Jury trial procedure. Speeches and summing up Flashcards
Discussion of the Relevant Law
Prior to summing up, or the first part of the summing up if it is split the court will almost always 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.
Only in very exceptional circumstances would it be appropriate for the court to discuss the law with counsel after concluding the summing-up and before the jury’s retirement.
The course adopted by the judge in Charles 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.
Assisting the Court
Counsel is under a duty to bring all relevant authorities to the court’s attention even if some are unfavourable to counsel’s own argument. Further, any procedural irregularity must be brought to the attention of the court during the hearing and not reserved 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. In Smith 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.
Order of Speeches
CrimPR 25.9(2)(j) and (k) address the order of speeches, and make clear that the prosecution speech is made first
Limitations as to Content
Neither counsel in a closing speech should allude to alleged facts or other matters which have not been the subject of evidence.
Neither should the jury be invited to add a recommendation of mercy to their verdict should it be one of guilty.
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’.
Prosecution Counsel
prosecutors must remember their role as a minister of justice in relation to the terms in which they make their speeches.
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.
Equally, prosecution counsel is not entitled to abandon or attack the credit of the prosecution’s own witness (unless leave has been given to treat the witness as hostile) and counsel should not invite inferences contrary to the evidence that has been called.
Although in Cairns it was made clear that the prosecution should regard the whole of a witness’s evidence as reliable before calling that person as a witness.
Pursuant to the PACE 1984, s. 80A, the prosecution should not comment on the failure of the accused’s spouse or civil partner to give evidence. However, prosecution counsel is entitled to comment on the failure of the accused to answer questions in interview, or to give evidence.
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 the accused’s evidence
Defence Counsel
In delivering the closing speech defence counsel is not confined to putting forward the client’s version of events. Hypotheses may be advanced which go beyond this version of events, always provided that other evidence has been called which supports such hypotheses.
Defence counsel should not refer to the likely consequences of a conviction in terms of punishment since sentencing is no concern of the jury.
Defence counsel is obviously entitled to comment upon his or her own client’s failure to give evidence. Counsel is also, in a case where a co-accused runs a defence which conflicts with that of the accused he or she represents, entitled to comment upon the co-accused’s not having entered the witness-box.
The judge has no power to prevent or restrict such comment, but, if it seems to the judge to have been unfair, may comment upon it personally.
duties of defence counsel in presenting the 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.
Summing-up
Preliminary and General Matters
The trial judge’s summing up conventionally falls into two parts, namely, a direction on the law and a summary of the evidence sets out the appropriate steps to be followed on summing up.
The use of written directions is also strongly advocated. 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.
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.
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.
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 offact or law) to the judge’s attention at its close. Moreover, the court is entitled to rely on such assistance.
defence counsel has traditionally been able to remain silent, if that was considered to be in the best interests of the client
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 the summing up, and, if the judge agrees, remind him or her that statute requires the judge to leave the remaining issues to the jury.
(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.
(c) There is a duty on all counsel to focus during the summing up on what is being said and to raise any material error or omission at the time.
However, in Holden 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.
Written Directions
In virtually all cases, under CrimPR 25.14(3)(b) and (4) the judge should provide the jury with a written list of questions (a route to verdict), written legal directions and such other material as will assist them in their task, for example, setting out the legal issues which must be proved in order to reach their verdict.
CrimPD 8.5.3 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. While 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.
While in Lawson it was said that the judge was entitled to decline to provide the jury with written directions, even where they have been requested, it is now clear from CrimPD 8.5.3, and more recent pronouncements of the Court of Appeal that cases where written directions would not be required are very few, and that their provision should be the ‘norm’.
The expectation for written directions, incorporating a route to verdict, was further emphasised in Grant and their use ‘as a general rule’ is spelt out at CrimPR 25.14(3)(b).
the argument in favour of giving written directions as ‘overwhelming’ and gives further guidance on their use.
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 each point is dealt with.
Standard Directions
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 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 and suggested formats, rather than prescribed text for legal directions, it follows that the case law as to the appropriate form of directions on legal topics remains important.
In Hayes responding to a submission that the trial judge’s direction did not conform to a Judicial Studies Board model direction, stated:
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.
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 the judge is the final arbiter, and that relating to fact (summarising the evidence before them).
As regards the facts, the jury are the judges.
Therefore, if, in the course of the 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 mention of certain evidence which they consider important is omitted; or, conversely, something which they consider unimportant is stressed — in all such eventualities, it is the jury’s view which matters.
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.
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.
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 Bowditch 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 the accused, 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
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.
For the same reason, the judge should also summarise the evidence on a count-by-count rather than a witness-by-witness basis.
the Court of Appeal emphasised that where an accused faced multiple counts, the jury should be given clear direction as to whether, and if so in what way, evidence relating to one count was admissible in relation to consideration of any other. Where there was no cross-admissibility between counts this had to be made clear.
That such a direction was given was relied on by the Court of Appeal in Thomas in rejecting a claim that verdicts returned were inconsistent, underlining its importance.
Similarly, where there is more than one accused on trial, the jury should be directed to consider the case for and against each separately.
Where the allegation against the accused is one of joint participation, a direction of the kind suggested in the Crown Court Compendium, chs. 7-2, 7-3 and 7-4 ((Intended) Joint Venture), may be appropriate
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 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 second approach was advocated by Diplock LJ in Mowatt 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.
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.
Where an ingredient of an offence is a question of factual interpretation, it is incumbent on the judge to remind the jury of those facts relied on by the defence as arguing against that ingredient being established
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 or failure to give evidence.
Although not expected to identify every fact in relation to which an inference may be drawn, the judge is required to identify significant facts relied on and to remind the jury of any reason for silence advanced by the accused.
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.
(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.
(c) There was no requirement that the accused had specifically been asked about the fact that he had failed to mention in interview. The question was whether it was a fact that could reasonably have been mentioned.
(d) The direction given in relation to a failure to answer questions must address not only the reason advanced for the failure, but any other factors relevant to the jury’s assessment of it, e.g., the age of the accused.
Where such inferences should not be drawn, the jury should be specifically directed to that effect
