9. Jury trial procedure Flashcards

1
Q

D15.82

A

The Principle

D15.82

As a general principle, an accused should be present throughout his trial. The attendance of the accused at the Crown Court is secured by the magistrates remanding him in custody or on bail when they send his case for trial. If, having been bailed, he fails to attend on the day notified to him as the day of trial, a bench warrant may be issued forthwith for his arrest under the BA 1976, s. 7 (see D7.98).

The accused must be present at the commencement of a trial on indictment in order to plead. It is then the almost invariable practice for him to be present throughout his trial. The implication of this rule is that the accused must not only be physically present, but must have the proceedings interpreted to him if that is necessary (Kunnath v The State [1993] 4 All ER 30). CrimPR 25.2(1)(b) provides that the court must not proceed if the accused is absent, unless the court is satisfied that he has waived the right to attend and the trial will be fair despite his absence.

By extension, this also means that the judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence. For example, in Coolledge [1996] Crim LR 748, an appeal was allowed because the judge inquired of a witness in chambers and in the absence of defence counsel as to the reason why he had failed to attend court to give evidence. The Court of Appeal held that counsel should not have been excluded since the procedure went beyond a mere inquiry, and affected the conduct of the trial itself, which was therefore tainted.

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2
Q
A

Exceptions to the Principle

D15.83

Notwithstanding this general rule, the accused’s presence may be dispensed with in exceptional circumstances (per Lord Reading CJ in Lee Kun [1916] 1 KB 337 at p. 341). The situations in which the court may be justified in proceeding without the accused are as follows.

(a) as a result of the misbehaviour of the accused (see D15.86);
(b) where his absence is voluntary;
(c) when the accused is too ill to attend;
(d) following the death of the accused.

Each of these circumstances and various related matters is considered below.

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3
Q

-84,

A

D15.84

Principles to be Considered In Hayward [2001] EWCA Crim 168, [2001] QB 862, the Court of Appeal considered the principles which the trial judge ought to apply when dealing with an absent defendant, and summarised them as follows.

(a) An accused has, in general, a right to be present at his trial and a right to be legally represented.
(b) Those rights can be waived, separately or together, wholly or in part, by the accused himself:
(i) they may be wholly waived if, knowing or having the means of knowledge as to when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him;
(ii) they may be waived in part if, being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.
(c) The trial judge has a discretion as to whether a trial should take place or continue in the absence of an accused and/or his legal representatives. The judge is required to warn the defendant at the PTPH of the risk of the trial continuing in his absence (CrimPR 3.13(2); see Supplement, R-19).
(d) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the accused is unrepresented.
(e) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the accused’s behaviour in absenting himself from the trial or disrupting its continuation, and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the accused being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived his right to representation;
(v) the extent to which the absent accused’s legal representatives are able to present his defence;
(vi) the extent of the disadvantage to the accused in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii) the risk of the jury reaching an improper conclusion about the absence of the accused (but see (f) below);
(viii) the seriousness of the offence to the accused, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
(f) If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing-up, to expose weaknesses in the prosecution case and to make such points on behalf of the accused as the evidence permits. In summing-up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

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4
Q

D15.85 (1) and (2).

A

D15.85

The clear emphasis in Hayward was on the need for caution before proceeding to try a defendant in his absence. In view of the need to ensure compliance with the ECHR, Article 6, that caution is entirely proper. For the same reason, it is entirely proper that the focus in determining whether to proceed should be upon the accused’s right to attend the trial and be represented at it.

The principles outlined by the Court of Appeal in Hayward were considered and commended by the House of Lords in Jones [2002] UKHL 5, [2003] 1 AC 1. Lord Bingham endorsed the Court of Appeal’s guidelines with two reservations:

(1) the seriousness of the offence should not be considered — the principles would be the same whether the offence was serious or minor; and
(2) even if the accused absconded voluntarily, it would generally be desirable that he should be represented. It was emphasised that it was a step to be taken with ‘great caution and close regard to the overall fairness of the proceedings’. In Amrouchi [2007] EWCA Crim 3019, relying on those observations, Hughes LJ said it was a step that should only be taken when it was ‘unavoidable’.

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5
Q

D15.86

A

D15.86

Misbehaviour of the Accused If the accused behaves in an unruly fashion in the dock, e.g., by shouting out, or if he is apparently trying to intimidate jurors or witnesses by his conduct, and he thereby makes it impracticable for the hearing to continue in his presence, the judge may order that he be removed from court and that the trial proceed without him (Lee Kun [1916] 1 KB 337).

In practice, the judge would warn the accused before taking the extreme step of barring him from court, and it may be appropriate to allow him to return to the dock at a later stage if he undertakes not to repeat his unruly behaviour. Unruly behaviour may also be deterred by the threat of holding the accused to be guilty of a contempt in the face of the court (see B14.85). An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint (Horden [2009] EWCA Crim 388, [2009] 2 Cr App R 24 (406)).

Similarly, if the accused refuses to be brought into court from the cells, the trial judge is entitled to proceed without him where he has unequivocally waived his right to be present (Smith [2006] EWCA Crim 2307). As is made clear at CrimPR 25.2(1)(b), and was repeated in Hussain [2018] EWCA Crim 1785, the discretion to continue in the absence of the accused is to be approached with great caution and with close regard to the fairness of the proceedings. It may often be better to allow time to cool off, and to continue the trial in the accused’s presence.

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6
Q

-15.87

A

D15.87

Voluntary Absence of the Accused If the accused, having been present for the commencement of his trial, later voluntarily absents himself, either by escaping from custody or by failing to surrender having been bailed by the court for the period of an adjournment, the judge has a discretion to complete the trial in his absence (Jones (No. 2) [1972] 2 All ER 731). Should he be convicted, sentence may also be passed in his absence (Jones (No. 2)). In Simms [2016] EWCA Crim 9, it was held that the same principle applied where the accused had voluntarily rendered himself incapable of participation in the trial through intoxication (or though a self-induced drug psychosis: Ehi-Palmer [2016] EWCA Crim 1844).

Whether to proceed in the accused’s absence must, however, be a matter for the judge’s discretion. In Amrouchi [2007] EWCA Crim 3019, the Court of Appeal identified questions relevant to the exercise of that discretion including whether (a) the accused had deliberately absented himself and (b) there were reasonable steps that could be taken to secure his attendance. The alternative is to discharge the jury from giving a verdict, thus allowing a retrial to take place before a different jury once the accused’s presence has been secured. This exercise of discretion involved more than an assessment of the adequacy of the evidence to explain the accused’s absence, and required an assessment of fairness (R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin)). Whether or not the court proceeds in the accused’s absence, the judge may and almost certainly will issue a warrant for his arrest under the BA 1976, s. 7 (see D7.98).

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7
Q

and D15.89

A

D15.89

Sickness of the Accused If the accused’s absence from court is for reasons beyond his control, the trial may not continue in his absence unless he consents (see, e.g., the dicta of Williams J in Abrahams (1895) 21 VLR 343, adopted by Roskill LJ in Jones (No. 2) [1972] 2 All ER 731) or if his case can be fully presented, including the accused’s own written evidence, without unfairness (Hamberger [2017] EWCA Crim 273, [2017] 2 Cr App R 9 (81)).

The obvious and common example of involuntary absence is sickness. Thus, should the accused become ill during the course of his trial, the judge must either adjourn the case until he recovers or discharge the jury (Howson (1981) 74 Cr App R 172; Kaur [2013] EWCA Crim 590). If the court is not satisfied with the adequacy of the evidence of illness it should provide an opportunity for further evidence to be provided before continuing the trial in the acccused’s absence, and must always have regard to fairness (R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin)). Possible exceptions to this proposition include:

(a) As mentioned in Howson, if there are several accused and one falls sick, the trial may continue in that accused’s absence provided that the evidence and proceedings in his absence relate entirely to the cases against his co-accused and have no possible bearing on his case.
(b) Where the accused’s voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise (Simms [2016] EWCA Crim 9).
(c) Where the accused had a heart condition preventing his attendance but it was considered that his counsel were able to argue his case effectively and he was given the opportunity to give written evidence (Hamberger).

The decision in Howson also indicates that it is not enough for an accused to be physically present if he is too unwell to pay proper attention to the proceedings and give instructions to his legal representatives.

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8
Q

D17.17-

A

Treatment by Court of Unrepresented Accused

D17.17

If an accused is not legally represented, the court will, as a matter of practice, seek to give him such assistance in conducting his defence as may seem appropriate.

Alternatively, where the accused dismisses his counsel and/or solicitors during the course of the trial (or they withdraw during trial) and the accused remains entitled to public funding, the judge may grant an adjournment for the accused to be represented (Chambers [1989] Crim LR 367; Sansom [1991] 2 QB 130), though there is no requirement that the court must do so.

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9
Q
A

Accused’s Right to Give or Call Evidence

D17.18

The accused should always be told by the court at the end of the prosecution case of his right to give evidence himself, to call witnesses in his defence (whether or not he himself goes into the witness-box), or to stay silent and call no evidence. Failure to give the accused this information may lead to any conviction being quashed (Carter (1960) 44 Cr App R 225).

It is particularly important that an unrepresented accused should be informed of the inferences which may be drawn from a failure to give evidence, pursuant to the CJPOA 1994, s. 35 (see F20.42). The court is obliged to address the accused, pursuant to CrimPD VI, para. 26P.5 (see Supplement, PD-71), in the following terms:

You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the jury may draw such inferences as appear proper. That means they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?

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10
Q

17.19

A

Restrictions on the Accused

D17.19

Since the YJCEA 1999, ss. 34 to 39 (see F7.3) came into effect, certain restrictions have applied. Unrepresented defendants are prohibited from cross-examining complainants and child witnesses in trials for certain offences. The courts also have the power to prohibit cross-examination of witnesses by unrepresented defendants if satisfied that the circumstances of the witness and the case merit it, and that a prohibition would not be contrary to the interests of justice. There are provisions for the appointment of representatives to conduct cross-examinations on behalf of unrepresented defendants. By way of guidance as to the role of such a representative, in Abbas v CPS [2015] EWHC 579 (Admin), [2015] 2 Cr App R 11 (183) the Divisional Court said that a s. 38 advocate did not have a free-ranging remit to conduct the trial on the defendant’s behalf. Rather the advocate was under a statutory duty to be in a position to properly conduct a cross-examination, which might include a pre-trial application to admit bad character evidence or for disclosure, if relevant to the cross-examination. The important point was that s. 38 advocates must ensure that their duties accorded with the words of the statute.

For the position as to cross-examination by an unrepresented accused and related matters, see also Brown [1998] 2 Cr App R 364, which is dealt with at F7.3. The procedure on an application for a prohibition on cross-examination of a particular witness is specified by CrimPR 23.4 (see Supplement, R-222).

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11
Q

D3.66

A

Abuse of Process: The Power to Stay Proceedings

D3.66

According to County of London Quarter Sessions, ex parte Downes [1954] 1 QB 1 at p. 6, once an indictment has been preferred, the accused must be tried unless:

(a) the indictment is defective (e.g., it contains counts that are improperly joined and so does not comply with CrimPR 3.21(4));
(b) a ‘plea in bar’ applies (such as autrefois acquit);
(c) a ‘nolle prosequi’ is entered by the A-G to stop the proceedings; or
(d) the indictment discloses no offence that the court has jurisdiction to try (e.g., the offence is based on a statutory provision that was not in force at the date the accused allegedly did the act complained of).

To this list must be added cases where it would amount to an abuse of process to continue with the prosecution. Where proceedings would amount to an abuse of process, the court may order that those proceedings be stayed. The usual effect of a stay is that the case against the accused is stopped permanently. Given the nature of the grounds upon which a case may properly be regarded as an abuse of process, it would only be in exceptional cases that there would be any basis for lifting a stay that has been imposed. An example of such a case, however, is Gadd [2014] EWHC 3307 (QB), where Globe J granted a voluntary bill of indictment to allow the accused to be prosecuted for offences which had been stayed by a magistrates’ court in 1998 (the stay being subsequently upheld by the Divisional Court). His lordship decided that, in the circumstances prevailing at the time of the application for a voluntary bill (including, in particular, the fact that there were other allegations to be tried), the interests of justice no longer required that the proceedings be stayed. A voluntary bill was therefore granted. An application for leave to appeal against conviction was subsequently dismissed by the Court of Appeal (Gadd [2015] All ER (D) 141 (Nov)).

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12
Q
A

The Meaning of ‘Abuse of Process’

D3.67

In Beckford [1996] 1 Cr App R 94, Neill LJ said (at p. 100) that the ‘constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions’. His lordship quoted the words of Lord Devlin in Connelly v DPP [1964] AC 1254 at p. 1354, that the courts have ‘an inescapable duty to secure fair treatment for those who come or are brought before them’. In Maxwell [2010] UKSC 48, [2011] 1 WLR 1837 (at [13]), cited in Warren v A-G for Jersey [2011] UKPC 10, [2012] 1 AC 22 (at [22]), Lord Dyson summarised the two categories of case in which the court has the power to stay proceedings for abuse of process:

It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety (per Lord Lowry in R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42 (at 74G)), or will undermine public confidence in the criminal justice system and bring it into disrepute (per Lord Steyn in Latif [1996] 1 WLR 104 (at 112F)).

In Crawley [2014] EWCA Crim 1028, [2014] 2 Cr App R 16 (214), Sir Brian Leveson P summarised the scope of abuse of process thus (at [17]–[18]):

[T] here are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.

… [T]here is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort.

His lordship observed (at [21]) that ‘cases in which it may be unfair to try the accused (the second category of case) will include, but are not confined to, those cases where there has been bad faith, unlawfulness or executive misconduct’. In such a case, ‘the court is concerned not to create the perception that it is condoning malpractice by law enforcement agencies or to convey the impression that it will adopt the approach that the end justifies the means: the touchstone is the integrity of the criminal justice system’ (at [23]). In Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, Lord Griffiths (at p. 61H) said that if the courts have a power to interfere with the prosecution in such cases:

… it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law … I have no doubt that the judiciary should accept this responsibility in the field of criminal law.

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13
Q

-3.68

A

There are thus two main categories of abuse of process:

(a) cases where the court concludes that the accused cannot receive a fair trial;
(b) cases where the court concludes that it would be unfair for the accused to be tried.

The former focuses on the trial process; the latter is applicable where the accused should not be standing trial at all (irrespective of the fairness of the actual trial).

In D Ltd v A [2017] EWCA Crim 1172, David LJ noted (at [35]) that it is ‘important to bear in mind that the two limbs to the exercise of this jurisdiction to stay are legally distinct and have to be considered separately: considerations that may be relevant to the first limb may not be relevant to the second limb and vice versa. Moreover, the second limb requires a balance of the competing interests, whereas the first limb does not.’ The Court of Appeal (at [63]) accepted the argument that failures on the part of the prosecution are not of themselves ordinarily relevant to the first limb of abuse of process. The key issue is whether the consequences of those failures are such as to deprive the defendant of a fair trial. Thus, ‘for the purposes of the limb one argument one has to assess the prejudicial effect of that conduct on the fairness of the trial’ (at [66]).

In DPP v Humphrys [1977] AC 1, Lord Salmon (at p. 46) commented that a judge does not have ‘any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.’

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14
Q

D16.9

A

Opening Speech

D16.9

CrimPD VII, para. 25A.1 (see Supplement, PD-56), states that ‘the purpose of the prosecution opening is to help the jury understand what the case concerns, not necessarily to present a detailed account of all the prosecution evidence due to be introduced’.

CrimPR 25.9(2)(b) invites the prosecution to identify the issues in the case as well as providing a concise outline of the evidence which the prosecution propose to call. In the same way, pursuant to CrimPR 25.9(2)(c), the judge may invite defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening (CrimPD VII, para. 25A.4) (see also D17.7).

The following are matters that may affect the style and content of a prosecution opening speech.

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15
Q
A

Emotive Language

D16.10

In addressing the jury, prosecuting counsel’s role is that of a minister of justice who ought not to strive over-zealously for a conviction (see D16.3). Counsel should therefore avoid using emotive language liable to prejudice the jury against the accused. Avory J’s oft-quoted description in Banks [1916] 2 KB 621 was given in relation to observations by prosecution counsel ‘calculated to prejudice the jury’. The use of emotive language was criticised by his lordship as being ‘not in good taste or strictly in accordance with the character which prosecuting counsel should always bear in mind’ (see also Solloway [2019] EWCA Crim 454 as an example of inappropriate language from a prosecutor).

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16
Q

-11,

A

Submissions as to Law

D16.11

The extent to which the prosecutor deals with points of law that may arise during the trial or possible defences which the accused is likely to raise is a matter for discretion, depending on the circumstances of the particular case. In Lashley [2005] EWCA Crim 2016, Judge LJ stated (at [13]):

The presumption should be that an opening address by counsel for the Crown should not address the law, save in cases of real complication and difficulty where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well-focused submission.

If counsel deals with a matter of law, it is usual to remind the jury that matters of law are ultimately for the judge, and that counsel’s remarks should therefore be disregarded insofar as they differ from the judge’s directions. Such directions can be given at the beginning of a trial, or indeed at any other appropriate stage (CrimPD VI, para. 25A.3).

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17
Q

D16.17,

A

General Rule: Witnesses on Back of Indictment

D16.17

Having opened his case, prosecuting counsel calls his witnesses and reads out any written statements admissible under exceptions to the rule against hearsay. As a matter of practice, he should call or read the statements of all witnesses whose statements have been served, or, to use the traditional phrase ‘witnesses whose names are on the back of the indictment’.

Although counsel has a discretion not to call a witness on the back of the indictment, he must exercise his discretion in a proper manner and not for what Lord Thankerton in Adel Muhammed El Dabbah v A-G for Palestine [1944] AC 156 described as ‘some oblique motive’ (e.g., unfairly so as to surprise or prejudice the defence).

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18
Q

D16.36

A

Written Statements in Criminal Proceedings

D16.36

The CJA 1967, s. 9, provides for the admissibility of written statements in criminal proceedings (its terms are set out at D22.42). CrimPR part 16 and CrimPD V, paras. 16A.1 to 16A.6, set out the procedure (see Supplement, R-152 and PD-37).

In trials on indictment, it applies where the prosecution wish to adduce evidence additional to that served in accordance with the procedure when the case was sent, or by way of a notice of additional evidence thereafter (for which, see also CrimPD I, paras. 3B.1 to 3B.5: see Supplement, PD-4). The party proposing to tender the statement in evidence must serve a copy of it on each of the other parties. If one of those parties serves notice on the party wishing to use the statement that he objects to it going into evidence, the statement cannot be read at the trial. The Deregulation Act 2015, s. 80, amended the CJA 1967, s. 9, so as to replace the seven-day period in which such objection had to be made with provision for time-limits to be set by the CrimPR, though, subject to special circumstances, the time-limit is set by r. 16.4 at seven days.

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19
Q

, the first paragraph of D16.37

A

D16.37

In effect, s. 9 statements are admissible only if all the parties agree. Even if a statement is admissible under s. 9, the court may require that the maker attend to give evidence, e.g., where the defence dispute the contents of the statement but failed to object through an oversight (provision for which is made by s. 9(4) and CrimPR 16.4(4)).

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20
Q

, D16.40

A

Agreed Facts

D16.40

As an alternative to the reading of witness statements, facts derived from such witness statements or otherwise may be presented as agreed evidence. These facts, which are admitted by all parties to be true, are presented pursuant to the CJA 1967, s. 10 (see F1.2). Such admissions should be reduced to writing, and provided to the jury providing they are relevant to the issues that they are to determine and do not contain inadmissible material (Pittard [2006] EWCA Crim 2028 and CrimPR 25.13).

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21
Q

-16.41,

A

Standard Procedure

D16.41

Where the defence intend to object to the admissibility of prosecution evidence disclosed on the statements relied on by the prosecution (hereafter referred to as ‘disputed evidence’), the standard procedure is as follows.

(a) Defence counsel informs prosecution counsel of the objection before the latter opens his case to the jury. In his opening, prosecution counsel therefore makes no mention of the disputed evidence (as to circumstances where the admissibility issue ought to be resolved before the case starts, see D16.43).
(b) At the point at which the admissibility falls to be considered, the jury will withdraw to allow the matter to be resolved by the judge alone (see D16.42).
(c) If the admissibility of the disputed evidence raises collateral factual issues as to how it was obtained, it may be necessary to adduce evidence about those facts before the judge in the absence of the jury. This is known as a trial ‘on the voir dire’ because the witnesses testify on a special form of oath (see F4.32). Both prosecution and defence are entitled to call witnesses at this stage. However, their evidence (whether in chief or in cross-examination) should be limited to matters relevant to the admissibility of the disputed evidence. For the application of this rule to the admissibility of confessions, see the PACE 1984, s. 76(2), and Brophy [1982] AC 476 (see F18.8 and F18.62).
(d) Whether or not there has been evidence on the voir dire, the parties make their representations to the judge about the admissibility of the disputed evidence. (e) The judge then announces his findings on any factual issues arising on the voir dire and rules on whether the disputed evidence should be admitted or not, in the light of the findings of fact, the relevant law on admissibility of evidence and any discretionary power to exclude material which is legally admissible (considerations applicable to this determination are set out at D16.47).
(f) The jury return to court. If the judge ruled against the disputed evidence, the jury will know nothing about it (as to the editing of evidence consequent on such a ruling, see D16.51). If it is ruled admissible, the defence are still entitled to cross-examine on matters they raised on the voir dire, although at this stage the cross-examination goes to the weight, if any, that the jury should attach to the disputed evidence, not to its admissibility.
(g) The judge retains the discretion to review a determination on admissibility at a later stage (Watson [1980] 2 All ER 293, see D16.48).

This procedure, and the extent to which it is appropriate to depart from it in certain circumstances, is discussed below.

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22
Q

D16.51

A

Editing of Prosecution Evidence

D16.51

Where the prosecution evidence as foreshadowed in the statements relied on by the prosecution contains material which is of such prejudicial effect that the jury clearly ought not to hear it, the practice is for the parties to ‘edit’ the evidence by agreement before it is called. This practice was recognised by the Court of Appeal in Weaver [1968] 1 QB 353. Sachs LJ indicated (at pp. 357G–358A) that the best way for such editing to take place is for the evidence to appear ‘unvarnished’ in the committal statements. Counsel can then confer at trial to ensure that ‘the editing is done in the right way and to the right degree’. If necessary the judge can also play a part in the process.

CrimPD V, paras. 16A.1 to 16A.6 (see Supplement, PD-37), contain detailed instructions on the treatment of statements served as part of the prosecution case where some of the material contained therein may be inadmissible or unduly prejudicial. Three options are set out:

(a) A composite statement can be prepared to replace several earlier statements made by a witness (para. 16A.2).
(b) A completely fresh statement can be prepared for a witness to sign, omitting those parts of the first statement which are inadmissible or prejudicial (para. 16A.3(b)). The circumstances in which this is the preferred option are set out at para. 16A.4.
(c) Where the prosecution decide that it is unnecessary to have a new statement, the procedure to be adopted is that the original of the witness’s statement should be tendered to the court unmarked in any way but, on the copies served on the defence and provided to the court, the passages on which the prosecution do not propose to rely should either be bracketed or lightly struck out. The striking out should not be done in such a way as to obscure what is being deleted.

Paragraph 16A.3(a) states that the following note should be attached to the foot of the frontispiece or index to the bundle when served: ‘The prosecution does not propose to adduce evidence of those passages of the attached copy statements which have been struck out and/ or bracketed (nor will it seek to do so at the trial unless a notice of further evidence is served)’.

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23
Q

, D16.53-58,

A

Submission of No Case to Answer

D16.53

After the prosecution have closed their case, the defence may submit that the evidence does not disclose a case to answer in respect of any or all the counts on the indictment. The procedure for qthe making of such an application is dealt with at D16.66, along with the consequences of such a submission (see D16.69). The first issue, however, is the test to be applied.

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24
Q
A

The Test to Be Applied

D16.54

The leading authority on the test a trial judge should apply in determining whether there is a case to answer is Galbraith [1981] 2 All ER 1060. In the course of his judgment in that case, Lord Lane CJ said (at p. 1042B–D):

How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

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25
Q
A

D16.55

First Limb As Lord Lane remarked, the first limb of the test set out in Galbraith [1981] 2 All ER 1060, does not cause any conceptual problems. The test of there being ‘no evidence that the crime alleged has been committed by the defendant’ is intended to convey the same meaning as the words of Lord Parker CJ in his Practice Direction (Submission of No Case) [1962] 1 WLR 227, when he told magistrates that submissions of no case to answer at summary trial should be upheld, inter alia, if ‘there has been no evidence to prove an essential element in the alleged offence’.

Such cases may arise, for example, where an essential prosecution witness has failed to come up to proof, or where there is no direct evidence as to an element of the offence and the inferences which the prosecution ask the court to draw from the circumstantial evidence are inferences which, in the judge’s view, no reasonable jury could properly draw (see further D22.52). However, judges should take care to avoid taking into account defence evidence which is yet to be called and potential defences which have not yet been made out in assessing this limb of the test (C [2007] EWCA Crim 1862).

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26
Q
A

D16.56

Second Limb The second limb of the test in Galbraith [1981] 2 All ER 1060, is far less straightforward, and has to be understood in the context of the practice that developed after the passing of the Criminal Appeal Act 1966, s. 4(1)(a) (now Criminal Appeal Act 1968, s. 2(1)), of inviting the judge to hold that there was no case to answer because a conviction on the prosecution evidence would be ‘unsafe’. That form of submission reflected the power given to the Court of Appeal by first the 1966 and then the 1968 Act to quash a conviction on the basis that it was, in the court’s opinion, ‘unsafe or unsatisfactory’ (but, since the Criminal Appeal Act 1995, part I, came into force, simply ‘unsafe’).

This approach inevitably involves the court considering the quality and reliability of the evidence, rather than its legal sufficiency, and therefore involved the court carrying out the assessment of evidence and witnesses that would otherwise be the exclusive prerogative of the jury. The judgment in Galbraith makes clear that it is not appropriate to argue on a submission of no case that it would be unsafe for the jury to convict, which would be an invitation for the judge to impose his own views of the witnesses’ veracity (see especially p. 1041B–C).

However, the second limb of the Galbraith test does leave a residual role for the court as assessor of the reliability of the evidence. The court is empowered by the second limb of the Galbraith test to consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it. Thus, if the witness undermines his own testimony by conceding that he is uncertain about vital points, or if what he says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness’s evidence, and therefore (in the absence of any other evidence) there is no case to answer.

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27
Q

D17.7

A

Defence Opening Speech

D17.7

If the defence intend to call evidence as to the facts of the case other than, or in addition to, the evidence of the accused, defence counsel has the right to an opening speech at the beginning of the defence case (Hill (1911) 7 Cr App R 1; CrimPR 25.9(2)(g)). If, however, the only defence evidence is to come from the accused (or from the accused and character witnesses) then counsel does not have an opening speech (see the Criminal Evidence Act 1898, s. 2) save where, pursuant to r. 25.9(2)(c), the judge invites defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening. CrimPD VII, para. 25A.4 (see Supplement, PD-56), while acknowledging that the defence are not entitled to address the jury, indicates that the advantages of inviting the defence to do so are such that ‘usually the court should extend such an invitation’.

In an opening speech, defence counsel may both outline the anticipated defence case and criticise the evidence already given for the prosecution (Randall (1973) The Times, 11 July 1973). However, the speech should not make assertions of fact that are not to be proved by evidence that is to come.

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28
Q
A

The Defence Case

D17.8

Because the burden of proof is on the prosecution, the defence are never obliged to call evidence, and more particularly the defence are not obliged to call the accused, since he is a competent but not compellable witness (Criminal Evidence Act 1898, s. 1(1)). Most defence witnesses are governed by the same rules and considerations as prosecution witnesses (discussed at D16.31). The only additional limitation is the duty of the court to stop evidence being given where it is irrelevant to the issues in the case (Brown [1998] 2 Cr App R 364), or where the court is being used as a political sounding board (King (1973) 57 Cr App R 696).

29
Q

-17.9

A

Order of Defence Evidence

D17.9

The accused should normally be called before any other defence witnesses (PACE 1984, s. 79; Criminal Evidence Act 1898, s. 2; CrimPR 25.9(2)(h)). The rationale for this rule is that, whilst witnesses are normally kept out of court until they testify, the accused has the right to be present throughout his trial, and therefore would otherwise have the opportunity to adjust his evidence to accord with that of his witnesses. The court has a discretion to depart from this usual rule (PACE 1984, s. 79), for example to allow a witness whose evidence was not substantially disputed to testify out of the normal order if circumstances made that convenient (Morrison (1911) 6 Cr App R 159 and Smith [1968] 2 All ER 115). In contrast, psychiatric expert evidence in relation to an accused ought to follow on after the prosecution’s evidence of the offence and any evidence from the offender (Sutton [2008] EWCA Crim 3129). Character witnesses must always be called after the accused unless there are other witnesses as to the facts (Criminal Evidence Act 1898, s. 2).

Police and Criminal Evidence Act 1984, s. 79

If at the trial of any person for an offence—

(a) the defence intends to call two or more witnesses to the facts of the case; and
(b) those witnesses include the accused,

the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs.

Criminal Evidence Act 1898, s. 2

Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.

A witness waiting to give evidence must not wait inside the courtroom, unless that witness is a party or an expert witness (CrimPR 25.11(2)(a)). But see Carty [2011] EWCA Crim 2087, where the Court of Appeal declined to exclude the potentially helpful evidence of a defence witness who had been in court during the prosecution case.

30
Q

, D17.12

A

D17.12

Decision to Call the Accused The decision whether to testify or not is for the accused himself.

The Court of Appeal has stated that, when the accused decides not to go into the witness box, it should be the invariable practice of counsel to have that decision recorded and to cause the accused to sign the record giving a clear indication (a) of the fact of his having, of his own accord, decided not to give evidence, and (b) that he has done that bearing in mind the advice, regardless of what it was, given to him by counsel (Bevan (1994) 98 Cr App R 354; Ebanks v The Queen [2006] UKPC 16, [2006] 1 WLR 1827; Anderson [2010] EWCA Crim 2553; Good [2016] EWCA Crim 1869). There is no right, even in cases to which the DVCVA 2004, s. 6, applies (see B1.78), for an accused to give evidence twice (Ikram [2008] EWCA Crim 586, [2008] 2 Cr App R 24 (347)).

Failure to advise the accused properly about the advisability of testifying may, in appropriate circumstances, constitute grounds for the Court of Appeal to decide that a conviction is unsafe and unsatisfactory (Clinton [1993] 2 All ER 998, but see also Good [2016] EWCA Crim 1869; for further detail, see D26.24).

31
Q

D18.10

A

Judge Calling or Recalling a Witness

D18.10

The judge has a discretion to call a witness whom neither the prosecution nor defence have chosen to call (Wallwork (1958) 42 Cr App R 153). The power should be sparingly exercised (Roberts (1984) 80 Cr App R 89), and used only where it is necessary in the interests of justice.

32
Q

D18.13-

A

Discussion of the Relevant Law

D18.13

Prior to summing-up, or the first part of the summing-up if it is split (as advocated in CrimPD VI, para. 26K16, see D18.21), it has become increasingly common for the court to invite counsel, in the absence of the jury, to make representations on how certain aspects of the case should be dealt with. This is especially important where there might otherwise be misunderstanding or doubt as to how points of law and evidence which have arisen during the course of the case should be dealt with (N [1998] Crim LR 886; Wright [2000] Crim LR 510).

Such a discussion should take place before speeches. Only in very exceptional circumstances would it be appropriate for the court to discuss the law with counsel after concluding his summing-up and before the jury’s retirement (Cocks (1976) 63 Cr App R 79). The course adopted by the judge in Charles [1976] 1 WLR 248, of asking counsel to intervene in the course of the summing-up and correct any errors as they arose, was criticised by the Court of Appeal as it detracted from the authority of what the judge was saying.

33
Q

18.14,

A

Assisting the Court

D18.14

Counsel is under a duty to bring all relevant authorities to the court’s attention even if some are unfavourable to his own argument. Further, he must bring any procedural irregularity to the attention of the court during the hearing and not reserve such matter to be raised on appeal (e.g., where a juror is seen speaking to a witness).

The duties outlined so far apply equally to prosecution and defence counsel (see also D16.2 and D17.2 respectively). In Smith [1994] Crim LR 458, one of the grounds of appeal was the fact that contact with a child witness during her evidence was alleged to be irregular. The Court of Appeal said that counsel should have raised the matter at the time with the judge, in the absence of the jury. Failure to do so was reprehensible. See, for more detail, D18.23.

34
Q

D18.16,

A

Order of Speeches

D18.16

CrimPR 25.9(2)(j) and (k) address the order of speeches, and make clear that the prosecution speech is made first (Watkins J summarised the case law and statutory provisions that underline this rule in Bryant [1979] QB 108 at pp. 113– 18).

35
Q

D18.18

A

Limitations as to Content

D18.18

Neither counsel in a closing speech should allude to alleged facts or other matters which have not been the subject of evidence (see a resolution of the judges dated 26 November 1881, adopted in Shimmin (1882) 15 Cox CC 122). Neither should the jury be invited to add a recommendation of mercy to their verdict should it be one of guilty (Black [1963] 3 All ER 682). In Ekaireb [2015] EWCA Crim 1936 Lord Thomas CJ deprecated (at [59]– [62]) the practice of advocates making personal criticism of their opponents in closing addresses; this was a practice that ‘judges must ensure ceases immediately and not be repeated in any case’.

36
Q
A

D18.19

Prosecution Counsel In Gonez [1999] All ER (D) 674, the Court of Appeal emphasised that prosecutors must remember their role as a minister of justice in relation to the terms in which they make their speeches (see D16.3, and Solloway [2019] EWCA Crim 454). In Ramdhanie [2005] UKPC 47, [2006] 1 WLR 796, the Privy Council upheld an appeal based upon an improper closing speech by the prosecutor, which contained emotive and unjustified comments on the defence case, insinuations of additional unadduced incriminating material and a number of passages where the prosecutor improperly vouched for the soundness of the prosecution’s case.

Prosecuting counsel should not comment to the jury on the potentially serious consequences to police officers of their evidence being disbelieved, even where a police officer has raised the matter in evidence (Gale [1994] Crim LR 208).

Equally, prosecution counsel is not entitled to abandon or attack the credit of his own witness (unless he has been given leave to treat him as hostile) and he should not invite inferences contrary to the evidence he has called (Pacey (1994) The Times, 13 March 1994; Cairns [2002] EWCA Crim 2838, [2003] 1 WLR 796).

Pursuant to the PACE 1984, s. 80A, the prosecution should not comment on the failure of the accused’s spouse to give evidence. However, prosecution counsel is entitled to comment on the failure of the accused to answer questions in interview (see F20.41). Similarly, pursuant to the CPIA 1996, s. 11(5), the prosecution may make ‘such comment as appears appropriate’, providing that the court grants leave, about the failure of the accused to serve a defence statement, or as to divergence between that statement and his evidence (see D9).

37
Q
A

D18.20

Defence Counsel In delivering his closing speech defence counsel is not confined to putting forward his client’s version of events. He may advance hypotheses which go beyond his client’s version of events, always provided that other evidence has been called which supports such hypotheses (Bateson (1991) The Times, 10 April 1991).

Defence counsel should not refer to the likely consequences of a conviction in terms of punishment since sentencing is no concern of the jury (A-G for South Australia v Brown [1960] AC 432). See also Edgington [2013] EWCA Crim 2185, [2014] 1 Cr App R 24 (334) (at [20]–[30]).

For the position as to comment by counsel on the defendant’s failure to give evidence, see F20.41. Defence counsel is obviously entitled to comment upon his own client’s failure to give evidence. He is also, in a case where a co-accused runs a defence which conflicts with that of the accused he represents, entitled to comment upon the co-accused’s not having entered the witness-box (Wickham (1971) 55 Cr App R 199). The judge has no power to prevent or restrict such comment, but may comment upon it himself if he considers it to have been unfair (Wickham).

In Ekaireb [2015] EWCA Crim 1936 Lord Thomas CJ approved the observations of his predecessor in Farooqi [2013] EWCA Crim 1649, [2014] 1 Cr App R 8 (69) as to the duties of defence counsel in presenting his client’s case, and the duty of a trial judge to ensure that the defence case is accurately put before the jury even if this requires intervention in defence counsel’s speech.

38
Q

-18.21,

A

Preliminary and General Matters

D18.21

The trial judge’s summing-up conventionally falls into two parts, namely, a direction on the law (see D18.25) and a summary of the evidence (see D18.36). CrimPR 25.14(3) (see Supplement, R-258) sets out the appropriate steps to be followed on summing-up. CrimPD VI, para. 26K.16 (see Supplement, PD-67), encourages the court to split the summing-up so as to address the law before speeches and then turn to the facts after speeches have been made. The Court of Appeal has stressed the desirability of using the Crown Court Compendium as an invaluable resource in terms of guidance and draft directions (G [2018] EWCA Crim 1393, [2018] 2 Cr App R 26 (413); Miah [2018] EWCA Crim 563). The Court of Appeal has also discouraged courts from commencing a summing-up, or addressing an important aspect of one, at a late hour or just before the weekend (Rimmer [1983] Crim LR 250).

Where the judge does not provide the summing-up (or parts of it) in writing, both counsel should take as full a note of the summing-up as is possible. This is especially important where any sentence is likely to be short. A good note may avoid delay caused by waiting for a transcript and thus expedite an appeal (Campbell [1976] Crim LR 508).

39
Q

D18.23-18.30,

A

D18.23

Duties of Counsel in Relation to the Summing-up Prosecuting counsel is under a duty to attend carefully to the summing-up and draw any possible errors (whether of fact or law) to the judge’s attention at its close (Donoghue (1987) 86 Cr App R 267). Moreover, the court is entitled to rely on such assistance (McVey [1988] Crim LR 127).

Beyond the duties described at D18.14, defence counsel has traditionally been able to remain silent, if he considered that to be in the best interests of his client (Curtin [1996] Crim LR 831, relying upon Cocks (1976) 63 Cr App R 79 and see also Edwards (1983) 77 Cr App R 5). However, this position has since been eroded. For example:

(a) It is the duty of both prosecution and defence counsel to alert the judge to evidence on which the jury could find provocation, before he sums up, and, if he agrees, remind him that he is required by statute to leave the remaining issues to the jury (Cox [1995] 2 Cr App R 513).
(b) Defence counsel is under a duty to request a good character direction, if the accused was entitled to one, rather than making complaint later if one is not given (Gilbert v The Queen [2006] UKPC 15, [2006] 1 WLR 2108; and see Hunter [2015] EWCA Crim 631, [2015] 2 Cr App R 9 (116)).

However, in Holden [1991] Crim LR 478, the Court of Appeal made it clear that the dismissal of an appeal would not be automatic where defence counsel had failed to correct an error.

40
Q
A

Written Directions

D18.24

In an appropriate case, under CrimPR 25.14(3)(b) and (4), the judge may provide the jury with a written list of questions, directions or other material to assist them in their task, for example, setting out the legal issues which must be proved in order to reach their verdict. CrimPD VI, para. 26K.11, encourages the use of written directions in this way, which it describes as a ‘written route to verdict’. Before providing the jury with the written route to verdict, the judge should submit them to counsel, so that they can make suggestions and can base their closing speeches upon the issues raised in the proposed directions. The jury should then be given the written list at the start of the summing-up, so that the judge can take them through the directions one by one, as he deals with each point. See McKechnie (1992) 94 Cr App R 51 and Taxquet v Belgium (2012) 54 EHRR 26 (933).

The judge is, however, fully entitled to decline to provide the jury with written directions, even where they have been requested (Lawson [1998] Crim LR 883). The Crown Court Compendium (July 2019), ch. 1-9, describes the argument in favour of giving written directions as ‘over-whelming’ and gives further guidance on their use. Whilst failure by counsel to comment on such draft directions is not necessarily fatal to an appeal based on any misdirection, such failure is likely to affect the weight accorded to the deficiency (Gammans (13 November 1998 unreported)).

41
Q
A

Standard Directions

D18.25

As Lord Hailsham observed in Lawrence [1982] AC 510 (at p. 519), a summing-up should be ‘custom-built to make the jury understand their task in relation to a particular case’. Which legal directions are necessary will therefore vary and what is set out here is a survey of the standard directions which may be required.

From the 1970s onwards, the Judicial Studies Board issued specimen directions in relation to the applicable law, and these are now found in the Crown Court Compendium. The Court of Appeal continues to encourage the use of these standard forms through which directions on frequently recurring matters of law may be given (see, e.g., G [2018] EWCA Crim 1393, [2018] 2 Cr App R 26 (413); Miah [2018] EWCA Crim 563), though they are suggested as guidelines only, and judges should adapt them to the circumstances of the particular case. In the foreword to the Crown Court Bench Book, the predecessor to the Crown Court Compendium published in March 2010, Lord Judge CJ said that its ‘objective has been to move away from the perceived rigidity of specimen directions towards a fresh emphasis on the responsibility of the individual judge, in an individual case, to craft directions appropriate to that case’. As the Crown Court Compendium provides guidance, rather than scripted text for legal directions, it follows that the case law as to the appropriate form of directions on legal topics becomes more important.

In Hayes [2010] EWCA Crim 773, Hughes LJ, responding to a submission that the trial judge’s direction did not conform to a Judicial Studies Board model direction, stated (at [12]):

That … it needs to be said as clearly as possible, is not and never can be by itself a ground of appeal. The Judicial Studies Board does not issue directions or orders to judges. It is a forum within which they can compare their practices. The so-called model directions which are in any event about to be supplemented by additional sample directions are no more than that. They are examples which may be helpful to judges in framing a direction which is tailored to the individual case. It is fundamentally to misunderstand the nature of the Judicial Studies Board and the materials provided by it to treat any of its materials as carrying any force of law at all. … it is important that it should be understood what the significance is and more importantly what the significance is not of model directions issued by the Board.

42
Q
A

D18.26

Direction as to the Functions of Judge and Jury At the beginning of the summing-up, the judge must direct the jury as to their respective roles and hence the different status of the two parts of the summing-up: that part relating to law, in relation to which he is the final arbiter, and that relating to fact (summarising the evidence before them). See also the Crown Court Compendium (July 2019), ch. 4. As regards the facts, the jury are the judges (Wootton [1990] Crim LR 201). Therefore, if, in the course of his summing-up, the judge expresses a certain view as to the facts or as to the significance of a piece of evidence but the jury disagree; or he has omitted to mention certain evidence which they consider important; or, conversely, he has stressed something which they consider unimportant — in all such eventualities, it is the jury’s view which matters.

43
Q
A

D18.27

Burden and Standard of Proof Every summing-up must contain at least a direction to the jury as to the burden and standard of proof, and as to the ingredients of the offence or offences which the jury are called upon to consider (McVey [1988] Crim LR 127; Crown Court Compendium (July 2019), ch. 5). Thus, if the judge fails properly to direct the jury as to the prosecution (a) having the burden of proof and (b) having to discharge that burden beyond reasonable doubt or so that the jury are sure, a conviction is liable to be quashed (see Donoghue (1987) 86 Cr App R 267 on the burden of proof and Edwards (1983) 77 Cr App R 5 on the standard of proof) (see also F3.48). Judges were warned of the risks of deviating from this core direction, even in answer to a question from a jury as to the meaning of ‘sure’, in JL [2017] EWCA Crim 621.

In Bowditch [1991] Crim LR 831, the Court of Appeal stressed that in cases involving injuries to a small child it was essential that a very clear direction should be given as to the burden of proof. This was to counteract any tendency on the part of the jury, albeit subconsciously, to succumb to their emotions. Where the statute under which an accused was being prosecuted imposed an evidential burden upon him, good sense dictated that in appropriate circumstances the court should seek agreement that this burden had been discharged so that only the prosecution’s burden needed to be left to the jury (Malinina [2007] EWCA Crim 3228).

44
Q
A

D18.28

Separate Consideration of Counts and Defendants Where there is more than one count on the indictment, the jury should be directed to give separate consideration to each of them (Lovesey [1970] 1 QB 352; Crown Court Compendium (July 2019), ch. 6-1). For the same reason, the judge should also summarise the evidence on a count by count rather than a witness by witness basis (Robson [2007] EWCA Crim 3362).

Similarly, where there is more than one accused on trial, the jury should be directed to consider the case for and against each separately (Smith (1935) 25 Cr App R 119). Where the allegation against the accused is one of joint participation, a direction of the kind suggested in the Crown Court Compendium (July 2019), chs. 7-3 and 7-4, may be appropriate (see also A4.10).

45
Q
A

D18.29

Ingredients of Offence Appellate decisions reveal a tension between the need for the trial judge to direct the jury as to the ingredients of the offence charged on the one hand, and tailoring such directions to the actual issues in the particular case on the other.

The first of these approaches is exemplified in McVey [1988] Crim LR 127, in which the Court of Appeal made clear that it was insufficient for the judge simply to spell out the issue in the case. He was required to direct the jury as to the elements of the offence charged. The same approach was adopted in James [1997] Crim LR 598.

The second approach was advocated by Diplock LJ in Mowatt [1968] 1 QB 421, when he stated that the function of a summing-up was not to give a jury a general dissertation on some aspect of the criminal law, but to isolate the issues for the jury’s consideration. Similarly, in Lawrence [1982] AC 510, Lord Hailsham of St Marylebone LC remarked (at pp. 519F– 520A):

The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. … A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.

46
Q
A

D18.30

Failure to Answer Questions or Give Evidence Pursuant to the CJPO 1994, ss. 34 and 35, the jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to answer questions in interview (s. 34) or his failure to give evidence (s. 35). Guidance as to the proper form of direction that should be given was provided in Cowan [1996] QB 373 and is contained in the Crown Court Compendium (July 2019), ch. 17-5. Although the judge is not expected to identify every fact in relation to which an inference may be drawn, he is required to identify significant facts relied on and to remind the jury of any reason for silence advanced by the accused (Lowe [2007] EWCA Crim 833).

A number of limitations to the requirement for a s. 34 direction have been recognised:

(a) No inferences should be drawn from the silence in interview of an accused who does not give or call evidence, and has not advanced a positive case (Moshaid [1998] Crim LR 420).
(b) Where an accused’s account had changed between interview and trial, this was a matter on which comment could be made without the need for a formal direction under s. 34 (Maguire [2008] EWCA Crim 1028).

Where such inferences should not be drawn, the jury should be specifically directed to that effect (McGarry [1998] 3 All ER 805).

This topic is discussed in more detail at F20.9, F20.24 and F20.31.

47
Q

D18.33,

A

Defences

D18.33

There is an obligation on the trial judge to give the legal directions which apply to the defence advanced on behalf of the accused. Common defences and partial defences to which this applies include:

(a) self-defence (see Palmer [1971] AC 814, Lobell [1957] 1 QB 547, Harvey [2009] EWCA Crim 469 and A3.55);
(b) alibi (see Anderson [1991] Crim LR 361 and F3.44) — where an alibi is demonstrated or accepted to be false, a Lucas -type direction is appropriate, see Lesley [1996] 1 Cr App R 39;
(c) provocation (Stewart [1995] 4 All ER 999) and loss of control; and
(d) diminished responsibility (see Terry [1961] 2 QB 314 and B1.18).

Where an accused is unrepresented, the judge should also remind the jury to bear in mind the difficulties for the accused of representing himself at trial (De Oliveira [1997] Crim LR 600, and see Johnson [2013] EWCA Crim 2001).

48
Q

D18.36

A

The Facts

D18.36

In addition to directing the jury on the law, the judge should remind them of and comment upon the evidence. Despite suggestions to the contrary in Attfield [1961] 3 All ER 243, it is clear that a summary of the evidence is necessary in almost all cases. For example:

(a) In Brower [1995] Crim LR 746, it was made clear that in the majority of cases, it was necessary for the judge to sum up on the facts in order to assist the jury and ensure a fair trial. It was incumbent on the judge to define the issues and remind the jury of the evidence they had heard, albeit very recently.
(b) In Amado-Taylor [2000] 2 Cr App R 194, it was held to be a procedural irregularity for a judge to sum up without a review of the facts. There were exceptions where this was not required, such as where a case was short and simple. But the closing speeches of counsel were no substitute for a judicial and impartial view of the facts from the trial judge, whose duty it was to focus the attention of the jury upon the issues which he identified.

49
Q
A

D18.37

The Analysis Involved In very simple cases, it might suffice for the judge to sum up the facts by reading out an abbreviated version of his note of the evidence. However, if the trial has been at all complex, judges are exhorted to assist the jury by analysing the evidence and relating it to the various issues raised (Gregory [1993] Crim LR 623). Merely reading a note of the evidence in such cases has been criticised, not least because it ‘must bore the jury to sleep’ (see pp. 339– 41 of Lawton LJ’s judgment in Charles (1976) 68 Cr App R 334).

Similarly, in the passage from Lord Hailsham’s speech in Lawrence [1982] AC 510 quoted at D18.29, reference is made to the desirability of the summing-up including a ‘ succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts’ (emphasis added). Such a succinct and focused summary of the evidence is of particular importance at the end of a long and complex trial, as it is required to provide the jury with a rational consideration of the evidence (D [2007] EWCA Crim 2485).

50
Q
A

D18.38

Summarising the Defence Case Crucially, in Curtin [1996] Crim LR 831, the Court of Appeal stated that as part of his duty the judge must identify the defence. The way in which he does so will depend on the circumstances of the case, however the following propositions apply:

(a) Where the accused has given evidence, it will be desirable to summarise that evidence.
(b) Where he has given evidence and answered questions in interview, it may be appropriate to draw attention to consistencies and inconsistencies between the two.
(c) When an accused is interviewed at length but does not give evidence, the judge has to decide how, fairly and conveniently, to place the interview before the jury.
(d) When the accused has done neither, it will usually be appropriate to remind the jury of counsel’s speech.

Moreover, it is desirable for the judge to give an overview of the defence case, in addition to weaving the defence case into the chronology of the prosecution evidence (Pomfrett [2009] EWCA Crim 1939, [2010] 2 Cr App R 28 (281)). As to the extent of the trial judge’s duty to summarise the defence case where no evidence has been called for the defence, see Singh-Mann [2014] EWCA Crim 717, in which Fulford LJ said (at [90]):

… it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge’s duty is simply to remind the jury of ‘such assistance, if any, as (defence) counsel had been able to extract from the Crown’s witnesses in cross-examination’ and any ‘significant points made in defence counsel’s speech’. In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury’s consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed — indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them — but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused.

These observations were approved and applied by the Court of Appeal in Lunkulu [2015] EWCA Crim 1350.

On the question of whether defence counsel has a duty to draw the judge’s attention to a failure to deal adequately with the defence, see D18.23.

D18.

51
Q
A

D18.39

Judicious Judicial Comment It is the judge’s duty to state matters ‘clearly, impartially and logically’, and not to indulge in inappropriate sarcasm or extravagant comment (Berrada (1989) 91 Cr App R 131). Similarly, in Marr (1989) 90 Cr App R 154, the Court of Appeal stressed that observance of the accused’s right to have his case presented fairly is never more important than when ‘the cards seem to be stacked most heavily against the defendant’ (p. 156). Lord Lane CJ added: ‘however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge’ (p. 156).

However, provided he emphasises that the jury are entitled to ignore his opinions, the judge may comment on the evidence in a way which indicates his own views. Robust comments to the detriment of the defence case are permitted (e.g., O’Donnell (1917) 12 Cr App R 219, in which the judge described the accused’s story as a ‘remarkable one’), providing the judge is not so critical as effectively to withdraw the issue of guilt or innocence from the jury (Canny (1945) 30 Cr App R 143, in which the judge repeatedly told the jury that the defence case was absurd; see also Green [2017] EWCA Crim 1774, [2018] 1 Cr App R 14 (218) and Marchant [2018] EWCA Crim 2606, [2019] 4 WLR 20).

52
Q

D18.42

A

Appointment of a Foreman

D18.42

At the end of the summing-up, the judge should advise the jury to appoint one of their number to be their foreman. The foreman will act as their spokesman and, in due course, announce their verdict.

53
Q

-18.43

A

Unanimity

D18.43

Finally, the judge should invite the jury to retire and to seek to reach a unanimous decision. However, a failure on the part of the judge to give the jury the direction that their verdicts must be unanimous will not necessarily render a conviction unsafe (Georgiou (1969) 53 Cr App R 428; see also Daly [1999] Crim LR 88).

To anticipate jury questions about the possibility of a majority verdict, the judge should direct the jury, at this stage, to try to reach a unanimous verdict. If the time should come when he can accept a verdict which is not the verdict of them all, he will give them a further direction (CrimPD VI, para. 26Q.1 (see Supplement, PD-72)). The judge should not, however, indicate the precise period which must elapse before a majority verdict becomes a possibility (Thomas [1983] Crim LR 745). If he does so, it will not necessarily be improper, e.g., where the effect is to alleviate anxiety or uncertainty which the jury may be feeling (Guthrie (1994) The Times, 23 February 1994; Porter [1996] Crim LR 126). For the appropriate directions to be given in relation to majority verdicts and verdicts of guilt as to an alternative offence, see D19.35 and D19.41.

54
Q

D19.2,

A

Basic Rules

D19.2

The principle that governs the keeping of the jury during the period between the close of the judge’s summing-up and their returning to court to announce their verdict was succinctly stated by James LJ in Alexander [1974] 1 All ER 539 at p. 426H: ‘once the jury retires to consider their verdict it should not separate, one from another and from the jury bailiffs. They must remain in the charge of the court through the bailiffs throughout.’ The purpose of this is to ensure that nobody interferes with the jury while they are considering their verdict.

55
Q

D19.18

A

Questions from the Jury

D19.18

The jury are permitted to ask questions of the judge during their retirement. The normal method of so doing is to pass a note to the jury bailiff who takes it to the judge. In Zulhayir [2010] EWCA Crim 2272, the Court of Appeal stressed the need to time and date such notes. The procedure to be adopted in answering such questions was set out in Gorman [1987] 2 All ER 435. The object of the procedures is: (a) to remove any suspicion of private or secret communication between the court and jury, and (b) to enable the judge to assist the jury properly on any matter of law or fact which appears to be troubling them (per Lord Lane CJ at p. 546C; for the facts, see D13.72).

Lord Lane set out three propositions to assist judges who receive a note from a jury who have retired to consider their verdict (at pp. 550H–551B):

First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court.

Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures … then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.

In Inns [2018] EWCA Crim 1081, [2019] 1 Cr App R 5 (61) the Court of Appeal reminded judges that they should normally share the content of jury questions with counsel, and invite their view, before answering them.

56
Q

, D19.35

A

Majority Verdicts

D19.35

At common law, the verdict of a jury had to be unanimous. This was qualified by what is now the Juries Act 1974, s. 17 (set out at the end of D19.40). By s. 17(1) some majority verdicts are permissible, subject to certain conditions being satisfied. The procedure for taking majority verdicts is set out in CrimPR 25.14(5) (see Supplement, R-258) and CrimPD VI, paras. 26Q.1 to 26Q.9 (see Supplement, PD-72).

57
Q

-19.36

A

Time Requirement

D19.36

A majority verdict may not be accepted unless the jury have been considering their verdict for such period as the court considers reasonable having regard to the nature and complexity of the case, being in any event a period of not less than two hours (Juries Act 1974, s. 17(4)). Any period during which the jury return to court to ask a question of or receive a communication from the judge should be included when computing the two hours (Adams [1969] 3 All ER 437).

Time spent not actually deliberating, for example in making their way to the jury room and electing a foreman, is catered for by CrimPD VI, para. 26Q.3 (see Supplement, PD-72), which states that the jury should be allowed at least two hours and ten minutes for deliberation before the majority direction is given. CrimPD. VI, para. 26Q.7 addresses the considerations to be applied by a trial judge as to when to take any unanimous verdicts before giving the majority direction for the remaining counts.

58
Q

, D19.38

A

Minimum Number for Acceptable Majority

D19.38

By the Juries Act 1974, s. 17(1), the minimum majorities permissible are 11–1 or 10–2, or (in the case of a jury from which one or more of the original jurors have been discharged) 10–1 or 9–1. A jury reduced to nine must be unanimous.

59
Q

-19.39

A

Statement of Size of Majority and Minority in Open Court

D19.39

If (and only if) the verdict is guilty, the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict (Juries Act 1974, s. 17(3)).

Since stating the size of a majority for conviction is expressed as a precondition of the court accepting the verdict, failure to comply with s. 17(3) will result in any purported conviction being quashed (Barry [1975] 2 All ER 760; Austin [2002] EWCA Crim 1796). However, it is sufficient for compliance with s. 17(3) if, as happened in Pigg [1983] 1 All ER 56, the foreman states the number in the majority leaving the size of the minority to be inferred by the simplest of arithmetic. In Pigg, Lord Brandon of Oakbrook (with whose speech all the other Law Lords concurred) stated the position thus (at p. 13G–H, emphasis added):

… compliance with the requirement of section 17(3) of the Act of 1974 is mandatory before a judge can accept a majority verdict of guilty; but the precise form of words used by the clerk of the court when asking questions of the foreman of the jury, and the precise form of words used by the latter in answer to such questions, as long as they make it clear to an ordinary person how the jury was divided, do not constitute any essential part of that requirement.

60
Q

, D19.41-

A

Verdict of Guilty of an Alternative Offence

D19.41

It is sometimes open to a jury to find the accused not guilty of the offence alleged in a count but guilty of some other alternative offence. This is commonly referred to as a verdict of guilty of a lesser offence.

At common law, a jury could find an accused guilty of a lesser offence if the definition of the greater offence charged necessarily included the definition of the lesser. However, the enactment of a number of statutory provisions has considerably broadened the situations in which alternative verdicts are now permitted. Although the decision of the House of Lords in Saunders [1988] AC 148 demonstrates that there is still a residual role for the common law to play, this discussion of alternative verdicts proceeds on the basis that the law is now to be found in statute.

61
Q

, D19.58

A

Judge’s Discretion in Directing Jury as to Alternative Offences

D19.58

The judge in summing-up is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law. If, however, the possibility that the accused is guilty only of a lesser offence has been obviously raised by the evidence, the judge should, in the interests of justice, leave the alternative to the jury. This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury (Coutts [2006] UKHL 39, [2007] 1 Cr App R 6 (60), followed in Brown [2014] EWCA Crim 2176, but see Brown [2011] EWCA Crim 1606). It is important for the court to leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment (Hodson [2009] EWCA Crim 1590; Foster [2009] EWCA Crim 2214; Johnson [2013] EWCA Crim 2001). The court should not take the initiative to add an alternative charge after the accused has given evidence (B (JJ) [2012] EWCA Crim 1440).

62
Q

, D19.69

A

General Procedure

D19.69

The jury’s verdict is delivered in open court, in the presence of the accused (and this cannot occur if the accused has died during the jury’s retirement: Turk [2017] EWCA Crim 391, [2017] 2 Cr App R 2 (14)). The invariable practice is for the person the jury have selected to be their foreman to state in response to questions from the clerk of court whether they find the accused guilty or not guilty. The procedure is set out in CrimPR 25.14 and CrimPD VI, para. 26Q (see Supplement, R-258 and PD-72).

The jury are entitled to return a partial verdict in the sense of finding an accused guilty on one count but not on others, or finding one accused guilty but another not. They are also entitled to find an accused guilty in respect of some only of the allegations set out in the particulars of a count, as when a count for theft specifies several items as the subject-matter of the charge and the jury are satisfied that the accused stole some of them but are left in doubt as to others (see Furlong [1950] 1 All ER 636, where the jury sent a note asking the judge if they could return such a verdict and the Court of Criminal Appeal held that the judge’s affirmative answer was undoubtedly correct, even though the method by which he had communicated the answer was at fault).

63
Q

D19.90

A

Jury Unable to Agree on a Verdict

D19.90

If the jury cannot agree on a verdict, the judge discharges them from giving a verdict. As always when the jury are discharged, the accused is not acquitted but may be retried by a different jury. Whether to ask for a retrial is in the discretion of the prosecution. In the absence of exceptional reasons to the contrary, it is the practice to have a retrial following failure by one jury to agree. If a second jury also fail to agree, the prosecution would not usually seek a third trial but instead offer no evidence.

This convention was examined in Henworth [2001] EWCA Crim 120, [2001] 2 Cr App R 4 (47), and it was stated that it should not be elevated into a proposition of law. In some cases, a further trial might be proper, e.g., if a jury had been tampered with, or some cogent piece of evidence for the Crown had since been discovered. Whether it was an abuse of process for the prosecution to seek a further trial must depend on the facts, including:

(a) the overall period of the delay and the reasons for it;
(b) the results of the previous trials;
(c) the seriousness of the offence; and (possibly)
(d) the extent to which the case against the defendant had changed since previous trials.

64
Q

sections 9 and 10 Criminal Justice Act 1967.

A
65
Q
A
66
Q

Galbraith.

A
67
Q
A
68
Q
A