by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
37.2 Representatives sometimes re-examine far too much for their clients' good – especially where they have not prepared the ground properly in the pre-hearing conference. You do not demonstrate the strength of your case by the number of questions you ask in re-examination – sometimes, the reverse is true. Declining the invitation may indicate how little damage the HOPO's cross-examination has inflicted.
37.3 You can only ask questions in re-examination which arise out of the evidence given in cross-examination. It is not an opportunity to ask questions you forgot to ask in chief and which cannot be related to cross-examination (though if you do find yourself in this position, you will have to own up to your mistake and ask the Tribunal's permission to put the question).
37.4 If the witness for whatever reason has contradicted herself in cross-examination, further questioning may increase rather than limit the damage. Ask yourself whether you are digging yourself a deeper hole. Similarly, if the cross-examination has inflicted minimal damage, then the risks may well outweigh the possible gains of re-examining, as well as over-emphasising any damage.
37.5 The Tribunal's response to your objections to cross-examination may have been that you can clear it up in re-examination. Consider carefully whether or not you should do so. It may be better to point out in closing why the question was misleading and why it would be unsafe to rely on the response. The witness may have been confused by the misleading question and anxious about the answer she gave. She may now be even more anxious about contradicting the earlier answer, and therefore feel forced to confirm her earlier answer rather than give the answer you expect. If she does so, you will have undermined the submission that you could otherwise have made about the unfairness of the original question.
37.6 If your witness has given new information in cross-examination upon which you have no instructions, and you fear that it appears prejudicial, then you may be tempted to ask questions which give the witness the opportunity to explain her previous answers in a better light. It is seldom wise to use re-examination to take fresh instructions from your client in front of the Tribunal. If you have thought of an obvious explanation for an apparently unsatisfactory answer, then you can and should offer that explanation in your closing speech to counter any adverse inference which the HOPO has sought to draw. You are prohibited from leading in re-examination as you are in examination in chief. You should avoid embarking on a tortuous series of non-leading questions which you hope will lead the witness to offer your chosen explanation. Unless you have taken full instructions on the explanation before the hearing and you are confident that the client will give that explanation, the result may simply be an increasingly confused, worried, and exhausted witness who cannot understand what you are getting at.
37.7 The prime aim of a good cross-examination is to force the witness to accept propositions or make admissions which assist the cross-examiner's case. The cross-examiner achieves this aim through leading questions which, one by one, compel the witness towards accepting the facts which the cross-examiner needs to build his argument. He avoids open questions which might allow the witness an opportunity to place her answers in a more favourable context.
37.8 If the HOPO has elicited a series of answers which are on their face damaging but you are aware that the witness has an explanation that she has not yet had the opportunity to give, re-examination provides that opportunity. If successful, it can be exceptionally effective.
37.9 Re-examination can also be highly effective in other circumstances. Your client will have had only a limited opportunity to expand on her witness statement in examination in chief. Cross-examination may have touched on much of the statement, but in a manner aimed at damaging your client's credibility rather than enabling her to put her case in the best light to the Tribunal.
37.10 If matters have been opened up in cross-examination and there is further related evidence that your client can give, you are entitled to elicit it in re-examination. This is the last the Tribunal will hear from your client and leaving him with a good impression can sometimes alter the course of the case – as, of course, may leaving him with a bad impression.
37.11 What distinguishes a good re-examination from a bad (or disastrous) re-examination is the conduct of your pre-hearing conference – how thoroughly you explored the strengths and weaknesses of the case and the factual issues that cross-examination could throw up. You should be aware of what explanations your client can and cannot give, and what her capabilities are. More so even than examination in chief, you must be confident of the answer you will receive before you risk a question in re-examination.