Cross Examination in UK Law

But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facta of the case, in order to see whether the plaintiff really has a cause of action. To do that, la to usurp the position of the trial judge, and to produce a trial of the case in Chambers, on affidavits only, without discovery and without oral evidence tested by cross examination in the ordinary way.

But where the evidence is conflicting and the issue is one of fact depending on oral evidence, any Judge who has had experience of trying cases with witnesses cannot fail to realise the truth of what Lord Sumner says: as the evidence proceeds through examination, cross-examination and re-examination the Judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse.

But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.

It is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined.

It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and common-sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them.

Nevertheless, it is obvious for more than one reason that such Interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested, and it loses much of its effectiveness in Counsel's hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer.