The art of cross examination

The following is an extract from a famous cross examination of an expert witness engineer by Sir Norman Birkett QC of Alfred Arthur Rouse who was tried for murder in 1930. Sir Norman Birkett was prosecutor and at the height of his powers. Alfred Rouse was accused of murdering a passenger in a car by setting light to it. The defence was that it was an accident. Defence counsel called an expert witness who claimed 'a very vast experience as regards fires in motor cars' and who asserted that the fire was caused by the junction in the fuel line becoming loose. The witness gave his evidence with great confidence. Sir Norman Birkett then began his cross examination......

A: What is the coefficient of the expansion of brass?

S: I beg your pardon?

A: Did you not catch the question?

S: I did not quite hear you

A: What is the coefficient of expansion of brass?

S: I am afraid I cannot answer that question off-hand

A: If you do not know, say so. What is the co-efficient of expansion of brass? What do I mean by the term?

S: You want to know what is the expansion of the metal under heat?

A: I asked you: what is the co-efficient of the expansion of brass? Do you know what it means?

S: Put it that way, probably I do not

A: You are an engineer?

S: I dare say I am

A: Let me understand what you are. You are a doctor?

S: No

A: You are a crime investigator?

S: No

A: You are an amateur detective?

S: No

A: But an engineer?

S: Yes

A; What is the coefficient of the expansion of brass? You do not know?

S: No, not put that way

This is a very powerful cross-examination technique. Although it has some flaws and is somewhat outmoded (see below) it still held as a classic teaching tool in law schools. The point is of course that it would have been difficult to challenge the witness directly on his conclusions without being something on an expert on car fires too, which Sir Norman was not. So Sir Norman goes instead for the jugular: the expert status itself. He also tightly controls the questioning, emphasizes it and directs it in such a way that the witness has nowhere to go. The cross-examination consits of a series of tightly paced 'closed' questions.

Today the repetition of the same point to give maximum drive to the same answer might be
criticised as too crude (even as a 'jury technique'). The judge might well say 'Sir Norman, the witness has answered. let's move on'. Also there was of course a slight risk - a risk which Sir Norman probably considered but calculated as negligible having heard perhaps the too self-assured evidence in chief of the witness - that the expert did actually know the coefficient of expansion of brass, which would have destroyed the point. Maybe he had an immediate supplementary question should this have been the case.

I did once see (in the Technology Court in Birmingham) an expert witness being comprehensively demolished on his expert credentials. Unfortunately for me, he was our witness. It was done very neatly but in a more subtle way. The other side had done their homework and found out that our expert chemist (the case was about the efficacy of a glue which had alleged failed causing gaps to appear in glazing: the glazing company was my client, the Defendant was the glue manufacturer) had previously published research and conclusions which were different from the ones he was now presented. A tough, truly confident and perhaps better prepared (rehearsed?) witness might have been able to stick to his guns and say, yes but I later saw that this research was wrong for xyz reasons and I reached opposite conclusions. But I think they calculated on the other side that he would be too taken aback by being reminded of his previous different conclusions that he would stumble. And he did. The other side's counsel I noted was made a QC soon afterwards.

Whatever the pros and cons and indeed theatre of these cross-examination techniques one must not lose sight of the fact that their success or failure can have life or death consequences for a case. That was literally the case for poor Alfred Rouse. The defence expert witness was discredited. Alfred Rouse was found guilty of murder. His appeal failed and and he was hanged at Bedford prison on 10th March 1931.

Snow and getting to work

The British don't do snow very well, presumably as it usually just comes for a short while and goes again quickly, not settling. So we don't really know how to cope when snow goes on for a few days and it's not worth committing masses of resources for this occasional eventuality.
Some workers are staying at home as a result of the snowstorms. Indeed they are often advised 'only to make essential travel'. But the strict legal position maybe a surprise and give the extra spur to make the effort to come in one way or the other.
As a starting point, employees are only entitled to be paid for the work they do. Therefore even if it is not the employee's fault, because he does not turn up for work (unless there is a provision in the contract providing for this which is unlikely), the employer is not obliged legally to pay him. Of course many employees may exercise some discretion in favour of the employee in these circumstances. He could overlook the point and it is also open to agree that the time is take as annual leave for instance. However as an owner- manager myself, as well as a lawyer, I know the difficult balance which has to be struck with the workforce to achieve fairness because there has to be sympathy for those who do get in as well and have to take up the absent ones duties. So it's not just a case of exercising generosity to those absent. One solution might be agreeing with the absent ones that they work some extra time when they get back.
Working at home of course is an alternative and this recent spell has caused me to accelerate my programme of equipping our lawyers at least with remote access to our network. If the facilities are there the law would imply that the reasonable employer would allow an employee to work from home at such times and conversely the reasonable employer would agree to do so if asked.
It follows also that (again unless there is a contractual provision) the employee is not entitled to claim additional expenses e.g, taxi or staying the night in a hotel, although especially as to the latter where necessary it seems to me to be a good exercise of employer's discretion to pay.
The position is somewhat different for those parents who have to stay at home because the school is closed, although the net effect may be the same: employees have the right to time off for emergencies for assistance in care of children (and indeed incapacitated relatives who depend on them) but this is unpaid.
The authorities are interested in the costs to public services (emergencies, gritting, schools etc) and the media are too. The entertainment media are perhaps less responsible on top of this: it always makes me cross as a responsible employer when DJs say 'take a duvet day today' and I have heard some of our 'national treasures' say it on Radio 2 (of course they don't operate in the world most of us do). The legal position, as ever, does not necessarily favour the same line and adds to the mix of decision to be taken.
On a final note, one of my partners suggested that we diversify from legal services into grit as it's clearly a valuable commodity. It would work well to promote law and grit: We could call ourselves 'Lawyers of true grit'?

an asbo too far?

Asbos (anti-social behaviour orders) have been an important tool in this government's fight against anti-social behaviour. As with many new legislative initiatives in this area there have been mixed results. Whilst some asbos have no doubt been found to give citizens of a given area much relief (although arguably this is at the expense of the next area where those subject to an asbo then turn their attention), there are also reports of young people being proud to have an asbo and merely gaining esteem from being 'awarded' one. There are also arguments that some asbos are too extensive or draconian or even oppressive as the person subject cannot work out what they can and cannot do whilst staying within the terms of the asbo. A problem of this kind came before the Divisional Court recently.

Plymouth County Council obtained an asbo against Mr Heron. Subsequently Mr Heron committed a number of thefts from shops in Plymouth city centre. The matter came before the magistrates again who this time ordered that Mr Heron was required:

1. not to enter the city centre or any part of a particular area, defined on a map
2. not to behave in a way causing or likely to cause harassment, alarm or distress to any person
3. not to have with him or carry any packaged, wrapped, bagged, new or unused goods or objects not belonging to him, except food, in any public place without a valid receipt or the consent of the owner of the packaged, wrapped, bagged, new or unused goods or objects in Plymouth.

The case went on appeal from Mr Heron. Condition 1 was upheld as both necessary and proportionate; it being a sensible condition to remove the defendant from the temptation of shop-lifting. However condition 2 was removed as being too imprecise and not designed to address Mr Heron's actual behaviour. Condition 3, unsurprisingly in my view, was quashed as unintelligible.

One has to question anyway what the magistrates thought they were doing with this condition. So it was ok to steal food? Why except food and not drink? If goods in his possession did not belong to him then one cannot see how he could have a valid receipt for them in any circumstances. The case emphasises the need for the law to be clear and precise and certainly not contradictory. In an effort to deal with a real mischief they had over strained themselves (probably on representations from the lawyer for the council) and ended up with something unclear and unworkable which was no good for the shopkeepers of Plymouth any more than for Mr Heron. Asbos are rife for this kind of problem.

Tenancy types

Many people in this country own land and that still tends to be the aspiration. They say an Englishman's home is his castle. Not so in other countries, France, Germany even the USA, where leasing property has always been as much as lifestyle choice and has never meant 'second best'. People are starting to think more this way here too, especially following the credit crunch which has taken us from not being able to afford mortgages to not being able to get them in the first place.

There also massive differences in tenancy types from a posh flat in Mayfair on a 100 year lease to a six month tenancy of a bedsit. Strictly the terms leasehold and tenancy are interchangeable as both describe payment of rent for an estate in land, but in practice the term leasehold is usually reserved to cover the former type of tenancy i.e the tenant/leaseholder has a fixed term of years which they have purchased by what is called a premium and for which they pay thereafter usually a very small ground rent and a service charge for services such as cleaning, maintenance, gardening etc. Such leaseholders feel that they are owners of their premises and need to distinguish themselves from other tenants who will usually be renting from the council, a housing association or on a six month let from a private landlord.

To make the distinction more exact in law, the long leaseholder, to give him his more usual epithet, usually pays a rent which is so low that he is taken out the extra protection from eviction which it is felt other tenants need as their occupation is so much more insecure, that is the protection of the Housing Acts or previously the Rent Acts. That does not mean however that such long leaseholders cannot be evicted for non-payment of rent or service charge or other breaches of the lease. Indeed I have had several cases in my career where this has happened. Usually however if the leaseholder cannot, or more usually will not pay as a result of bloody -mindedness, the mortgage company will step in and pay instead as they have the right in law to do to avoid what is called 'forfeiture'. Such forfeiture would otherwise mean the lease disappearing for the sake of (usually) a few hundred pounds of indebtedness and the consequence that not only will the leaseholder have nothing to sell on to recoup the premium but the lender would have lost their security too. Forfeiture however is a very technical subject and I do not intend to address it more here.

Outside these long leases, tenancies divide into those in the public sector i.e. council tenancies and those in the private sector. The later include Housing Association tenancies which were classed as a type of public sector before the Housing Act 1988 but now are assured tenancies in the private sector. However it many ways it is a distinction without a difference as housing associations usually grant fully assured tenancies which give very similar security to council tenancies, including often the right to buy. Public sector and housing association landlords are both known as social landlords and this area is known as social housing. There has also been a lot of buying of council stock by Housing Associations since the 1980s, encouraged by successive governments, which has meant that in some regions a big housing association looks and feels like the council. An example is Flagship Housing which not only owns almost all the social housing stock in Suffolk Coastal who have only retained some emergency accommodation for immediately homeless people, but is the housing association who is nominated from the Housing Register and under homelessness duties. Housing association tenants, like council tenants, could only be evicted on proof of statutory grounds, the most common of which of course is rent arrears, followed by causing nuisance and annoyance to other tenants. There are however some more obscure grounds such as under-occupation and over-crowding which are only applicable to council tenancies.

In the private sector, nowadays, fully assured tenancies have to be expressly created as in the case of housing association tenancies so most tenancies go by default to the poor relation within the assured category, namely the assured shorthold. The basic idea with shortholds is that the government (in contrast to social housing) wanted to create as much letting as possible from private individuals and companies to bridge the housing shortage and therefore needed to make it fairly straightforward to get back possession, consistent with giving tenant's some notice and protection so they have time to find somewhere else. The basic concept is that possession can be initiated by giving 2 months notice on or before 6 months of the tenancy expire. There are some technical rules (as ever with the law!): if you contact my office we can send you a free guidance note on this, prepared in this case mostly from the landlord's perspective as most of my instructions on shorthold possession is to landlords.

It is worth also making the point in closure that tenancy law is an area where it is still necessary to be familiar with old law because often each new statute, whilst changing the law for granting of future tenancies - usually it has to be said in the landlord's favour to a marginal or greater extent - preserves the existing provision for tenancies then extant. Thus there are a significant number of tenancies in the private sector still pretty bulletproof under the Rent Acts, some of which date back to the 1960s or even earlier. Also there are special provisions to protect agricultural workers and others who hold tenancies in return for employment and some species e.g. where a private landlord also lives on the premises i.e. letting out a room in his house, where there is even less security than the shorthold. A technical subject indeed and one in which it pays to have a long legal memory and a reasonably high legal IQ.

Holding people in contempt

Often people disagree with judge's decisions. As I say to clients when advising on the risks of trial, in the end it is the judge's opinion. Unfortunately, that's the opinion that counts but then again if you are not happy there is often a right of appeal, if you've got the stomach and the purse for more litigation. What you can't do is show your dissatisfaction but disobeying the decision. That's called contempt of court and can end you up in jail.



Contempt of court can arise in the following situations:

• disobedience of a court order. A very common one of these is refusal to abide by a contact (access) order to children. Mothers have occasionally jailed for sticking two fingers at orders giving access right to fathers (and vice versa) - indeed there have been cases where such parents - know in the trade as 'implacably hostile' - have had custody decisions in their favour reversed as a consequence too. Another example is where people have injunctions against them, possibly for harassment, but also for other things, including cutting down hedges, and fail to obey the order.


• failure to attend court despite an order for requiring attendance. This can be sneaky penalty for someone who is a reluctant witness in a case: the judge can order an officer called the tipstaff to arrest them and bring them before the court to give testimony. Usually however a grovelling apology combined with belated obedience will still suffice


• a less used one is contempt in the face of the court. This includes clear examples such as having a go at the judge - verbally or even physically - or generally interrupting the proceedings. Such contempts are in part the reason for security measures at court (although I sometimes think those at Ipswich are a bit OTT for our humble parish - there are usually two security officers on the door to search you as you go in as well as bounce you out presumably if you are contemptuous although I have never seen the later happen). This contempt does not have to be in the court precincts if it relates to a case currently before the court. Witnesses who are still giving evidence at the close of the court day are told that they must not discuss the case overnight with anyway for fear of tainting their evidence. So if they met other witnesses in the pub that evening they could be in contempt, unless they could show the case was not discussed (risky).


• a rather separate contempt limb is directed at journalists and is under the Contempt of Court Act 1981. It is a criminal contempt to publish anything which creates a real risk that the course of justice in proceedings will be seriously impaired. This does not of course prevent faithful accounts of the day's unconcluded proceedings, including the evidence given, as long as no opinion is given. As I say to my clients, it's only the judge's opinion what counts.
  

Legal poetry

There aren't many poems about the law. Perhaps not surprisingly because the law is regarded as dry, of the mind not the spirit, perhaps even dull to the uninitiated.

But on the other hand, I have known many lawyers and even some judges take poetic licence with the law occasionally...

Anyway here's one poet, W H Auden, who was brave enough to do the reverse and take poetry into the law. Perhaps a weaker effort from the writer of such greats as 'Stop the Clocks' but a valiant effort in a tricky marriage.




Law Like Like Love


Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Law of negligence - the mysterious case of the snail in the bottle

The last post was on the basics of contract law, one of the principal cornerstones of English common law. So I thought this time I would go for the other one, tort. It is of course not a word non-lawyers will be familiar with, but it essentially covers the categories of civil wrong which are not based on contract or statute. The main torts which spring to mind are trespass - to the person, to land and to goods - nuisance and negligence. This time I am going to talk about negligence.

The essence of negligence is that people should take reasonable care to avoid causing harm to others. It practical terms it covers many types of claim people will be familiar with e.g road traffic accident claims, accidents at work and claims for mistakes by professionals and others.

For a negligence claim to arise there has to be a duty of care, a breach of that duty and foreseeable loss. These terms have been argued over for decades. The leading case is Donoghue v Stevenson, a case heard in 1932. Donoghue claimed that she had become seriously ill as a result of imbibing a bottle of ginger beer which had the decomposed remains of a snail in it. She wanted to sue the manufacturer but of course there was no contractual relationship between her and the manufacturer. In a famous dictum, Lord Atkin developed the principles which have more the a ring of The Bible about them, expounding that you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour i.e. love thy neighbour as thyself.

Reasonableness crops up a lot in negligence and indeed in law generally. There is often talk of the reasonable man who used to be called the 'man on the Clapham omnibus', to indicate he had the common touch, and values, of all right-thinking members of society. Of course today he would have to be the man, or woman of course, on the Nintendo Wii, but you get the point. What the reasonable man should care about and foresee, the Defendant in the case should have foreseen, and if it wasn't right, taken steps to avoid it.

In passing, it is important to remember the judges cannot create law, at least in theory. Therefore when some students say the the law of negligence dates from 1932, this is strictly wrong. It would take some historical jurisprudence research (which I think I would enjoy, if I had the time) to trace back the common law before this but Winfield and Jolowicz on Tort says the judges had been led astray by some fallacious dicta in a case of 1842. Presumably before that it was the man on the sorrel horse who held sway. It is fascinating how the law of negligence adapts to new circumstances in society, whilst keeping of course the core principles intact if reinterpreted in a modern way. There are cases now about duty of care owed by the army to soldiers, which thought would have been unthinkable of course at the time of the Crimean War (see an earlier post of mine). One area which I think is ripe for development within the law of negligence is irresponsible mortgage lending. There are cases where it is clearly foreseeable that the borrower will not be able to repay under the loan terms. It's true that the borrower has breached the contract but what duty did the lender owe tho him in selling the loan? Is it justifiable that the lender should take his house when he knew or ought to have known that there was no real prospect of the borrower keeping to the instalment terms? I have a case in this area running at the moment which is going to appeal from a possession order. Will the new Lord Atkin please stand up?