Trial procedure in magistrates' court and Crown Court - Leading vs. non-leading questions

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Overview

Understanding the art of leading and non-leading questions is essential for legal professionals preparing for SQE1 FLK2 exams. This guide illustrates these techniques, examining their roles within the legal framework and ethical considerations in magistrates' and Crown Courts. A solid understanding of these questioning methods ensures effective advocacy and confidence in witness examination.

Legal Framework and Principles

The use of leading and non-leading questions in English courts is shaped by common law, statutes, and procedural rules. The guiding principle is to provide the court with the most reliable evidence to ensure justice.

Common Law Foundations

The key case of R v Treacy [1944] KB 164 established the rule that leading questions are not allowed during examination-in-chief. Lord Humphreys noted:

"The rule against leading questions ensures that the testimony is from the witness, not the advocate."

This principle, refined over time, is flexible, as seen in R v Gayle [1999] 2 Cr App R 130, particularly with hostile witnesses.

Statutory Provisions and Procedural Rules

The Youth Justice and Criminal Evidence Act 1999 brought changes, especially for vulnerable witnesses. The Criminal Procedure Rules 2020 give courts the power to manage questioning, including when to limit it.

Examination Stages and Questioning Techniques

1. Examination-in-Chief

This stage aims to draw a full account from the witness, using non-leading questions.

Characteristics of Non-Leading Questions

  • Open-ended structure
  • "Who," "what," "when," "where," "why," and "how"
  • Neutral phrasing

Advanced Techniques

  • Funnelling: Start broad, then focus
  • Looping: Build on the witness's prior answers

Example

Q: "What did you see on the evening of 15th March?"
A: "I saw two people arguing outside the pub."

2. Cross-Examination

Cross-examination tests the credibility of the witness, using leading questions.

Characteristics of Leading Questions

  • Suggest specific answers
  • Phrased for "yes" or "no" responses

Advanced Techniques

  • Controlled Narrative: Construct favorable events
  • Impeachment: Highlight inconsistencies

Example

Q: "You didn't witness the beginning of the argument, did you?"
A: "No, I didn't."

3. Re-Examination

Re-examination allows clarification of issues raised during cross-examination, using non-leading questions.

Advanced Techniques

  • Targeted Clarification: Explain ambiguities
  • Contextualization: Provide background

Example

Q: "Can you clarify what you mean by 'the start'?"
A: "I only saw them when their voices became raised."

Strategic Considerations in Different Court Settings

Magistrates' Court

In these less formal settings, questioning can be more flexible but must still follow proper techniques.

Crown Court

Here, strict adherence to questioning rules is required, with judges monitoring the process closely.

Ethical Considerations and Professional Conduct

The SRA Code of Conduct imposes ethical responsibilities on advocates, emphasizing honesty, fairness, and integrity.

Case Study: R v Farooqi & Ors [2013] EWCA Crim 1649

This case highlighted the boundaries of cross-examination, showing the need for respectful treatment of witnesses.

Conclusion

Proficiency in leading and non-leading questions is essential for successful advocacy:

  1. Use non-leading questions in examination-in-chief.
  2. Leading questions are key in cross-examination.
  3. Re-examination clarifies using non-leading questions.
  4. Court settings influence questioning techniques.
  5. Ethics must guide the questioning process.

By understanding these strategies, aspiring solicitors will excel in SQE1 FLK2 exams and legal practice.