Best evidence or best interests? What does the case law say about the function of criminal cross-examination?

AuthorEmily Henderson
Published date01 July 2016
Date01 July 2016
Subject MatterArticles
Best evidence or best interests?
What does the case law say
about the function of criminal
Emily Henderson
Barrister and Solicitor, Wellington, New Zealand
Since 2010 the English Court of Appeal has been engaged in an unprecedented campaign to
reform cross-examination practice to reflect empirical research findings on obtaining best
evidence from children and vulnerable adult witnesses. It is easy to assume that these cases break
away from the conventional theory of cross-examination—carving out a series of exceptions to
normal practice. This article reviews the common law rules on cross-examination before 2010
and argues that the new cases are in fact a logical extension of the ordinary rules.
advocacy ethics, criminal trial reform, cross-examination
It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to
safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a
crime or crimes conviction of which may expose him to serious penal consequences. In a criminal trial as in
other activities the observance of certain basic rules has been shown to be the most effective safeguard against
unfairness, error and abuse.
In 2010, as is now well known, the English Court of Appeal began a ‘landmark’ (Plotnikoff and
Woolfson, 2012) series of decisions regarding the cross-examination of vulnerable witnesses, beginning
with R v Barker
in which the court held that even when cross-examining a complainant alleging a
Corresponding author:
Emily Henderson, Barrister, Henderson Reeves, PO Box 11, Whangarei 0110, New Zealand.
1. Randall vR(Cayman Islands) [2002] UKPC 19 at [11], per Lord Bingham.
2. RvBarker [2010] EWCA Crim. 4; RvEdwards [2011] EWCA Crim 3028; RvW&M[2010] EWCA Crim. 1926; RvWills
[2011] EWCA Crim. 1938; RvFarooqi [2013] EWCA Crim. 1649.
The International Journalof
Evidence & Proof
2016, Vol. 20(3) 183–199
ªThe Author(s) 2016
Reprints and permissions:
DOI: 10.1177/1365712716642356
serious criminal offence, defence advocates must ‘adapt ...cross-examination enable the child to
give the best evidence of which he or she is capable’.
This is not ‘best evidence’ in the sense of ‘most favourable to a party’. The key consideration in
assessing the legitimacy of the questioning is the reliability of the evidence obtained, or, as the court put
it in one of the later cases,Ed wards, whether it is ‘helpful’to the inquiry.
Consequently, t he court required
significantcuts to a number of core cross-examination tactics,particularly the useof leading questions, and
even curtailed the extent to which in cross-examination counsel can put the case (Henderson, 2014).
Lord Judge, the previousLord Chief Justice, has called the Courtof Appeal’s approach the culmination
of a ‘revolution’ (Judge, 2013a, 2013b: 8–9). Compared to the view of cross-examination prevalent
amongst criminal advocates in England and Wales until the last few years, and which still dominates
related jurisdictions such as New Zealand and Australia, this would seem an accurate description. The
conventionalunderstanding is that althoughcross-examination is a method of testinga witness’s evidence,
the reliability of the evidence the cross-examiner elicits is not something for the advocate to be directly
concerned about (provided they do not actually know it is false). Driven by the demands of partisan
advocacy, the core aim in cross-examination is to use it as a tool to advance the client’s case, within the
(relatively loose) bounds of the rules of conduct. As an English silk in a recent qualitative study said:
The point of cross-examination is not to allow best evidence. It isn’t some sort of collaborative inquisitorial
system. This is each side pursuing to the best of their ability the case for their client. ...a good cross-examiner
doesn’t just allow a witness to just say what they want.
There is a significant disparity between this conventional view and that of the English Court of
Appeal in its Barker decisions. Yet the Court of Appeal has gone out of its way to declare that nothing
it has done in any way diminishes the right of cross-examination. Thus the court in Edwards cited RvT:
The judge ...seemed to suggest that it was necessary for the court to balance on the one hand the interests of
justice generally, and of the victims, against the defendant’s right to a fair trial. We do not agree. There is
nothing set against a defendant’s right to a fair trial. Nothing can deprive a defendant of that right.
‘It would be impossible,’ concluded the court, ‘more clearly to express the position’.
Ergo, defen-
dants relying on the Court of Appeal’s stripped-down version of cross-examination still receive every-
thing to which they are entitled.
This is a challenging claim, not only because this best evidence model contrasts so sharply with
conventional wisdom, but also because if ‘best evidence’ is ‘business as usual’ the Court of Appeal’s
strictures might also apply to the cross-examination of robust adult witnesses, as indeed Lord Judge
later suggested they should (Judge, 2013b). In fact, this is precisely what seems to be happening in
two of the most recent cases on point: Farooqi,
concerning the cross-examination of two police
officers, and HvR,
in which one of the witnesses was most certainly vulnerable but the other was a
capable adult.
3. Barker, n. 2 at [42].
4. Edwards, n. 2 at [28].
5. Henderson (2015a). However, this same article suggests that, as a result of Barker et al., attitudes are changing rapidly. For the
way in which practising lawyers see the ethics of advocacy see Ellison (2001); Henderson (2001). For an appraisal of the ethics
of advocacy and introduction to the academic debate in the US in particular, see Dare’s excellent Counsel of Rogues? A Defence
of the Standard Conception of the Lawyer’s Role (2009).
6. Edwards, n. 2 at [26].
7. Edwards, n. 2 at [26].
8. Farooqi,n.2.
9. HvR[2014] EWCA Crim 1555.
184 The International Journal of Evidence & Proof 20(3)

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