A judge recently threatened to curtail the length of my examination in chief of a defendant, which I thought a little unfair since a) he was on trial so should be able to give his evidence in his own words (in this case the defendant was not a man given to succinct answers and the judge clearly hated that); and b) he had only been in the witness box for 3 minutes when she lost patience with him. I’ve heard stories of district judges and magistrates threatening to cut advocates short during questioning of witnesses but this was the first time a judge had proposed to do it in one of my cases.
The basis for these threats is the Criminal Procedure Rules (CrimPR), rule 3.11(d), which allows a judge to limit:
(i) The examination, cross-examination or re-examination of a witness; and
(ii) The duration of any stage of the hearing.
The exercise of CrimPR 3.11(d) should be undertaken with an eye on the overriding objective, which requires a court to deal with a case “justly” and encompasses “dealing with the case efficiently and expeditiously”.
CrimPR 3.11(d) reflects and expands on rule 32.1(3) of the Civil Procedure Rules, which permits a civil court to limit cross-examination.
Both the Criminal and Civil versions of the rules appear to provide a wide discretion to limit oral evidence of witnesses with little to fetter the judge’s power but I would argue a judge should only limit examination of any witness where it is in the interests of justice to do so, or at least where it will not harm justice to limit the examination. Examples of suitable situations might be where a judge has reached a conclusion on an issue (or where the point was never in issue) but where a witness continues to give irrelevant evidence, e.g. D is charged with drink driving and being drunk in charge as an alternative. Having heard the evidence, the judge has decided there is no evidence D was driving and dismisses the charge at half time but then D gives evidence that he was not driving.
In the case I appeared in, the judge explained she would limit the examination in chief because she had “other cases to deal with and the Criminal Procedure Rules require me to have regard to those cases when dealing with this case.” Now, to the best of my knowledge, this is not a requirement of the Criminal Procedure Rules, but it is, I suspect, the main reason why so many courts threaten to limit examination time. I would suggest that having regard to other cases is not a valid reason for limiting examination of a witness – the other cases can be put off to another day if necessary and it is not the fault of any defendant that courts routinely list more work than they can handle.
In Hayes v Transco Plc the trial judge limited cross-examination under Part 32.1(3) of the Civil Procedure Rules to “five more minutes”. He also refused to allow one of the parties to call further witnesses to rebut a claim made earlier in proceedings. The judge’s reasoning was that he wanted to finish the case by the next day otherwise there would be a long gap before he could return to it. The Court of Appeal disagreed that admitting the evidence and allowing more time for cross-examination would not have prevented the case concluding the following day. In addition, the appeal court described the decision to limit cross-examination of a key witness as “unfair” and “outside the acceptable range of decisions of which the judge could legitimately arrive.”
In my opinion, were a court to prevent a defendant giving his evidence or prevent an advocate completing his cross-examination because of time pressures caused entirely by court listing practices that would also be a decision that was unfair and outside the acceptable range of decisions of which a judge could legitimately arrive.
Advocate appearing in court should always ask the court to explain why they are limiting time for examination of witnesses and, where that reason conflicts with the overriding objective, the advocate should warn the court of this and cite the words of the Court of Appeal in Hayes v Transco Plc. If all else fails, appeal!
I’ve long been critical of courts that take the “Speedy” element of “Criminal Justice: Summary, Simple, Speedy” far too literally and usually to the detriment of the “Justice” part of the phrase. While there may well be good reasons to limit examination of witnesses, doing it because the court listed too many cases for a particular day is not one of them.