3 Things Criminal Cases Can Teach Us About Employment Tribunal Advocacy

“Your client sounds like a bit of a wrong ‘un.”
Bank customer service staff. To my mortgage adviser.
About me.
When I’d called from Trowbridge County Court (in the days when it was actually in Trowbridge) to say I was very sorry but I couldn’t make my appointment as I was stuck in court, it just didn’t occur to me to explain I was phoning from a civil court.
Or that I wasn’t on trial myself...
Perhaps you’ve had a similar experience? OK, maybe not being described as a wrong ‘un. But someone assuming – when you tell them you’re a lawyer – that you’re a criminal lawyer.
A trial must mean a criminal trial.
A conference must mean meeting the accused. (Criminal trials only involve defence lawyers, after all. It’s a known fact.)
And, when push comes to shove: “So how can you represent someone you know is guilty?!”
Answers not on a postcard, please.                    
But whilst, as employment tribunal advocates, we may not be donning wig and gown or asking the judge “whether this might be a convenient moment for the jury to take a short break”, there are times when a little caselaw from our cousins in the criminal courts can come in handy.
Particularly when it comes to the conduct of cross-examination.

Rule 41

Because whilst rule 41 of the ET Rules of Procedure says a tribunal shall seek to avoid undue formality and it’s not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts, that doesn’t mean the formal rules of evidence are to be completely disregarded. As has been confirmed by the EAT on several occasions (see e.g. Aberdeen Steak Houses Group plc v Ibrahim [1988] IRLR 420; and Snowball v Gardner Merchant Ltd [1987] IRLR 397).
So here are 3 useful criminal cases to have in your locker.

1. Eyebrow Raising: R v Lovelock [1997] Crim. L.R. 821

Cross-examination, level 1: make sure you put your case.
You probably don’t need any authorities (criminal or otherwise) on that specific point. But if you do – and because belt and braces is always such a good look – here are two good ‘uns:

  • R v Bircham [1972] Crim. L.R. 430: Defence counsel was stopped by the judge during his closing speech when he suggested that a co-defendant and a prosecution witness were the real perpetrators of the crime. That allegation had not been put to either of them.
  • R v Hart (1932) 23 Cr. App. R. 202: If, as opposing counsel, you ask no questions, you will generally be taken to have accepted the witness’s account. In that case, alibi witnesses were not cross-examined at all.  

But is it a hard-and-fast rule? Or is there some flexibility?
Enter counsel’s eyebrows.
In Lovelock, the Court of Appeal held that prosecuting counsel had been:
entitled to adopt what we choose to call ‘a raised eyebrow’ approach to the [defence witness’s] evidence, and to invite the jury to reject it as inherently incapable of belief, or as the judge himself described it, namely, as a ‘silly story’.”
A ‘raised eyebrow’ approach. What’s that when it’s at home?
A quick look at the facts and all should become clear.
The appellant was convicted on numerous counts of possession of drugs with intent to supply. The police, executing a search warrant, had found various drugs concealed in his flat together with drugs paraphernalia, including a list of names and figures.
Mr Lovelock’s case was that he had an arrangement with a friend whereby the friend, Hitch, could stay at his flat from time to time when he was not there. He would leave a key hidden for Hitch to use. If Hitch turned up and found the key, he would know, by implication, to make himself at home.
When the police conducted their raid, Mr Lovelock had been away staying with a friend for about 5 nights.
Hitch gave evidence for the defence. He had driven Mr Lovelock to a concert in Brighton. There he had found in a portable lavatory a carrier bag containing the drugs the police would subsequently discover. Not knowing what to do with the bag, he’d put it in his van and then returned to the concert. Later, he drove Mr Lovelock to another friend’s house and Hitch stayed at the appellant’s flat.
Hitch asked various people’s advice about what to do with the drugs but this brought unwanted attention, including some threats of violence. He never told Mr Lovelock about the drugs or that he had lodged them in his flat. There came a time, however, when he was cooking in the flat and Mr Lovelock returned. Because he was terrified of the appellant’s reaction if he discovered the drugs, Hitch had scooped them up and stuffed them in an oven glove. He had not seen Mr Lovelock since the concert.
A list of names, although written by the appellant, had been written at Hitch’s direction. They had nothing whatsoever to do with drugs or customers but represented an account of small sums of money owed to Hitch whilst he had been playing games of chance.
The overall tenor of the Crown’s cross-examination was designed to demonstrate that this was a cock and bull story, incapable of belief. But at no point did prosecuting counsel explicitly put in terms to Hitch that he was telling deliberate lies on one aspect or another of his evidence.
At the conclusion of the cross-examination, the trial judge asked prosecuting counsel if it was his case that Hitch was ‘telling a pack of lies’. For reasons which need not concern us here (but which are discussed in the Court of Appeal’s judgment), prosecuting counsel “entirely properly and responsibly” responded by saying he was unable to adopt that stance but submitted it was still open to the jury at his invitation to reject Hitch’s evidence.
The Court of Appeal agreed. There was no impropriety in the course adopted by the Crown.

2. A Question of Fact: R v Baldwin (1925) 18 Cr. App. R. 175

As a seasoned employment tribunal advocate, you know very well you’re not there to answer a witness’s questions, nor give evidence yourself. Indeed, you may well have had to explain this to a witness on occasion.
Advocates ask questions. Witnesses answer them.
Of course, though, a witness isn’t there to answer any old question an advocate might like to throw at them.
Now we all know that questions must be relevant to the issues. (You can put your eggs back in their basket, Granny.)
But what sometimes gets forgotten is that a witness isn’t there as a sounding board for submissions.
And if you find yourself needing to point that out (diplomatically, of course) during your opponent’s cross-examination, a good case to have up your sleeve is that of Baldwin.
In Baldwin, the Court of Appeal held that questions should not be put in such a manner as to be in the nature of invitations to argument. Rather, the true purpose of cross-examination, and what is wanted from the witness, is answers to questions of fact.
Lord Chief Justice Hewart deprecated questions in cross-examination such as:

  • I suggest to you that...
  • Is your evidence to be taken as suggesting that …?
  • Do you ask the jury to believe that …?

No jury, of course, in the ET but I won’t be the only one who’s heard: “Are you seriously asking this Tribunal to accept …?”
And it’s not just questions inviting argument that are outside the remit of proper cross-examination.
An advocate should not state what someone else has said or is expected to say. E.g.

  • The claimant’s recollection is…
  • Mr [so and so] will say…
  • My instructions are…

The time to make such statements is in an opening speech (exceptionally rare, though, that those are in the ET), not in cross-examination. And it’s not possible for an advocate to get round that rule by putting the statement in the form of a question. E.g. “What would you say if the claimant were to say?”
Also impermissible is using cross-examination for making comments or stating matters of fact or opinion, which should be confined to speeches. E.g. it is wrong for an advocate to say to a witness in cross-examination: “You heard what [X] said. Are they lying?”

3. Time Wasting: R v Kalia (1974) 60 Cr. App. R. 200

Rule 45 gives a tribunal the power to impose limits on the time a party may take in questioning witnesses and prevent the party from exceeding the time allotted.
But even without a tribunal using its discretionary power to impose time limits on cross-examination, it is no part of an advocate’s duty to embark on lengthy cross-examination on matters which are not really in issue. So held the Court of Appeal in Kalia, approving what had previously been said by the Court in R v Simmonds [1969] Q.B. 685:
“Whilst in no way detracting from counsel’s duty to his client, he can and should exercise in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily. It is no part of his duty to raise untenable points at length or to embark on lengthy cross-examination on matters that are not in truth in issue.
Even without the express power contained in the ET Rules, however, judges are entitled to impose limits on cross-examination where it is repetitious and time is being wasted. To do so does not render a trial unfair (R v B [2005] EWCA Crim 805).
In that case, the Court of Appeal stressed the obligation on advocates to avoid wasting court time:
[Counsel for the appellant] would emphasise the duty to present the defence fearlessly. That is obviously very important. But so too is the obligation to avoid wasted time, repetition and prolixity. It is no part of the duty of counsel to put every point of a defendant’s case (however peripheral) to a witness or to embark on lengthy cross-examination on matters which are not really in issue. It is the duty of counsel to discriminate between important and relevant features of a defence case which must be put to a witness and minor and/or unnecessary matters which do not need to be put.
This is perhaps of even more relevance in the employment tribunal by reason of the often lengthy (and not always entirely issues-focused) witness statements. Throw into the mix equally lengthy client comments on those witness statements and there’s an audible call for a cross-examiner who can sort their wheat from their chaff and discern a wood from its trees.

In Summary 

  • Don’t waste time by cross-examining at length on matters that aren’t really relevant to the issues in the case (Kalia).
      • Don’t use a witness as a practice wall for bouncing off your submissions and keep your cross-examination to putting questions of fact (Baldwin). So no: 

                 - "Your barrister didn’t put to [X] that…”
                 - “What reason would [Y] have to…?”
                 -  And no: “The Claimant will say in their evidence that….”    

      • And finally, don’t feel you have to accuse a witness of lying to invite the ET to reject their evidence as a silly story. Just make sure you’ve given your eyebrow a good workout during cross-examination! (Lovelock).


      Simon Emslie
      Albion Chambers
      5th August 2020