I do not often write about the actual law. In truth I try to avoid putting pen to paper about real law unless a court has ordered me to. You see, I am not much of a lawyer so I tend to leave discussions of things like the latest cases to those who know a little of the law and confine myself to poking the MoJ with a pointy stick. We have a saying in my chambers, “If you want to know about the law, ask Langhorn.” So that’s what I usually do and apply the law as he directs me.
Occasionally I cannot escape the law. For some reason my senior clerk still labours under the misapprehension that if I give seminars to solicitors this may encourage them to send me work. Learning by experience seems to be lost on him. So recently I found myself addressing a room of eight solicitors. The room had been full earlier in the day but I was the last speaker and word had got round about my reputation. Langhorn had already done his shtick so their minds were bursting with law before the majority of the room had decided to beat the traffic.
So I prattled on for forty minutes about the latest Practice Direction (which you can see here). As I wittered on to a room of empty seats one section leapt out to me and jarred with some piece of law buried deep in my brain.
In Part 3E1 of the Practice Direction the LCJ deals with Judges setting the ground rules for the cross examination of vulnerable witnesses and suggests “instead of commenting on inconsistencies during cross‐examination, following discussion between the judge and the advocates, the advocate or judge may point out important inconsistencies after (instead of during) the witness’s evidence.”
Now this seemed to me to be somewhat at odds with Denman’s Act Section 4 which states “If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”
And then there is a small matter of Section 5: “A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.”
You see my understanding of the law, basic though this may be, is that you must cross examine a witness about an inconsistency if you want to rely upon it. It is kind of the law. And it is a law which makes sense. The Prosecution absolutely want the witness to be given the opportunity to explain an inconsistency. I imagine a jury want to see it too. An unexplained inconsistency may well be given too great a degree of weight when the jury considers the witness’s credibility. Hence a law which is over 150 years old.
Someone once explained practice directions to me as “a device to regulate minor procedural matters”. They are a form of guidance. I have no doubt that the Courts Act 2003 gives the LCJ power to give directions about court procedure but does it really extend to overruling primary legislation? It is the will of Parliament, even if it was the Parliament of Viscount Palmerston, that inconsistencies are put to the witness. Even if they are vulnerable. And I am pretty sure the 1865 Act is more consistent with the overriding objective – conviction of guilty and acquittal of the innocent, than the 2013 Practice Direction.
But then again, what do I know? I am sure someone out there will explain it to me. Or I could always just ask Langhorn……