Right to Cross Examine in UK Law

We note that the 2005 Act does not give parties represented at an inquiry under it rights to cross-examine witnesses. By section 17(1), the procedure and conduct of the inquiry are to be as the chairman may direct and, by section 17(3), he must act with fairness and with regard to the need to avoid unnecessary cost. It is a matter for the chairman of the particular inquiry to decide whether and to what extent to permit interested parties or their representatives to ask questions of witnesses.

We see no reason why an inquiry conducted in such a way should not be compatible with article 2 of the Convention. The underlying obligation of the chairman is to act fairly. In discharging that obligation, the chairman may or may not allow others to question witnesses, depending upon the circumstances of the particular case. In some cases it may be appropriate to do so and in others it may not.

In our judgment, evidence cannot be said to be given against a person charged with the same offence as the witness who gives it if its effect, if believed, is to result not in his conviction but in his acquittal of that offence. The fact that Bruce's evidence undermined McGuinness' defence by supplying him with another does not make it evidence given against him. If and only if such evidence undermines a co-accused's defence so as to make his acquittal less likely is it given against him.

In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush.

In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.

In criminal proceedings the 2003 Act makes statutory provision for the admission of hearsay statements of complainants (among others) in certain circumstances and subject to certain safeguards.