Half the country was glued to their radios on Sunday night for the first day in the Archers Trial.
Prosecution counsel’s opening was suave and persuasive, whilst being perfectly fair – Julian Bywater correctly stressed, for example, that it was for the prosecution to disprove self-defence not for the defence to prove it.
Listeners were more concerned to see how Helen’s barrister, the troubled and intermittently drink-sodden Anna Tregorran, would rise to the occasion.
In preparing for the trial of the century over the past few months Miss Tregorran has certainly not been lacking in commitment: she has visited her client in prison innumerable times (for almost all of which she won’t be paid a penny).
On the other hand she has been remarkably unsuccessful on the two occasions when she actually appeared in court. She made an inexplicably unsuccessful bail application which has led to Helen spending the last 5 months in custody; and her performance in the family court was so lamentable that she was lucky not to be reported to the Bar Standards Board for conducting a case without the appropriate knowledge and expertise.
But these were mere preliminaries: how did she do in the crucial cross-examination of Rob Titchener?
The answer, so far, is not all that well.
The first rule in cross-examination is that questions should be questions, not comment.
The second is to keep the questions as short as possible.
The third is that once you’ve asked a question you have to let the witness answer it.
Anna Tregorran managed to break all three rules in the first two minutes of her cross-examination.
In an attempted murder case most defence barristers would give a great deal of thought to their first question of the chief prosecution witness. A witness is always nervous at the start of his cross-examination: he doesn’t know how much the opposing advocate knows, and – as a cricketer like Rob would appreciate – he hasn’t had time to play himself in and so is more likely to flounder and make mistakes.
So there are two main approaches: the first is to try to knock him off his stride with a tricky question; the forensic equivalent of sending a bouncer flying past his nose.
Alternatively you might try something quieter, with the idea of slowly building up a picture of Rob as a cold, controlling brute.
I would have gone for the the more brutal approach with a first question such as:
“Have you ever hit your wife?”
It would go to straight to the heart of Helen’s defence, and might have made Rob feel uncomfortable immediately. I don’t think even he has ever suggested that Helen has ever before used violence against him, and indeed she has plenty of witnesses to her good character, so it could perhaps be followed up soon afterwards with:
“Has she ever hit you?”
This would have produced a “No, but …” reply which would need careful handling.
Miss Tregorran went for a more slow-burning approach. It wasn’t necessarily a bad strategy but her first question was a bad one, which broke at least two of the golden rules of advocacy:
You’re clearly an extremely charming, capable, attractive man. When you first met the defendant you must have seemed quite the catch, wouldn’t you say?
The first sentence was a pure comment, not a question at all; the second, although turned into a sort of question by the tag “wouldn’t you say” is still too woolly. It’s also too long, and is in fact almost unanswerable except by a shrug of the witness’s shoulder, which is more or less what she got.
That said, at least she made her defence clear, and she was able to elicit what may prove to be an important admission from Rob, that he had hit – or as he put it “slapped” – Helen on one occasion in the past.
Unfortunately she then squandered her advantage by allowing herself to be drawn into an unnecessary argument in which it was impossible to hear who was saying what, as barrister and witness talked at each other fortissimo, before Rob again cleverly regained the upper hand with a plangent display of weeping.
While he’s dabbing his eyes and sipping from the glass of water that the usher will bring him, it would be a good time to ask why he’s dusted down that walking stick for the short journey into the witness box:
“You’re putting on a show for the jury, aren’t you Mr Titchener?”
There are other, worrying signs that Miss Tregorran may have made some pretty basic errors. The judge interrupted her cross-examination to inquire whether the prosecution were happy with her “line of questioning.” Fortunately they were, because otherwise questions about Rob’s previous violence or “controlling behaviour” would have been inadmissible without a judicial ruling. It was rather careless of her not to take the judge into her confidence beforehand. It almost suggests that she has forgotten to make the necessary “bad character” application.
It is also concerning that we have heard nothing yet of any “defence statement,” the written document setting out the details of Helen’s defence. If she has not served one, or if it has been served too late (which seems inevitable) there is a very serious risk that it will be Helen who pays the price. The smooth Mr Bywater will not be slow to ask her about it. Since the truth is that Helen’s defence has only really emerged in the last few days and weeks, and then only after an interminable and highly unusual series of conferences attended only by Miss Tregorran, he will have considerable scope to invite the jury to conclude that it is not a genuine defence but one thought up with Miss Tregorran’s assistance, at the last minute.
We must not be too hard on Miss Tregorran though: Rob is not an easy witness to cross-examine. He is a fine actor and his crocodile tears – as long as they are used relatively sparingly – would be apt to engender sympathy in any jury and discomfit the smoothest QC.
The next witness was the six year old Henry, who has been extensively coached by his loathsome step-father. Henry’s evidence in chief consisted simply of the playing of his interview with the police, conducted shortly after the incident. Cross-examination of a young child – invariably by video link – is a considerable test of the ability of any advocate. These days it is virtually certain that there would have been a pre-trial “ground rules hearing” at which the limits of Miss Tregorran’s permitted questions to such a young witness would have been established. Listeners have heard nothing of that so far, but her scope for questioning Henry will have been greatly circumscribed.
In the event Miss Tregorran decided to ask no questions. Having heard Henry’s account that might have been a sensible decision. He did at least confirm Rob’s loss of temper, and his evidence really only confirmed the uncontroversial fact of the stabbing.
It might have been good if the jury had got a whiff of the fact that Rob has been trying to manipulate him, but in the circumstances perhaps it was wiser not to risk cross-examination at all.
Monday night’s episode ended with a dramatic outburst from Helen’s friend Kirsty, who was able to blurt out the truth, as she saw it, about Rob’s character, before prosecutor and judge sternly shut her up. What she said was inadmissible, it was unfair on Rob and we must hope that the jury were paying attention.
(This is an updated post, the original of which appeared in the Daily Telegraph on 5th September 2016)