AH0880 - Commissioners’
Hearing: Examination of Witnesses: Guidelines for cross
examination
The first question you must ask yourself at the conclusion of
the examination in chief of a witness is `Do I need to
cross-examine?'. That is to say, has the witness said anything
unfavourable, or omitted anything favourable which I want brought
out, or are there aspects of the HMRC case which I need to put to
the witness? In the vast majority of cases the answer will be
yes.
Before beginning any cross-examination, you must decide what
you are hoping to achieve - ask yourself what your objective is
with each witness you cross-examine. Obviously it is important to
have some questions prepared, but your line of questioning will to
some extent be determined by what emerges in examination in chief.
You will therefore need to compose some questions on the spot but
try to have a plan and keep to it. You should have a clear note of
the aspects of the case on which the witness can speak from his
personal knowledge - you should not ask questions on matters which
are outside of this. You should also have a note of the aspects on
which you anticipate you will have to challenge the witness (or
perhaps seek further elucidation or elaboration).
Keep your questions short, simple and direct - remember the
`one-at-a-time rule' (see AH0851). Take events and questions in an
historical, logical sequence. In cross-examination, you are not
restricted to matters which emerged in the examination in chief and
you should try not to repeat questions which have already been
asked. The answers will only reinforce the evidence for the
appellant.
You are allowed to ask leading questions. Often it is only by
using them that you can test a witness's means of knowledge,
opportunities of observation, reasons for recollection or belief
and any special circumstances affecting his ability to speak to the
particular case. However you should take care not to make the
witness a mere mouthpiece for yourself as this will make his
evidence sound less convincing than if he answers spontaneously. A
good opening for a question is often `Please tell the
Commissioners.......'.
It is very important to be able to recognise when you are
getting nowhere with a particular line of questioning and to have
the courage to abandon it. A good rule is `If you have not struck
oil in five minutes, stop boring'. It is also important to know
when and how to stop a particular line of questioning - not to ask
one question too many.
It is a principle of cross-examination (as well as examination
in chief) that you should not ask a question to which you do not
know the likely answer. This principle should be breached only with
discretion. In essence what this means is that you must know the
facts of the case intimately so that you do not lose sight of what
you are trying to establish. If you do not stray from the point
there is far less opportunity for the witness to do so.
It should be borne in mind that although hearsay evidence may
be admitted by the Commissioners, it may not necessarily be the
best evidence available (see AH0710). When cross- examining a
witness, therefore, it will be important for you to identify what
part of his/her evidence, if any, is hearsay.
Although you can attack the character of any witness, including
the appellant, any challenge you make to a witness should be to the
reliability of his/her evidence and not to the witness himself. The
distinction is important. To suggest to a witness that s/he is
(deliberately) lying is a high risk strategy. There are more
diplomatic ways of suggesting that a witness's evidence is
unreliable and should not carry much weight, and that other
evidence (or even an inference to be drawn by the Commissioners) is
to be preferred.
If the appellant gives evidence, then you may ask questions in
cross-examination, including leading questions, in exactly the same
manner as any other witness.
In a contentious appeal relating to an enquiry where the
appellant denies irregularities, it may be relevant to ask the
appellant, for example, whether he has previously made an enquiry
settlement with the HMRC. Since it is the appellant's own
credibility which is in issue in the appeal, the question is did
s/he make a true return of his/her income or not, any denial of an
earlier investigation settlement can be rebutted by actually
proving the settlement circumstances. However, where you are
attacking the character of a witness other than the appellant, you
cannot normally bring affirmative evidence to show bad character.
All you can do is to put any discreditable episodes from his
history to the witness. If the witness denies them, his/her answer
must be accepted as final.
You must remember to keep separate in your mind the bringing
out of evidence from commenting on its implications. Resist the
temptation to comment on evidence during cross- examination; the
opportunity to do so will arise during your submissions to the
Commissioners when all the evidence is before them.
