The atmosphere in court can be dry, but there is a buzz on the day a key witness gives evidence. Anticipation hangs in the air and speculation is whispered in the public gallery, passed between reporters and interested parties. 'What do you think they will say?' Normally, the courtroom itself is an island of calm throughout proceedings, regardless of what is going on outside; the media scrum around a Christine Keeler or Lord Archer doesn't penetrate the sanctuary of benches, barristers in wigs and gowns passing notes amidst piles of lever-arch files, all under the watchful eye of a stern judge. But on the day a key witness gives evidence, some of that excitement percolates through to the courtroom itself, giving a real buzz to the day's proceedings.
There was a similar feeling to the press conference held yesterday for the evidence-in-chief of Dominic Cummings. The political fall-out over it has already cost the government a great deal of trust, a commodity they cannot afford to lose in the midst of the biggest public crisis since the Second World War. So what would the chief SPAD say? What was his excuse for seemingly breaking regulations his government set to protect public health? Would this clear up the matter and allow people to regain their trust in government, assuring them that those who set the rules were subject to the same rules as the man in the street (or, if we keep our legal theme going, the socially-distancing man on the Clapham omnibus)?
Cummings should be pleased that this wasn't evidence being given in a courtroom setting and it was, strangely, in the Rose Garden at 10 Downing Street. Leaving aside the rather large issue of why it was deemed appropriate for an unelected advisor to give a press conference at all - in defiance of all political conventions - the press conference will have raised eyebrows as well as questions. Cummings' bizarre and contradictory explanation of his actions in March and April would, if given in court, have had cross-examining counsel drooling.
It's an exchange I would give money to see: the experienced silk, composed and polite, facing down the arrogant witness. The little smirk Cummings made at the very end of his unprededented media appearance would, transported into court, have been noticed. In all honesty, I'd love to be in the place of that silk; a story so full of contradiction and hubris is begging for rigorous cross-examination, and I'd be willing to bet that any half-trained bar student would be able to take the entire story to pieces with half-a-dozen targeted, precise questions - especially if they had done their homework on the writing that surrounds the whole case.
The big question would be how to approach a witness like Cummings. The barrister would have to measure a number of things - the mood and patience of the jury with the witness, the stage of the case, what other witnesses have said - when deciding how to deal with him. It is possible to imagine that defence counsel would have advised Cummings not to give evidence in the first place, taking the gamble of an adverse inference over the risk of his man tying himself in knots that could be unpicked by any competent legal professional. Depending on the mood, it could be possible for the cross-examining barrister to discredit the evidence with one or two swift questions, perhaps repeating some of the statements back to the witness before making an excoriating coup de grace.
"You say neither you nor your wife had symptoms?"
"You say you drove for five hours without a break, with a child in the back of the car?"
"You say you went for childcare, yet never received any assistance when you arrived?"
"You say you were ill, but you left the house to take your child to hospital?"
"You wrote the guidance, do you not understand what you were writing?"
"You say you wanted to check you were safe to drive?"
"Your way of checking eyesight was to drive a car? For thirty miles? With your wife and child in that car when you were uncertain?"
"The fact is that we can't trust a word you say, isn't it?"
Such an approach can really damage a witness. It's short, it's sharp, it makes the point. If a jury or panel of magistrates is already impatient with a witness it can make their minds up. There's very little subtlety to it and it gives rise to 'explosive exchange in court' headlines. It's the drama that television is made of. To an extent, it's a hack-and-slash, broadsword approach to cross-examination, but there is a risk attached to it. It can come across as rude and turn a case the wrong way if the advocate has read the room incorrectly. Sympathy for the witness - who is being bullied, after all - can override the evidence being presented, much as it shouldn't be. People making the factual decisions in the case are human.
Less dramatic, but for me more effective, is the approach of killing the witness with kindness. It won't create front-page headlines. There won't be gasps at revelations and fiery exchanges. Instead, it rewards patience on the part of the advocate and shows up the witness through politeness, building them up, then pointing out every inconsistency. All of this is couched in terms of getting to the bottom of the matter. The witness has two choices: they can provide explanations that further create inconsistencies and cast doubt on their veracity; or they can agree with you and undermine their own case. Of course, there is the third option, when they blow up in your face and seem to the jury like they're unreasonable under polite questioning, which is also unhelpful.
This is an approach with Cummings that would be worth seeing. There would be a slow build-up of the original case. "Can you confirm..." "Just for the avoidance of doubt..." "You say that this was the case..." Then there would come the slow, gradual tearing down of everything that had been said. "If I can take you to your own witness statement, dated..." "Is this accurate..."
It would take hours. No doubt by the end of it reporters' hands would be aching and the court artist would have been absent for the entire afternoon session, creating their sketch for the evening news. But the jury would be left in very little doubt as the barrister's questions poke holes, rapier-like, in the witness's story. Each inconsistency would be exposed, along with its reasons. Where only reasonable doubt needs to exist to acquit, any doubt that the defence was a pack of lies just would not exist, even without those words being spoken.
This is a case that will never come to a court of law, but the court of public opinion should be able to convict Dominic Cummings. At a time when confidence in the government is essential, he has done more to undermine that confidence - and therefore public safety - than anyone. Those who make the rules cannot be exempt from them, and if caught flouting those regulations they need to have the integrity to resign as a point of principle. It is particularly important in those who are unelected as they are otherwise unanswerable to the people within a democracy.
As fun as it is to imagine a tense courtroom exchange between advocate and witness, there is a serious point here: we should not be being asked to believe Cummings. We should not be watching a government put the job of one man - a man who has previously said that 'if some pensioners die, too bad' - ahead of the lives of people. Nor should his job be placed above the sacrifices that people have made in order to protect people from this virus. People have been unable to see their loved ones, sometimes to the extent where they have not had the chance to say goodbye in their loved ones' final days. People have lost livelihoods. All too often - in no small part down to lax guidance and the government's overly laissez-faire attitude to lockdown - people have lost their lives. With the latest Financial Times estimates suggesting that 60,000 people have now died as a result of COVID-19 - 0.1% of the population between March and today - his continued presence in the highest echelons of government is a gross insult to the people of Britain.
I do hope to see him in a court of law one day. It will be interesting to see how he copes with being ripped to pieces when his arrogance and lies catch up with him.
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