I once appeared on a television show in which the audience had to decide the identity of Jack the Ripper. Jeremy Beadle was promoting the Liverpudlian James Maybrick; Angela Rippon, another suspect; Max Clifford, the later-disgraced publicist, had another; barrister Jonathan Goldberg, the fourth. I had Dr Francis Tumblety.
We had strict time limits for cross-examining witnesses and summing up (reading this, lord chancellor and Sir Brian?). Then the audience voted. Jonathan and I were never meant to win and, indeed, Jeremy did. I came in a surprisingly close second. The audience were later polled as to how they had voted. I did well because they said I had been kind in cross-examination.
Never make fun of a witness. You are likely to be more intelligent and better educated, and cheap gibes are both unkind and unlikely to benefit you. It is a different matter if they are trying to show you up. Edward Carson’s cross-examination in Oscar Wilde’s failed libel case is a good example. Wilde was fair game, but the rank-and-file defendant is not.
Generally speaking, it is not difficult to make a witness appear foolish even if they are telling the truth. I think it was David Napley who wrote that, when prosecuting a wrestler and hairdresser who appeared as Gentleman Jim, he sneered: ‘Your name isn’t Jim and you aren’t a gentleman’, and immediately regretted it.
Mine was even more egregious. I prosecuted a woman for stealing a tin of salmon. Her defence was that the tin had leapt off the shelf into her bag. ‘Was it spawning time?’ I asked wittily. She was convicted and, as she had a previous, went to prison for 14 days, which was pretty standard in those unenlightened days.
Within three months, she and her husband were in my office, with the husband asking me to defend her in another shoplifting case.
‘Ask her the name of the Queen,’ he said. ‘Ask her what day or month it is.’ The poor woman remained mute. She was suffering from early and rapid dementia. I remember it and her name with shame 60 years later.
James Morton is a writer and former criminal defence solicitor
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