The answer is not to ask that final, often fatal question in a cross-examination situation

Published on Sunday 11 May 2008 19:19

"QUIT while you're ahead" is good advice in life and in a law court. Many times I have watched from the bench as an over-enthusiastic defence lawyer has had a jury eating out of the palm of his hand for 20 minutes, only to bore them into the embrace of the Crown after an hour. But it is in cross-examination where one question too many can have the most serious consequences.

Rule number one is that where an important eye-witness does not identify your client, leave it that way. But every now and again, inspiration strikes, and a defence lawyer attempts a negative identification.

The question "this man was not there, was he?" will perk up prosecutors and have the presiding judge hoping that the accused will not fire his lawyer and represent himself. When asked, everyone in the court will hold their breath and the witness will look more carefully at the dock. Occasionally it works, but too often the witness does indeed remember the man and offers thanks to the defence lawyer for reminding him.

Sometimes it is the accused himself who does the Crown's work for them. In a case some years ago, when asked if he could identify an accused who had been remanded in custody, a witness commented that the man committing the crime had been fatter. "Too right. I've lost a stone and a half in the last three months," the accused muttered, too loudly, condemning himself to several years of prison food.

And sometimes even the victim of a crime says too much. In Airdrie, one of our regulars had been the recipient of "tough love", in his case an axe blow which had widened his centre parting. But he remained likeable and keen to please. So keen that he would admit to almost any crime the police asked him about, whether he had anything to do with it or not.

Finally, defence questioning can occasionally help the prosecution case.

During the late 1970s a group of Protestant extremists blew up a Catholic pub, the Clelland Bar in Glasgow, miraculously killing no-one. However, they did apparently succeed in blowing up an Orange Hall in Bridgeton. It is said that they left gelignite, which had looked a bit sweaty, in the oven to dry and someone else decided to heat up some pies…

During their campaign, the conspirator selected to plant the bomb in one pub was memorable because he spoke with a pronounced lisp. His tipple, sweet sherry, and his ginger hair also stood out. It did not take long for Strathclyde's finest to track him down. When the bomb went off it caused much noise and mess. As the smoke cleared, bedraggled men emerged shaken, but alert enough – the drinkers were still carrying their pints, and the publican his till.

The conspirators had their own paramilitary discipline, which included punishment beatings. A victim of such a beating told the court about it, saying which of the accused had kicked and punched him as he lay on the ground.

The counsel for one accused asked if, at the time, his client had his legs in plaster. The witness agreed he had. "So he could not have taken part in the assault on you?" The counsel quizzed.

"Well, the last thing I saw before I shut my eyes was a crutch coming towards my face."

&#149 Ian Simpson QC is a retired sheriff who has sat as a High Court judge.