Thursday 1 February 2007
This week we turned our attention to juries and jury trial.
Jury qualification changed radically with the introduction of the Criminal Justice Act 2003. The category of ineligible for jury service was abolished, meaning that judges, lawyers, police etc. are eligible to serve on juries. Excusal as of right is also abolished, though for full-time serving members of the forces there is discretion to excuse from service if the commanding officer certifies that it would be prejudicial to the efficiency of the service. This means that doctors and other medical staff will no longer be able to refuse to do jury service, though they can apply for a discretionary excusal.
Disqualification remains the same, and includes:
Section 321 Criminal Justice Act 2003 states that a person may be summoned ofr jury service if:
A jury summons must be in writing and is properly served by post. The summons requires a juror to attend on a stated day at a stated Crown Court centre.
Jurors are entitled to travelling and subsistence expenses, and to some compensation for loss of earnings.
With the summons is served a notice setting out the rules on eligibility for jury service, the penalties for non-attendance and the availability of excusal from jury.
The jurors selected to make up the jury panel (the total number of jurors summoned on any day to a particular Crown Court centre) are selected at random from the electoral roll. The juror is selected to make up a jury panel which often substantially outnumbers those required. The panel is selected at random from the electoral roll.
There are Attorney General’s guidelines on jury checks, empanelling and challenges. The prosecuting counsel have for years had the right to require that a potential juror should “stand by” for the Crown. This right gives the Crown the opportunity to disqualify automatically any potential member of a jury. With the abolition of the defence right peremptorily to challenge a juror, the Attorney General issued guidelines concerning the use by the prosecuting counsel of “stand by”. That guideline in Paragraph 9 states that “no right of stand by” should be exercised by counsel for the Crown on the basis of information obtained as a result of an authorised check, save with the personal authority of the Attorney General. Further there must be a strong indication of the fact that the potential juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict.
One of the most important features of the Attorney General’s guidelines is that the use by prosecuting counsel of the right of “stand by” should be used sparingly and in exceptional circumstances.
In R v Thomas [1989] Otton J considered that he had a discretion to ensure that a racially mixed jury were empanelled where appropriate. In essence, where a case (for example) concerned an incident at a community centre principally catering for black people, a racially mixed jury might be thought appropriate, particularly so if it was thought that the police officers participating in the incident were racially motivated.
In order to select a trial jury from the jury panel a “jury in waiting” of twenty (sometimes more) is either in court to hear the accused’s plea or brought into court immediately after a not guilty plea. The clerk of court then calls out names at random (in order to comply with s11 JURIES ACT 1974 which requires the selection of a trial jury by ballot in open court), usually by reading the names from a previously shuffled pack of cards, each one bearing a juror’s name.
R v Comerford [1998] – a number can be allocated to jurors to protect their identity, in order to prevent witness intimidation.
Once twelve names have been selected by ballot the individuals are called forward to take the jury oath. It is at this stage, before being sworn in as a juror, that the prosecution may ask a juror to “stand by” or the defence may seek to object showing cause as to why a juror should not sit. In the event of a successful defence challenge to a juror, or a “stand by”, a replacement is drawn from the jury in waiting.
Both the prosecution and the defence may challenge for cause; this is done orally and the application must be made before the juror is sworn (s12(3) JURIES ACT 1974). The party making the challenge carries the burden of proving to the judge that:
1. the juror is not qualified to serve; or
2. that be is biased; or
3. that he may reasonably be suspected of bias - R v Kray and Others [1969].
In the United States counsel are permitted to examine potential jurors as to their belief and knowledge of the case before deciding whether or not to challenge. In Britain this is most unusual (see the peculiar facts of R v Kray [1969] (below)) and is allowable (at the trial judge’s discretion) only if the challenging party can adduce prima facie evidence pointing towards a reasonable suspicion of bias.
The trial judge has a discretion to exclude a juror, even though neither party raises an objection, for example because of deafness, reading difficulty or infirmity.
Either party can challenge the whole jury panel; this is known as a “challenge to the array” and is allowed by s12(6) JURIES ACT 1974. The grounds are that the summoning officer was biased or might reasonably be suspected of bias. It hasn’t happened in well over 100 years!
If a procedural error occurs in the empanelling process and goes uncorrected, this is unlikely to provide a ground of appeal to a convicted defendant. Section 18 JURIES ACT 1974 prevents the quashing of a conviction solely because:
1. the Act’s summoning, empanelling or selection rules have not been complied with; or
2. a juror was not qualified; or
3. a juror was misnamed or wrongly described; or
4. a juror was unfit to serve.
The Court of Appeal has indicated its reluctance to interfere even where s18 does not apply – R v Box [1964] – juror biased by knowledge of the appellants’ previous convictions and bad character - appeal dismissed.
The trial judge has a discretionary power to discharge up to three jurors during the course of the trial. This discretion must be exercised judicially and is subject to review only on jurisdictional grounds.
s16 JURIES ACT 1974 provides that if a juror dies or is discharged by the judge, the remainder of the jury may continue to hear the case and return a verdict, provided that their number does not drop below nine.
s16 permits the judge to discharge a juror on grounds of illness rendering him incapable of continuing to act as a juror or “for any other good reason”.
In trials for murder only, proceedings may continue with less than twelve jurors only if both the prosecution and the defence give their written consent, s16(2) JURIES ACT 1974.
The trial judge has a discretion to discharge the whole jury. He must discharge the jury if a death or his decision to discharge a juror causes its number to drop below nine; otherwise he has a judicial discretion.
The circumstances in which the judge is likely to discharge the whole jury are:
1. where a juror has misconducted himself by talking to a prosecution witness (if he has thus discovered prejudicial material, the entire jury should be discharged unless he has had no opportunity to influence his co-jurors) – R v Sawyer [1980];
2. where the judge considers it better to empanel a fresh jury than to continue with fewer than twelve;
3. where inadmissible evidence prejudicial to the accused (or one of several accused’s) has accidentally been presented in the jury’s presence – R v Weaver [1968]; and
4. where the jury are unable to agree on their verdict.
THE PROSECUTION CASE.
The obligation upon the prosecuting counsel is to be the “minister of justice and not an advocate for his cause”. Having regard to this obligation, prosecuting counsel makes an opening speech to the jury after they have been empanelled. He outlines the facts of the case, explains relevant points of law, although always indicating that the judge is the sole arbiter when matters of law are raised and explains who his witnesses are and what he anticipates they will say in general terms. In particular in cases of fraud, opening speeches do take considerable time. It is not uncommon in more complicated cases for prosecuting counsel to take two or three days in opening a case to the jury. It is customary to outline the pieces of evidence which are to be called and explain how they will fit together to give a picture of the guilt of the accused. In cases where the evidence which the prosecution propose to call is either circumstantial, or is based on forensic evidence in the form of expert evidence from the Home Office laboratories or medical evidence, it is customary to detail the facts and then draw them together to show how the prosecution allege that the accused is guilty.
Where the defence objects to prosecution evidence on the grounds that it is not admissible, the question of admissibility is decided by the judge in the absence of the jury, so that if the evidence is found to be inadmissible the jury cannot have been prejudiced by hearing it. This procedure is known as a trial on the voir dire and it occurs most commonly with objections under ss 76 and 78 PACE 1984, though is not confined to those situations. We will look at this point more fully later.
It is important to remember that if the defence has indicated at any time that it will object to the admissibility of any evidence in the prosecution case, the prosecution counsel must not refer to these things in front of the jury before the judge has rule on their admissibility, which he will normally do when the item of evidence in question is reached. It is not unusual to find the issue of admissibility now dealt with at the outset of the case to enable the judge to rule on admissibility, and thereafter let the prosecution case be opened on the basis that the judge has already ruled as to admissibility and therefore the jury are not inconvenienced by repeated adjournments when matters of law are raised. It is further important to note the provisions of ss 76 and 78 PACE.
Prosecuting counsel should not use emotive language, however unpleasant or sensational the crime, nor should he play on the jury’s feelings. Prosecuting counsel should also detail the burden and standard of proof and indicate to the jury on whom the burden rests. It is not uncommon therefore for prosecuting counsel to open the case in this way:
“It is the prosecution who bring this case and it is the prosecution who have the burden satisfy you so that you are sure that the Defendant is guilty of this offence. If you are unsure then the defendant is entitled to the benefit of the doubt.”
Prosecuting counsel should also deal with the burden of proof on other issues.
Prosecution counsel will then call his witnesses to give evidence. There is no particular order required in which he will call his witnesses although the normal order will be to call the complainant first and then perhaps the police officer in charge of the case before calling other witnesses. He should in principle call all the witnesses whose evidence is in dispute. If the evidence of other witnesses has been served in the form of statements taken under s9 CRIMINAL JUSTICE ACT 1967 and no objection has been taken by the defence (i.e. purely non-controversial evidence, or formal continuity evidence) their evidence can be read out or the witness statements, if necessary, tendered to the jury to read. Each witness will in turn rake the oath, be examined in chief, cross-examined by the defence advocate and sometimes re-examined by the prosecutor. The exact nature of the examination in chief, cross-examination and re-examination is dealt with later in the text. Also dealt with later in the text are the provisions of s23 CRIMINAL JUSTICE ACT. By s23 CRIMINAL JUSTICE ACT 1988:
a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if
(i) requirements of sub-section (3) are satisfied
(ii) the requirements mentioned in sub-section (1) (ii) are…
(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and
(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way”.
Seeing the judge in his room. In R v Pitman [1991] the Lord Chief Justice again re-emphasised how undesirable it was for counsel to see a judge in his private room. The appellant pleaded guilty to causing death by reckless driving. He was sentenced to nine months’ imprisonment and disqualified for four years. He had also been committed to the Crown Court for an offence of excess alcohol for which be had been sentenced to six months’ imprisonment without its being ordered to run concurrently. The Lord Chief Justice said:
“… a first principle of criminal law was that justice was done in public, for all to see and hear”.
By that standard, a meeting in the judge’s room was anomalous, the essence and, indeed, the purpose being that neither the defendant nor the jury nor the public were there to hear what was going on.
The leading authority on a submission of no case to answer is the Court of Appeal decision in R v Galbraith [1981]. In this case it was stated that a judge should accede to a submission of “no case” if:
(1) there is no evidence that the crime alleged has been committed by the defendant;
(2) there is some evidence, but it is of a weak or tenuous character;
(3) the judge concludes that the prosecution case, taken at its best, is such that a jury, properly directed, could not properly convict on it.
It needs to be remembered that the accused is not obliged to give evidence and therefore the defence is not obliged to call any evidence. Even if the judge has ruled against it on a submission of “no case to answer”, the defence is perfectly entitled to call no witnesses, but merely to make a closing speech, the nature of which is referred to hereafter.
If defence counsel is going to call evidence as to the facts of the case to make an opening speech to the jury, this speech will have the same nature as that of a prosecution opening speech in that he will outline the evidence he is about to call and perhaps comment on the prosecution evidence that has been heard so far, stating how his own evidence will go to rebut it.
Thereafter the defence witnesses will be called. If the accused is to testify then he should usually be called before his witnesses. If there are a number of accused persons on the indictment then the practice is that each gives evidence in accordance with the order appearing on the indictment. Thus if there are three defendants A, B and C facing a charge of theft and they appear in that order on the indictment, defendant A will give evidence first and thereafter call his witnesses. The further defendants will then be called and call their witnesses in like manner. The same procedure follows in relation to the order and manner of examination in chief, cross-examining and re-examination. Defence counsel examines his witness who is then cross-examined by prosecuting counsel and, if desired, by counsel for the other defendants. The defence counsel is then entitled to re-examine on matters raised in the course of cross-examination.
After the last defence witness has been stood down, it is the task of counsel for both the prosecution and the defence to make closing speeches. The nature of these speeches, in which defence counsel has the last word, is to summarise the nature of the evidence that the jury has heard. This can of necessity be rather boring for the jury and calls for advocacy skills on the part of the counsel addressing the jury. In a relatively short period of time a jury may well have to listen to two or more opening speeches, a number of witnesses to the same incident giving similar evidence, and then listen to counsel summarising what they have heard. In the course of making their speeches the prosecution will obviously emphasise points in their favour. Defence counsel may suggest to the jury inconsistencies, improbabilities and other weaknesses in the prosecution case. If, for example, prosecution witnesses have previous convictions and the defendant none then reference to this may well be made by defence counsel, suggesting that their credibility is such that they cannot be believed. Defence counsel may well refer to the way prosecuting counsel in his opening speech referred to how the evidence would unfold, and if there were differences between the account given at the outset of the trial and the evidence that has emerged, the emphasis may be placed on this. In an identification case the quality of the identification evidence will figure largely in both the prosecution and defence counsels’ speeches and the directions to be found in the case of R v Turnbull will be advanced to the jury by the respective advocates.
The judge then sums-up, directing the jury on the law and assisting them in considering the facts. The way in which judges do this varies considerably although in the course of judges’ training considerable attention is paid to how to sum-up to a jury. Some judges go to considerable lengths to withhold their own feelings about a case from the jury whilst others appear to make little secret of the way in which they view the evidence. It is essential, however, that the judge stresses repeatedly. in an appropriate case, that it is for the jury to decide on the facts. The following are the essential matters for the judicial summing-up:
(1) an explanation by the judge that the jury are the sole arbiters of fact but that they must accept what he directs them on the law;
(2) a clear direction on the burden and standard of proof (see later section on evidence, Chapter 18);
(3) a legal definition of the offence charged including an examination of all the ingredients in it;
(4) an examination of the evidence called. This should take the form of a stressing of the important parts together with any clear “technical” direction on specific matters of evidence.
The judge may go on to make his own comments on the witnesses whom the jury have seen (or not seen). He may, as counsel might have done in their closing speeches, suggest implausibility’s or answers which seem foolish; he may suggest motives of witnesses for lying and examine the factual circumstances to cast doubt on their evidence (e.g. that an eye-witness was actually standing 50 yards from the accused whom he purports to have identified correctly). Likewise the judge may comment on the failure of the accused to testify, although this must be done very carefully. Excessive comment in the nature of “don’t innocent men usually want to go into the witness box to give their own version - draw your own conclusions from his failure to do so” may lead to any conviction being quashed, but more limited comment is now permissible under s35 CJPOA 1994. This provides that a court or jury may “draw such inferences as appear proper” from the accused’s failure to give evidence or his refusal without good cause to answer any question.
There must be a clear direction in the case of a trial involving more than one defendant to treat the facts and evidence entirely separately in relation to each of the accused persons. An illustration of the kind of direction a trial judge gives can be found in the case of R v Ghosh [1982]. In this case, dealing with the issue of dishonesty, the judge said that whether a person acted dishonestly was a subjective test, but the standard of honesty to be applied was that of a reasonable and honest man and not the accused, and accordingly the jury should first consider whether the defendant had acted dishonestly by the standards of ordinary or decent people and, if they found that he had, then they had to consider whether the accused himself must have realised that what he was doing was by those standards dishonest.
Where the defendant is of good character the judge must give them a direction as to its relevance: R v Vye and Others [1993].
In R v Boyes [1991] B was convicted of rape and indecent assault. As the judge concluded his summing-up there was an outburst from the gallery from the mother of the complainant, alleging that four or five other girls had been attacked by B. The judge told the jury not to pay any attention to the outburst but to continue with their deliberations.
On appeal B’s convictions were quashed: the judge should not have referred at all to the fact that there had been other (unsubstantiated) complaints against B. If the jury had heard the outburst from the gallery, he should have considered ordering a fresh trial.
We will resume with the verdict next week.
Jury qualification changed radically with the introduction of the Criminal Justice Act 2003. The category of ineligible for jury service was abolished, meaning that judges, lawyers, police etc. are eligible to serve on juries. Excusal as of right is also abolished, though for full-time serving members of the forces there is discretion to excuse from service if the commanding officer certifies that it would be prejudicial to the efficiency of the service. This means that doctors and other medical staff will no longer be able to refuse to do jury service, though they can apply for a discretionary excusal.
Disqualification remains the same, and includes:
- Mentally disordered persons
- People on bail
- People sentenced to life imprisonment
Section 321 Criminal Justice Act 2003 states that a person may be summoned ofr jury service if:
- He is registered on the electoral role
- He is between the ages of 18-70 years
- He has bee resident in the UK for 5 years since the age of 13 yrs
- He is not mentally disordered
- He is not disqualified
A jury summons must be in writing and is properly served by post. The summons requires a juror to attend on a stated day at a stated Crown Court centre.
Jurors are entitled to travelling and subsistence expenses, and to some compensation for loss of earnings.
With the summons is served a notice setting out the rules on eligibility for jury service, the penalties for non-attendance and the availability of excusal from jury.
The jurors selected to make up the jury panel (the total number of jurors summoned on any day to a particular Crown Court centre) are selected at random from the electoral roll. The juror is selected to make up a jury panel which often substantially outnumbers those required. The panel is selected at random from the electoral roll.
There are Attorney General’s guidelines on jury checks, empanelling and challenges. The prosecuting counsel have for years had the right to require that a potential juror should “stand by” for the Crown. This right gives the Crown the opportunity to disqualify automatically any potential member of a jury. With the abolition of the defence right peremptorily to challenge a juror, the Attorney General issued guidelines concerning the use by the prosecuting counsel of “stand by”. That guideline in Paragraph 9 states that “no right of stand by” should be exercised by counsel for the Crown on the basis of information obtained as a result of an authorised check, save with the personal authority of the Attorney General. Further there must be a strong indication of the fact that the potential juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict.
One of the most important features of the Attorney General’s guidelines is that the use by prosecuting counsel of the right of “stand by” should be used sparingly and in exceptional circumstances.
In R v Thomas [1989] Otton J considered that he had a discretion to ensure that a racially mixed jury were empanelled where appropriate. In essence, where a case (for example) concerned an incident at a community centre principally catering for black people, a racially mixed jury might be thought appropriate, particularly so if it was thought that the police officers participating in the incident were racially motivated.
In order to select a trial jury from the jury panel a “jury in waiting” of twenty (sometimes more) is either in court to hear the accused’s plea or brought into court immediately after a not guilty plea. The clerk of court then calls out names at random (in order to comply with s11 JURIES ACT 1974 which requires the selection of a trial jury by ballot in open court), usually by reading the names from a previously shuffled pack of cards, each one bearing a juror’s name.
R v Comerford [1998] – a number can be allocated to jurors to protect their identity, in order to prevent witness intimidation.
Once twelve names have been selected by ballot the individuals are called forward to take the jury oath. It is at this stage, before being sworn in as a juror, that the prosecution may ask a juror to “stand by” or the defence may seek to object showing cause as to why a juror should not sit. In the event of a successful defence challenge to a juror, or a “stand by”, a replacement is drawn from the jury in waiting.
Both the prosecution and the defence may challenge for cause; this is done orally and the application must be made before the juror is sworn (s12(3) JURIES ACT 1974). The party making the challenge carries the burden of proving to the judge that:
1. the juror is not qualified to serve; or
2. that be is biased; or
3. that he may reasonably be suspected of bias - R v Kray and Others [1969].
In the United States counsel are permitted to examine potential jurors as to their belief and knowledge of the case before deciding whether or not to challenge. In Britain this is most unusual (see the peculiar facts of R v Kray [1969] (below)) and is allowable (at the trial judge’s discretion) only if the challenging party can adduce prima facie evidence pointing towards a reasonable suspicion of bias.
The trial judge has a discretion to exclude a juror, even though neither party raises an objection, for example because of deafness, reading difficulty or infirmity.
Either party can challenge the whole jury panel; this is known as a “challenge to the array” and is allowed by s12(6) JURIES ACT 1974. The grounds are that the summoning officer was biased or might reasonably be suspected of bias. It hasn’t happened in well over 100 years!
If a procedural error occurs in the empanelling process and goes uncorrected, this is unlikely to provide a ground of appeal to a convicted defendant. Section 18 JURIES ACT 1974 prevents the quashing of a conviction solely because:
1. the Act’s summoning, empanelling or selection rules have not been complied with; or
2. a juror was not qualified; or
3. a juror was misnamed or wrongly described; or
4. a juror was unfit to serve.
The Court of Appeal has indicated its reluctance to interfere even where s18 does not apply – R v Box [1964] – juror biased by knowledge of the appellants’ previous convictions and bad character - appeal dismissed.
The trial judge has a discretionary power to discharge up to three jurors during the course of the trial. This discretion must be exercised judicially and is subject to review only on jurisdictional grounds.
s16 JURIES ACT 1974 provides that if a juror dies or is discharged by the judge, the remainder of the jury may continue to hear the case and return a verdict, provided that their number does not drop below nine.
s16 permits the judge to discharge a juror on grounds of illness rendering him incapable of continuing to act as a juror or “for any other good reason”.
In trials for murder only, proceedings may continue with less than twelve jurors only if both the prosecution and the defence give their written consent, s16(2) JURIES ACT 1974.
The trial judge has a discretion to discharge the whole jury. He must discharge the jury if a death or his decision to discharge a juror causes its number to drop below nine; otherwise he has a judicial discretion.
The circumstances in which the judge is likely to discharge the whole jury are:
1. where a juror has misconducted himself by talking to a prosecution witness (if he has thus discovered prejudicial material, the entire jury should be discharged unless he has had no opportunity to influence his co-jurors) – R v Sawyer [1980];
2. where the judge considers it better to empanel a fresh jury than to continue with fewer than twelve;
3. where inadmissible evidence prejudicial to the accused (or one of several accused’s) has accidentally been presented in the jury’s presence – R v Weaver [1968]; and
4. where the jury are unable to agree on their verdict.
THE PROSECUTION CASE.
The obligation upon the prosecuting counsel is to be the “minister of justice and not an advocate for his cause”. Having regard to this obligation, prosecuting counsel makes an opening speech to the jury after they have been empanelled. He outlines the facts of the case, explains relevant points of law, although always indicating that the judge is the sole arbiter when matters of law are raised and explains who his witnesses are and what he anticipates they will say in general terms. In particular in cases of fraud, opening speeches do take considerable time. It is not uncommon in more complicated cases for prosecuting counsel to take two or three days in opening a case to the jury. It is customary to outline the pieces of evidence which are to be called and explain how they will fit together to give a picture of the guilt of the accused. In cases where the evidence which the prosecution propose to call is either circumstantial, or is based on forensic evidence in the form of expert evidence from the Home Office laboratories or medical evidence, it is customary to detail the facts and then draw them together to show how the prosecution allege that the accused is guilty.
Where the defence objects to prosecution evidence on the grounds that it is not admissible, the question of admissibility is decided by the judge in the absence of the jury, so that if the evidence is found to be inadmissible the jury cannot have been prejudiced by hearing it. This procedure is known as a trial on the voir dire and it occurs most commonly with objections under ss 76 and 78 PACE 1984, though is not confined to those situations. We will look at this point more fully later.
It is important to remember that if the defence has indicated at any time that it will object to the admissibility of any evidence in the prosecution case, the prosecution counsel must not refer to these things in front of the jury before the judge has rule on their admissibility, which he will normally do when the item of evidence in question is reached. It is not unusual to find the issue of admissibility now dealt with at the outset of the case to enable the judge to rule on admissibility, and thereafter let the prosecution case be opened on the basis that the judge has already ruled as to admissibility and therefore the jury are not inconvenienced by repeated adjournments when matters of law are raised. It is further important to note the provisions of ss 76 and 78 PACE.
Prosecuting counsel should not use emotive language, however unpleasant or sensational the crime, nor should he play on the jury’s feelings. Prosecuting counsel should also detail the burden and standard of proof and indicate to the jury on whom the burden rests. It is not uncommon therefore for prosecuting counsel to open the case in this way:
“It is the prosecution who bring this case and it is the prosecution who have the burden satisfy you so that you are sure that the Defendant is guilty of this offence. If you are unsure then the defendant is entitled to the benefit of the doubt.”
Prosecuting counsel should also deal with the burden of proof on other issues.
Prosecution counsel will then call his witnesses to give evidence. There is no particular order required in which he will call his witnesses although the normal order will be to call the complainant first and then perhaps the police officer in charge of the case before calling other witnesses. He should in principle call all the witnesses whose evidence is in dispute. If the evidence of other witnesses has been served in the form of statements taken under s9 CRIMINAL JUSTICE ACT 1967 and no objection has been taken by the defence (i.e. purely non-controversial evidence, or formal continuity evidence) their evidence can be read out or the witness statements, if necessary, tendered to the jury to read. Each witness will in turn rake the oath, be examined in chief, cross-examined by the defence advocate and sometimes re-examined by the prosecutor. The exact nature of the examination in chief, cross-examination and re-examination is dealt with later in the text. Also dealt with later in the text are the provisions of s23 CRIMINAL JUSTICE ACT. By s23 CRIMINAL JUSTICE ACT 1988:
a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if
(i) requirements of sub-section (3) are satisfied
(ii) the requirements mentioned in sub-section (1) (ii) are…
(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and
(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way”.
Seeing the judge in his room. In R v Pitman [1991] the Lord Chief Justice again re-emphasised how undesirable it was for counsel to see a judge in his private room. The appellant pleaded guilty to causing death by reckless driving. He was sentenced to nine months’ imprisonment and disqualified for four years. He had also been committed to the Crown Court for an offence of excess alcohol for which be had been sentenced to six months’ imprisonment without its being ordered to run concurrently. The Lord Chief Justice said:
“… a first principle of criminal law was that justice was done in public, for all to see and hear”.
By that standard, a meeting in the judge’s room was anomalous, the essence and, indeed, the purpose being that neither the defendant nor the jury nor the public were there to hear what was going on.
The leading authority on a submission of no case to answer is the Court of Appeal decision in R v Galbraith [1981]. In this case it was stated that a judge should accede to a submission of “no case” if:
(1) there is no evidence that the crime alleged has been committed by the defendant;
(2) there is some evidence, but it is of a weak or tenuous character;
(3) the judge concludes that the prosecution case, taken at its best, is such that a jury, properly directed, could not properly convict on it.
It needs to be remembered that the accused is not obliged to give evidence and therefore the defence is not obliged to call any evidence. Even if the judge has ruled against it on a submission of “no case to answer”, the defence is perfectly entitled to call no witnesses, but merely to make a closing speech, the nature of which is referred to hereafter.
If defence counsel is going to call evidence as to the facts of the case to make an opening speech to the jury, this speech will have the same nature as that of a prosecution opening speech in that he will outline the evidence he is about to call and perhaps comment on the prosecution evidence that has been heard so far, stating how his own evidence will go to rebut it.
Thereafter the defence witnesses will be called. If the accused is to testify then he should usually be called before his witnesses. If there are a number of accused persons on the indictment then the practice is that each gives evidence in accordance with the order appearing on the indictment. Thus if there are three defendants A, B and C facing a charge of theft and they appear in that order on the indictment, defendant A will give evidence first and thereafter call his witnesses. The further defendants will then be called and call their witnesses in like manner. The same procedure follows in relation to the order and manner of examination in chief, cross-examining and re-examination. Defence counsel examines his witness who is then cross-examined by prosecuting counsel and, if desired, by counsel for the other defendants. The defence counsel is then entitled to re-examine on matters raised in the course of cross-examination.
After the last defence witness has been stood down, it is the task of counsel for both the prosecution and the defence to make closing speeches. The nature of these speeches, in which defence counsel has the last word, is to summarise the nature of the evidence that the jury has heard. This can of necessity be rather boring for the jury and calls for advocacy skills on the part of the counsel addressing the jury. In a relatively short period of time a jury may well have to listen to two or more opening speeches, a number of witnesses to the same incident giving similar evidence, and then listen to counsel summarising what they have heard. In the course of making their speeches the prosecution will obviously emphasise points in their favour. Defence counsel may suggest to the jury inconsistencies, improbabilities and other weaknesses in the prosecution case. If, for example, prosecution witnesses have previous convictions and the defendant none then reference to this may well be made by defence counsel, suggesting that their credibility is such that they cannot be believed. Defence counsel may well refer to the way prosecuting counsel in his opening speech referred to how the evidence would unfold, and if there were differences between the account given at the outset of the trial and the evidence that has emerged, the emphasis may be placed on this. In an identification case the quality of the identification evidence will figure largely in both the prosecution and defence counsels’ speeches and the directions to be found in the case of R v Turnbull will be advanced to the jury by the respective advocates.
The judge then sums-up, directing the jury on the law and assisting them in considering the facts. The way in which judges do this varies considerably although in the course of judges’ training considerable attention is paid to how to sum-up to a jury. Some judges go to considerable lengths to withhold their own feelings about a case from the jury whilst others appear to make little secret of the way in which they view the evidence. It is essential, however, that the judge stresses repeatedly. in an appropriate case, that it is for the jury to decide on the facts. The following are the essential matters for the judicial summing-up:
(1) an explanation by the judge that the jury are the sole arbiters of fact but that they must accept what he directs them on the law;
(2) a clear direction on the burden and standard of proof (see later section on evidence, Chapter 18);
(3) a legal definition of the offence charged including an examination of all the ingredients in it;
(4) an examination of the evidence called. This should take the form of a stressing of the important parts together with any clear “technical” direction on specific matters of evidence.
The judge may go on to make his own comments on the witnesses whom the jury have seen (or not seen). He may, as counsel might have done in their closing speeches, suggest implausibility’s or answers which seem foolish; he may suggest motives of witnesses for lying and examine the factual circumstances to cast doubt on their evidence (e.g. that an eye-witness was actually standing 50 yards from the accused whom he purports to have identified correctly). Likewise the judge may comment on the failure of the accused to testify, although this must be done very carefully. Excessive comment in the nature of “don’t innocent men usually want to go into the witness box to give their own version - draw your own conclusions from his failure to do so” may lead to any conviction being quashed, but more limited comment is now permissible under s35 CJPOA 1994. This provides that a court or jury may “draw such inferences as appear proper” from the accused’s failure to give evidence or his refusal without good cause to answer any question.
There must be a clear direction in the case of a trial involving more than one defendant to treat the facts and evidence entirely separately in relation to each of the accused persons. An illustration of the kind of direction a trial judge gives can be found in the case of R v Ghosh [1982]. In this case, dealing with the issue of dishonesty, the judge said that whether a person acted dishonestly was a subjective test, but the standard of honesty to be applied was that of a reasonable and honest man and not the accused, and accordingly the jury should first consider whether the defendant had acted dishonestly by the standards of ordinary or decent people and, if they found that he had, then they had to consider whether the accused himself must have realised that what he was doing was by those standards dishonest.
Where the defendant is of good character the judge must give them a direction as to its relevance: R v Vye and Others [1993].
In R v Boyes [1991] B was convicted of rape and indecent assault. As the judge concluded his summing-up there was an outburst from the gallery from the mother of the complainant, alleging that four or five other girls had been attacked by B. The judge told the jury not to pay any attention to the outburst but to continue with their deliberations.
On appeal B’s convictions were quashed: the judge should not have referred at all to the fact that there had been other (unsubstantiated) complaints against B. If the jury had heard the outburst from the gallery, he should have considered ordering a fresh trial.
We will resume with the verdict next week.
posted by John Robotham at 3:20 AM
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