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How NOT to cross-examine witnesses: a masterclass, by Johnny Mercer MP

Ben Amunwa

On 8 January 2019, MP and ex-soldier Johnny Mercer posted a video clip from a session in the House of Commons Defence Committee earlier that day. It showed Mercer questioning Martyn Day, a senior partner at law firm, Leigh Day, over the firm’s role in Iraqi abuse claims.

[Full-disclosure: I used to work at Leigh Day from 2012 – 2013. I was not involved in the Iraqi cases but I know colleagues who were. The last that time I worked with Leigh Day was in late 2015].

Legal twitter responded with critical appraisals of Mr Mercer’s questioning.

Undeterred, Mr Mercer doubled-down:

A turbulent session

The clips cover several minutes from a lengthy and wide-ranging discussion (full transcript here) of the protection of veterans and the lessons to be drawn from various investigations and litigations over actual and alleged military abuses.

The topics discussed with Mr Day included:

While Leigh Day’s record in this area is most well-known for bringing claims on behalf of actual and alleged victims of UK military abuse, they have also sued the MoD on behalf of soldiers (and widows of soldiers) in many cases, establishing the need for proper standards in battlefield equipment, for example.

In context, Mr Mercer’s interventions were among some of the more ill-tempered flare-ups in the dialogue between Mr Day the Committee.

Feeling cross?

As I tweeted at the time, I have some sympathy for Mr Mercer. Lawyers can be frustratingly difficult witnesses.

By accident rather than design, I’ve cross-examined no less than 6 solicitors in the past few years. This year alone, I’ve been poised to cross-examine a Judge(!) in a case that settled on the first day of trial. I’m familiar with some of the challenges involved.

In one of my cases, a Senior Associate at a magic circle law firm had accused my client (a claimant in the Employment Tribunal) of attempting to blackmail his client (an international investment bank). That allegation was ultimately dismissed but not before a detailed examination of the associate’s correspondence and actions around the time of the alleged blackmail.

On another occasion, I cross-examined the Principal of a family run law firm and his solicitor daughter (again in the ET) on behalf of my client who was a book-keeper at the firm. The Tribunal concluded that the solicitor had made a false allegation of sexual harassment against my client.

These cases are fairly representative – in my experience, lawyers tend to end up in the witness chair when things have gone badly wrong.

 

When cross-examining lawyers, the fundamental principles remain the same as for lay witnesses. Lawyers are more likely to be prepared for what’s coming and less likely to be taken by surprise, but you never really know for sure. Just as it’s unwise to under-estimate a witness, whoever they are, it’s equally inadvisable to over-estimate them.

Figuring out your line of attack is a delicate, touchy-feely task that needs to remain fully responsive to the witness’ presentation and the opportunities that arise in the moment. It’s nothing like Mr Mercer’s convuluted questioning and monologues.

As anonymous twitter user, @CrimeGirl, commented:

Part of the claims culture was explored in greater detail by other members of the Committee and Mr Mercer did touch on the point in some of his questions, but they were not his focus.

For Mr Mercer, this was about political grand-standing, contrived for the posting of sound-bites on social media.

‘Fair enough,’ you might say, ‘but this is a Select Committee run by MPs, not a court-room full of lawyers‘.

But this episode exposes a deeper problem than Mr Mercer’s flawed cross-examination technique.

One of Mr Mercer’s key points was to suggest that it was inconceivable that UK soldiers could have committed abuses against detainees. This, on any sensible analysis, is a false narrative, contradicted by well-documented examples of serious abuse of Iraqi detainees. The Ministry of Defence have admitted unlawful abuse and settled over 320 such claims brought by Leigh Day in recent years.

By being cavalier and simplistic with the facts, Mr Mercer did a disservice to the military personnel, families and persons affected who deserve to know the truth, based upon verifiable facts.

There is a wider political agenda at work. Mr Mercer and his Conservative colleagues are pushing for the UK to opt-out of the European Convention on Human Rights to exempt UK soldiers from its obligations, and by extention, to put soldier’s actions beyond the rule of law.

For their part, Leigh Day have admitted making errors in their assessment of a number of Iraqi claims – and the solicitors involved have been cleared of all allegations of professional misconduct. But those errors, and the damage caused, won’t be cured by further distortion of the facts.

Adam Wagner’s thread explains why this matters:

Power and privilege

Notable by its absence from Mr Mercer’s tweets is his vague but serious allegation, made very early in the session (see the video at 12.04.54), that Mr Day had been ‘dishonest‘ about claims that related to alleged abuse in Iraq.

The Solicitors Disciplinary Tribunal had cleared Mr Day and his colleagues of any misconduct after a 7-week trial in 2017.

Mr Day denied Mr Mercer’s allegation and invited him to repeat it outside of Parliament (where the MP would not be protected by Parliamentary privilege). While Mr Mercer claimed that he would be happy to repeat it, the twitter video-clips have been carefully edited to omit this serious accusation. In the inevitable press coverage and in Mr Mercer’s Daily Mail opinion piece that followed, where he described human rights lawyers as ‘leeches on society‘, he did not make an allegation of dishonesty but simply quoted what he had said under privilege.

This is nothing short of a cowardly abuse of Parliamentary privilege by a sitting MP. If such protection is to have any meaning, it must be used responsibly. It seems that even Mr Mercer’s bravery has some limits.

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