Trial procedure in magistrates' court and Crown Court - Lead...

Learning Outcomes

This article examines the rules and practice governing leading and non-leading questions in criminal trials, including:

• The distinction between leading and non-leading questions, and their structure in theory and applied advocacy.
• Rules governing the use of leading and non-leading questions at each stage of witness examination: examination-in-chief, cross-examination, and re-examination.
• Strategic and evidential significance of questioning methods for disputed and undisputed matters, hostile witnesses, and memory refreshing.
• Exceptions to the general rule against leading questions in chief, including preliminary facts, non-contentious issues, and witness hostility.
• The role of the judge or magistrates in overseeing and controlling witness questioning to ensure a fair, efficient, and just trial process.
• Consequences and remedies for improper use of leading questions, including judicial interventions, exclusion of inadmissible evidence, and directions regarding the fairness of proceedings.
• Application of questioning rules in magistrates’ and Crown Court trials, including procedural similarities and areas of variable formality.

SQE1 Syllabus

For SQE1, you are required to understand the rules governing leading and non-leading questions in criminal trials, with a focus on the following syllabus points:

• The distinction between leading and non-leading questions and their legal significance in criminal proceedings.
• Rules on the permissible use of leading questions during witness examination at different trial stages: examination-in-chief, cross-examination, and re-examination.
• Permissible exceptions to the general prohibition against leading questions in chief, and the formal procedure for the treatment of hostile witnesses.
• The powers and responsibilities of the trial judge or magistrates to manage questioning, maintain the integrity of the trial, and prevent abuse of process.
• The application of rules relating to leading questions in both magistrates’ and Crown Court settings, including the use of special measures.
• The effect of improper questioning on the admissibility of evidence and trial fairness, with reference to the possibility of judicial intervention or exclusion of evidence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. During which stage of witness examination are leading questions generally permitted?
   1. Examination-in-chief
   2. Cross-examination
   3. Re-examination
   4. All stages
2. Which of the following is typically a non-leading question?
   1. "You saw the defendant running away, didn't you?"
   2. "Was the car red?"
   3. "Describe what happened next."
   4. "Isn't it true that you were at the pub?"

3. True or false? A party can ask leading questions of their own witness during examination-in-chief if the witness is declared hostile by the court.

4. In which court setting are the rules regarding leading questions applied more formally?
   1. Magistrates' Court
   2. Crown Court
   3. Youth Court
   4. The rules are identical in all courts.

Introduction

Questioning witnesses is a core element of the adversarial system of criminal justice. The structure and form of questions—especially the difference between leading and non-leading questions—can impact the fairness and accuracy of judicial fact-finding. Both the magistrates' court and Crown Court follow strict procedure governing the use of leading questions at various stages of the trial. Close attention to these rules is essential for effective advocacy and compliance with evidential standards, as improper questioning may result in evidence being excluded or afforded little weight.

Defining Leading and Non-Leading Questions

A precise understanding of questioning techniques is foundational to proper trial conduct.

Key Term: Leading question
A question that, by its form or content, either directly or indirectly suggests the answer to the witness or introduces assumptions about disputed facts. Examples often include a statement followed by a confirmation tag or phrasing that limits the witness to a 'yes' or 'no' response, e.g., “You recognised the defendant at the scene, didn’t you?”

Key Term: Non-leading question
A question that is open-ended and invites the witness to provide their own account without suggestion or prompting. These questions often start with words such as "what," "where," "when," or "how," and allow the witness to respond in their own words, e.g., “What did you observe when you arrived?”

A useful distinction: leading questions confine the answer or plant the substance, while non-leading questions open the floor for narrative detail.

Worked Example 1.1

Suppose a barrister in a Crown Court trial asks a witness, “You saw the defendant hit the complainant with a bottle, correct?” The defence objects on the basis this is a leading question.

Answer:
This is a leading question—it suggests the substance of the desired answer and assumes the fact is not agreed. As the evidence is disputed, this question would not be proper in examination-in-chief but would be permissible in cross-examination.

Questioning Techniques in Examination Stages

The constraints on question types depend on the stage of witness examination.

Examination-in-Chief

Examination-in-chief is the initial examination of a witness by the party who called them. The aim is to elicit the witness's evidence in the witness's own words, promoting reliability and credibility.

Key Term: Examination-in-chief
The process where a party questions its own witness to build its factual case, focusing on allowing the witness to recount events unaided by the questioner's suggestions.

General Rule:
Leading questions in examination-in-chief are generally not permitted when eliciting evidence on disputed matters. This restriction preserves the witness’s independence and credibility.

Rationale:
If the witness is merely agreeing to counsel’s suggestions, the value of their evidence is compromised. The trier of fact cannot be satisfied that the witness is recalling independently.

Appropriate Techniques:
Advocates should use open, non-leading questions such as “What did you see after you turned the corner?” or “How did the incident unfold?” to encourage unprompted narrative.

Exceptions to the Rule:

There are clear, acknowledged exceptions to the prohibition on leading questions in examination-in-chief:

• Introductory Matters:
  Where the question concerns introductory or biographical information (e.g., “Is your name Susan Jones?”), leading is permitted as the facts are not contentious.
• Undisputed Facts:
  Where neither side disputes a fact and it is peripheral to the contested issues, leading may be allowed.
• Assisting Memory:
  If the witness has referred to a topic but cannot recall details, a leading question may be used to assist memory, provided the court agrees the topic has already been introduced.
• Hostile Witnesses:
  If a witness displays clear reluctance, antagonism, or adverse interest, and is declared hostile by the court, the party who called the witness may apply to treat them as hostile and, if granted, may lead the witness as in cross-examination.

Key Term: Hostile witness
A witness who resists providing truthful evidence for the party that called them, or whose testimony is apparently contrary to prior statements or expected facts. The court’s leave is required to treat a witness as hostile and permit leading questions.

Judicial Oversight:
Even within exceptions, the judge or magistrate retains discretion to disallow leading if it becomes prejudicial, confusing, or disrupts the fair presentation of evidence.

Worked Example 1.2

The prosecution calls a shop assistant who witnessed a theft. The assistant testifies “I saw a man running from the shop.” Counsel asks, “The man you saw was wearing a green jacket, wasn’t he?” The defence objects.

Answer:
If the colour of the jacket is not in dispute, or has already been mentioned, the leading question may be allowed. If it is a key disputed fact, it should not be asked in this way at first instance in chief.

Cross-Examination

Key Term: Cross-examination
The stage where the opposing party questions a witness to test their account, undermine credibility, or elicit admissions in support of their case.

General Rule:
In cross-examination, leading questions are generally permitted and are the norm. This stage is adversarial, with the cross-examining advocate seeking to challenge the version of events presented in chief, often by suggesting alternate interpretations or exposing inconsistencies.

Typical forms include:

• “You couldn’t actually see the driver’s face from where you were standing, could you?”
• “It was dark, wasn’t it?”

Such questions are designed to focus the witness on points the cross-examiner wishes to establish and may expose contradictions.

Safeguards:
While leading is permitted, questions must not become improper—e.g., repetitive, abusive, misleading, or oppressive. The court may intervene to prevent unfairness (see below).

Worked Example 1.3

A witness claims in chief that they recognised the defendant by voice. The defence asks, “You had only spoken to the defendant once before this night, isn’t that right?”

Answer:
This is a legitimate leading question for cross-examination. The advocate may lead to probe weaknesses in identification evidence.

Re-Examination

Key Term: Re-examination
The limited follow-up questioning of a witness by the party calling them, after cross-examination, confined to clarifying issues raised in cross-examination or correcting misunderstandings.

General Rule:
During re-examination, the prohibition on leading questions generally resumes. The purpose is clarification, not advancing new or disputed facts. Questions should aim to resolve points raised during cross-examination and restore any unfair impressions, using non-leading forms.

If ambiguity or doubt has been introduced in cross-examination, careful open questioning in re-examination (e.g., “Can you explain what you meant by...?”) allows the witness to offer clarification.

Limits:
Re-examination must not be used to raise new topics outside those covered in cross-examination, nor should it attempt to repair prior damage with leading or suggestive questions.

Worked Example 1.4

A witness admits under cross-examination to failing to recall specific times. On re-examination, the calling party asks, “Was it before or after lunch when you saw the defendant?” The defence objects this is leading.

Answer:
As the question suggests one of two possible answers and is not open, it may be deemed leading. The court may require rephrasing: e.g., “Can you recall what time it was when you saw the defendant?”

Judicial Control and Procedural Context

Case and Judicial Management:
The judge (Crown Court) or bench/district judge (magistrates’ court) holds the ultimate authority over courtroom examination. Their responsibility includes:

• Intervening to prevent or curtail improper, unfair, repetitive, confusing, or irrelevant questioning;
• Instructing counsel to rephrase inadmissible questions—especially leading questions in chief or those creating injustice in cross-examination;
• Making rulings to exclude evidence elicited in breach of procedural rules.

Improper Questioning Consequences:

• Evidence obtained improperly (e.g., by leading in chief on disputed matters) may be ruled inadmissible.
• Persistent misuse may draw judicial censure or adverse comment before the fact-finder (magistrate or jury).
• Particularly in the Crown Court, strict adherence is expected, given the impact on jurors.

Distinction in Court Venues:

• Magistrates’ Court:
  While the fundamental rules are identical, application may be adjusted for informality or for the needs of unrepresented defendants or vulnerable parties. Magistrates may tolerate minor lapses but will correct significant breaches.
• Crown Court:
  The formalities and strictness increase, particularly due to the presence of the jury, and judges will rapidly correct even accidental leading by rephrasing the question or, in rare cases, directing the jury to disregard the answer.

Special Provisions for Vulnerable or Intimidated Witnesses:
The court may authorise the use of intermediaries, live links, or other special measures to facilitate effective witness examination, adjusting questioning styles to fit the needs of child witnesses or those with impairments.

Judicial Guidance for Advocates:
Advocates should always be prepared to modify questions or withdraw them, following a ruling on propriety from the bench.

Worked Example 1.5

During examination-in-chief, an advocate asks, "You saw the accused strike the victim, isn't that correct?" The bench interrupts and instructs, "Please rephrase your question."

Answer:
The court has identified a leading question on a disputed fact. The advocate must instead ask, "What, if anything, did you see the accused do at that moment?"

Exam Warning

Even in cross-examination, leading is not a carte blanche. The judge will restrict any question that is irrelevant, harassing, or misleading, and can strike evidence or rebuke counsel. Care must be taken to avoid breaching duties to the court and to uphold the overall fairness of proceedings.

Revision Tip

Focusing on the purpose of each stage assists in remembering the rule:

• Examination-in-chief: Build a credible narrative with open questions (non-leading).
• Cross-examination: Test and challenge using closed/leading questions.
• Re-examination: Clarify only, without suggesting answers—non-leading.

Key Point Checklist

This article has covered the following key knowledge points:

• Leading questions are those which suggest, directly or by implication, the answer sought on a material point.
• Non-leading questions are open, allowing free narration by the witness, and are the default in examination-in-chief and re-examination.
• Leading questions are generally prohibited in examination-in-chief and re-examination, except for undisputed facts, preliminary matters, or hostile witnesses (with judicial leave).
• Leading questions are allowed and expected in cross-examination, but only within the boundaries of fairness and relevance.
• Judicial officers retain control over all witness questioning, able to intervene to maintain trial integrity.
• Differences in formality exist between court types, but rules apply in both magistrates’ and Crown Court.
• Prohibited or improper questioning may render evidence inadmissible, or undermine the weight given to witness testimony.
• Effective questioning techniques are essential for advocacy efficacy and for safeguarding a fair trial process.

Key Terms and Concepts

• Leading question
• Non-leading question
• Examination-in-chief
• Cross-examination
• Hostile witness
• Re-examination