Pozner & Dodd: Cross-Examination Science and Techniques. A review

Cross-Examination: Science and Techniques

Larry S. Pozner and Roger J. Dodd

This is quite simply the greatest book on cross-examination that I have ever come across and worth every penny of the hundreds of pounds that it will cost you to buy. It is not easily available. The latest (third) edition is currently unavailable on Amazon, although rather strangely several second editions are, priced at about £600.00 new, or between £330.00 and £745.00 second hand. I was distraught when, just a few days after my copy finally arrived (stamped ex libris Filosa & Filosa attorneys at law 501 Main Street, Truth or Consequences, New Mexico) I left it in a taxi. Fortunately, thanks to the honesty and good sense of a London black cab driver, instead of flogging it on the dark web, or sending it back to Truth or Consequences, like a forensic pathologist he traced me through dental records, in this case a dentist’s receipt, in the same bag. Thank goodness for rotten British teeth.

It is written for an American audience, so some of the terminology is a little obscure. They have “direct” examination, we have “evidence in chief,” they “impeach” a witness, we “contradict” them, and so on. There are references to procedures that we no longer have in England and Wales, such as cross-examination at committal hearings. Voire dires, motions in limine and other pre-trial manoeuvres that we either don’t have, or that mean something different, crop up regularly. Our courts don’t have “podiums” to and from which counsel can walk while asking questions, more’s the pity perhaps. Continue reading “Pozner & Dodd: Cross-Examination Science and Techniques. A review”

Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.

Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of the police investigation. Mr Corbyn has described it as a “disturbing move.”

It is nothing of the sort.

No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed a standard form to give to complainants for use when investigating sexual offences.

It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.

Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked the more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict. Continue reading “Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.”

Should a convicted man stay in prison if his accuser says he is innocent?

Last week in the unreported case of SB [2019] EWCA Crim. 569 the Court of Appeal gave its reasons for upholding a 68 year old grandfather’s conviction in a historical sex case, even though the only witness against him had told them, on oath, that he was innocent, and that she had lied at his trial. 

It was, with respect to the judges, the sort of decision that might cause people to say that the law is an ass.

In another separate, and very well reported, legal development last week, the inquest into the 1974 Birmingham pub bombings concluded with verdicts that the victims had been murdered by the IRA.

On the face of it the two cases are entirely unrelated. The case of SB may or may not be a miscarriage of justice; while the inquest was not directly concerned with the undoubted miscarriages of justice that followed the terrible events of 21 November 1974 when six innocent men were wrongly convicted of mass murder.

The link between SB and the Birmingham Six, is that in both cases the Court of Appeal decided to hear, and to disbelieve, evidence which ought to have led to their respective convictions being quashed. The Six were finally exonerated, while SB remains very firmly behind bars.
Continue reading “Should a convicted man stay in prison if his accuser says he is innocent?”

Are you committing a crime if you sign a Parliamentary Petition in a false name?

Given the overwhelming evidence that Leave campaigners stretched funding rules beyond their legal limits, used covertly acquired Facebook data to target political advertising, and to put it bluntly cheated during the Referendum campaign, there is little surprise in the fact that Leave supporters are now urging their followers to use underhand methods to undermine the legitimacy of the Parliamentary Petition to revoke Article 50.

A handsome but somewhat callow-looking youth called Steven Edginton, the digital strategist for “Leave means Leave,” for example, claims – no doubt correctly though one never knows with people who consider their dishonesty virtuous – to have signed the petition three times in the names of Jean-Claude Junker, Donald Tusk and Michel Barnier.

Edgington: signed in various names

Julia Hartley-Brewer has encouraged others to do the same, using, like Mr Edgington multiple email addresses. The purpose, obviously, is to undermine the legitimacy of the petition, so that however many signatures it garners it can be written off as untrustworthy and irrelevant. Continue reading “Are you committing a crime if you sign a Parliamentary Petition in a false name?”

Fiona Onasanya: what is it like to represent yourself in the Court of Appeal?

Fiona Onasanya’s attempt to appeal against her conviction for perverting the course of justice failed at the Court of Appeal yesterday. It leaves the way open to her constituents recalling her and forcing her to contest her seat in a by-election. She will not be the Labour Party candidate and surely has literally no hope of winning the seat as an independent. Sadly for her, her political career will have to be put on ice for a few years, and her legal career – she is a qualified solicitor – is unlikely to be available to her for much longer either. A conviction for perverting the course of justice is simply inconsistent with that profession.

I have no wish to add to Ms Onasanya’s woes. Even though she was responsible for her own downfall, it is hard not to feel some sympathy for a woman who has recently been diagnosed as suffering from multiple sclerosis and who committed a crime that – to many members of the public, although not to the higher courts – is often regarded relatively minor. Perhaps she can take comfort from the near complete rehabilitation of Vicky Pryce, the economist who served a longer prison sentence than that imposed on Onasanya for wrongly agreeing to take her politician husband’s speeding points. She is now a regular media commentator on economic affairs and nobody seems to hold her conviction against her.

One of the curious and so far unexplained aspects of the case is that Ms Onasanya chose to represent herself in the Court of Appeal. She had been represented by leading counsel Christine Agnew QC at her two trials, and normally one would expect the same advocate to appear at her appeal. Continue reading “Fiona Onasanya: what is it like to represent yourself in the Court of Appeal?”

Can the Home Secretary prevent Shamina Begum returning to the UK?

The Home Secretary has said that he will prevent the return to the UK of Shamina Begum, the Isis bride from Bethnal Green:

My message is clear” he told The Times, “if you have supported terrorist organisations abroad I will not hesitate to prevent your return.”

Opinions differ on whether it would be right to allow her to return to Britain. The brother of the murdered hostage Alan Henning, for example, believes she should “absolutely not” be allowed back into the country. He speaks for many.

Others take a more forgiving line, arguing that when she left she was only 15 years old; she has been groomed or brainwashed, and is perhaps not without hope of rehabilitation. Moreover, she now has a new-born baby. Whatever she may have done, her baby is innocent.

Ms Begum’s recent media appearances have been a master-class in digging from the bottom of an already deep hole.

What, though, is the legal position? Can the Home Secretary “prevent her return”? Continue reading “Can the Home Secretary prevent Shamina Begum returning to the UK?”

Everything we know suggests that the CPS was right to drop murder charge against John Broadhurst

It is hardly surprising that the sentence passed on John Broadhurst, 3 years and 8 months imprisonment for the manslaughter of his girlfriend Natalie Connolly, has been widely condemned. The Attorney General has announced that he is considering whether to refer the case to the Court of Appeal, which would amount, in effect, to a prosecution appeal against sentence.

The terrible death of a deeply loved and blameless young mother is a very difficult thing to comment on. Perhaps for this reason the Crown Prosecution Service has not said anything about the outcome of the case at all.

The case raises some very uncomfortable questions: why was the murder charge not left to the jury? Why was the sentence so short? Is the law too soft on men who kill women? These are entirely legitimate matters of public concern.

On the other hand it is also very important that comment based on inaccurate or incomplete facts is corrected. The decision to withdraw the murder charge from the jury has been presented as though it were self-evidently absurd: it was not. It has been said that Mr Broadhurst was acquitted of murder simply by asserting that Ms Connolly liked being beaten: that is not true either.

The bare legal facts are that he was formally acquitted of murder by the jury, on the judge’s direction, after the prosecution decided to accept his plea of guilty to manslaughter.

It is easy to see why the decision to drop the murder charge has attracted outrage. Mr Broadhurst had inflicted “over 40” injuries to Ms Connolly: her buttocks, lower back and breasts were covered in bruises. She had haemorrhaged from an injury to her vagina, caused when Mr Broadhurst first inserted and then tried to remove a bottle of cleaning fluid. She also had what was described as a “blowout fracture” of her left eye socket. As she lay dying at the bottom of his stairs, he went to bed. When he eventually rang 999 to call for an ambulance the following morning he described her as “dead as a doughnut,” an awful, almost playful, phrase to use in such terrible circumstances.

In opening the case, the prosecution asserted that she died after Mr Broadhurst “totally lost it” and “beat her with his fists.” David Mason QC suggested that jealousy was the motive: Mr Broadhurst, he said, had discovered that his girlfriend had been contacting ex-boyfriends, and had arranged to meet a man in Dubai.

On the face of it this was a classic case of a violently abused young woman who had been appallingly treated by her jealous older partner.

How on earth could the CPS give up on pursuing a murder conviction? And how could it be that the judge felt that a sentence of less than 4 years imprisonment could be an appropriate punishment on a man who had not only killed, but also inflicted such injuries on her? Continue reading “Everything we know suggests that the CPS was right to drop murder charge against John Broadhurst”

Germaine Greer on Rape: A review

Germaine Greer’s On Rape is roughly the size and thickness of a Beatrix Potter, and why not? The Tale of Jemima Puddleduck may not be the last word on rape, but it says a great deal of what young people need to know: beware of polite, well-dressed gentlemen, especially if they have foxy whiskers and black prick ears. Don’t go uncritically into dismal summer-houses in the woods; and accepting a dinner invitation does not imply consent to everything the polite gentlemen is looking for.

Ms Greer’s book is not as incisive as Miss Potter’s and at £12.99 it is considerably more expensive but that is not to say it is a complete waste of money. In some ways it fizzes along with ideas and raises lots of questions that others are frightened to ask. Why are we so afraid of the penis when a fist and a thumb can do more physical damage? Why do some women fantasise about being raped? Are sentences for rapists too long? Should rapists be compulsorily castrated? That it is less good at answering them is not necessarily a criticism. Indeed, as she says (of her proposal that rape sentences should be shorter) “the mere suggestion will cause an outcry which is one good reason for making it.” Continue reading “Germaine Greer on Rape: A review”

Asia Bibi v. The State: Judgment of the Supreme Court of Pakistan

The text below is the judgment of the Supreme Court of Pakistan. You can download an official copy of the judgment here, but some may find it more convenient to read it on the web.  Please note that some of the formatting (italics, spacing possibly some Arabic / Urdu script and especially some line breaks) has not been reproduced correctly, for which I apologise.

IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
CRIMINAL APPEAL NO.39-L OF 2015
(Against the judgment dated 16.10.2014 of
the Lahore High Court, Lahore passed in
Crl.A.No.2509/2010 and M.R.No.614/2010)
Mst. Asia Bibi
…Appellant(s)
VERSUS
The State etc.
…Respondent(s)

For the appellant(s):
For the State:
For the complainant:
Date of hearing:
 

Mr. Saif-ul-Malook, ASC
Mr. Zubair Ahmed Farooq, Addl.P.G.
Mr. Ghulam Mustafa Chaudhry, ASC
8.10.2018
JUDGMENT

MIAN SAQIB NISAR, CJ. – Continue reading “Asia Bibi v. The State: Judgment of the Supreme Court of Pakistan”

Asia Bibi’s life is in the hands of the Pakistan Supreme Court

The Pakistan Supreme Court will shortly rule on whether 47 year old Asia Bibi must hang for blasphemy. If she loses her appeal, she is likely to become the first person to be executed under Pakistan’s extraordinarily harsh blasphemy laws.

To read the judgments of the Pakistan courts is, for an English lawyer, to enter a world which seems strangely familiar and yet utterly alien.

The language of the judges bears a close relationship to the language of the English courts: there are “Honourable Judges” (though usually abbreviated to “Hon’ble”) the senior judges are called “Mr (or very rarely “Mrs” or “Miss”) Justice,” all counsel are “learned” and many of the laws enforced still date from the days of the British Empire. The Penal Code, for example, still contains reference to [the admittedly repealed] Section 58, with its Dickensian “Offenders sentenced to transportation, how dealt with until transported,” and Section 56 which deals with “Sentence of Europeans and Americans to penal servitude” (in the days of the Raj, European prisoners were accommodated in a special “European only” prison, or repatriated to serve their sentences in a cooler climate). Still very much in force, however, is a death penalty, carried out just as the British liked it, with an old fashioned noose, gallows and long drop. Continue reading “Asia Bibi’s life is in the hands of the Pakistan Supreme Court”