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Cross examination

Cross examination

I’ve just seen the first half decent cross examination by a Presenting Officer that I can remember in a long time. This is partly because Presenting Officers are an endangered and rarely encountered species these days, but largely because they are generally allowed to get away with questions that are very far removed from anyone else’s understanding of cross examination.

Essentially, the normal Home Office approach is to conduct an examination in chief — but using leading questions — and then point out any differences that arise from the witness’ previous accounts. No human being will recall the same events in the same way on different occasions, particularly under leading questions. This is very well known and universally understood outside the immigration tribunal. The questions are (or at least should be) a waste of everyone’s time and are incapable of putting the most effective Home Office case.

My hat. Off. With pretentious not-yet-read reading in background

In contrast, my witness today was properly cross examined. Clever leading questions were put to elicit answers that were then used for further questions and for submissions. The questions did not simply involve recitation of the existing account but took the evidence further than it had already gone and probed potential weaknesses. There was a clear theory of case, which was actually clearly put to the witness rather than just being insinuated. Submissions were succinct as the Home Office case had been very effectively made during the evidence.

I thought the witness dealt well with the questions. Ultimately that is for the judge, who for a change had the benefit of a clear and well put Home Office case that did not rely on non-existent inconsistencies and a wilfully obtuse confusion of plausibility with probability. If the system is to be adversarial, this is how it should be done.

Hats off to the HOPO.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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