1

Source: p 68, The Art of the Advocate (1993) by Richard Du Cann QC.

  In the Laski case, after a prolonged cross-examination Hastings upon some carefully selected passages from Laski's writings, Sir Valentine Holmes tried to put this question in re-examination:

[1.] HOLMES: Inasmuch as it has been suggested that this book to the ordinary reader would look like a book advocating revolution, did you read the review of it which appeared in The Times Literary Supplement?
[2.] JUDGE: Really, Sir Valentine.
HASTINGS: I do not want to interpose.
JUDGE: But I do because it is not regular, and it is not admissible.
HOLMES: The book was put in. If Your Lordship says that, I certainly will not.
JUDGE: The book was put in, but we cannot have the opinion of independent reviewers in this case.
HOLMES: The difficulty is that the jury cannot read the whole book. That is the difficulty in a case of this kind.
JUDGE: If you wish to submit that my ruling is wrong I will hear you. HOLMES: No, My Lord.

The complaint was later to be made that Hastings's cross-examination of Laski on small and carefully chosen extracts, chosen for that purpose from Laski's voluminous published works, distorted the theme he was trying to present. This was the moment for the point to be made, but this was not the way to do it, particularly if Lord Goddard's undoubtedly correct ruling was going to stand without any attempt to justify the question Holmes sought to put. [3.] The difficulty Holmes complained of does not arise if the question is framed like this: 'The book was published in 1930. Sir Patrick Hastings has suggested it advocates violent revolution. Has anyone else suggested that in the last sixteen years?'

2 implies something wrong with 1, but I do not understand: Why is 1 the wrong form in which to pose the question, but 3 is correct?

1

JUDGE: The book was put in, but we cannot have the opinion of independent reviewers in this case.

The book is evidence - the opinion of the third-party reviewer is not and is therefore not a proper subject for cross-examination. It would be a perfectly acceptable question in direct examination.

Sir Patrick Hastings has suggested it advocates violent revolution. Has anyone else suggested that in the last sixteen years?

This turns the question away from what the unknown Times reviewer said (presumably that the book did not advocate violent revolution) and is casting doubt on the opinion of Sir Patrick Hastings that it does; given that he is the opposing barrister, his opinion is a legitimate subject of attack.

There is an implicit "To your knowledge, ..." at the start of the question and unless Holmes knows what the witness is going to say it is potentially dangerous question because a response like "Yes, 28 people have done so including the heads of MI5, MI6 and the Metropolitan Police" is not going to do his case any good.

  • First rule of advocacy: "Never ask a question unless you know what the answer is going to be." – Martin Bonner supports Monica Jun 16 '17 at 11:59

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