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

Learning Outcomes

This article outlines the rules governing the use of leading and non-leading questions during witness examination in criminal trials. After reading this article, you should understand the different stages of witness examination (examination-in-chief, cross-examination, re-examination) and the types of questions permissible at each stage. You will also appreciate the exceptions to the general rules and the role of judicial discretion in controlling questioning, knowledge which is essential for applying procedural rules in SQE1 assessments.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures for admitting and excluding evidence, including the examination of witnesses. This involves knowing the rules relating to leading and non-leading questions. Your revision should focus on:

  • The distinction between leading and non-leading questions.
  • The rules governing the use of leading questions in examination-in-chief, cross-examination and re-examination.
  • Exceptions to the general rule against leading questions in examination-in-chief.
  • The role of the judge or magistrates in controlling the questioning of witnesses.
  • The implications of improper questioning techniques.

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

The questioning of witnesses is a fundamental aspect of criminal trials in both the magistrates' court and the Crown Court. The way questions are framed can significantly influence the evidence presented. Central to this process is the distinction between leading and non-leading questions. Understanding when and how each type of question can be used during examination-in-chief, cross-examination, and re-examination is essential for ensuring a fair trial and for effective advocacy. This article explores the rules and principles governing these questioning techniques.

Defining Leading and Non-Leading Questions

The primary difference lies in whether the question suggests the answer.

Key Term: Leading question A question which, because of its form or content, suggests the answer desired or assumes the existence of disputed facts to which the witness is to testify. Example: "You saw the defendant holding the knife, didn't you?"

Key Term: Non-leading question A question which does not suggest the answer and allows the witness to answer in their own words. It is typically open-ended. Example: "What did you see the defendant holding?"

The general principle is that the evidence should come from the witness, not be put into their mouth by the advocate.

Questioning Techniques in Examination Stages

The rules on using leading or non-leading questions vary depending on the stage of witness examination.

Examination-in-Chief

This is when an advocate questions their own witness to elicit evidence supporting their case.

Key Term: Examination-in-chief The questioning of a witness by the party who called that witness to give evidence.

The general rule during examination-in-chief is that leading questions are not permitted. The aim is for the witness to give their account spontaneously, in their own words. Advocates should use open-ended, non-leading questions (e.g., "What happened next?", "Can you describe the person you saw?").

However, there are exceptions where leading questions are permitted in examination-in-chief:

  • Introductory matters: Questions about the witness's name, address, occupation, or other undisputed preliminary details.
  • Undisputed facts: Questions on matters not in dispute between the parties.
  • Assisting memory: Where a witness has exhausted their memory and needs prompting on a topic already mentioned.
  • Hostile witnesses: If the judge declares a witness called by a party to be hostile (i.e., unwilling to tell the truth for the party calling them), that party may ask leading questions as if in cross-examination.

Key Term: Hostile witness A witness who demonstrates clear antagonism or unwillingness to testify truthfully for the party who called them. The judge must grant leave for a witness to be treated as hostile.

Cross-Examination

This is when an advocate questions a witness called by the opposing party.

Key Term: Cross-examination The questioning of a witness by a party other than the party who called the witness to give evidence.

During cross-examination, leading questions are generally permitted and are a key tool. The purpose is often to challenge the witness's testimony, undermine their credibility, or elicit specific facts favourable to the cross-examining party's case. Leading questions allow the advocate to control the narrative and test the witness's account against specific propositions.

Worked Example 1.1

Scenario: A prosecution witness testifies in examination-in-chief that they saw the defendant at the scene. The defence case is that the witness's view was obstructed.

Question: Can the defence advocate ask the following question during cross-examination: "Your view was obstructed by the parked van, wasn't it?"

Answer: Yes. This is a leading question suggesting a specific answer ("Yes, my view was obstructed"). Leading questions are generally permissible during cross-examination to challenge the witness's evidence or put the defence case to them.

Re-Examination

After cross-examination, the party who called the witness has the opportunity for re-examination.

Key Term: Re-examination The further questioning of a witness by the party who called the witness, following cross-examination. Its purpose is limited to clarifying or explaining matters raised during cross-examination.

During re-examination, the rule against leading questions applies again, as in examination-in-chief. The advocate cannot use this stage to introduce new evidence that was not covered in examination-in-chief or did not arise out of cross-examination. Questions must be focused solely on clarifying ambiguities or rehabilitating the witness's credibility regarding points addressed in cross-examination.

Judicial Control and Procedural Context

The judge (in the Crown Court) or the bench/District Judge (in the magistrates' court) has ultimate control over the questioning of witnesses. They can intervene if questions are improper, unfair, misleading, repetitive, or otherwise contrary to the rules of evidence or procedure.

Magistrates' Court vs Crown Court

While the fundamental principles apply in both courts, the application can sometimes appear more relaxed in the magistrates' court compared to the more formal Crown Court setting where adherence to rules is often strictly enforced by the judge, especially in jury trials. However, the core prohibition against leading one's own witness in chief remains a key rule in both venues.

Exam Warning

Do not assume that just because a question is asked during cross-examination, it is automatically permissible. Questions must still be relevant and fair. Advocates cannot use leading questions to misrepresent evidence or harass a witness. The court retains discretion to disallow improper questions even during cross-examination.

Revision Tip

Focus on the purpose of each examination stage. Examination-in-chief aims to build a narrative through the witness's own words (non-leading). Cross-examination aims to test that narrative (leading questions allowed). Re-examination aims to repair damage from cross-examination (non-leading). Understanding the purpose helps recall the rules.

Key Point Checklist

This article has covered the following key knowledge points:

  • A leading question suggests the desired answer or assumes disputed facts.
  • A non-leading question is open-ended and does not suggest the answer.
  • Leading questions are generally prohibited during examination-in-chief and re-examination.
  • Exceptions allow leading questions in chief for introductory matters, undisputed facts, assisting memory, and hostile witnesses.
  • Leading questions are generally permitted during cross-examination.
  • The judge or magistrates control the questioning process and can disallow improper questions.
  • Understanding these rules is essential for effective advocacy and ensuring a fair trial.

Key Terms and Concepts

  • Leading question
  • Non-leading question
  • Examination-in-chief
  • Cross-examination
  • Hostile witness
  • Re-examination
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
Assessment Day
One-time Fee
$20-39
Barbri SQE
One-time Fee
$3,800-6,900
BPP SQE
One-time Fee
$5,400-8,200
College of Legal P...
One-time Fee
$2,300-9,100
Job Test Prep
One-time Fee
$90-350
Law Training Centr...
One-time Fee
$500-6,200
QLTS SQE
One-time Fee
$2,500-3,800
University of Law...
One-time Fee
$6,200-22,400

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal