Source: pp 65-66, The Art of the Advocate (1993) by Richard Du Cann QC.
Sorry for the long quote; please advise me if and how I can abridge it.

Tenacity is more than an aspect of courage. Counsel must expect to cross-examine many witnesses whose evidence he will fail to destroy. He must also expect to come across a number who believe that attack is the best method of defence, and who will do all they can to embarrass him. Two such witnesses appeared in the 'Black Book' criminal libel case tried at the Old Bailey during the First World War. Noel Pemberton-Billing, independent member of Parliament for Hertford, alleged that German secret agents had compiled a list of 2,000 prominent people whose sexual proclivities and abnormalities had led to an irresolute prosecution of the war. When he criticized the dancer Maud Allen in obscene language for playing the part of Salomé in Oscar Wilde's play she prosecuted him for criminal libel. Hume Williams was briefed to prosecute. He had an extensive practice in the Divorce Division, but this did not fit him for the rougher atmosphere of the criminal courts, nor for witnesses who were prepared to stick at nothing in order to win. It allowed an unscrupulous man, with a full wave of national sentiment and war hysteria behind him, to secure his own acquittal and a travesty of justice at the same time. One of the witnesses for the defence made a reply to Hume Williams in cross-examination which led him to ask, with a note of incredulity in his voice.

WILLIAMS: People in the service of Germany are able to get British secret service agents marooned [on the Greek islands] by the orders of the British Government?
WITNESS: Yes. I think I told you that privately.
WITNESS: Do you not remember talking to me?
WITNESS: When I came back from Albania you met me at dinner we had a conversation together.
WILLIAMS: I have never met you in my life.
WITNESS: I quite expected you to say that.
WILLIAMS: Because it is the truth.
WITNESS: You were never at the Clitheroes'?
JUDGE: I expect one or other of you will get marooned.

The loud laughter which greeted this sally of the Judge's disguised the defensive nature of Williams's last assertion. When one of the later witnesses made a similar claim, that she had ported a 'dangerous state of affairs' direct to Hume Williams who had advised her, 'there are too many people involved to make a personal sacrifice to expose it', [1.] he was impotent to deal with the situation. [2.] He had allowed himself to become personally involved.

  1. I do not understand 1. Williams was correct to refute the Witness's falsities; so how was Williams impotent? If Williams had ignored them, then the audience may infer that the Witness was speaking the truth?

  2. How is 2 true? What else should Williams have done?

1 Answer 1


Williams was correct to refute the Witness's falsities

No, he wasn't. The role of the barrister during cross-examination is to ask questions of the witness so that their answers become evidence; not introduce evidence of their own.

With skill and judgement they will ask a witness to explain inconsistencies within their evidence or between their evidence and other evidence and allow the deciders of fact (jury or judge) how to reconcile those inconsistencies.

We do not know what the witness actually said but it was something to the effect of:

People in the service of Germany are able to get British secret service agents marooned [on the Greek islands] by the orders of the British Government

because that is where Williams started to make his mistake - he repeated the witness' answer in a "tone of incredulity" which the witness took as an opportunity to introduce extraneous information that he had told Williams this before. Williams then compounded the problem by claiming that he and the witness had never met: who cares if they had or had not? He made the evidence about whether he or the witness was lying (or, generously, mistaken); not about if the British Government was being duped by the German's nobbling into its own agents by standing them in the Dodecanese.

Instead of doing this he could have said "Please explain your role in the British Government or the German Secret Service that allows you to know this?" or "That seems to me to be an outlandish assertion, what evidence do you have to support it beyond hearsay?"

If the witness had insisted on introducing the fact that they had communicated this information to Williams, he could have said: "I do not believe that we have met, however, even if we had and you had told this to me I do not see how that makes it true. Do you have any evidence of this beyond your mere assertion?"

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