The Planning Inspectorate (Wales) - Notes for the Guidance of Inspectors Holding Inquiries into orders and Special Road

7. The Inquiry (continued)

Cross Examination

Right of Cross Examination

7.94 The Inquiries Procedure Rules give only the main parties (the promoter and the statutory objectors) the right to cross-examine persons giving evidence at an inquiry. The Inspector should normally permit non-statutory parties to question witnesses similarly. In either case, questions should be appropriate, relevant and not unduly repetitive.

Restriction of Communication between Advocate and Witnesses

7.95 An advocate must not, except with the consent of representatives for the opposing side or of the Inspector, communicate directly or indirectly about a case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded. This means that, if an adjournment takes place (such as for lunch or overnight) after a witness has started to give evidence, that witness will not be able, without consent, to have contact about the case with his or her advocate. It is good practice to bear this in mind when deciding on the timing of adjournments. Sometimes it is best to break early rather than to start hearing evidence from a new witness whose evidence clearly could not be concluded before the next adjournment; or it is sensible to continue for a little longer than normal before the next adjournment in order to complete the evidence of a particular witness.

Restriction on Supporters

7.96 The Inquiries Procedure Rules, which entitle both the promoter and statutory objectors to cross-examine witnesses, make no distinction between witnesses who support and those who oppose their respective cases. The Inspector should, nevertheless, limit the questioning of friendly witnesses to the elucidation of matters of fact where these are relevant (see 7.56 above); drawing out friendly opinion is not cross-examination. However the Inspector should take care to avoid inadvertently preventing anyone from cross-examining an otherwise friendly witness about some aspect of that witness’s case which might have an adverse effect upon the would-be questioner’s interests.

Avoidance of Cross Examination

7.97 A witness for the promoter or a public body appearing at an inquiry cannot avoid cross-examination on relevant matters within his or her knowledge or expertise by omitting any reference to them in his evidence. However, the witness may request that another witness more qualified to speak should be called or recalled to answer instead.

Intervention by the Inspector

7.98 The Inspector should be prepared to intervene, as required under the Rules, if he or she considers that the questioning of Government witnesses is beginning to stray into the area of the merits of Government policy, including adopted methodologies, design standards and nationally determined economic assumptions or forecasts of traffic growth. These are not matters for debate at local inquiries (see 6.3 above).

Cross-Examination to be Confined

7.99 The promoters, or any other public body appearing at an inquiry, must be prepared to make someone available to answer any relevant questions, and unrepresented members of the public should be granted considerable latitude in the way they go about questioning. However, the cross-examination of a witness should normally be confined to relevant questions on the matters on which that witness has given evidence. Cross-examination of members of the public who have given evidence to the inquiry by the promoters and statutory objectors should also be permitted. The Inspector should ensure that no cross-examination is carried out in such a way as to be intimidating or offensive.

7.100 The professional standing of a witness may be questioned but not his or her character, and a witness cannot be compelled to answer a question which would be incriminating. Indeed, the witness cannot be compelled to answer any question, but it would be a matter for comment if a witness declined to answer a valid or relevant question.

7.101 Inspectors should be aware that cross-examination might be related to a claim for costs, which will not be made until the end of the inquiry. Such cross-examination must therefore be heard even though it may be irrelevant to the merits of the case.

Refusal to Answer Questions

7.102 Witnesses may refuse to answer a question on the ground that the answer may incriminate them or their spouse; that is, they may be exposed to a criminal charge or some other kind of penalty or forfeiture. It is for the Inspector to determine, in the light of the circumstances, whether the witness has reasonable grounds for apprehension. It is the practice of the Courts to warn witnesses that they are not bound to answer a question if the answer would be incriminating, and it is essential that Inspectors follow this course.

Re-examination

7.103 The purpose of re-examining a witness is to enable the witness’s advocate to clarify points about the evidence already given and/or to seek to redress any unfavourable impression which arose as a result of the cross-examination. Advocates should not be permitted to ask their witnesses leading questions, that is, questions which suggest a particular answer.

7.104 New matter should not be introduced in re-examination, but if it is, it should be treated as being new evidence liable to further cross-examination.