
and other beha.ior that nder$ines the dignit! or athorit! of the cort.
4. So$e parts of the co$$on la# po#er ha.e been codified in statte. %he
attendance of #itnesses is sch an area. Criminal Proce!re "A##enance o$
Wi#ne%%e%& Ac# '()*. Section 0 states1
0. 5(1) 6n! person #ho #ithot -st e,cse disobe!s a #itness s$$ons re7iring hi$ to
attend before an! cort shall be gilt! of conte$pt of that cort and $a! be pnished s$$aril!
b! that cort as if the conte$pt had been co$$itted in the face of the cort.
(&) 8o person shall b! reason of an! disobedience $entioned in sbsection (1) abo.e be liable to
i$prison$ent for a period e,ceeding three $onths.
I #ill refer to this 6ct throghot the follo#ing ad.ice as the 6ct.
9. %he pri$ar! isse in this ad.ice is #hether this section shold ha.e go.erned
BISHOPs case* or #hether there are gronds to a.oid the $a,i$$ penalt! set
do#n. It is $! .ie# that the 6ct shold plainl! ha.e defined the offence and
reglated its sentence.

BACKGROUND
:. BISHOP #as a #itness in an assalt case (s.1) #onding). %he 'efendant in
that case (;ic<ers) strc< another $an #ith a pic<a,e handle. %he isse in the
case #as #hether ;ic<ers #as acting to pre.ent the co$plainant fro$ attac<ing
a third part!. BISHOP #as an essential #itness of fact for the "ro#n. 2ithot
BISHOP* the "ro#n #as in no position to pro.e that ;ic<ers #as not acting to
pre.ent an nla#fl attac< on anther. BISHOP <ne# both the co$plainant and
the 'efendant ;ic<ers.
). %he chronolog! attached deals #ith the dates and progress of the case. In short*
there #ere t#o hearing dates for BISHOP to attend* the! #ere1
(i) 6 trial in +l!* at #hich BISHOP did not attend* and
(ii) 6 $ention hearing in 6gst set do#n at the aborted trial as a retrn date
for s$$onses issed for BISHOP and the co$plainant. %he
co$plainant did attend cort in ans#er to the s$$ons in 6gst /
BISHOP did not.
=. %here #ere* therefore* t#o potential acts conte$pt* the first being non/
attendance at the +l! trial> the second possible conte$pt #as for not attending
the ?ention hearing in 6gst in ans#er to a s$$ons to do so.
1(. %he cort heard e.idence in relation to both the +l! trial and the 6gst
?ention. %he e.idence relating to the 6gst ?ention #as heard first. %#o
officers ga.e e.idence of their efforts to lea.e $essages at BISHOPs $others
address dring a 1(/da! period leading p to the 6gst hearing. BISHOP #as
ne.er at ho$e. %he $ost co$pelling e.idence that BISHOP had had notification
of the cort date #as that the da! before the hearing* officers attended
BISHOPs address and BISHOPs $other called throgh to BISHOP and said
that there #as an officer on the doorstep sa!ing that he had to attend cort.

BISHOPs case (and the onl! dispte) #as that in the #hole con.ersation* he
#as onl! told that he had to attend cort / he #as not told #hen.
11. %hen there #as e.idence abot the +l! trial. It #as confir$ed that the #itnesses
#ere staggered* and that BISHOP #as not #arned to attend ntil &p$ on da!
t#o of the trial. @rther$ore* BISHOP $ight ha.e been told not to attend on da!
t#o of trial (#hich #as his appointed ti$e) becase of proble$s #ith another
#itness on da! one. BISHOP had al#a!s said that he had been #arned to attend
da! t#o* bt that that instrction had been cancelled b! a later telephone call.
1&. Gi.en the e.idence that BISHOPs order to attend $a! indeed ha.e been
cancelled* the learned +dge* ha.ing heard representations* accepted that the
cort #old not consider the +l! date an! frther* and BISHOP #as not called
pon to defend his non/attendance.
10. %hat left the isse of #hether BISHOP had had notice of the 6gst hearing.
%he e.idence against BISHOP #as strong* and HH+ 'ean had no hesitation in
finding that the officers had done enogh to infor$ BISHOP of his dt! to
attend in principle* and had $anaged to co$$nicate the date in particlar. It
follo#ed that BISHOP #as in conte$pt of his dt! to attend cort at the 6gst
?ention. Ha.ing $ade that finding* HH+ 'ean did not proceed directl! to
sentence* bt ad-orned to &&
nd
'ece$ber for pre/sentence reports to be
prepared.
13. %he sentence passed after the consideration of those reports #as one of si,
$onths i$prison$ent. I no# consider and ad.ise on #hether the sentence #as
sb-ect to a stattor! $a,i$$* #hich has been e,ceeded* and #hether or not*
in an! e.ent* the penalt! is e,cessi.e.

WHETHER THE SENTENCE IS UNLAWFUL
14. 'e to the s$$ar! natre of the hearing* the 7estion of #hether the
proceedings #ere nder statte or nder co$$on la# #as not addressed ntil
the sentence had been passed. %here #as no contention that proceedings per se
#ere la#fl.
19. Reading the section fro$ the 6ct set ot in paragraph 4 abo.e* the section #old
appear to deal #ith precisel! the circ$stances of this case. %he +l! trial $ight
ha.e been different since there #as no s$$ons for BISHOP for that hearing*
bt as I ha.e described* the isse of the non/attendance at the +l! trial had been
resol.ed in the BISHOPs fa.or b! the ti$e of sentence.
1:. 2hen HH+ 'ean passed the sentence of si, $onths> I sb$itted that the
$a,i$$ penalt! #as three $onths on accont of s.0 of the 6ct. HH+ 'ean
indicated that he #as passing sentence nder his inherent po#ers nder the
co$$on la#* and that the 6ct did not appl! in this case.
1). I nderstand HH+ 'ean to ha.e gi.en the follo#ing reason for finding that the
6ct #as not applicable to BISHOPs case. %hat is that the corse of condct of
BISHOP #as too long and protracted to be described as si$pl! disobe!ing a
s$$ons.
1=. It is $! respectfl .ie# that HH+ 'ean has erred in regard to this reason. I $a<e
this sb$ission for & reasons1
(i) %he reasoning behind the sentence (i.e. that there #as a $ore protracted
and deliberate a.oidance of the police than is described in the 6ct as
disobedience of a #itness s$$ons) #as a #ider reasoning than the
in.estigation that preceded it. %he cort shold be bond to sentence in
accordance #ith the a$bit of the e.idence heard.

(ii) A.en if it #ere proper to $a<e a finding that BISHOP had been #ilfll!
and persistentl! a.oiding the police* s.0 of the 6ct still applies to the
case. %he a.oidance of the police shold be loo<ed at as an aggra.ating
featre of the conte$pt. It is not a separate conte$pt. %here is athorit!
for this position* #hich I deal #ith belo#.
I #ill consider these arg$ents in $ore detail.
%he -stification of the sentence did not reflect the natre of the e.idence
&(. I $a<e t#o propositions abot the proper factal a$bit of sentence in the case.
%he first is that the cort #as bond onl! to deal #ith failing to attend the
6gst ?ention* and the second is that the hearing abot the 6gst ?ention
#as abot #hether BISHOP had had notice of it 5 not #hether BISHOP #as on
the rn or in.ol.ed in an! #ider $alicios a.oidance of the athorit! of the
cort.
&1. It is certainl! the case that the en7iries abot BISHOPs non/attendance for the
+l! trial #as conclded in BISHOPs fa.or #hen the #itness called to deal
#ith the e.ents of the trial conceded that it #as perfectl! possible that BISHOP
did not attend as a reslt of instrctions gi.en to hi$ on the telephone b! the
"ri$inal +stice Bnit. HH+ 'ean accepted the defence sb$ission on the point*
and #hen BISHOP #as called* he did not gi.e e.idence abot the trial in +l!*
nor #as he as<ed or challenged abot that date. 6n! sentence $st be confined
to reflect the non/attendance in 6gst.
&&. So far as the e.idence abot the 6gst hearing is concerned* the cort heard
that a n$ber of $essages had been left at the hose* #ith $e$bers of
BISHOPs fa$il! in the ten da!s leading p to the s$$ons date. 6ll $!
7estions* and indeed all $! sb$issions on that period of ti$e related to the
single isse of #hether the police had effected ser.ice of the s$$ons or not.

&0. %he cort heard e.idence that BISHOP #as one of eight children and t#o adlts
li.ing in a hose #ith onl! a fe# bedroo$s. BISHOP #as eighteen and to ease
the pressre of space* he often sta!ed #ith his girlfriends fa$il!. %he 7estions
pt to BISHOP see$ed to reflect an en7ir! abot #hether an! of the $essages
left at his $others address had reached hi$.
&3. HH+ 'ean as<ed .er! fe# 7estions of an! #itness* and the "ro#n condcted
the cross/e,a$ination on the corts behalf. %he "ro#n soght onl! to establish
the point abot notice of the s$$ons* and did not appear to be see<ing to
establish that BISHOP #as prsing a #ider and $ore $alicios corse of
condct of deliberate e.asion.
&4. 6n! prported reasons gi.en b! HH+ 'ean to ta<e the sentence otside of the
a$bit of the 6ct did not reflect the en7ir! that preceded it. %here #as no
e.idence of #here BISHOP #as o.er the ten da!s preceding the 6gst
?ention* other than BISHOPs e.idence that he #as sta!ing #ith his partner and
friends to relie.e the pressre of space at his ho$e. HH+ 'ean did not case an!
7estion to be pt* or en7ir! to be $ade to go behind BISHOPs accont.
&9. It is $! respectfl .ie# that the onl! cri$inalit! properl! alleged and pro.en
against BISHOP #as that he disobe!ed a s$$ons to attend cort in 6gst.
BISHOP atte$pted to arge that he did not ha.e notification of the re7ire$ent
to attend* and he failed to establish this defence. %he s$ of the e.idence heard
fell #ithin sort of en7ir! described in S.0 of the 6ct.
6.oiding the ser.ice of a s$$ons re$ains #ithin the scope of s.0 of the 6ct
&:. %here is case la# to the effect that e.en #hen one is l!ing lo# to atte$pt to
a.oid the ser.ice of a s$$ons* it is still perfectl! correct to pnish a #itness
#ho then fails to attend nder s.0 of the 6ct. %hese #ere the fact in the case of
R. v. Yusu C&((0D A2"6 "ri$ 13)).

&). In the case of Esf* the 'efendant disobe!ed a s$$ons ha.ing been fond to
be deliberatel! l!ing lo# (per Ford +stice Rose) in an atte$pt to a.oid the
s$$ons. %he "ro#n "ort +dge at first instance passed a sentence of three
$onths* dee$ing that to be the $a,i$$ in the case b! .irte of the 6ct. %he
"ort of 6ppeal #or<ed fro$ the sa$e pres$ption* i.e. that this case #as
go.erned b! s.0 of the 6ct* and that three $onths #as the $a,i$$ penalt!.
%he "ort of 6ppeal thereb! endorsed the se of s.0 of the 6ct* not#ithstanding
that there had been a finding that the disobedience of the s$$ons #as
acco$panied b! an atte$pted a.oidance of the s$$ons.
&=. %here is a startling si$ilarit! in the Esf case and the instant case in that in
both cases the 'efendant #as a#a! fro$ the ho$e address gi.en* and both
'efendants onl! recei.ed notice .ia telephone calls fro$ their $others. Both
corts fond that this constitted proper ser.ice* and that the 'efendants <ne#
of their obligations to attend cort. Both failed to attend in ans#er to s$$ons.
%here do not appear to be an! gronds for distingishing bet#een Esfs case
and the instant case* in ter$s of ho# the conte$pt for non/attendance shold be
dealt #ith #hen there is an additional ele$ent of an atte$pt to a.oid the
s$$ons. %he precedent is in fa.or of follo#ing the 6ct.
WHETHER THE SENTENCE IS .ANI/ESTLY E0CESSIVE
0(. %his 'efendant is nineteen !ears old* and has no 7alifications. He has a $odest
set of pre.ios con.ictions* three in total* all in the ?agistrates or Eoth "ort*
and he has ne.er recei.ed a cstodial sentence before. He <ne# both the
'efendant and the co$plainant of the original offence* and e,pressed relctance
to be in.ol.ed fro$ the otset.
01. It is rele.ant to a sentence of conte$pt to consider #hat the .ale of the
conte$nors e.idence $ight ha.e been on the trial. I ne.er sa# the original trial

bndle* bt I #as able to spea< to consel instrcted b! the "ro#n to prosecte
the +l! trial. I nderstand there #as ""%; a.ailable of the original offence* and
BISHOP #as being called to gi.e an accont that* in $an! #a!s* contradicted
the ""%; e.idence.
0&. BISHOP #as not an independent #itness* he is not in an! #a! articlate or
edcated* and he #as not a #itness of good character. 2hilst he had rele.ant
e.idence to gi.e* his e.idence* e.en if freel! gi.en* $a! not ha.e pro.en to be
co$pelling.
0). BISHOP #as also not the onl! #itness to fail to attend cort. %he co$plainant
failed to attend the +l! trial. If BISHOPs non/attendance in 6gst #as the
onl! percei.ed obstacle to a con.iction* the cort $ight ha.e #aited for the
#arrant to be e,ected and proceeded to trial #ith BISHOP in cstod! if
necessar!.
0=. 6lthogh BISHOP contested the conte$pt proceedings and #as lti$atel!
nsccessfl* he #as sccessfl in part insofar as the cort fond in his fa.or in
relation to his non/attendance at the +l! trial.
3(. 6 sentence of si, $onths is t#ice that i$posed in the case of Esf (as abo.e).
In that case* the 'efendant failed to attend trial in .er! si$ilar circ$stances.
%he offence #as $rder* and he had apparentl! heard a confession. In that case*
the trial #as not dis$issed* and Esf e.entall! ga.e so$e e.idence* bt
nonetheless the actal disobedience #as si$ilar* the case #as $ch $ore
i$portant* and his sentence #as one of three $onths.
31. A.en if the cort is against the sggestion that the $a,i$$ penalt! is
deter$ined b! s.0 of the 6ct in la#* in all the circ$stances si, $onths is
e,cessi.e* and #old $a<e this sentence inconsistent #ith others of a si$ilar
natre #here the cort has been bond b! the stattor! $a,i$$.

"O8"FBSIO8
3&. It is $! ad.ice that Robert BISHOP shold appeal to the "ort of 6ppeal b!
#a! of the Amini%#ra#ion o$ 1!%#ice Ac# '()2 %3', on the gronds that HH+
'ean failed to ta<e accont of %3, Criminal Proce!re "A##enance o$
Wi#ne%%e%& Ac# '()* and thereb! passed a sentence that e,ceeded the stattor!
$a,i$$. In the alternati.e* the sentence #as $anifestl! e,cessi.e.
BPP "ha$bers
9) 5 :( Red Fion Street

),C+ AD,-CAC. /A01A2
$A#T T%&
%'T(E)) *A(+,'(- A(+
)$EE.*E)
2a' School D5
1& CASE ANAL+S(S
1&1 O)E*)(E OF T!E CASE ANAL+S(S 5ET!O'
Any a(vocate starting a trial shoul( have an i(ea o! 'hat he or she is going to
attempt to achieve in the trial8 *he a(vocate6s aims an( o49ectives !or the trial
shoul( 4e arrive( at 4e!ore the trial starts8 *his might appear sel!evi(ent7 4ut
in practice many a(vocates approach evi(ence on a 5suck it an( see 4asis6
an( see 'hat they en( up 'ith 4y the en( o! the trial8 All the reputa4le
provi(ers o! a(vocacy training con(emn this approach8 <hilst a(vocates
nee( to 4e !lexi4le an( a4le to a(apt to evi(ence as it is given7 the 4etter
a(vocates are those 'ho have analyse( the evi(ence in a case7 an( have a
clear strategy !or achieving a ver(ict or result in their !avour8
*he i(eas that are use( in the pretrial preparation arena are+
?1@ Case analysis *his is the critical analysis o! a case 4e!ore the trial
that in!orms an( (irects the a(vocate to'ar(s their
case theory8
?2@ Case theory *his is the a(vocate6s concept o! 'hat the case is
a4out an( ho' the a(vocate proposes to sell their
case to the tri4unal8 >aving arrive( at a case theory7
the a(vocate can then (evise a trial strategy plan8
?3@ *rial strategy plan *his is the a(vocate6s plan !or ho' to manage an(
control the 'itnesses an( their evi(ence so that the
a(vocate can extract !rom that 'itness the evi(ence
that 'ill !ee( their closing speech an( !ee( their
case theory8
Case analysis is taught in slightly (i!!erent 'ays 4y (i!!erent institutions8 Some
institutions ?most nota4ly the 3nns o! Court@ encourage practitioners to arrive at
a case theory a!ter a 'ritten analysis o! the !acts o! a case8 *he system that
'e promote involves the a(vocate arriving at a provisional case theory having
rea( the papers7 an( then testing7 challenging an( revie'ing the case theory
in light o! the evi(ence8 <hat !ollo's is an overvie' o! the stages o! the
process that 'e recommen(8
PPreparation :ea( the papers thoroughly an( revie' the la' that
governs the caseQ
Stage one 3(enti!y the key points that you 'oul( like to make in
a closing speech in the case8 *ry to re(uce 'hat you
think the case is a4out into a short list o!
propositions7 'hich7 i! accepte(7 'oul( lea( to a
ver(ict or 9u(gment in your !avour8 *his synopsis o!
your case is calle( your 3case t#eor.&4
Stage t'o *ake each o! your prospective
conclusionsKarguments7 an( 'ork out 'hich facts
2a' School DC
ten(s to support the elements o! your case theory7
an( 'hich facts ten(s to contra(ict those elements8
Stage three :evie' the source and Iualit. o! the !acts that
'ork !or or against you8 3(enti!y ho' sure you think
you are that that !act 'ill 4e given in the 'itness 4ox
an( 'hat 'eight you think it 'ill carry8
Stage !our >aving looke( at the !acts7 re1ie/ your initial case
theory7 an( see 'hether you are really likely to
esta4lish your case at the trial8 *e/or0 your
propositionsKarguments until you are com!orta4le
that you have enough su!!icient evi(ence to make
the point you 'ant to make7 an( to counter the
evi(ence against you8 /ake sure that each element
o! your case theory assists a logical an( cohesive
'hole8
Stage !ive :evie' an( check your !inal propositions very
care!ully 'ith your instructions an( 'ith t#e la/&
/ake sure that your case theory comports 'ith the
la' an( 'ith your instructions8 .ou may nee( to
revise the case theory again to make sure that it is
consistent 'ith your instructions an( is legally
soun(8
Stage Six Prepare your trial strate". plan8 0o' that you have
i(enti!ie( your arguments7 an( you have i(enti!ie(
the !acts that support your case an( those that (o
(amage to your case7 you can 4egin to put together
a plan !or ho' you are going to tackle each o! the
'itnesses to make the evi(ence come out in the
most a(vantageous manner8
1&2 STA-E ONE A**()(N- AT +O,* P*EL(5(NA*+ T!EO*+
3n stage one7 you take all the evi(ence that you have rea( in the case7 an(
you 4egin to attempt to (istill it into some !orm o! short an( cohesive argument
that 'ill in!orm your approach to the trial an( to the 'itnesses8
.ou shoul( start your consi(erations 4y casting a 'i(e net over the case7 an(
4y thinking through any possi4le interpretation o! the case8 *hink 'i(ely an(
expansively at the 4eginning " you (on6t 'ant to miss anything 4y 4eing too
4linkere( a4out your perception o! events at this early stage8
,isualiRe in your min(6s eye the key events an( try an( 4uil( up a logical an(
practical vie' o! events 'hich you think 'oul( stan( up to testing 4y the other
si(e8

DD 2a' School
De4ate the issues in your min( an( (iscar( the arguments that on re!lection
appear groun(less an( unsustaina4le8 Challenge yoursel! critically an( put the
points against you an( see i! you can come up 'ith an ans'er !or them8
)egin to 'rite (o'n some o! the arguments that you consi(er may en( up
4eing a part o! your !inal theory o! the case8 *he 4etter you have analyse( the
!acts at this early stage7 the less you 'ill nee( to revie' your theory8
*ry to re!ine your theory (o'n to a managea4le num4er o! simple an( (e!ine(
arguments8 *here is no pro4lem at all at this stage in having some alternative
propositions8 *he i(ea is that you 'ill analyse 'hich propositions have the
support o! the evi(ence7 an( you may 'ell 'ish to start 'ith more than one
variant o! ho' you think you shoul( put your case7 an( see 'hich one !ares
4etter in the revie' stages8
-nce you have (one this7 you have reache( the !irst (ra!t o! your theory o! the
case8 .ou have 4een (ealing 'ith impression7 argument an( conclusion7 an(
this /A. have le( you to the right theory o! the case7 4ut no' you nee( to test
the theory 'ith the !acts8
1&$ STA-E TO TEST(N- T!E T!EO*+ (T! FACTS
*ake your propositions7 an( rerea( the case8 As you go through the case
again7 you can start to make lists o! the !acts in the evi(ence that either ten(
to support or contra(ict the case theory that you ha( originally come up 'ith8
.ou may !in( that you nee( to amen( your case theory right a'ay as it
4ecomes plain that although it may appear that something might have taken
place !or the reason you thought to argue7 you 9ust (on6t have any !acts to
prove it8
*he purpose o! this stage is to see 'hich arguments are really groun(e( in
!act8 2ist the !acts on !oth si(es o! the argument8 .ou may !in( that 4y slightly
altering the argument7 you can neutraliRe a !act against you or even 4ring it
onto your si(e8
3n practice a(vocates al'ays nee( to reassess an( revise a case theory8 3! the
initial case theory 'as poor7 it 'ill nee( more revision than i! it 'as goo(7 4ut
the !act remains that a(vocates (o nee( to get into the practice o! revising an(
up(ating case theory throughout the process o! (isclosure7 con!erence an(
trial8 *his is 9ust the !irst revision point8
1&2 STA-E T!*EE *E)(E T!E SO,*CE AN' ?,AL(T+ OF T!E FACTS
>aving ma(e a list o! the !acts in !avour o!7 an( !acts against a particular
proposition7 it is 'orth revie'ing the source o! the !acts7 an( the expectation
that those !acts i(enti!ie( on the papers 'ill emerge as cre(i4le evi(ence8 3n
civil cases7 once a !act is given in a 'itness statement or a!!i(avit7 the !act 'ill7
in almost all cases7 4ecome evi(ence at trial 'ithout more a(o8 *his is not the
2a' School DJ
case 'ith crime 'here the 'itness 'ill have to give the evi(ence in the
'itness 4ox8
3n crime in particular7 there may 4e issues a4out the a(missi4ility o! the
evi(ence7 there may 4e a $uestion a4out 'hether 'itnesses 'ill atten(7 an( i!
there are (e!ence 'itnesses7 (o the (e!ence 'ant to risk calling the 'itness8
Also7 the a(vocate nee(s to consi(er 'hether the evi(ence 'ill 4e cre(i4le in
light o! the kno'n character o! the 'itness8
3n this stage o! the analysis7 the a(vocate shoul( 4e looking to en$uire (eeper
still into the merits o! the propose( case theory 4y looking not only at i! there
are !acts in support7 4ut 'hether those !acts are likely to 4ecome evi(ence in
the trial an( 'hether that evi(ence is cre(i4le8
As 'ith every other challenge an( revie' o! the case theory7 !eel !ree to
amen( an( alter the case theory to maximiRe the evi(ence in support an(
neutraliRe the evi(ence that contra(icts8
*he practical conse$uence o! this part o! the analysis is o!ten that the
a(vocate 'ill nee( to go 4ack to the lay client in con!erence to ask a4out the
cre(i4ility o! some o! the characters involve(8 Clients 'ill o!ten say 5'hat are
my chances o! 'inningF6 an( the ans'er to that is $uite o!ten (epen(ant upon
the cre(i4ility o! the 'itnesses !or the other si(e8 *he De!en(ant routinely has
the a(vantage over the a(vocate o! kno'ing the character o! the 'itness !or
the other si(e7 an( it is sometime necessary to ask the client to give you an
honest an( !rank i(ea o! ho' 'itness ; is likely to soun( 'hen giving
evi(ence8
So 'herever possi4le7 it is a goo( i(ea to analyse the !acts in light o! any
intelligence you may have a4out the cre(i4ility7 relia4ility7 an( a(missi4ility o!
the evi(ence in the case8 As al'ays7 make 'hatever a(9ustments you nee( to
in light o! the analysis to the case theory so that it (oes not 4reak either o! the
t'o !ollo'ing gol(en rules+
A case theory shoul( avoi(7 'herever possi4le7 asking a cre(i4le 'itness
to 4e (is4elieve(8
A case theory shoul( avoi(7 'herever possi4le7 asking an incre(i4le
'itness to 4e 4elieve(8
1&9 STA-E FO,* *EO*7(N- T!E CASE T!EO*+
.ou may have !oun( that (uring the last t'o stages you have change( an(
amen(e( parts o! your case theory8 .ou nee( to check that you no' have a
cohesive 'hole7 'here each o! the component parts o! the theory 4uil( up
to'ar(s a complete picture that you are con!i(ent gives you the greatest
chance o! 'inning the trial availa4le8
3t may 4e that you looke( at some alternative positions7 an( that you revie'e(
each o! the alternative positions in light o! the !acts8 .ou 'ill no' nee( to
consi(er 'hich line to take7 or ho' to play it i! you are going to attempt to run
an alternative position8 .ou shoul( 4e in a position to !ormulate $uite a strong
sense o! 'here your case is going an( the evi(ence upon 'hich your case
theory (epen(s8 /ake sure at this stage that the component parts o! the case
JM 2a' School
theory are all 'orking together an( that the overall picture has as much logic
an( common sense operating in its !avour as possi4le8
*his then 'ill !orm your theory o! the case7 an( this is the 4asis on 'hich you
can no' plan your trial strategy " su49ect to 2 !urther checks8
1&: STA-E F()E C!EC7(N- +O,* T!EO*+ A-A(NST T!E LA AN'
+O,* (NST*,CT(ONS
>ope!ully you 'ill have starte( 'ith a case theory that properly comports 'ith
the la'7 an( is constructe( on the 4asis o! the instructions that you have
actually receive(8 3! you have revise( the case theory along the 'ay7 the
chances are that you are still 'ithin the la' an( 'ithin your instructions " 4ut it
is 4est to check=
0o a(vocate 'ants to 4e in the position o! putting !or'ar( a case that is !ine
on the evi(ence7 4ut (oes not actually give you a case that is su!!icient in la'
to get the 9u(gment or ver(ict sought8 *he area o! la' may 4e very
straight!or'ar(7 an( this check may 4e an irrelevance7 4ut in some cases the
legal analysis is extremely important an( su4tle changes in evi(ence can
change 'hether the case succee(s in 9u(gment or not8 /ake $uite sure that
any propositions in la' are 'ell !oun(e( an( that the case theory 4rings the
evi(ence an( the legal arguments into line 'ith one another8
*he !inal check is 9ust to ensure that the case theory (oes not (epart at any
point !rom your instructions8 Sometimes the client6s o'n instructions are the
ruination o! a per!ectly goo( case7 4ut you are only there to run the client6s
case7 not the case that you might have 4een a4le to construct !or them8 *here
may 4e a (egree o! !lexi4ility in the 'ay that you are instructe(7 4ut at the en(
o! the (ay you cannot (isregar( your o'n instructions8
1&< STA-E S(J P*EPA*E A T*(AL ST*ATE-+ PLAN
*here is no right or 'rong 5trial strategy plan6 an(7 in all honesty7 most
practitioners (o them in their hea(7 or make 9ottings all over the 4rie!7 or all
over a note4ook ?or 4oth@8
<e recommen( a gri( 'ith the areas to !ill in the !ollo'ing+
*he proposition?s@ that !orm the 4asis o! the theory o! the case7
*he evi(ence !or that proposition7
*he counter evi(ence7 an(
A plan !or ho' to present the evi(ence as compellingly as possi4le8
An extract !or ho' a trial strategy plan might look appears 4elo'8 *his is taken
!rom the case o! Ellis7 'hich 'e are 'orking on in the SAS6s8 3t 9ust looks at a
couple o! propositions !or the prosecution8
2a' School J1
Proposition Evidence for Source Other sides likely
approach to the
evidence
Plan for trial
TE has
historic
dislike for
OC
TE lost AC to OC OC
AC
XX of
TE
Not much for defence
to say. Water under the
bridge is their best
resonse!
AC holds the key. Need to
gi"e her oortunity to sho#
that TE #as $uite deely
%ealous.
TE disruts OCs
#edding.
OC
AC
XX of
TE
Will say that e"idence
cuts both #ays& OC
angry at TE too.
'et OC deal #ith this incident
in X(C& hoe that he comes
o"er as reasonably calm about
it. )e got the girl at the end of
the day. Attack TE in XX about
ho# %ealous he must ha"e
been to do this.
TE had no
reason for
being at the
arty other
than to
cause
trouble.
TE turns u
unin"ited
OC
AC
'N
TE unable to deny this&
may say that he #as
not malicious but rather
he #as made careless
by the influence of drink
and drugs.
*se 'N to e+ress ho# she
#as most uncomfortable about
TE coming at all. Need her ,as
indeendent #itness- to
e+ress %ust ho# inaroriate
it #as for TE to go to arty.
Not in fancy
dress
OC
AC
'N
XX of
TE
As abo"e. Will also
surely argue that OC
got annoyed by TE.
Want to aint a icture of %ust
ho# out of lace TE looked&
and by inference& %ust ho#
bra.en he #as being by
staying at the arty. OC and
AC need to describe the effort
that eole had gone to. /ro
the oint $uickly if other
guests #ere not in fancy dress
either. 0hould XX TE about
ho# he could he could be so
bra.en.
TE Tom Ellis
OC OKa. C#ett.
AC Audre. C#ett.
LN Lisa Na.lor
J(C E%amination=in=c#ief
JJ Cross=e%amination
J2 2a' School
2& SPEEC!ES
2&1 T!E OPEN(N- SPEEC!
2&1&1 Ci1il cases
*here is little use !or opening speeches in civil cases8 *he 9u(ge 'ill have pre
rea( the papers7 inclu(ing potentially a skeleton argument8 3t 'ill 4e rare !or
there to 4e any press or other intereste( party in the pu4lic gallery 'ho 'oul(
4ene!it !rom an opening a((ress 4e!ore the evi(ence8
*here is no rule as to 'hether the 9u(ge 'ill hear an opening speech or not7
an( so7 rather te(iously7 the a(vocate 'ill normally have to prepare one7 4ut
'ill sel(om have to (eliver it=
3! the 9u(ge (oes call !or an opening speech7 the primary purposes o! the
speech 'ill 4e to+
3ntro(uce the parties8
State the issues in the case that nee( to 4e (etermine( in the course o!
the trial8
3n(icate 'here the parties are agree(7 an( in(icate 'hich issues are
alrea(y resolve( 4et'een the parties an( can 4e accepte( 4y the 9u(ge8
3n(icate your position in relation to the issues in trial " 4ut (o so shortly
an( succinctly8
3n(icate 'hether any issues o! la' are likely to 4e raise( in the trial8
2&1&2 Criminal openin" speec#es
3n the magistrates6 court7 opening speeches ma(e 4y the prosecution ten( to
4e $uite short8 *hey act as a (igest o! the upcoming case7 giving the )ench o!
magistrates or District Hu(ge a short synopsis o! the case8 3t is help!ul to
in(icate 'hat the issue is in the case ?eg i(enti!ication@ i! the issue is kno'n8
-pening speeches in the Cro'n Court re$uire signi!icantly more art7 since the
tri4unal o! !act is a 9ury7 'hich 'ill 4e more likely to really take account o! the
!irst speech o! a court case8
3t is very important to strike the right 4alance 'ith a 9ury8 Huries hate to 4e
patroniRe(7 4ut it is right that they have little experience7 an( so you must
avoi( running ahea( an( leaving the 9ury 4ehin(8
*he 4est 'ay to con(uct an opening speech to the 9ury7 is to start as simply
an( (irectly as possi4le8 *he 9ury 'ill 4e eager an( curious8 1se this natural
enthusiasm an( let the 9ury kno' very early on 'hat the case is a4out8
Conversely7 the 9ury may 4e a little apprehensive a4out 5the la'6 an( i! you
start your opening 'ith a (igest o! la'7 you may 'ell 4ring all the 9uryman6s
'orries to the !ore8
So7 'e recommen( that you start simply7 start (ynamically7 an( start on the
!acts7 not the la'8
2a' School J3
.ou might simply open 'ith a statement such as mem!ers of the "ury$ you are
here to try a ro!!ery.6 *his is a simple7 in!ormative an( tangi4le start8 *hen
you simply 4uil( the picture up piece 4y piece7 !or example+
o 'he type of ro!!ery involved in this case$ is hat is often called a
mugging. 'he prosecutions case is that this ,efendant mugged a man
on a train of EAB and his mo!ile telephone. He did not do this alone. He
as ith another man$ and that man has already accepted conducting the
mugging. 'his case is a!out hether this ,efendant as involved$ or
hether he as not. 'he ro!!ery took place on an empty train. 'o men
approached the victim$ and they started to talk to him#.
*ry to only intro(uce one point at a time8 3! you thro' an opening sentence at
the 9ury that intro(uces a 'hole ra!t o! names7 places an( legal principals7 you
coul( lose some o! the mem4ers o! the 9ury very $uickly8 .ou 'ill see in the
example a4ove7 that the names o! the victim an( even o! the De!en(ant have
not 4een intro(uce( yet8 *his is $uite (eli4erate8 3n this case7 the a(vocate
has (eci(e( to paint the picture as simply as possi4le !irst8 <hy (o the 9ury
nee( to kno' the names right a'ayF -nce they have a clear picture o! ho'
the prosecution says that the o!!ence takes place7 then the names7 (ates7
places an( all the (etail can !ollo'8 Do not get 4ogge( (o'n in (etail !rom the
outset8
)y taking the !acts o! the case !irst7 the hope is that the 9ury 'ill !eel that they
are on top o! the case7 an( 'ill 4e rea(y to listen to something on the la'8 3t
may 4e that you nee( to explain the elements o! an o!!ence to the 9ury8 .ou
can take each element o! the o!!ence an( relate it 4ack to the account that you
have 9ust given7 eg+
o I have mentioned that this case is a ro!!ery and I need "ust to e.plain
hat ro!!ery means in terms of the la. 'he first part of the offence is that
property must !e stolen. 'here is no dispute in this case that property as
stolen$ it is a -uestion of ho stole it. 'he second part of the definition is
hether that theft as accompanied !y the use or threat of force#
3n the a4ove extract7 the a(vocate has (ealt 'ith the the!t part o! the o!!ence
very 4rie!ly7 an( omitte( such elements as 5intention to permanently (eprive68
*his is 4ecause7 in this hypothetical scenario7 there is no (ispute that property
'as stolen8 Do not create 'ork !or the 9ury 4y intro(ucing concepts that are
not actually relevant to the case in han(8
3t is usual to give the mem4ers o! the 9ury a copy o! the in(ictment !or their
re!erence7 an( explanations o! the la' are o!ten per!orme( 'hilst the
mem4ers o! the 9ury have the in(ictment in !ront o! them8
*here is no checklist !or 'hat must 4e in an opening speech8 3t 'oul( 4e
normal to revie' the !acts an( the 4asic applica4le la'8 *herea!ter7 some
counsel like to tackle the 4ur(en an( stan(ar( o! proo!8 -ther'ise7 it (epen(s
on the case7 4ut in general terms7 (o not seek to say too much or to promise
too much !rom the evi(ence7 as you may 4e ma(e to look a !ool i! the
evi(ence turns out to 4e less impressive than you tol( the 9ury it 'oul( 4e8
J4 2a' School
De!ence opening speeches are so rare that 'e (o not seek to (eal 'ith them
here8
2&2 T!E CLOS(N- SPEEC!
.ou shoul( kno' 4e!ore you start the case7 ho' you 'oul( i(eally like to close
it8 .our closing speech is7 essentially7 the expression o! your theory o! the
case8 All that is a((e( 4et'een the planning an( the en( o! the trial is the
opportunity to a(( the evi(ence that came out in trial to the theory8 >ence7
you might have ha( the theory that an eye 'itness 'as honestly mistaken
a4out 'hat he sa'8 .ou shoul( make the point7 an( then a(( the evi(ence
that came out in trial to support the theory7 !or example+
o Mem!ers of the "ury$ you heard Mr Floggs say that he thought that he
sa the ,efendant thro the first punch. 'he defence suggests to you that
he may !e honestly mistaken a!out that. You ill recall the evidence he
gave a!out the circumstances in hich he made that o!servation. 'here
ere many difficulties$ for e.ample$ he accepted that he had drunk ? pints
of larger earlier that night#
3t is generally a 4etter techni$ue to make the point !irst an( then explain 'hy
you say so7 rather than revie' the evi(ence 4e!ore you come to a conclusion8
3n the example a4ove7 the (e!ence makes the proposal that the 'itness may
4e 'rong7 an( then goes on to revie' 'hy that is a supporta4le proposition on
the evi(ence8 Putting the proposition !irst is recommen(e( !or all tri4unals8 3!
the tri4unal o! !act is a 9u(ge7 he or she 'ill 4e anxious to kno' the point that
you are trying to make7 an( it is 4est to make it !irst an( then explain 'hy that
point is vali( on the evi(ence8 3! your tri4unal is a 9ury7 you may !in( that their
attention 'ill 'an(er unless you are plain an( up !ront an( tell them 'hat it is
you are getting at8
<hen you are a((ressing a 9u(ge7 4e care!ul to 4e very concise8 .ou 'ill
normally get some i(ea !rom the 9u(ge ho' he or she is thinking8 )e
responsive an( (o not tire or irritate the 9u(ge 4y 4lun(ering on 'ith a
su4mission ignoring 'hether the 9u(ge is 'ith you or against you on a
particular point8
<hen you are a((ressing a 9ury7 'atch your tone o! voice7 an( (o not talk
(o'n to them8 3t is a trite thing to say7 4ut true enough7 that 9uries are
employe( to 4ring common sense to a case7 an( you can rarely (o 4etter than
to appeal to a 9ury6s common sense8
$& EJA5(NAT(ON (N C!(EF
$&1 TO CONT*OL O* NOT TO CONT*OL T!AT (S T!E ?,EST(ON
*he aim o! examinationinchie! is to elicit !rom your 'itness evi(ence
esta4lishing an( supporting your case8 *here is a real con!lict in any
2a' School J5
examinationinchie!7 4ecause o! 2 rival an( competing aims an( (esire(
outcomes8 *he 2 outcomes can 4e summarise( as !ollo's+
As an a(vocate you 'ant the 'itness to 4e logical7 or(ere(7 precise7
structure( an( to the point8
.ou also 'ant the 'itness to persua(e the tri4unal o! !act7 an( to 4e
persuasive7 the 'itness shoul( use their o'n natural !orm o! expression7
their o'n in!lection an( to take the story at a pace an( style that 'ill allo'
them to express themselves in a natural an( engaging 'ay8
)oth o! the a4ove 2 aims are lau(a4le " 4ut here is the catch8 3! you control
the 'itness to promote or(er an( precision7 then the 'itness ten(s to speak
less !reely an( less expressively8 *he reverse is plainly going to 4e true in
many cases too8 *he more !reely 'itnesses express themselves7 the greater
the (anger that they 'ill not 4e so or(ere( an( logical8 A(vocates hope that
their 'itnesses 'ill 4e a4le to 4e precise7 or(ere(7 logical A0D con!i(ent
natural an( expressive " 4ut this is a lot to ask unless the a(vocate is an
expert in goo( examinationinchie!8
As a general rule you !in( a(vocates have a 4ias to'ar(s 4eing either very
goo( at keeping 'itnesses or(ere(7 measure( an( precise ?an( examine all
their 'itnesses that 'ay@7 or very goo( at giving the 'itness a goo( open
plat!orm to express themselves8 *he real skill is com4ining the techni$ues o!
)-*> an( varying the examination style to suit each case8
So it seems the key to a goo( examinationinchie! is kno'ing 'hen an( ho'
to take control o! a 'itness !or the purpose o! ensuring that the 'itness is
or(ere( an( precise7 A0D kno'ing ho' to give control 4ack to the 'itness
an( !acilitate the 'itness expressing themselves in a natural an( unprompte(
'ay8
<e 'ill come on to look at the techni$ues !or $uestioning an( !or taking
control an( han(ing control 4ack again7 4ut 4e!ore 'e get there7 'e nee( to
consi(er <>E0 it is appropriate to (o so8
$&2 !EN TO TA7E CONT*OLG AN' !EN TO -()E CONT*OL
)e!ore you call any 'itness7 you 'ill nee( to consi(er 'hat that 'itness is
there to (o8 3n 4asic terms7 the 'itness is likely to 4e (oing one or other ?or a
com4ination@ o! the !ollo'ing+
E(ucating the court a4out the !acts 'ithin the 'itness6s kno'le(ge
Persua(ing the court that the 'itness is a relia4le narrator o! !act
Persua(ing the court that the 'itness is a relia4le narrator o! impression7
emotion7 an( instinct8
2ooking at each o! the categories a4ove in turn8
$&2&1 T#e /itness t#at educates t#e court
*he !irst category 'ill apply in its purest !orm to 'itnesses 'ho are likely to 4e
4elieva4le an( cre(i4le 'ithout the a(vocate having to attempt to prove this8
&or example7 a (octor may 4e calle( !or an expert opinion or clari!ication on a
matter on 'hich he or she hol(s some expertise8 *he evi(ence is not going to
J% 2a' School
call !or the 'itness to give any !orm o! emotional narrative or !or the 'itness to
seek to prove that they are honest8 *he honesty o! the 'itness is taken !or
grante(8
Sometimes police o!!icers in criminal cases 'ill !all into this category8 *he
o!!icer makes a note4ook entry o! all the events that took place7 an( there may
4e very little challenge a4out 'hat the o!!icer has note(8 3n this situation7 the
evi(ence is largely e(ucative an( the examinationinchie! style can re!lect
this8
<hen the essence o! the evi(ence is e(ucative an( the 4est outcome !or
examinationinchie! 'ill 4e !or the a(vocate to ensure that the evi(ence is
a((uce( clearly7 succinctly an( logically8 &or this sort o! 'itness7 there is little
(anger in the a(vocate an( the 'itness sharing the court6s attention an( !or
the a(vocate to 4e proactive in (irecting the 'itness7 asking narro' an(
close( $uestions7 an( lea(ing 'henever permissi4le8
$&2&2 T#e /itness as a reliable narrator of fact
*he next category o! 'itness is the 'itness 'ho is likely to 4e honest7 4ut
there is a $uestion a4out 'hether the 'itness is relia4le8
*ake !or example a roa( tra!!ic acci(ent8 /any roa( tra!!ic acci(ents en( up in
litigation7 'ith parties 'ho are all a4solutely goo( an( honest people7 4ut they
argue hugely a4out 'hat took place8 *his is 4ecause acci(ents 4y their very
nature are unexpecte( an( over very su((enly8 *he human memory is a
complicate( !acet an( prone to 4e unrelia4le in some instances8 *he 'itness
to a roa( tra!!ic acci(ent goes to court to e(ucate the court as to the !acts o!
as the 'itness perceives them7 )1* in or(er to 'in the case7 it is usually
necessary to persua(e the court that this perception o! the !acts is actually
accurate an( relia4le8 &or this to happen7 the a(vocate 'ill nee( to o!!er the
'itness the chance to give evi(ence that persua(es the court o! the relia4ility
o! the !actual evi(ence8 *his 'ill involve the a(vocate han(ing over a 4it o!
control to the 'itness an( allo'ing the 'itness to gro' in stature an(
con!i(ence in selling their account8
*aking this example !urther7 let us imagine a case o! t'o cars colli(ing on a
country lane8 )-*> (rivers say that they 'ere paying attention an( that they
'ere stationary at the point o! collision8 *he !act is simply 53 sa' the other car
an( came to a halt 4e!ore impact68 *his !act is going to 4e given 4y 4oth
'itnesses7 an( plainly they can6t 4oth 4e right8 *he a(vocate in this case is
going to have to get more !rom the 'itness than a plain statement o! !act8 3!
the 'itness is aske( to explain in a more !ull7 open an( unrestricte( 'ay 'hat
took place7 the 'itness might say something that really gives the !act that ring
o! truth8 *he 'itness may give an ans'er along the !ollo'ing lines8
I came to a halt and for a moment I "ust sat there in my car. It cant
have !een for more than a split second$ !ut time seemed to slo don.
I sa the other car coming and I thought to myself$ *h my :od its
going to hit me. I atched the other car and illed it to stop$ !ut it as
plainly going too fast and there as nothing that I could do !ut "ust to sit
and atch and I !race myself for the inevita!le impact.
2a' School JC
*he 'itness has given evi(ence that is a com4ination o! !act an( a narrative
o! the 'itness6s impressions an( mental reaction to 'hat is going on8 *he !irst
sentence is the simple statement o! !act7 an( the a(vocate 'ho controls their
'itness too tightly might think that having esta4lishe( the !act7 it is time to
move onto the next !act8 )ut the 'itness has gone on to give much !reer an(
uncon!ine( evi(ence7 an( as a result has expresse( the agony o! the moment
that many people !eel moments 4e!ore an acci(ent8 )y giving this evi(ence
the tri4unal might think that the 'itness6s !actual evi(ence a supporte( 4y the
'itness6s instinctive mental reaction to the !acts that he has claime( as 4eing
true8
Hu(ges o!ten re!er to 'hether the 'itness6s evi(ence ha( 5the ring o! truth
a4out it67 an( as an a(vocate it is up to you to let the 'itness express not only
the !act7 4ut also the humanity o! the 'itness that allo's the !act to register as
4eing narrate( accurately8
An a(vocate really nee(s to kno' 'hether the 'itness is going to 4e a4le to
give any evi(ence over an( a4ove the statement o! mere !act that is going to
assist the case8 3(eally7 this is 'hat the a(vocate tries to achieve in
con!erence8
$&2&$ T#e /itness as a narrator of impression and emotion
Sometimes a 'itness is actually calle( !or the very purpose o! giving a highly
personalise( account o! thought7 !eeling7 impression an( emotion8 3! this is the
case7 the a(vocate must 4e prepare( an( a4le to create the environment
'here the 'itness is a4le to (o so8
*he sort o! case 'here the 'itness 'ill 4e aske( to per!orm in this manner is
most usually 'here the 'itness is a 5victim6 in a criminal case 'here the
o!!ence charge( relies upon proving that someone 'as in !ear7 alarm or
(istress etc8
3n this sort o! case7 the mental (ialogue an( emotional reaction to an inci(ent
is not a collateral matter7 calle( only to assist in esta4lishing veracity ?as in the
section a4ove@7 4ut rather the mental (ialogue is the very reason !or calling the
'itness at all8 *here are many prosecutions un(er the Protection !rom
>arassment Act that involve the victims o! harassment explaining in terms the
e!!ect o! the De!en(ant6s 4ehaviour upon them8 *his narrative 'ill lack any real
impact i! the 'itness is 4eing too tightly controlle( an( (oes not have any
con!i(ence that they are permitte( to really express themselves8
$&$ ?,EST(ON T+PES
3n general terms7 you pick a $uestion type to try an( (ictate the type o! ans'er
you 'ant8 3! you 'ant the 'itness to 4e un(er your control7 you 'ill 'ant to ask
narro'7 !ocuse( an( speci!y $uestions8 3! you 'ant more o! a narrative7 then
you 'ill 'ant to ask rather more open $uestions8 *here are 2 main (ivisions
to think a4out8 *he !irst is lea(ing an( not lea(ing7 the secon( is open an(
close(8 *hese are (ealt 'ith 4elo'8
JD 2a' School
$&$&1 Leadin"
A lea(ing $uestion is any $uestion that seeks to D3:EC*7 30&21E0CE -:
C3:C1/SC:3)E a 'itness6s ans'er 4y the 'ay the $uestion is phrase(8 *he
most o4vious example is a $uestion that actually gives the ans'er as part o!
the $uestion8 Say7 !or example that there is a suggestion that the man
accuse( o! ro44ery ha( a tattoo8 *he really lea(ing $uestion 'oul( 4e+
,o you remem!er hether the man had a tattoo?
*his $uestion speci!ies the ans'er hope( !or ?i8e8 that the man ha( a tattoo@8
*he next level (o'n 'oul( 4e to ask+
,o you recall any marking on his arm?
*his is nearly as 4a(8 *he 'or( 5tattoo6 has 4een remove(7 so the 'itness 'ill
have to give this evi(ence7 4ut the prompt is very evi(ent8 *he next level (o'n
'oul( 4e to ask+
Di( he have any (istinctive !eaturesF
*he $uestion is 4ecoming much more accepta4le no'8 *he only remaining
area o! potential o49ection is that the $uestion (oes7 perhaps7 presuppose that
there 'as a (istinctive !eature other'ise 'hy ask this $uestionF
*his lea(s us to the important conclusion that A2/-S* A22 $uestions are
lea(ing to S-/E E;*E0*8 Even the great clichV( $uestion 5'hat happene(
nextF6 presupposes that something else (i( happen an( in!luences the
'itness a'ay !rom the possi4ility o! the 'itness saying that 0-*>30A
happene( next8 3t is reasona4ly help!ul to consi(er that a $uestion is either
lea(ing or nonlea(ing 4ut )E**E: S*322 to consi(er that most $uestions are
lea(ing to some (egree7 the $uestion is 'hether the (egree is accepta4le or
not8
'he rules on leading and not leading
*he primary rule is that an a(vocate must not lea( on any matter 30 3SS1E8 3!
there is a (ispute o! !act 4et'een the parties to litigation7 then the party
seeking to prove the !act must have their 'itness give the !act 'ithout any
prompting or 'ithout in!luence 4eing exerte(8
*here is a sli(ing scale o! 'hat is in issue in a case an( 'hat is not8 3t may 4e
that a !act is hotly conteste(7 or it may 4e that there is a mil( (isagreement
a4out the precise (etail o! the !act7 or it may 4e that the other party really has
no vie' on 'hether that !act is true or not8 *he more hotly conteste( the !act is
" the less lea(ing the $uestion must 4e8
*he secon( rule comes at the other en( o! the spectrum8 3t is generally A--D
practice to lea( on the 4asic 10C-0*:-,E:S3A2 &AC*S8 3! all the
prosecution 'itnesses have sai( that the event took place on the 5
th
0ovem4er an( the De!en(ant agrees that the event took place on the 5
th
0ovem4er there is no nee( at all to avoi( lea(ing on the (ate an( an a(vocate
can say to the 'itness
I understand that you ere part of an incident on (
th
1ovem!er?
2a' School JJ
)y the en( o! the prosecution case it shoul( 4e very plain 'hich !acts are
agree( an( 'hich are in (ispute8 3n(ee( it is o!ten the case that a trial 4egins
to accelerate as the essence o! the !actual (ispute 4ecomes clear an( all
parties 4ecome increasingly con!i(ent in lea(ing on the issues that are not
controversial8
$&$&2 Not leadin"
*he great 4ulk o! examinationinchie! shoul( 4e ma(e up o! $uestions that (o
not suggest the ans'er in the $uestion8 *he general 'ay to accomplish this is
to ask $uestions that start 'ith the 'or(s7 5ho'6 5'hat6 5'hy6 5'here6 5'ho6
5'hen68 *his !ormulation ten(s to let the 'itness supply the ans'er8
Buestions that start 5(i(6 are more (angerous7 since 'hat 'ill normally !ollo'
the 'or( 5(i(6 is a statement that the 'itness is aske( to comment upon8 &or
example7 5Di( the man then hit youF6 *his is a proposition7 an( the a(vocate7
not the 'itness7 has raise( the i(ea that someone hit someone8 2et the
'itness give the in!ormation 4y asking a $uestion such as 5<hat (i( the man
(oF6 Buestions that start 'ith 5Di(6 can 4e essential7 usually not to esta4lish a
!act in the case7 4ut to clari!y 'hether the 'itness can take the evi(ence any
!urther7 eg7
G4 <hat as happening outside?
54 'here ere + men shouting.
G4 ,o you recall hat they ere shouting a!out?
*he last o! those $uestions is not suggesting the ans'er 4ut 9ust checking
'hether there is any more evi(ence to explore8
Simple $uestions are almost al'ays 4est8 <hen use( at the right time 'ith the
right emphasis7 one o! the most (evastatingly e!!ective $uestions in
examination in chie! is simply 5<hyF6
*he other 'ay to avoi( lea(ing is not to ask a $uestion at all7 4ut rather
30,3*E the 'itness to 0A::A*E7 eg+
Coul( you tell the courtLF
Please coul( you explainLF
Please coul( you (escri4eLF
Coul( you sho' the courtLF
$&$&$ Open and closed Iuestions
-pen an( close( $uestions are (istinct !rom lea(ing an( nonlea(ing7
although they are o!ten con!use(8 *he i(ea o! an open $uestion is simply one
'here the $uestion o!!ers the chance to ans'er very 4roa(ly8 *his 'orks (o'n
to a very narro' $uestion8 >ere is an example o! the sort o! range8 3! 'e
assume that it is not in (ispute that the 'itness 'as at 'ork at the 4ank in the
a!ternoon 'hen an inci(ent took place7 then none o! the $uestions are
o49ectiona4le7 even though they start to lea( as they get more narro'8 So7
!rom open to narro'7 the range o! $uestions might go as !ollo's+
Can you (escri4e 'hat you 'ere (oing on Hanuary 25
th
this yearF
<hat 'ere you (oing on the a!ternoon o! Hanuary 25
th
this yearF
<here 'ere you on the a!ternoon o! Hanuary 25
th
this yearF
1MM 2a' School
<ere you at 'ork on the a!ternoon o! Hanuary 25
th
this yearF
*he !irst $uestion invites the 'itness to (escri4e the 'hole (ay " the last
$uestion shoul( simply 4e ans'ere( 5yes68 3! the (ate is in issue7 then all these
$uestions are lea(ing as the $uestion supplies the controversial (ate7 an( the
a(vocate 'oul( have to start 4y asking a4out the event7 an( then ask the
'itness to say 'hat the (ate 'as8 As 'e have accepte( that the (ate o! the
inci(ent is not in (ispute7 then the $uestions cease to 4e lea(ing in any
o49ectiona4le 'ay8
$&2 SEPA*ATE T!E (SS,ES F*O5 T!E C!*ONOLO-+
*he easiest 'ay !or any tri4unal to take in an account o! an inci(ent is i! the
inci(ent is relate( C>:-0-2A3CA22.8 .ou shoul( 4e $uite strong in telling
the 'itness ho' you 'oul( like the evi(ence8 &or example+
o Could I ask you to e.plain step !y step hat you recall of hat you sa
take place !eteen )mith and Jones.
)y asking !or the account 5step 4y step6 or 5stage 4y stage6 you are asking !or
a chronology8 .ou can maintain this 'ith $uestions such as7
o 5t hat stage did that happen?
o Ho long did that take place for?
>ope!ully you 'ill only nee( to ask a !e' $uestions in this 'ay 4e!ore the
'itness un(erstan(s !rom you that the account shoul( 4e very care!ully
or(ere( an( chronological8
Aiven that you are looking to esta4lish a clear or(er o! events7 it is 4est i! you
(o not interrupt the chronological !lo' 'ith other evi(ence8 &or example7 it
may 4e important to kno' a4out lighting con(itions in an i(enti!ication case8 3t
is much 4etter to esta4lish the lighting con(itions etc 4e!ore you get the
'itness to (eal 'ith the se$uence o! events8 *his is really 9ust setting the
scene ahea( o! the action8 .ou shoul( (o this clearly eg+
o Fefore I ask you a!out the (
th
1ovem!er itself$ could I ask you to descri!e
the Haint 2at pu!lic house?
*here may 4e several items o! scene setting that 'oul( 4e necessary to make
the su4se$uent chronology run more smoothly7 an( the structure o! the
examinationinchie! might look as !ollo's+
$&9 (NS,LAT(N- A (TNESS
*he a(vocate shoul( also 5insulate6 the 'itness !rom crossexamination8 /any
9unior practitioners think that i! there is a 'eakness in a case it is 4est le!t
2a' School 1M1
I%%!e -
% I ? A F I 8 A
I%%!e '
alone8 *his is rarely a goo( i(ea since your opponent 'ill not leave the
'eakness alone7 an( i! you leave it alone then you are e!!ectively leaving an
open (oor !or your opponent8
*here are 4asically 3 situations to consi(er8 *he !irst is 'here there is an
evi(ent 'eakness in your case8 *he 'itness has an explanation7 4ut it is not a
very goo( one8 3n this situation it 'oul( 4e 4est to allo' the 'itness to explain
himsel! in examinationinchie!8 3t is 4y !ar the 4est opportunity to allo' the
'itness to tackle the 'eak area o! his account an( to (o his very 4est to
lessen the impact o! the cross examination 4y (ealing 'ith the pro4lem
up!ront8
*he secon( situation is 'here the 'eakness is su4tler an( you are not sure
that the other si(e 'ill notice it8 3n these circumstances you 'ill have to look at
the o((s8 3! the point is seen an( taken then you may 4e in a 'orse position
!or not having allo'e( the 'itness to (eal 'ith it in the relative com!ort o!
examinationinchie!8 3! the point is not spotte( then you 'ill (o 'ell not to
raise the point o! your o'n volition8
*he thir( situation is 'here there is a 'eakness an( the 'itness is a4solutely
(rea(!ul an( incomprehensi4le 'hen trying to explain his 4ehaviour in regar(
to this point8 .ou may take the vie' that you 'ill not 4e a4le to get any sense
out o! the De!en(ant an( you are 9ust going to leave the point !or your
opponent to struggle 'ith8
$&: 'ON4T CO55ENT
.ou may not mean to actually pass comment7 4ut any inci(ental remark such
as 5thank you67 53 see67 5right67 5goo(67 or 5-N6 can 4e construe( as comment8
Even i! the remark is inci(ental it is likely to irritate the court8 *here!ore saying
5-N6 etc is irritating at 4est an( pro!essionally o49ectiona4le as comment at
'orst8
$&< LET T!E 'EFEN'ANT CO55ENT ON T!E P*OSEC,T(ON4S CASE
3n a criminal case7 the De!en(ant is in the uni$ue position in that he or she has
hear( the 'hole case8 3t is generally 'rong to ask 'itnesses to comment upon
each other7 4ut in the case o! the De!en(ant7 this can 4e necessary !or the
sake o! clarity8 *he court nee(s to kno' exactly 'hat the De!en(ant6s
response is to the allegations8
2et the De!en(ant give his account ithout re!erence to the prosecution6s case
!irst an( at the end put the actual allegations clearly an( (irectly8 &or example7
o You have heard that the cron allege that you thre the first punch. <hat
do you say a!out that?
*his is not a lea(ing $uestion8 *he $uestion is 5'hat (o you say a4out thatF6
'hich (oes not suggest the ans'er8
1M2 2a' School
$&D T!E TEC!N(CAL ELE5ENTS
$&D&1 (dentif.in" a professional /itnesses Eran0 and station etcF
:ather than asking a civilian his or her name an( a((ress7 one 'oul( ask a
pro!essional 'itness their name7 occupation an( their place o! 'ork8 *he party
calling the 'itness may 4e relying on that 'itnesses expertise7 an( i! so7 it
may 4e help!ul to ask the 'itness ho' long they have 4een in their chosen
pro!ession or 9o47 an( 'hat their (uties normally involve8
3! the 'itness is a police o!!icer in uni!orm7 it 'oul( seem o(( to ask their
occupation7 4ut some o!!icers atten( court in civilian clothes8 -!!icers are all
traine( in giving evi(ence7 an( o!ten it is enough to simply ask the o!!icer to
i(enti!y him or hersel!8 *he o!!icer 'ill reply 'ith name7 rank an( num4er7 an(
their current attachment ?eg 53 am PC 4155 Paci!ico7 attache( to Ala(4ury
Central Police Station8@
$&D&2 5emor. refres#in" documents
2ay 'itnesses normally have goo( memories !or the su49ect matter o! a trial7
4ecause usually the !act o! litigation is $uite unusual an( memora4le !or the
person involve(8 *he 'itness is entitle( to re!resh his or her memory !rom their
'itness statement !efore they come into court8 <e 'ill (eal 'ith the situation
o! 'hat happens in court shortly8
<ith pro!essional 'itnesses7 especially police o!!icers7 the 'itness 'ill o!ten
have !orgotten the inci(ent in all 4ut the most vague impression7 since the
'itness 'ill have (ealt 'ith many very similar situations8 *he 'itness 'ill
nee( help at 2 stages8 &irstly7 the o!!icer 'ill nee( to rea( his or her statement
4e!ore coming into court8 *his shoul( remin( the o!!icer o! the 4asic !acts o!
his or her evi(ence8
*he 'itness may also nee( to have access to their notes in insi(e court 'hilst
giving evi(ence7 an( the a(vocate nee(s to kno' ho' to apply to allo' this to
take place8
3n principle7 'itnesses shoul( 4e (iscourage( !rom simply coming into court
an( rea(ing out their statement8 *oo many prosecutors are laRy an( allo' this
to happen8 <hen a 'itness simply starts to rea( !rom the statement the
evi(ence 4ecomes very 4lan(8 *he la' provi(es little 4ar to a 'itness re!erring
to their statement7 4ut this (oes 0-* mean that one seek to use the statement
too rea(ily8
1ntil the Criminal Hustice Act 2MM37 a 'itness coul( only use an earlier 'ritten
statement to help them in the 'itness 4ox is that statement 'as ma(e more or
less contemporaneously to the events that the statement (escri4e8 *his acte(
as an incentive !or the police to make sure that recor(s o! 'hat 'as
happening in an investigation 'ere ma(e promptly8 A typical scenario 'oul(
involve an o!!icer making an arrest7 an( as soon as the suspect 'as 4ooke( in
the o!!icer 'oul( go to the canteen an( 'rite up his notes8 <itnesses 'oul(
usually 4e contacte( 'ithin a (ay or so the arrest an( aske( to make their
statements8 3n this 'ay7 all the statements 'oul( 4e consi(ere( to 4e more or
less contemporaneous an( the courts 'oul( permit 'itnesses to use their
statements in court8
2a' School 1M3
*he nee( !or the statement to 4e contemporaneous has 4een a4olishe( in
!avour o! a ne' ?an( lo'er@ test8 *he ne' test no' is that a 'itness can re!er
to a (ocument in the 'itness 4ox provi(e( that the (ocument provi(es a
5su4stantially 4etter6 account than the 'itness 'oul( 4e a4le to provi(e 'ithout
it8
*he relaxation o! the memoryre!reshing rule no' means that the police (o not
nee( to take contemporaneous notes7 an( in(ee( recent experience
anec(otally is that the police are 4ecoming increasingly lax a4out 'hen they
take statements8 <e kno' o! one case7 !or example7 'here the cro'n6s
'itness 'as 15 years ol(7 an( in his statement he (escri4e( a !ight that he
ha( seen8 *he statement 'as ma(e 3 months a!ter the event8 *he 'itness
aske( to re!resh his memory !rom this (ocument in court at trial J months a!ter
the event8 *he statement 'as certainly not contemporaneous an( so the
re$uest 'oul( have !aile( the ol( test8 *he cro'n argue( that the statement
'as % months !resher than the 'itness6s memory at trial7 an( the 'itness 'as
given leave to look 4ack at his statement8 >o'ever7 the more !un(amental
$uestion is surely 'hether that statement 'as relia4le at all in the !irst place8
*he 2A< (oes not re$uire a prosecutor to esta4lish that the memory
re!reshing (ocument is a relia4le (ocument7 4ut 'e encourage a(vocates to
seek to prove the value o! the (ocument on 'hich they seek to rely as a policy
o! goo( practice ?an( one consistent 'ith the co(e o! con(uct@8
So7 to summarise7 the a(vocate /1S* esta4lish that the memoryre!reshing
(ocument provi(es a 5su4stantially 4etter6 account than the 'itness6s memory
alone7 an( that the a(vocate S>-12D 4e prepare( to examine the
circumstances o! surroun(ing the creation o! the (ocument7 so that the court
can properly measure the 'eight o! any evi(ence that is given as a
conse$uence o! that (ocument 4eing use( to re!resh the 'itness6s memory8
*here are several reasons 'hy a (elay in making a statement coul( (amage
the value o! the evi(ence that it contains8 *he main hea(ings are as !ollo's+
Contamination 'ith another 'itness
<itness 1 is one o! a num4er o! 'itnesses to an inci(ent8 <itness 1 talks to
'itness 2 a4out 'hat happene( )E&-:E making a statement8 )y the time the
statement is ma(e7 'itness 1 unconsciously inclu(es (etails !rom 'hat he has
hear( !rom 'itness 28
Corruption o! memory through the in!luence o! an intereste( party
<itness 1 is 'itnesses an inci(ent8 )E&-:E making a statement7 'itness 1 is
calle( to (escri4e 'hat happene( to someone 'ho is not impartial8 <itness 1
recounts the story in a 'ay to accommo(ate the !eelings o! the nonimpartial
person an( in (oing so 'itness 16s memory 4ecomes corrupte(8
Contamination o! memory 4y other similar memories
<itness 1 has set (uties ?eg taking 4reath specimens !rom motorists@8 <itness
1 is involve( in an inci(ent a4out 'hich he makes a statement8 0ot much time
passes 4e!ore he makes the statement7 4ut (uring that time he per!orms very
similar (uties on repeate( occasions8 As a result o! the similarity o! the (uties7
'itness 16s memory contaminates 'ith other inci(ents8
1M4 2a' School
Corruption o! memory (ue to the passage o! time
*his one speaks !or itsel!8 )ut7 4e very care!ul to (istinguish !acts that corrupt
$uickly as oppose( to those that corrupt more slo'ly8 &or example7 i! 'itness
1 is aske( to recall the licence plate num4er o! a passing car7 this memory is
so har( to retain that unless it is recor(e( almost imme(iately7 one 'oul( not
think that memory 'oul( 4e relia4le8 -ther memories ?eg the colour o! the car@
'oul( last much longer 4e!ore corrupting8 Each memory is a 4it like a 4it o!
!oo( that has a 5sell 4y6 (ate= A(vocates nee( to think a4out 'hether the
statement has preserve( the memory 4e!ore the sell 4y (ate8
So7 in a(vocacy terms7 you >A,E to ask $uestions to esta4lish that the
memoryre!reshing (ocument is 5su4stantially 4etter6 than unai(e( memory7
an( the a(vocate S>-12D consi(er esta4lishing 'hether the evi(ence in the
(ocument is a!!licte( 4y any o! the possi4le consi(erations a4ove8 )oth
prosecution an( (e!ence shoul( 4e alive to all the corruption an(
contamination points7 an( to raise them )E&-:E the 'itness is given
permission to re!er to the (ocument8
<e recommen( the !ollo'ing general template to gain permission to re!er to a
(ocument in or(er to re!resh memory8
18 Ask 'hether a (ocument exists that might assist the 'itness6s memory
28 Ask 'hat sort o! (ocument it is ?it 'ill usually 4e a statement " 4ut it
coul( 4e any !orm o! (ocument7 e8g8 a (iary@
38 Ask i! the 'itness 'oul( 4e assiste( 4y re!erring to the (ocument !or
DE*A32 ?i8e8 not to give the impression that the (ocument can 4ecome a
script !or the 'itness@
48 Explore <>E0 the (ocument 'as create( since the passage o! time is
al'ays going to a relevant !actor
58 Explore any o! the issues a4out corruption or contamination that might
a!!ect the $uality o! the evi(ence in the statement8 *his 'ill vary !rom
case to case an( you 'ill nee( to think 'hich ?i! any@ issues are relevant
%8 Ask the 'itness to compare the $uality o! the evi(ence that is in the
statement 'ith the evi(ence that the 'itness 'oul( 4e a4le to give
unai(e(8
>ere is an example o! the process in action8 2et us suppose that the only
issue that might arise out o! using the statement is that the o!!icer might have
complete( similar (uties 4e!ore making his statement8
G4 *fficer$ in relation to this incident$ did you make any form of note or
statement?
54 Yes I did
G4 <hat type of document did you make?
54 I rote a statement
G4 <ould it help you to refer to your statement for matters of detail?
54 Yes )ir$ it ould
G4 Could you then assist the court !y saying hen you made the
statement?
54 'he incident concluded at %%pm$ and I started my statement at "ust
after midnight.
G4 ,id you attend any incidents !eteen the one in -uestion and starting
to rite up your statement?
54 Yes )ir
2a' School 1M5
G4 Ho similar as that in nature to the incident that you recorded in your
statement?
54 It as entirely different
G4 Ho ould you descri!e the -uality of your memory hen you made
your statement?
54 It as good hen I made my statement.
G4 Ho ould you compare you memory hen you made that statement
ith your memory no?
54 My memory then as lots !etter
G4 I'o the courtJ Might the officer have leave to refresh his memory from
his notes one any point of detail that he may not otherise !e a!le to
recall?
I*!"ections ill !e heard if there are anyJ
*here is no magic !ormulation7 an( in practice i! the a(vocate (oes not
suspect that there 'ill 4e any o49ection you may !in( that prosecutors ten( to
(ash through the process 4y lea(ing an( 'ithout really going into any (etails
a4out the provenance o! the (ocument8 <e encourage you to take the
process care!ully an( !ully8
$&D&$ A1oidin" inadmissible e1idence
&or this7 the a(vocate must prepare care!ully8 *he 'itness may have 'ritten
something in their statement7 'hich is ina(missi4le8 Classic examples inclu(e
hearsay7 or revealing the De!en(ant6s antece(ents ?or 4a( character more
generally@8 A 'itness may also 4e tempte( to per!orm a 5(ock i(enti!ication68
Any o! these coul( prove !atal to the trial7 an( i! you have not controlle( the
'itness it coul( 4e seen as your !ault that the ina(missi4le evi(ence came
out8
*he easy ans'er is to go an( see your 'itness an( 'arn them that their
statement inclu(es evi(ence that they are simply not permitte( to give8 3t is a
very goo( i(ea to check 'ith your opponent !irst7 to con!irm that there is no
o49ection to your speaking to the 'itness only to instruct them to avoi( giving
the evi(ence that has 4een agree( as 4eing ina(missi4le8
3n a((ition to this7 the a(vocate shoul( also 4e listening care!ully an( 4e
prepare( to 2EAD to avoi( the ina(missi4le evi(ence8 &or example7 i! the
'itness is an o!!icer 'ho recor(s a conversation 'ith is hearsay7 you shoul(
4e rea(y to step in 'hen the 'itness reaches that point an( lea( the 'itness
past the pro4lem7 eg+
G4 *fficer$ can I stop you there please. I understand that you then had a
conversation. I do not ant you to say hat as said in that conversation.
Can I ask you to carry on your evidence ith hat you did folloing that
conversation.
3t may 4e that the in(ication that there 'as a conversation an( ; then took
place7 is going to 4e tantamount to letting the tri4unal kno' the hearsay
evi(ence any'ay8 3! this is the case7 a su4tler approach 'ill 4e re$uire(8 3t
may 4e that the pro4lem is 'hat the o!!icer hears+ so ask a $uestion that
preclu(es the o!!icer re!erring to that sense8 Eg+
1M% 2a' School
G4 If I can ask you officer to continue$ !ut only in reference to hat you
actually ,I,.
-r i! the pro4lem is that the o!!icer has !orme( an ina(missi4le opinion7 try+
G4 *fficer$ ithout indicating hat you thought a!out the ,efendant$ can you
give evidence simply of hat you ere a!le to actually o!serve a!out him.
3t is simply a matter o! anticipation an( control8 .ou must 23S*E0 to the
'itness an( 4e rea(y to step in the moment you !ear that the 'itness is going
to say something that they shoul( not8
$&D&2 (ntroducin" plans and e%#ibits
Police o!!icers 'ill o!ten have maps7 plans7 photographs or other real evi(ence
to a((uce in a case8 *he techni$ue !or making the o49ect a piece o! evi(ence
is straight!or'ar(8 Either you or the 'itness 'ill have possession o! the item8
Accor(ingly7 you 'ill either have to pass the item up to the 'itness7 or you 'ill
have to rely on the 'itness telling you that the item exists8 <hat !ollo's are
the $uestions an( ans'ers !or each o! the (i!!erent scenarios7 4oth on the
4asis that the exhi4it is a plan o! the scene+
G4 *fficer$ might I ask you to take a look at this document
54 Yes
G4 Can you identify hat that document is please?
54 'his is a plan that I made of the scene
G4 6lease can you tell the court of the circumstances in hich you made it?
54 Yes$ on the +%
st
$ at a!out 3pm$ I returned to the scene and I made a
sketch plan of the property.
G4 I'o the courtJ Could the plan please !ecome e.hi!it % please?
3! the o!!icer has the exhi4it7 it 'oul( 4e as a4ove save !or the initial (iscovery
o! the (ocument7 'hich may 4e har(er to !it in to the case 'ithout lea(ing8
*his is rarely a pro4lem7 since existence o! an exhi4it is very rarely
contentious in any 'ay8
G4 *fficer$ the premises at 0a!urnum 5venue$ is there$ to your knoledge a
plan of the !uilding?
54 Yes
G4 Can you descri!e the circumstances in hich that plan as made?
54 Yes$ I returned the folloing day to make a sketch plan.
G4 ,o you have that sketch plan ith you in court today?
54 Yes I do
I*fficer produces sketch planJ
G4 I'o the courtJ Could this please !ecome e.hi!it %?
3! the exhi4it nee(s to 4e (escri4e( or explaine(7 al'ays get the person 'hose
exhi4it it is to (escri4e or explain it8 E8g8 5Coul( you sho' us on the plan 'here
you say you 'ere 'henL86 An exhi4it can 4e sho'n to more than one
'itness7 4ut it must 4e entere( into evi(ence un(er the proce(ure a4ove !irst8
*his might a!!ect the or(er in 'hich 'itnesses are calle(8 Sometimes7 as the
intro(uction o! exhi4its is so rarely (ispute(7 the parties 'ill simply agree that a
2a' School 1MC
(ocument or thing is 'hat the a(vocates say it is7 an( i! the 9u(ge is happy
'ith this7 the exhi4it nee( not 4e !ormally intro(uce( in the manner (escri4e(
a4ove8
2& C*OSS=EJA5(NAT(ON 1 F,NCT(ONS B
*E?,(*E5ENTS
2&1 (NT*O',CT(ON
Crossexamination has t'o 4asic !unctions8 &irstly7 through the cross
examination you can communicate 'hat your case is to the tri4unal o! !act8
*his !unction only applies to De!en(ants an( respon(ents7 as these parties
crossexamine prior to calling any evi(ence o! their o'n8 3! you are the
applicant7 Claimant or the prosecution7 the court 'ill kno' 'hat your case is
through the evi(ence that you have calle(8 3! you are (e!en(ing in a criminal
case7 the tri4unal o! !act 'ill not prerea( the papers7 an( your cross
examination 'ill 4e the tri4unal6s !irst opportunity to hear 'hat your case
actually is8
*he secon( !unction is to (iscre(it the evi(ence given 4y the 'itness8 *his
coul( 4e anything !rom gently raising a small (ou4t a4out the relia4ility o! the
actual evi(ence7 to a !ullscale assault on the relia4ility o! the 'itnesses
themselves8
3n a((ition to these t'o !unctions7 there is a re$uirement !or the a(vocate to
put their case8 *his 'ill 4e (ealt 'ith in su4stance 4elo'8
2&2 ,S(N- T!E C*OSS=EJA5(NAT(ON TO CO55,N(CATE +O,* CASE
As explaine( a4ove7 this !unction is really the preserve o! (e!ence a(vocates
in criminal cases8 3n civil cases7 the 9u(ge 'ill have prerea( the papers7 an(
'ill alrea(y kno' 'hat your case is8 3n criminal cases7 the prosecution lea(s
its evi(ence !irst7 an( so the court 'ill kno' the prosecution6s case 4e!ore the
prosecution a(vocate is calle( upon to crossexamine8
*he prosecution 'itness 'ill have ha( an opportunity to paint a picture !or the
magistrate?s@ or 9ury7 an( this image 'ill 4e the one very much to the !ore8 3n
your crossexamination7 you nee( to 4egin to paint a picture o! your o'n8 .ou
nee( to (o this in such a 'ay that you are not accuse( o! making a speech7 so
take the process one stage at a time7 an( keep the 'itness involve(7 4ut
remem4er that the onus is on you to express your client6s case8
3magine7 !or example7 you are (e!en(ing a case 'here there is an eye'itness
to an assault in *he &aint :at Pu4lic >ouse8 *he prosecution has not really
aske( the 'itness to (escri4e the physical environment8 .our case is that the
physical environment makes 'itnessing anything a (i!!icult task8 .our
instructions are that it 'as smoky7 !ull o! people7 an( (imly lit8 *his is a part o!
1MD 2a' School
your case7 'hich you nee( to 4uil( up an( communicate to the court7 !or
example ?3 only inclu(e the $uestions@+
o Might I "ust e.plore ith you hat the Haint 2at pu! as like that night?
o 'he Haint 2at pu!lic house is not very !rightly lit is it?
o In fact$ it ould !e fair to descri!e it as dimly lit?
o *n the Cnight in -uestionD do you recall that it as a !usy night?
o Conse-uently$ it as smoky asnt it?
*he a(vocate here is per!orming t'o !unctionsI !irstly he or she is 4uil(ing up
a picture8 *his picture o! a smoky an( 4usy pu4 'ill then 4e use( to
un(ermine the relia4ility o! the 'itness6s evi(ence8 3t is rare7 there!ore7 !or an
a(vocate to 4uil( up the (e!ence case 'ithout also attempting to un(ermine
the prosecution case at the same time7 4ut plenty o! a(vocates are
insu!!iciently (etaile( an( care!ul in 4uil(ing up an( communicating their case8
2&$ '(SC*E'(T(N- T!E (TNESS
<hen you are preparing to crossexamine a 'itness7 you nee( to pitch your
challenge 9ust right8 *here is little 'orse than seeing an a(vocate launch into
an attack o! a 'itness 'hich proves to 4e an unmerite( an( unsustaina4le
attack8 .ou (o not 'ant to have to 4ack (o'n an( accept that you ma(e an
un'arrante( attack8
.ou nee( to consi(er a range o! types o! 5attack6 on a 'itness+
<itness is honest 4ut mistaken8
<itness is 'rong ?no comment a4out the 'itness6s honesty@8
<itness has exaggerate( ?!or 'hatever reason@8
<itness can 4e sho'n to 4e 'rong on a collateral matter7 an( so cannot
4e truste( on the main issue?s@8
<itness can 4e sho'n to 4e inconsistent 'hen giving their account7 an(
so their evi(ence cannot 4e relie( upon8
<itness can 4e sho'n to 4e at o((s 'ith other relia4le 'itness an( so
their evi(ence cannot 4e relie( upon8
<itness has a reason to lie to the court an( so their evi(ence cannot 4e
relie( upon8
<itness is generally o! (ishonest character an( the 'itness himKhersel!
shoul( not 4e relie( upon8
3t may 4e that you seek to attack a 'itness on a num4er o! groun(s8 <e 'ill
look at actual techni$ues in the next chapter7 4ut at this stage it is critical to
o4serve t'o rules8
&irstly7 the higher you aim7 the har(er you 'ill !all i! you (o not success!ully
prove 'hat you set out to (o8 3! you are going to attempt to sho' that the
'itness6s evi(ence is a pack o! lies !rom start to !inish7 you 'ill nee( extensive
2a' School 1MJ
an(Kor compelling evi(ence !or saying so8 3t may 4e that a less extravagant
attack 'oul( serve per!ectly 'ell7 an( 'oul( 4e a much more sustaina4le an(
convincing attack8
*he secon( rule is not to 4e too am4iguous a4out 'hat !orm o! attack you are
putting8 3! you are 4eing am4iguous a4out the case that you are putting7 you
may 'ell !in( an intervention !rom the 9u(ge or your opponent8 A 9u(icial
intervention might go along the lines o!+
o <hat are you putting to this itness Mr Fron? You seem to !e implying
that he is lying. Is that hat your case is$ or are you saying its an honest
mistake?
Sometimes there may 4e goo( reason 'hy you are seeking to 4e am4iguous
a4out 'hat you are putting7 an( you 'oul( rather not put your allegation to the
'itness at all 4ecause you are not sure o! the conse$uences o! the $uestion8
*he rule on putting your case7 ho'ever7 (oes exten( to characteriRing the
nature o! the attack that you are making on the 'itness so that the 'itness can
properly respon(8 5Putting your case6 is (ealt 'ith 4elo'8
2&2 P,TT(N- +O,* CASE
Putting your case is the 4asic minimum re$uirement o! a piece o! cross
examination8 <hat 5putting your case6 means giving the 'itness that you are
crossexamining an opportunity to respon( to any piece o! evi(ence that you
are inten(ing to call or rely upon8 3!7 !or example7 you are going to call
evi(ence to the e!!ect that the ro44ers ma(e o!! in a 4lue car7 an( the 'itness
4e!ore the court has given evi(ence that the car 'as re(7 then the court is
entitle( to hear the 'itness6s response to the assertion that the car 'as re(8
*here are 2 (istinguisha4le reasons !or having to put the case8 *he !irst is that
the court is entitle( to the evi(ence that is pro(uce( 4y the a(vocate putting
the case8 *he 'itness may have a per!ect explanation or response to the
opposition case7 'hich may never have come out in evi(ence i! the opposition
case 'as not put to the 'itness8 *he secon( reason is that a 'itness can 4e
critisise( i! he or she gives evi(ence that is inconsistent 'ith the 'ay their
case 'as put to other 'itnesses8
2&2&1 T#e court4s entitlement
<hen your case is cre(i4le7 there is rarely any harm (one 4y putting one6s
case8 *he 'itness 'ill pro4a4ly re9ect the case that you put7 4ut that re9ection
may not 4e entirely cre(i4le as a result o! the crossexamination8 *he
temptation not to put the case arises 'hen your case is so stupi( that you are
really $uite em4arrasse( to put it8 /ost criminal a(vocates 'ill have ha( to run
lu(icrous (e!ences !rom time to time8 1sually this inclu(es making some
staggering allegations against police o!!icers8 .ou cannot avoi( the
unpalata4le (uty o! making a ri(iculous allegation to a plainly honest 'itness7
even i! you 'ill lose the case the moment the suggestion the ma(e8 *his is
4ecause it is the right o! the court to hear an( o4serve the reaction to the case
4eing put8
11M 2a' School
2&2&2 T#e test of consistenc.
*his test is particularly relevant in criminal cases8 *his is ho' the logic goes8 A
De!en(ant sits in court !or the (uration o! the trial8 >e or she is a4le to hear
everything that is sai( 4y the prosecution8 3t may strike the De!en(ant part 'ay
through the case that he or she shoul( change their story to 4etter challenge
the evi(ence o! the prosecution8 *o take an extreme example7 the De!en(ant
may have originally thought to run the (e!ence o! 5sel! (e!ence67 4ut on hearing
ho' compelling the !irst 'itness 'as on the issue7 the De!en(ant (eci(es to
run a (i!!erent (e!ence7 !or example i(enti!ication8 *he pro4lem 'ith the
De!en(ant (oing this7 is that his or her a(vocate 'ill have crossexamine( the
!irst 'itness an( put the 5sel!(e!ence6 case to that 'itness !or them to ans'er8
3t 'oul( then look 4iRarre i! the De!en(ant change( the (e!ence7 an( the
prosecution 'oul( 4e entitle( to suggest that the De!en(ant ha( only 9ust
change( his or her min( a4out 'hat case it 'as that he or she 'as going to
run8
*his is an extreme example !or the purposes o! illustration7 an( 'oul( it 'oul(
rare in(ee( to encounter such ma9or changes in the 'ay a case 'as 4eing
put8 >o'ever7 more su4tle changes take place all the time8 *he care!ul
a(vocate 'ill make a very care!ul note o! ho' ;6s case 'as put to each
'itness7 an( then see 'hat ; himsel! says8 3! ; is not consistent 'ith the 'ay
his case 'as put7 then he can 4e crossexamine( on this inconsistency8 *he
crossexamination might 4e as !ollo's+
o You have "ust said in evidence that someone came up and hit you?
o Fut your !arrister suggested to Mr :reen that it as Mr :reen ho hit
you?
o 5nd Mr :reen denied hitting you$ didnt he?
o He as very firm in his denial asnt he?
o I suggest to you that having heard him deny itK you have no changed
your story from Mr :reen hit me to someone hit me?
3n this example7 the De!en(ant has shi!te( his position more su4tly7 4ut
nonetheless has altere( his position in response to the $uality o! a 'itness6s
evi(ence8 3t is a use!ul tool to 4e a4le to put to a 'itness that they have
change( their account 4et'een the crossexamination per!orme( on their
4ehal! an( the evi(enceinchie! o! the su4se$uent 'itness8
9& C*OSS=EJA5(NAT(ON 2 = TEC!N(?,ES
9&1 LEA'(N-
*he 4est 'ay to control a 'itness an( to communicate your case to the court
is to ask lea(ing $uestions8 52ea(ing $uestions6 is something o! a misnomer7
since the line gets 4lurre( 4et'een 'hen the a(vocate is asking $uestions7
an( 'hen the a(vocate is making a statement8 )oth !orms are accepta4le7
an( in many 'ays it is (esira4le to ask as little as possi4le7 an( to tell as much
2a' School 111
as possi4le8 Crossexamination ten(s to 4e a matter o! making statements
thinly (isguise( as $uestions8
&or example7 take a scenario 'here a 'itness has given evi(ence that he sa'
/r ; commit an o!!ence7 4ut /r ; (isputes i(enti!ication8 *he 4asis o! the
contest is that ?1@ the 'itness 'as (runk7 ?2@ the lighting 'as poor7 an(7 ?3@
there 'ere many people in the 'ay o! the 'itness6s vie' an( there!ore ?4@ the
'itness is mistaken8 *hese are (e!ence assertions7 an( the 'itness is not
really 4eing aske( i! these assertions are correct7 4ut rather the 'itness is
4eing given the opportunity to re4ut these assertions as they are put to the
'itness (uring crossexamination8 *he $uestions on this area coul( 4e
phrase( in a !e' (i!!erent 'ays as the ta4le 4elo' sho's+
0onlea(ing $uestion 2ea(ing 5$uestion6 Statement
C%D Had you had any drink? You had !een drinking
hadnt you?
You had !een
drinking that
night.
C+D <hat as the lighting
like?
Isnt it right that the
lighting conditions ere
not good?
'he lighting as
poor.
C3D <hat as the -uality of
your vie?
It as croded at the
scene asnt it?
'he scene as
croded.
C&D Ho sure are you that
you have identified the
right person?
)urely it is possi!le that
you have made a
mistake?
It is perfectly
possi!le that you
are mistaken.
*he !irst column is 'hat a(vocates shoul( avoid. 3! you (o not kno' i! the
'itness ha( (runk or not7 then you 'oul(7 o! course7 nee( to ask8 3! you are
instructe( that the 'itness ha( 4een (rinking7 then you can move to the type
o! lea(ing $uestion in the secon( column8 *hese are really 9ust statements
'ith a 5tag6 like 5ha(n6t you6 or 5'asn6t it6 'hich changes the sentence !rom
4eing a statement into a $uestion8
*he pro4lem 'ith asking $uestions in a nonlea(ing !ormat is that the 'itness
is at li4erty to ans'er in 'hatever manner the 'itness sees !it8 *he $uestion
imparts no in!ormation7 an( so the $uestion has not a(vance( the case at all7
an( the a(vocate is at the mercy o! the ans'er8 A lea(ing $uestion has the
a(vantage in that it (oes at least communicate a !act8 *he 'itness may then
(ispute the !act7 4ut the 'itness is respon(ing to the a(vocate6s agen(a8 3! the
$uestion is aske( in a nonlea(ing 'ay7 the agen(a 'ill 4e set 4y the ans'er
to the $uestion7 an( the a(vocate 'ill have to respon( to the 'itness 4eing in
control o! the !acts8
*he thir( column on the ta4le a4ove sho's the ra' statement 'ithout even an
attempt at !ormulating a $uestion8 )e'are o! making too many statements7 as
the 'itness may retort 5are you asking me or telling meF6 or some similar
remark8 3t is7 ho'ever7 per!ectly goo( techni$ue to put statements as 4ol(ly as
this 'hen you have an entirely un(isputa4le !act to put8 &or example7 it may
112 2a' School
4e that the 'itness has alrea(y accepte( that the lighting 'as poor8 3! the
evi(ence has alrea(y 4een given7 then no $uestion is really necessary at all7
an( the a(vocate can simply state the point7 ie You have already told the
court that the lighting as poorL
So the general rule is that you shoul( ask lea(ing $uestions in or(er to
communicate !acts that are part o! your case7 an( to try an( control the
'itness8 *his techni$ue shoul( 4e com4ine( 'ith momentum 4uil(ing7 'hich
'e come on to (eal 'ith 4elo'8
9&2 Structure buildin" momentum t#rou"# facts to conclusions
3n your case analysis7 you 'ill have i(enti!ie( the !acts in your case that lea(
to the in!erences that esta4lish your case8 3n the example in the paragraph
a4ove7 there are 3 !acts 4eing asserte( 4y the (e!ence P?1@ the 'itness 'as
(runk7 ?2@ the lighting 'as poor7 an(7 ?3@ there 'ere many people in the 'ay o!
the 'itness6s vie'Q an( the conclusion that !ollo's as the logical in!erence
!rom the !acts7 that is that the 'itness is mistaken in making the i(enti!ication8
*he general rule to !ollo' is that you shoul( 4uil( through !acts to'ar(s
conclusions8
3! you can assert a num4er o! !acts that all ten( to point to a particular
conclusion7 you then have the 4est chance o! registering the possi4ility that
the conclusion is right8
*o take the example a4ove7 you 'ant to hol( 4ack the conclusion that the
'itness is mistaken a4out the i(enti!ication until you have explore( all the
!acts that ten( to support that conclusion8 3! the 'itness agrees more or less
'ith the !actual assertions that he ha( 4een (rinking7 that the lighting 'as
poor7 an( that the area 'as cro'(e( then the a(vocate has the 4est chance
to pounce an( put the conclusion that the 'itness is mistaken a4out the
i(enti!ication8 *he 'itness is un(er some pressure to agree 'ith the
conclusion i! the 'itness has alrea(y agree( 'ith a num4er o! !acts that make
that conclusion look plausi4le8 3t is the !actual 4uil( up that creates the
momentum an( pressure on the 'itness8
/ost crossexaminations involve 4uil(ing to'ar(s a 'hole set o! su4
conclusions 'hich the a(vocate 'ill (ra' together in the closing speech8 3t is
important to re!rain !rom making the 'hole closing speech to the 'itness7 4ut
to only put the matters to the 'itness that are necessary !or esta4lishing the
4asis o! your case7 an( are consistent 'ith your (uty to put your case8
<here you have a set o! smaller conclusions !or one 'itness7 take the cross
examination issue !y issue8 3t is pro4a4ly a goo( i(ea to take each issue as
they arise chronologically7 4ut unlike examinationinchie!7 the $uestions
shoul( 4e organiRe( aroun( the conclusions " ie take the crossexamination
issue 4y issue8
*hink a4out the crossexamination as a series o! 4locks o! $uestions7 each
one en(ing 'ith the conclusion an( prece(e( 4y the !acts that ten( to
2a' School 113
esta4lish that conclusion8 *he ta4le 4elo' sho's the general generic structure
o! a piece o! crossexamination an( next to it7 there is an illustration using the
same example that 'e have 4een 'orking 'ith8 -nly the $uestions have 4een
inclu(e(7 'e are hoping that the 'itness 'ill 4e more or less compliant=
*he case that is 4eing put in crossexamination 'ill usually rest upon a SE* o!
points that make up the cornerstone o! the case theory an( the planne(
closing speech8 <e have 4een (ealing 'ith an example 'here a 'itness ?lets
call him 'itness 1@ makes an i(enti!ication o! someone carrying a kni!e8 2et6s
a(( to that the other evi(ence against the De!en(ant is that another 'itness
hear( him 4rag a4out committing an o!!ence7 an( that the police !oun( a kni!e
?like the one use( in the o!!ence@ in 4ins at the 4ack o! the De!en(ant6s !lat8
*he (e!ence case rests7 there!ore7 on esta4lishing+
28 *hat the i(enti!ication coul( 4e mistaken8
38 *hat the 'itness 'ho reports him 4ragging is an expartner 'ho cannot 4e
truste( as she is 4itter an( has a gru(ge8
48 *hat the kni!e cannot 4e attri4ute( to him8
*hese are the conclusions o! the (e!ence case8 *he crossexamination must
4uil( to'ar(s esta4lishing that these conclusions are cre(i4le8 *he 4uil(ing
process shoul( 4e 4y 4uil(ing a case on the !acts that make these conclusions
plausi4le8
*he structure o! the crossexamination shoul( 4asically take an issue in the
case7 intro(uce the issue7 put the !acts that suggest that the conclusion is
correct7 an( once the !actual case is properly 4uilt7 then put the conclusion so
!ar as you nee( to comply 'ith your (uty o! putting your case8
114 2a' School
o Introduce issue
1act
1act
1act
1act
2 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 obser"ation& you had been drinking
for most of the night hadnt you!
0o& to some e+tent at least& you #ere drunk!
The lighting in the club is tyical of nightclubs isnt it!
0trobe lights #ere being used& as #ell as there being ultra3"iolet!
4Continue to build u factual icture in relation to conclusion5
* 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?
9&$ BO(L(N- T!E F*O-
3t is sai( ?an( it is pro4a4ly not true@ that there is only one 'ay to 4oil a !rog8 3!
you put the !rog into 4oiling 'ater7 it 'ill simply 9ump out again8 3!7 ho'ever7
you put a !rog into col( 'ater an( turn the heat up gently7 the !rog never
notices8
*he same theory can 4e applie( to crossexamination8 3! you have a strong
conclusion that you think the 'itness shoul( have to agree 'ith7 it is almost
invaria4ly 4est to turn up the heat on the 'itness 4it 4y 4it8
3n or(er to really apply pressure to the 'itness into agreeing 'ith the
conclusions that you are 4uil(ing7 you nee( to encourage the 'itness to
agreeing 'ith you as much as possi4le8 *o (o this7 you nee( to think a4out the
pitch o! each $uestion7 an( to put each $uestion in such a 'ay so as to secure
agreement8 *ake the point a4out the 'itness 4eing (runk8 .ou coul( pitch the
$uestion har( or so!t8 *he har(er you pitch7 the 4etter it is 3& you get
agreement8 *he lo'er you pitch7 the more likely it is that you 'ill get
agreement7 4ut the point has less impact8 *he aim7 is to ask the $uestion as
strongly as possi4le 4ut 'here you !eel con!i(ent that you can get agreement8
<hat !ollo's is a series o! $uestions on the point o! alcohol7 4ut ranging in the
pitch8 3 have suppose( ho' a 'itness might respon( to each o! the
suggestions8
Hard
Guestion 5nticipated response
You ere so drunk you ere
almost unconscious you erent
youL
Certainly notL 'hats a ridiculous
suggestion..
You ere very drunk. I ouldnt say very drunk at all$ I
as no more than a !it tipsy really.
You ere a !it drunk I suppose I as a !it drunk.
You ere not a!solutely so!er 1ot a!solutely so!er no.
)oft
3n the a4ove example7 the 'itness 'ill ar(ently (eny the !irst suggestion7
argue a 4it 'ith suggestion 27 an( accept suggestions 3 an( 4 'ith little !uss8
*he 4est $uestion is pro4a4ly the thir(7 in that the 'itness is still !ighting a 4it
'ith the a(vocate in the secon( $uestion7 an( unless the a(vocate has some
more evi(ence7 the 'itness may en( up esta4lishing his account rather than
the a(vocate esta4lishing their original proposition8
*'o rules emerge !rom this8 *he !irst is+
Seek agreement 4e!ore (ispute 'here possi4le8 Neep control an(
comman( o! a 'itness 4y esta4lishing a pattern 'here4y the 'itness !eels
compelle( to agree 'ith the great ma9ority o! 'hat you put to them8 *his
2a' School 115
pattern 4ecomes har(er an( har(er !or the 'itness to 4reak an( the
a(vocate6s cre(i4ility rises as the 'itness surren(ers to the a(vocate6s
account8 -nce the a(vocate has esta4lishe( him or hersel! as the
reasona4le an( !air a(vocate an( has occupie( 5the mi((le groun(6 it can
4e very har( !or the 'itness to un(ermine the crossexamination8
Pitch each $uestion 'ith great care8 *he 4etter evi(ence you have7 the
higher you can pitch8 3! the 'itness 'ere to have sai( earlier that he 'as
5very (runk6 or i! there 'as some other cre(i4le evi(ence that he 'as very
(runk7 then you can aim !or a more (eman(ing proposition o! the 'itness8
3n 4oxing terms " 5Punch your 'eight68 Do not punch too high i! you have
'eak evi(ence to support you7 nor shoul( you punch too so!t i! you have
goo( evi(ence to support you8
9&2 C*OSS=EJA5(NAT(ON ON A P*E)(O,S (NCONS(STENT STATE5ENT
*his is the real 4rea( an( 4utter o! many crossexaminations8 <itnesses are
o!ten aske( to repeat their evi(ence a num4er o! times 4e!ore trial7 an(
a(vocates shoul( look very care!ully at the threa( o! consistency or
inconsistency in the accounts that the 'itness gives8
3n criminal cases7 the opportunities to examine consistency or other'ise o! a
De!en(ant might arise !rom+
<hat the De!en(ant sai( on arrest ?i! anything@
<hat 'as sai( in intervie' ?i! anything@
<hat is put on the (e!ence case statement ?i! anything@
<hat 'as put to the prosecution 'itnesses
<hat the De!en(ant sai( in examinationinchie!8
Prosecution 'itnesses shoul( 4e examine( in relation to their consistency in
the !ollo'ing possi4le regar(s+
<hat 'as sai( at the time o! the inci(ent
*he recor( o! any JJJ call
<hat 'as sai( on the arrival o! police o!!icers that might have 4een note(
in the o!!icer6s note4ook
<hat 'as sai( in the statement taken 4y the police
<hat 'as sai( in evi(enceinchie!8
3n civil cases7 look out !or ho' the parties express their position in+
Any correspon(ence
Plea(ings
Statements
Evi(enceinchie!
11% 2a' School
<hen you look at the issue o! inconsistency7 it may matter very much 'hich
account is right an( 'hich is 'rong8 Conversely7 it may 4e the case that the
truth o! the matter is immaterialI it is the !act that the 'itness has changed the
account that is signi!icant8 3n some cases7 4oth elements 'ill 4e importantI ie it
is important to 'ork out 'hich account is correct and it is signi!icant that the
account has change( 4et'een telling8
<hen accounts are inconsistent7 it is almost al'ays more plausi4le to suggest
that the earlier account is more relia4le8 *his is 4ecause memory can play
tricks on us7 an( 4ecause an account can 4ecome contaminate( 4y hearing
other things8 *his is precisely 'hy the courts encourage people to give
statements as soon as is reasona4ly practica4le an( 'hilst events are !resh in
the memory8 *he original7 !resh7 unrehearse( memory is likely to 4e 4etter
than any account given at a later (ate8
*here are the rare cases 'hen an account given later on might 4e pre!erre( to
an earlier account8 *hese situations might inclu(e 'here the earlier statement
'as given to a person 'ho coache( the 'itness6s account an( the statement
given 'as not an accurate re!lection o! 'hat the 'itness 'ante( to say8 3t may
4e that the 'itness 'as un(er pressure to protect another person an( gave an
unrelia4le account in circumstances that have no' passe(8
3! a 'itness (eviates in the accounts given at any point7 the a(vocate must try
an( consi(er 'hy this might 4e so8 *here is no science in this7 an( the
a(vocate must 4e a keen 9u(ge o! character an( circumstance to try an(
ascertain 'hy the 'itness6s account has not 4een consistent8 3t may 4e that
the client !or 'hom you act can give you a reason !or 'hy they think the
account has varie(7 4ut it may 4e a matter o! pure (e(uction an( in!erence on
your part to think 'hy a 'itness is not 4eing consistent8
3n general terms7 there are a num4er o! stages to go through+
18 Check that there really is an inconsistency8 3t may 4e that the 'itness has
use( 2 turns o! phrase7 an( the 'itness means the same thing 4y them
4oth8 )e care!ul to con!irm that the (iscrepancy is actual an( not merely
apparent8
28 Point out the !act o! the inconsistency to the court 4y con!irming 'ith the
'itness that the inconsistency exists8
38 Promote the relia4ility o! the account that you 'ant to accept !rom the
'itness8 3t may 9ust 4e that you 'ish to suggest that neither account is
correct7 4ut more usually the (iscrepancy has arisen 4ecause the 'itness
is attempting to conceal some sort o! 'eakness an( a(mission8
48 Challenge the 'itness a4out the reason !or the inconsistency8
2et6s look at a 4asic example8 .ou are acting !or the De!en(ant in a nuisance
claim8 *he Claimant 'orke( !rom home an( in his 'itness statement he
(escri4es there 4eing noise that ma(e 'orking 5!rustrating an( slo'68 *he
'itness then hire( premises ?at an unusually high price@ !or 'ork an( is
claiming the cost o! the hire premises in (amages8 At trial7 the 'itness says in
evi(ence that 'orking 'as 5e!!ectively impossi4le68 3t appears that the 'itness
has in!late( the evi(ence at trial !rom 'hat it 'as in the 'itness statement8
2a' School 11C
*he crossexamination ?$uestions only@ might go as !ollo's ?!ollo'ing the 4
stages outline( a4ove@8
11D 2a' School
Sta"e ?uestion
1 Can I confirm something in your evidence please?
You stated I think in your evidenceMinMchief$ that the level of
noise as so !ad that ork as effectively impossi!le?
You then actually stopped ork?
)o hat you appear to !e saying to the court today is that you
could not ork !ecause of the noise?
Can I confirm that you really mean that ork as impossi!le?
Can I confirm that !eteen months N and Y there as 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 itness to their statement?
,o you see at para 5 on page F you deal ith the level of
noise and the effect on your a!ility to ork?
,o you see that you descri!e the level of noise made orking
H27)'25'I1: 51, )0*<?
You clearly indicate in the statement that you ere orking
through the noise and that ork as possi!le?
You accept surely that this is an entirely different emphasis
than you have given today?
$ 'he account that you gave in the statement as made !efore
you kne the e.tent of the e.penses that you later ran up
hen you relocated?
'he account in the statement is therefore less contaminated
!y su!se-uent events?
I suggest that the account in the statement is a much more
accurate reflection of the position?
'he truth is that you ere a!le to carry on orking$ al!eit it
as less comforta!le that it ould have !een if you ere in
perfect silence?
2 'he reason that you have given a stronger account of the
noise here today is that you are trying to "ustify the e.penses
that you then incurred?
I suggest that you have not !een entirely straightforard in
saying that ork as impossi!le ; it clearly as.
3n the a4ove example7 the a(vocate has trie( to esta4lish the truth o! the
position ?ie that 'ork 'as possi4le@ and that the 'itness is not trust'orthy an(
has not 4een 5entirely straight!or'ar(68
2a' School 11J
0ote the importance o! making sure that there is no 5easy get out6 !or the
inconsistency8 3t 'oul( have completely (e!eate( the point o! this cross
examination i! the 'itness ha( 4een a4le to say that the noise levels ha(
change(7 an( that the 'itness ha( simply change( the (escription o! the noise
4ecause the noise itsel! ha( got 'orse8 )e!ore the a(vocate really committe(
himsel! to 'hole issue o! the inconsistency7 you 'ill see that there 'as a
$uestion 9ust to check that there 'as no material change in circumstances8
*his is a 4asic example o! 5shutting (o'n escape routes6 an( this 'ill 4e (ealt
'ith separately 4elo'8
9&2&1 )erbatim records of /itness4s e1idence
3t shoul( 4e evi(ent that in or(er to really secure a point a4out a 'itness 4eing
inconsistent in the t'o or more accounts given7 you must 4e a4solutely
accurate in $uoting the 'itness8 /ost o!ten the 'itness is inconsistent in live
evi(ence 'ith an earlier statement8 3t !ollo's that it is a4solutely imperative to
take (o'n the exact 'or(s o! the 'itness that you inten( to say are
inconsistent8
3t 'oul( 4e a poor crossexamination i! you 'ere re(uce( to putting the point
along the !ollo'ing lines+
o Mr Jones$ earlier$ in evidenceMinMchief you said something along the lines
of#.
9&9 S!,TT(N- 'ON ESCAPE *O,TES
<henever you challenge a 'itness 'ith a !act or a conclusion7 you 'ant7
'here possi4le7 !or there to 4e no escape !rom the !orce o! the point that you
have put8 *o that en(7 you al'ays nee( to think a4out any possi4le escape
that the 'itness might have !rom agreeing 'ith the point that you are going to
make8 3! the 'itness has a genuine escape !rom the $uestion7 it is 4etter to
kno' this in a(vance7 4e!ore you make a !ool o! yoursel! 4y thinking that you
ha( the 'itness trappe(8
<hen you plan any crossexamination7 consi(er ho' a 'itness might try an(
eva(e the conclusion that you are going to 'ork to'ar(s8 .ou shoul( then
plan ho' to shut (o'n those escape routes i! you can8 *he 4est policy is to
use the other 'itnesses to shut (o'n the escape route8 3! the 'itness then
tries to take the escape route7 they en( up contra(icting other 'itnesses8
A classic example is a prosecution 'itness 'ho makes a statement to the
police8 *he 'itness then rehearses their evi(ence in their hea( over an( over7
an( then gives an in!late( account in evi(ence at trial7 an( recalls some (etail
that is not in their 'itness statement8 *he (e!ence 'ants to put the point that
the ne' evi(ence is not relia4leI the 'itness pro4a4ly picke( it up !rom
someone else 4et'een making the statement an( coming to court8 *he
!ollo'ing exchange al'ays seems to take place7
o G4 You did not put it in your itness statement$ !ecause it didnt happenL
o 54 It did happen$ I missed it from my itness statement !ecause I as still
in shock from the incident.
12M 2a' School
As soon as the 'itness gives evi(ence that is inconsistent7 you nee( to try an(
anticipate any potential escape route that the 'itness might try to take8 *he
popular escape route o! 53 'as still in shock6 is so common that you shoul(
consi(er trying to shut it (o'n as a matter o! course8
*he 'itness him or hersel! might shut the escape route i! you take the point
4e!ore the 'itness realiRes the importance8 *he a(vocate coul(7 at the start o!
the crossexamination7 ask a set o! $uestions along the !ollo'ing lines+
o Can I "ust clarify the se-uence of events ith you?
o You itnessed the incident at %+4%(am?
o You spoke to a police officer at the scene?
o Fut your statement as not taken until the ne.t day?
o I suppose that as to give you time to calm don and steady your nerves
!efore you gave the statement?
o You then gave the statement$ and e have no indication that you
complained and said that you ere not fit to give the statement?
3! these $uestions 'ere put at the start o! the crossexamination7 4e!ore there
'as any argument 4et'een the a(vocate an( the 'itness7 it 'oul( 4e $uite
har( !or the 'itness to (ispute this account8 3! the 'itness !in(s that he or she
has agree( 'ith these $uestions7 it 'oul( then 4e very har( !or the 'itness to
later argue that he or she 'as 5still in shock68 *he a(vocate has $uietly an(
e!!iciently shut (o'n the escape route ?or one o! them@ 4e!ore coming on to
tackle the point a4out the inconsistency8
*he other 'ay o! shutting the escape route is to (o so 'ith another 'itness8
*here may 4e other 'itnesses 'ho sa' the character an( (emeanour o! the
'itness an( coul( give evi(ence a4out that8 /ost o4viously7 you 'oul( 'ant
to ask the police o!!icer 'ho took the statement8 Police o!!icers shoul( not take
statements !rom people 'ho are plainly in shock an( not rea(y to give a
statement8 *he o!!icer is7 there!ore7 unlikely to accept that they took a
statement !rom someone 'ho 'as in shock8 3! the 'itness has insiste( that he
or she 'as in shock an( re!utes your attempt to shut (o'n the escape route7
then the a(vocate may 4e a4le to generate con!lict 4et'een the 'itnesses8
9&: C*OSS=EJA5(NAT(ON ON A COLLATE*AL 5ATTE* OF C*E'(B(L(T+
3n almost any trial7 there 'ill 4e peripheral matters o! !act that are not
especially important themselves7 4ut can 4ecome important 'hen 'itnesses
(escri4e them in (i!!erent 'ays8 *his raises the issue as to 'hy the 'itnesses
are inconsistent 'ith one another8 -ne ans'er is that the 'itness has 4een
sho'n to 4e unrelia4le8
A classic example 'oul( 4e a roa( tra!!ic acci(ent8 -ne o! the cars involve(
contains a hus4an( an( 'i!e8 3t is inevita4le that they 'ill have (iscusse( the
acci(ent7 an( no criticism can attach to them !or (iscussing the case8
>o'ever7 i! one o! them (enies that they have talke( a4out it7 an( one o! them
coaxe( into accepting that they have talke( a4out it7 su((enly there is a strong
2a' School 121
suggestion that one o! them has lie( on oath8 *his coul( 4e (amaging to the
'itnesses an( to their case8
*he great a(vantage is that crossexamination o! this sort is rarely (amaging
to the a(vocate asking the $uestion7 an( sometimes very !ruit!ul8 So imagine
'ith the example a4ove that 'itness one goes into the 'itness 4ox an( gives
their account8 *he a(vocate then looks slightly stern an( asks+
o Have you !een discussing this case ith =itness to@?
*he 'itness has to think $uickly8 *he 'itness may think that he or she has
(one something 'rong in (iscussing the case7 an( may give a panicke( or
re!lex (enial that they have (iscusse( the case8 *hen 'itness t'o comes into
court an( gives evi(ence8 *he 'itness might 4e aske(7 in a pleasant tone o!
voice+
o I imagine that you have discussed hat happened that day ith your
partner =itness one@?
3! 'itness t'o ans'ers the same as 'itness one7 then the crossexamination
has sho'e( that the 'itnesses have 4een honest in the 'itness 4ox on the
collateral matter8 *his is not hugely signi!icant an( (oes only a little (amage8
)ut imagine i! 'itness t'o accepts that they have (iscusse( the case7
'hereas 'itness one (enie( it8 -ut o! no'here7 a (iscrepancy has arisen7
'hich might put the relia4ility an( cre(i4ility o! at least one o! them in (ou4t8
Prosecutors regularly !ace (e!ence 'itnesses 'ho have talke( together to
concoct evi(ence ?!or example a !alse ali4i@8 *he 'itnesses 'ill have care!ully
rehearse( the main points o! the evi(ence that they expect to give8 3t is har( to
sho' up (iscrepancies on these central points7 as that is 'here the 'itnesses6
e!!orts have 4een (irecte(8 .ou are much more likely to have success in trying
to expose a (iscrepancy 4y picking a more collateral or peripheral point 'hich
is not necessarily central to the case7 4ut 4ecomes important in in(icating
'hether the 'itnesses are lying or honest in giving their evi(ence8
3t is al'ays 'orth having a goo( look at the case7 to see 'hether there is any
collateral matter that len(s itsel! to testing the parties8 *he 4est points to take
are 'here the issue is really not very signi!icant7 4ut 'here a 'itness might
think that one ans'er might 4e pre!era4le to another an( conse$uently panics
an( give an untruth!ul ans'er that you can prove as 4eing untruth!ul 4y
contrasting it 'ith the ans'er to the same $uestion given 4y a (i!!erent
'itness8
:& F,LL O*7E' EJA5PLE
<hat !ollo's is a set o! papers on a :o44ery case8 *his case has 4een use(
!or ),C assessment purposes in the past8 *he papers in the case !ollo' this
page8 *here 'ill then 4e a page on case theory relating to case7 an( notes !or
a prosecution examinationinchie!7 an( a (e!ence crossexamination8
122 2a' School
INDICT.ENT
IN THE CROWN COURT AT GLADBURY
THE 4UEEN 56- ALI RA/ATI
Ali Ra$a#i i% c7ar8e 9i#7:
COUNT '
STATE.ENT O/ O//ENCE
Robber!* contrar! to section )(1) %heft 6ct 1=9).
PARTICULARS O/ O//ENCE
6FI R6@6%I* on the &4
th
da! of +anar! &((= robbed Robert Finford of a $obile
telephone and G:( in $one!.
Officer of the cort
?ar! 2hitehose

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
*his statement ?consisting o! 2 pages each signe( 4y me@ is true to the 4est o! my
kno'le(ge an( 4elie! an( 3 make it kno'ing that7 i! it is ten(ere( in evi(ence7 3 shall 4e
lia4le to prosecution i! 3 have 'il!ully state( in it anything that 3 kno' to 4e !alse or (o
not 4elieve to 4e true8
Dated the 30
th
January 2009
Signature Rob Linford
3 am the a4ove name(7 an( 3 live at an a((ress kno'n to the police8
-n 25
th
Hanuary this year7 3 ha( 4een out (rinking in Ala(4ury 'ith some !rien(s8 At
a4out 11pm 'hen the 4ars close(7 3 (eci(e( to go home as 3 ha( to 'ork the next (ay
early on a conservatory that 3 'as helping to put in8 /y !rien(s 'ante( to carry on
(rinking an( clu44ing7 so 3 'ent home 4y mysel!8
3 caught the train at 11+2Mpm !rom the centre o! Ala(4ury8 3 like to go to the !ront coach
so 3 can have a cigarette an( 3 can see i! the guar( is coming8 *he plat!orm is not all
un(er cover an( to catch the !ront coach you nee( to stan( in the rain or 'alk up
through the carriage8 Conse$uently7 the !ront coach is normally !airly empty8
3 ha( 4een on the train !or a couple o! minutes 'here a couple o! young Asian men
came through the (oors o! the next coach an( came up to'ar(s 'here 3 'as sitting8
-ne o! them 'as 'earing 'hat looke( like a 4ase4all out!it7 an( the other 'as 'earing
shiny 4lack trousers an( a hoo(e( top7 'hich 'as up8 3n the 'ay they 'ere (resse(
an( 'alking7 3 thought that they ha( 5attitu(e68 *hey (i( not sit (o'n $uietly7 4ut rather
they took up all the area 4y the (oors an( stoo( talking lou(ly a4out some 54itch6 that 3
think that they ha( 9ust 4een talking to8 3 'as in the very !ront seat o! the train7 an( so
there 'as only hal! a compartment an( then the seale( o!! area !or the (river8 *here
'ere no other passengers 4et'een the t'o men an( me8 3n(ee(7 3 think that it 'as
only the three o! us in the 'hole compartment8
*he males kept looking up an( (o'n the carriage7 an( once the train ha( move( on a
!e' minutes7 they 4oth came over an( sat near to me8 -ne o! them7 'ho 3 'ill call /ale

17 sai(7 5my phone has run out o! 4attery7 can 3 make a call on yoursF6 3 ans'ere(
5sorry mate7 3 (on6t have a phone on me68 *he other male7 'ho 3 'ill call male 27 sai(
54ullshit=6 /ale 1 then sai( something like7 53 (on6t like the 'ay you6ve 4een looking at
us=6 3 'as starting to get scare( at this point8 3 replie(7 53 haven6t 4een looking at you7
36m 9ust going home86 /ale 1 then sai(7 5give me your money7 or 36ll smash your !ace68 3
replie( 59ust leave me alone68 3 turne( a'ay to look out the 'in(o' to try an( make
them 9ust give up on me an( leave me alone8 /ale 1 sai(7 5-N7 -N67 an( then he stoo(
up as i! to leave to go to another part o! the train8 >o'ever7 9ust 'hen 3 thought he 'as
a4out to leave7 he su((enly turne( an( s'ung his !ist an( punche( me har( in the si(e
o! my !ace7 4y my le!t ear8
3 'as very stunne( an( !or a secon( 3 (i( not kno' 'hat 'as going on as my hea( 'as
ringing8 3 instinctively put my han(s in !ront o! my !ace8 3 !elt sick8 3 'as a'are o! voices
4eing raise( 4ut 3 'as not sure 'hat 'as 4eing sai(8 3 !elt that 3 'as still 4eing attacke(
as 3 coul( !eel 4lo's on 4oth my arms8 /y impression 'as that /ale 1 'as stan(ing
over me an( 'as hitting me 'ith 4oth his !ists 4ut that he 'as mainly 9ust hitting my
arms8 *hen 3 !elt someone go through my pockets an( pull out my phone an( some
4ank notes that 3 ha( loose in my 9acket8 3 assume that this 'as /ale 2 as /ale 1 'as
hitting me at the same time8
*he train then 4egan to slo' (o'n as it came into :a(cli!!e station8 *he 4lo's stoppe(7
an( 3 opene( my eyes an( took my arms !rom in !ront o! my !ace to see the 2 males
running out o! the (oor an( into the night8
A moment later7 a la(y came up to me to see i! 3 'as -N8 She sai( that she ha(
phone( the police7 an( that 'e shoul( 'ait !or them at the next stop8 3 tol( her that 3
'as !ine an( that she (i( not have to 'ait 'ith me7 although she sai( that she 'ante(
to8 She le!t me her (etails an( aske( me to call to let her kno' i! the police caught the
men8 A!ter a short time 3 met PC Paci!ico 'ho took me in a police car to (rive aroun(
the :a(cli!!e area8 3t must have 4een a4out 11+45pm 'hen 'e (rove past a !ish an(
chip shop 'here 3 notice( the 2 males8 3 tol( PC Paci!ico that 3 'as sure that it 'as the
same t'o men8 3 un(erstan( that they 'ere arreste(8 3 'as then taken home8
3 checke( in my pockets an( con!irme( that my phone ha( 4een taken7 an( also the
cash that 3 ha( that 'as SCM8 3 kno' it 'as SCM 4ecause 3 ha( it on me especially to
4uy a secon( han( 4ike !or my little 4oy the next (ay8 3 ha( some loose change also7
4ut this 'as not taken8 *he phone has 4een returne( to me7 4ut not the money8
Since the inci(ent7 3 have 4een su!!ering !rom ringing in my ears an( 4a( hea(aches8
3 (i( not give anyone permission to take this money !rom me8 3 am 'illing to atten(
court to give evi(ence8

GLADBURY POLICE
Witness Statement
Statement of Sarah Harding
Occupation retail assistant
Dated the 30
th
January 2009
Signature Sarah Harding
3 am the a4ove name(7 an( 3 live at an a((ress kno'n to the police8
-n the 25
th
Hanuary 2MMJ7 3 'as on the train to go home 'ith a couple o! !rien(s8 <e
ha( 4een out (rinking8 3 ha( to get home as 3 ha( a 4a4y sitter 'ho is only 1% an( 3
(on6t like to ask her to 'ork past mi(night8
3 'as sitting talking to my !rien(s 9ust a minute or so a!ter the train ha( le!t Ala(4ury7
'hen 2 men came 'alking past8 3 'oul( (escri4e them as 4eing Asian males7 4et'een
the ages o! 2M258 -ne 'as (resse( in a 4ase4all top 'hich ha( the logo 5pass the roc6
'ritten on it8 *he other one 'as in (ark clothing 'ith a hoo(e( top8
As they came past me7 3 thought that the one in the 4ase4all top 'as looking at me too
much an( so 3 sai( to him 5-i7 keep your eyes to yoursel!68 >e looke( 4ack as i! thinking
o! something to say in reply8 *he train then 9olte( an( he lost his !ooting an( stum4le(
onto me8 3 think it 'as an acci(ent7 4ut 3 'as annoye( to have him all over me7
especially a!ter he ha( 4een looking at me8 3 'as angry an( sai(7 59ust get o!! me 'ill
you=6 *he secon( men 9ust looke( on an( laughe(8 >e shook his hea( an( sai( 5slag6
un(er his 4reath8 3 hear( it although 3 (i( not respon( at the time8
*he t'o o! them then move( into the next carriageKcoach8 3 'as still angry at the
4ehaviour o! the t'o o! them8 3 hear( them laughing in the next carriage8 A!ter a minute
or so7 3 ha( got more an( more angry7 so 3 (eci(e( to go an( tell them to get some
manners8 3 got up an( 'alke( into the next compartment7 3 sa' the t'o men stan(ing
'ith their 4ack to me at the !ar en( o! the compartment8 A!ter a secon( 3 realiRe( to my
horror that they 'ere attacking someone8 3 kno' this 4ecause 3 coul( see the right arm
o! the man 'ith the 4ase4all top 'as s'inging his el4o's8 *he other man 'as more
crouche( (o'n7 an( it 'as har(er to see him as he 'as lo'er an( the other seats 'ere

in the 'ay7 4ut 3 think that he 'as also attacking the man8 0othing 'as really 4eing sai(
4y anyone8
3 thought that the 4est thing that 3 coul( (o 'as to call the police8 3 (i( not 'ant the
males to see me7 so 3 'ent 4ack into the next carriage an( calle( the police on my
mo4ile phone8 As 3 'as on the phone7 the train pulle( into :a(cli!!e station8 3 notice(
the t'o males outsi(e the train running past us to'ar(s the exit o! the station8 3 sa' the
man 'ith the hoo(e( top put his han( in the air an( the other man gave him a 5high
!ive68 *hey 'ere 4oth smiling an( looking very please( 'ith themselves8 *hey ran o!!
an( 3 (i( not see them again that night8
3 !inishe( the call 'ith the police an( then 'ent to go an( see i! the man 'as -N8 >e
'as very shaken8 >e 'as not making very much sense an( 3 'as a 4it 'orrie( a4out
him8 3 tol( him that 3 ha( calle( the police an( that they 'oul( meet the train at the next
station7 'hich 'as Portsi(e8 3 !elt sorry !or him an( 3 gave him my phone num4er in
case he 'ante( to talk a4out it more later8
3 sa' the man get o!! the train at Portsi(e7 an( 3 carrie( on to the next stop an( 'ent
home8
3 am 'illing to atten( court an( give evi(ence8

-LA'B,*+ POL(CE
Witness Statement
Statement of PC Pacifico
Occupation Police Officers
Dated the 30
th
January 2009
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, Im 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 hes
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 26
th
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

%R6I8 'RI;AR
'oors '
o
o
Proo$ o$ e6ience $or Ali Ra$a#i
I a$ a &&/!ear/old $an of good character li.ing at ho$e #ith $! parents at 1& Si,th
Street* Gladbr!.
On the &4
th
+anar! I had been ot #ith $! friend 6$in +affar in Gladbr!* and #e
#ere going bac< to his flat to #atch so$e ';'s. He li.es on Rond#ood Road in
Radcliffe #ere #e #ere arrested.
2e #ere on the train* and #e #ere tr!ing to call a cople of or $ates to see if the!
#anted to co$e and #atch the ';'s #ith s. Bnfortnatel!* I had lost $! $obile* and
6$in #as ha.ing proble$s #ith his* I thin< the batter! #as rn ot or so$ething. 6$in
<no#s loads of people so #e thoght that #e #old #al< throgh the train to see if #e
cold find so$eone #ho $ight let s se their phone. I re$e$ber that #e #ent past
so$e girls and 6$in and this one girl had a bit of a flirt. I #as not in.ol.ed at all. He
fell on her and she #as anno!ed at that. I did not sa! slag to her at all* bt I gess that
she got herself .er! angr! at s both and she is probabl! happ! if #e get into troble.
2e #ent into the end carriage* and so #e had no one left to as< to se the phone. %here
#as this g! in there #ho #as starring at s li<e #e #ere total cri$inals or so$ething.
It #as horrible. I cold tell that 6$in #as anno!ed too. 6n!#a!* 6$in li<es to gi.e
e.er!one the benefit of the dobt* so he #ent o.er and as<ed to se his phone. I sta!ed
bac< a bit* as there #as no reason for both of s to go right p to hi$.
I dont re$e$ber e,actl! #hat #as said* bt the g! #as .er! rde to s. 6$in as<ed if
he cold borro# the phone* and the g! said fc< off* I dont e.en <no# !oH 6$in
said %heres no need to be li<e that* -st thoght !o cold help s ot* it #old onl!
ta<e a secondH I dont re$e$ber #hat he said to that* bt it #as so$ething li<e #e
shold -st piss off and lea.e hi$ alone. 6$in stood p* and he #as abot to go* bt I
cold tell the g! had reall! anno!ed hi$* and 6$in sddenl! trned and attac<ed hi$.
I #as a bit shoc<ed* so I stood stnned for a $o$ent and then shoted to 6$in to lea.e
it ot. I shoted that the g! #asnt #orth it. 6$in #old not listen to $e* so I #ent
o.er and tried to pll hi$ off. It #as all a bit of chaotic. 6$in #as a bit craIed and he
e.en hit $e once.
2e are all scffling for a $inte or so* $a!be e.en less. I #as onl! tr!ing to pll 6$in
off the $an. %hen the train arri.ed at Radcliffe* #hich #as a relief* so I said to 6$in
that it #as or stop and that #e shold go no#. 6$in loo<ed p and sa# that this #as
right so #e got off the train.

I do not <no# #hat that lad! is tal<ing abot s doing a high fi.e I do not recall doing
an!thing li<e that. %he station at Radcliffe has no lighting at all reall!. It #as raining
#hen #e got ot and #ind! and I thin< that I $ight ha.e pt $! hand p b! $! head to
pt $! hood p. %hat is all that I can thin< of that I $ight ha.e done #hich she $ight
ha.e $ista<en for $e doing a high fi.e.
2e #ent to 6$ins hose and $ade the calls. 6 cople of $ates said that the! #old
co$e and #atch the ';' #ith s* and #e said that #e #old $eet the$ at the chip
shop. 2e #ere standing there #hen the police trned p.
I agree #ith $ost of the police state$ent. 2hen 6$in plled ot the phone I #as totall!
srprised* as I had no idea that 6$in had ta<en an!thing fro$ the $an.
I accept that I #as there that night* bt I den! that I #as in.ol.ed at all. 6$in did this
b! hi$self. I ne.er said an!thing to the $an> I ne.er too< his $one! or phone. I
therefore #ant to plead 8ot Gilt!.
I a$ not on .er! good ter$s #ith 6$in at the $o$ent* and he #ill not act as a #itness
for $e* althogh I nderstand he #ill not be a prosection #itness either.

IN THE GLADBURY CROWN COURT
BETWEEN:
REGINA
V3
ALI RA/ATI
_______________________________
AD.ISSIONS
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
%he follo#ing facts are agreed prsant to s.1( "ri$inal +stice 6ct 1=9:* and $a! be
ad$itted as e.idence in the trial b! either prosection or defence.
1. On :
th
6pril &((=* 6$in +affar pleaded Gilt! to the robber! of Robert Finford.
He $ade no co$$ent in inter.ie# and has not said an!thing abot the
in.ol.e$ent of 6li Rafati in this case.
&. %he plan of the train pro.ided b! P" Pacifico is agreed.
0. 6li Rafati agrees that he #as present at the scene> the isse in the case is #hether
he participated in the robber!.
3. %he transcript of the === call $ade incldes the passage1
"aller Eeah* can !o help* there is this g! attac<ing so$eone on the train* it loo<s reall! bad
"ontrol 2here are !oK
"aller %he 111&( fro$ Gladbr!* #ere -st plling into Radcliffe no#.
"ontrol Ha.e !o seen an! #eaponK
"aller 8o* bt the beating loo<s bad
"ontrol "an !o describe the $anK
"aller 2ell* theres & of the$* bt the $ain one is dar< s<inned* abot &( Id sa!*
dressed in baseball <it
"ontrol 'id !o catch an! na$e being sedK
"aller 8o 5 oh shit* I.e -st seen the$ ot the #indo#* the!.e got off at Radcliffe.
"ontrol "an !o describe the$K 2hat are the! doingK
"aller +st rnning off
"ontrol 'o !o see the .icti$K
"aller 8o* I thin< he $st be still on the train
4. 6li Rafati is of good character.

:&1 or0ed e%ample prosecution case t#eor.
#obbery/
1se or threat o! !orce " easily prove( 4y 4oth :2 an( S>8
*he!t " a(mitte( 4y the (e!ence
3ssue in the case " Participation o! A:
Theory on participation
*his ro44ery seems to 4e planne(8 /- is that De!en(ants 'alk up carriage until they
!in( someone isolate(7 start conversation that $uickly turns aggressive8 )oth attack7
steal7 an( 4oth run o!! the train as it comes into the station8
*he evi(ence o! preplanning an( cooperation seems to 4e+
/ <alking through train to !in( carriage 'ith only one person8
/ )oth 'ere lou( an( (eli4erately intimi(ating
/ )oth males looking up an( (o'n carriage
/ )oth males move to'ar(s :2 )E&-:E they start asking a4out using :26s phone
/ /ale one keeps victim6s han(s out o! the 'ay 4y attacking hea( an( then arms
/ /ale t'o goes through pockets
/ust 4e very care!ul to make sure that all the evi(ence in the list a4ove is given in
evi(ence8
Control of itness
3 am assuming that this 'as a case o! the De!en(ants really 4ullying an( intimi(ating7
an( it may 4e that it 'oul( 4e po'er!ul to have the 'itness try an( recreate the tones
o! voice etc8 3 'oul( like to see an( hear the 'itness !irst7 an( the 4etter he comes over
generally7 the more licence 3 'oul( 4e incline( to give him in (escri4ing the attack8

:&2 or0ed e%ample defence case t#eor.
2 main attacks on the prosecution case+
18 *hat there are real (i!!iculties in kno'ing to 'hat extent A: 'as or 'as not
involve(
28 *here are reasons to (istrust the relia4ility an( accuracy o! the accounts
given7 especially o! S>
1& E%tent of A*4s in1ol1ement
:2 is una4le to 4e sure that A: 'as involve( in the ro44ery upon him8 At the time he
'as shocke( an( concentrating on protecting himsel!8 >e presumes that 4oth men
'ere 'orking in tan(em7 4ut really there is no (irect evi(ence !rom :2 that 'oul( allo'
any certainty that this 'as the case8
Sarah >ar(ing is unrelia4le in saying that A: 'as involve( in the ro44ery8 She 'as
alrea(y ill (ispose( to 4oth men on account o! the earlier inci(ent8 She has a vie' over
$uite a long (istance an( o4structe( 4y the seating7 the etche( glass etc8 >er vie' is o!
short (uration8 She only gives (irect evi(ence o! an assault !rom male 18 <hat she sa'
C-12D still 4e consistent 'ith male 2 trying to stop male 18
2& Consistenc. B *eliabilit.
*here are several potential 'eaknesses to explore 'ith the 'itnesses
<hether ords ere spoken during the attack
Contrast 53 coul( hear voices6 ?:2@ 'ith 5nothing 'as really 4eing sai(6 ?S>@8 *here
are 2 possi4ilities8 Either S> o4serve( !or such a short time that she simply
misse( any 'or(s use(7 or that she hear( male 2 (iscourage male 17 an( she
'oul( rather not give that evi(ence in male 26s !avour an( so has (enie( hearing
anything8 Either explanation helps7 so it is vital to reen!orce that :2 hear( voices
an( S> (i(n6t8
'he state of 20 after attack
S> says that 'hen she !oun( :27 he 'as 5not making much sense68 3! :2 agrees
that he 'as not making much sense7 this really reen!orces :26s ina4ility to
remem4er accurately 'hat 'as going on8 3! he (enies that he 'as not making
much sense7 'e have a very use!ul (iscrepancy 4et'een the 'itnesses8 3 'ill
take this point early7 to see 'hich 'ay it !alls8
'he itnesses involvement ith each other
3t seems likely that the 'itnesses have talke( a4out the inci(ent8 3t is only natural
that they 'oul( talk in the moments a!ter the ro44ery8 3t 'oul( 4e i(eal i! one o!
them accepte( that they ha(7 an( the other (enie( it8 S> is likely to accept that
they talke( at the scene7 as in her statement she says she gave her num4er to
:2 in case he 'ante( to talk some 5more68 3t 'ill 4e har( !or her to (eny talking at
all " 'hy else say 5more6F *he motivation !or giving out her num4er is also
suspicious8 S> says it is out o! sympathy7 4ut :2 recor(s that she 'ante( to
kno' the outcome o! the investigation8 3t is 'ell 'orth seeing i! there has 4een
any contact since the event7 especially since statements are not taken !or 5 (ays7
an( it 'oul( plainly 4e 4est i! there 'ere collusion prior to making the statements8

'he high five
*his coul( 4e a really vulnera4le spot !or S>8 She has recor(e( in her statement
that A: an( AH (o a 5high !ive6 having le!t the train8 >o'ever7 she 'as on the
phone at the time to the police8 She is aske( 4y the controller to give a live
commentary7 an( she comes up 'ith no more than 59ust running o!!68 Seems
extraor(inary that she 'oul( !ail to (escri4e the 5high !ive6 'hen giving a live
commentary i! it ha( really happene(8
Plan for t#e /itnesses
&or :27 3 'oul( much rather concentrate on ho' (i!!icult it 'oul( 4e !or a man in his
position to kno' exactly 'hat 'as happening to him7 an( 'hat part male 2 may or may
not have playe(8 3 am 'ary o! trying to portray :2 as a racist or someone 'ho 9ust
(i(n6t like these 2 !rom the outset8
3 plan to treat :2 sympathetically at !irst8 3 'ant to see 'hether he 'ill agree to the
(i!!iculties that existe( in kno'ing 'hat male 2 'as (oing8 >e may 4e !air an( conce(e
that it 'as very har( !or him an( i! so7 'e are a long 'ay to an ac$uittal8 3! he agrees
that he 'as har(ly sensi4le at the en( o! the attack ?that 4eing my !irst $uestion@7 then 3
'oul( 4e encourage( that this 'itness coul( 4e coaxe( gently into agreeing that he
(oesn6t kno' a4out male 28
3! he seems more 4elligerent an( (isincline( to agree7 then 3 shoul( put my case more
ro4ustly8 3t 'oul( 4e more chronological to look at :26s vie' o! the 2 youths !irst7 4ut
this is a more antagonistic line o! crossexamination7 an( in my vie'7 i! 3 have (one 'ell
in securing agreement to the !act that it is har( to kno' 'hat male 2 'as actually
(oing7 then 3 'oul( not 4other trying to prove that :2 'as poorly (ispose( to 4oth men
even 4e!ore the ro44ery starte(8
3 have to put some matters a4out the conversation that lea( up to the attack8 3 (on6t see
much pro!it in this area an( 'ill put my case in a !airly lo'key manner8 3 suppose that 3
have to put that :2 'as (ismissive ?an( racistF@ in his vie' o! the 2 men8 *his is really
(angerous7 an( 'ill 4ack!ire i! :2 seems like a !air an( honest 'itness8 3 'ill have to
assess :2 an( see i! 3 think 3 can get a'ay 'ith this8 3! not7 3 shall put my case in its
4are minimum on this point7 an( 3 (o not think that 3 shall really 'ant to rely on these
allegations in closing speech8
3 'oul( treat S> very (i!!erently8 3 'oul( 4e min(e( to start 'ith the 5high !ive67 'hich
9ust seems to 4e an em4ellishment o! the truth7 seeing as it is not in the 5JJJ6 call8 3
coul( start there an( seek to sho' that she has simply given un4elieva4le evi(ence8
*he 9ury 'oul( 4e 4oun( to 'on(er 'hy she 'oul( (o so7 so 3 'oul( move onto the
earlier inci(ent o! male 1 !alling onto her an( her thinking that they 'ere 4eing ru(e an(
insulting8 >aving attacke( her relia4ility an( impartiality 3 'oul( move onto the attack
itsel!8

:&$ or0ed e%ample *L e%amination=in=c#ief
T(5EL(NE ESEE BELOF
2& Set scene E*L4s e1enin" prior to
incidentF
/ <here ha( he 4een
/ <here 'as he going
/ <hat possessions (i( he have on him
1& Set scene EtrainF
/ :2 uses this train regularly
/ Aet :2 to (escri4e layout
/ 2ength o! train
/ 2ighting
/ -r(er o! stations
/ *ime 4et'een stations
$& (dentification
= Con!irms 2 men
/ :ecovers phone an( cash
2& (nAuries EupdateF
MEN ARRIVE IN
CARRIAE
3 Came to #here 6' sitting
/escritions ,establish 7A'E 8 9 7A'E :-
Talking loudly
Taking u lots sace
Talking about bitch
Come u to 6'
7ale 8 asks about hone
6' says dont ha"e hone
7ale : says bullshit; ,ask for tone and manner-
7ale 8 says ( dont like the #ay<
6' getting scared
7ale 8 gi"e me money or (ll smash your face
6' %ust lea"e me alone
7ale 8 O=& O= ,as if he #as going to lea"e-
ASSA!"# $EINS
7ale 8 unches to left ear
6' stunned& sick& ringing to ears etc
>oices raised
7ale 8 standing o"er
7ale 8 hitting arms& using both of his arms
0omeone ,male :- going through ockets
)itting 9 going through ockets
AT T)E 0A7E T(7E
?hone and #allet taken
ASSA!"# EN%S
3 : males run out the door
3 Woman arri"es
3 ?C ?acifico arri"es
3 Takes 6' on a dri"e
#RAIN "EAVES
&&'()
3 @oes to front carriage
3 )as cigarette
3 Only one in carriage

:&2 or0ed e%ample E%tract of JJ of *obert Linford
Prelim $uestion+
See 'hat :2 says a4out suggestion that he 'as so 4a(ly 4eaten 4y male 1
that7 4y the en( o! it7 he 'as 5not making very much sense68 3! he agrees7 then
a(( in at point marke( WW 4elo'8 3! DE03ED then keep !or closing speech point
a4out consistency8
3ssue " A:6s participation
/ >a( 4een (rinking ?through to 11pm@
/ <as punche( to ear
/ 5Stunne(6
/ 5Di( not kno' 'hat 'as going on6
/ 5:inging6
/ >an(s covering !ace
/ &elt sick
/ S*322 su!!ering !rom ringing in the ears
/ Eyes are shut ?only opens eyes 'hen 4lo's stop@
/ WW i! relevant ?see a4ove@
/ 53mpression6 that male 1L
/ 5Assumption6 that male 2L
W 1ncertain as to 'hat male 2 'as (oing
/ A!ter assault7 'ith PC Paci!ico7 sa' 4oth De!en(ants7 4ut sai( 5that6s
>3/6
W -nly really one person involve( in the ro44ery
3! the a4ove is success!ul7 then skip the next 4ox8
3ssue " :26s appreciation o! the character o! the De!en(ants
<ante( the carriage to sel!
/ *hought they ha( 5attitu(e6
/ 1se( 'or( 54itch6
/ :2 'as aggressive to them
/ :2 'as (emeaning an( ru(e
W :2 (islike( 4oth men

Put case
*hat the conversation 4e!ore the ro44ery 'ent as !ollo's+
/ AH asks to 4orro' phone
/ :2 says 5!uck o!!7 3 (on6t kno' you6
/ AH asks again
/ :2 tells them to piss o!!
*hat (uring the ro44ery 4y AH
A: says 5leave it out6 to AH an( that 5he 'asn6t 'orth it6
*est consistency
Explore 'ith 'itness+
/ >ave the 'itnesses spokenF
/ 3! so7 'ho initiate(7 'hat 'as sai(7 'hen 'as itF
/ Con!irm that :2 hear( the men sayKshout something (uring attack

P*OFESS(ONAL CON',CT
<hat !ollo's is a ta4le o! the potential 5o!!ences6 o! pro!essional con(uct may occur7
an( 'oul( 4e penalise( in an assessment8
E!!orts have 4een ma(e to make this list !ull an( comprehensive7 4ut 'e retain the right
to penalise plain in!ringements o! the Co(e o! Con(uct in relation to proper eti$uette in
court 'here circumstances or 4ehaviours arise that 'ere not envisage( at the time o!
compiling this list8
3t is rare7 4ut stu(ent C-12D 4e penalise( un(er more than one hea(ing7 an( 'hilst
each penalty is limite( to a 3mark (e(uction7 multiple in(iscretions coul( attract a
larger penalty8 <ith compoun( penalties7 a 5totality principle6 'ill 4e en!orce( to ensure
that the total penalty (oes not 4ecome (isproportionately high7 an( allo'ance is ma(e
!or the !act that the penalties are compoun(8
PRO*ESSIONA" CON%!C# O**ENCE PENA"#+
COMMEN#AR+
&,C"O#-IN
Aacket undone
,includes sho#ing shirt %ust abo"e trousers-
38 (deally& mens %ackets should be /O*B'E B6EA0TE/ or
C3?(ECE. (f you #ear a single3breasted %acket& you do
need to do it u. Dou are not suosed to sho# your shirt
o"er the stomach.
(naroriate shirt 38 or 3:
deending on
se"erity ,/O0-
All dress for court should be sober and discreet. 0hirts
should ideally be lain. A simle and subtle strie is O=.
0olid coloured shirts are discouraged& but ale blue is
robably accetable.
(naroriate tie As abo"e Ties should be sober and discreet. A"oid black or #hite
ties.
To button of shirt undone ,men- 3:
Too much shirt undone ,#omen- 38 or 3:
3C if bra sho#s
0hirts should be redominantly done *?. Clea"age should
not be on sho#.
Colourful socks ,men- 38 0ocks should be dark and lain.
(naroriate tightsEstockings 38 ?lain or simle and subtle attern.
0uit Colour 38 0uits should be dark. Either dark blue& dark grey or black.
0hort skirts ,#omen- 3: Nothing abo"e the knee.
(, S-OES
Non3black shoes for men 3: 0hoes must be black
Coloured shoes for #omen 38 or 3: ,/O0- Theres a little more fle+ibility& but to kee it safe& you
should stick to black or na"y.
D-S X 5Depen(ant on severity6

=inky boots ,#omen- 3: Boots for #omen are O=& but they should a"oid stiletto
heels& buckles& stras etc
Boots #ith short skirts 3C This is an inaroriate combination for court.
Oen toes 3: Not for court.
., P!NC#!A"I#+
Not being ready #hen called from the
rearation room ,Ad" Assessments : and C-
38 or 3: ,/O0-
3C if #riting after
being called
(n court& #hen youre called on you cannot kee the court
#aiting.
Being late ,for Ad" Assessment 8- 38 to 3C ,/O0- As abo"e.
/, ENERA" CON%!C#
0#igging from bottles 3:
3C if #ater 9
cus ro"ided
We #ill endea"our to ensure that there is #ater a"ailable 9
cus for you to use. The assessments are ne"er longer
than 8: minutes. (t is ne"er aroriate to s#ig from a
bottle in court.
)ands in ockets #hilst addressing the %udge 38 to 3C ,/O0- 0e"erity here is determined by ho# long the hand is in the
ocket& and #hether it is one or both hands.
7obile hone goes off 3C With some %udges you #ould actually forfeit your hone.
Other %udges ha"e threatened contemt action;
Calling the %udge the #rong name 38 or 3: ,if a
higher title used-
3: or 3C ,if a
lo#er title used-
We #ill o"erlook a single sli of the tongue but if the %udge
is reeatedly referred to the #rong #ay& a enalty #ill
ensue. (t is better to romote a %udge than to demote the
%udge& ,e.g. its better to call a /A Dour )onour by mistake
than to call a Circuit Audge 0ir.
0, MISCE""ANEO!S
@enerally oor aearance 38 or 3: *nder this heading& #e may enalise oor ersonal
aearance ,e.g. scruffy hair& shirt un3tucked& dirty clothes
or hands etc-
(naroriate %e#ellery& studs and rings 38 to 3C ,/O0- Counsel should not dra# attention to themsel"es #ith
anything more than simle and discreet %e#ellery.

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