Jury summings-up should be binned, says judge

24 November 2010 by Adam Wagner

Updated | Juries are often being hindered by judges’ interventions, Lord Justice Moses has argued in the Annual Law Reform Lecture at Inner Temple.

In an illuminating and entertaining speech, he argued that many of the directions to juries are unhelpful and given in a “foreign tongue”, and that we should “no longer pretend that judges can assist a jury’s recollection by a recitation of the facts”.

His criticism of judge’s factual summaries, which they are required to give at the end of a trial and can sometimes last a whole day, is topical. A judge was recent censured for giving a politically biased summing up in a criminal damage trial relating to the 2008/9 Israel-Gaza war. The debate over the value of jury trials has also recently been reopened by recommendations by the Victims Commissioner that they should be used more sparingly.

The court of appeal judge began by identifying the problem:

It is the problem of how we help a jury reach a conclusion of guilt or innocence. We seem to have hit upon a system designed to ensure, in any but the simplest of cases, that the path we require them to follow should be as obscure, as tortuous and as arduous as could possibly be devised. The problem lies in the function of the judge and his role as guide, when he embarks on a summing-up.

The problem has, he argued, already been solved by Lord Justice Auld’s 2001 review, but “In the ensuing debate as to the right to trial by jury, important and clear recommendations as to procedure were forgotten.” He summed up the recommendations:

At the start of the trial the judge should explain the case and the issues to the jury, the nature of the charges…a brief narrative with the facts which are agreed and the facts which are likely to be required for decision…mindful of Professor Griew’s injunction in 1989 that the jury should be spared from the law, and ample research, Auld recommended that there should be a list of likely questions with little if any reference to the law. The judge should explain to the jury their function and the burden and standard of proof…he should provide them with a written case and issues summary prepared by the advocates and approved by him. He should remind them that the issues may narrow or widen, in which event the written summary may be changed.

He also goes further, proposing that defence counsel should be required to tell the jury what the defence is at the outset. As to the end of the trial:

Where the law requires the jury to treat a portion of the evidence in a certain way, with caution for example, or where the significance of the evidence may be unclear, the time to explain the proper approach to that evidence is the time when it has just been given, not weeks or months later. In a case of any length…more than a week…the judge should summarise in writing, with the help of the advocates, what has occurred thus far, a list of witnesses, a word or two as to what issue the evidence went to and any direction which has been given in relation to those witnesses.

Judges should simply forget about summing up the facts to the jury. It is unhelpful, takes too long and leaves the case open to appeal. Instead, at the end of the case, before counsels’ summing up, “the factual issues should be debated in court by counsel, resolved by the judge and the issues in the form of questions written down before speeches to the jury“. This would have “the advantage of reducing that moment in a trial which everyone dreads, the moment, sometimes after days of deliberation, when the jury appears to be stuck.”

There is a lot more in the lecture on the effectiveness and psychology of juries which is worth reading.

The jury system in England and Wales has been slowly diminished in recent years. Only serious criminal trials are now heard by juries, and almost all civil trials are heard by judges only.

In recent years the right has been eroded by legislation which allows for jury-less trials in exceptional circumstances such as when there is a real risk of jury intimidation. Justice Secretary Kenneth Clarke has said it is “unlikely” that the use of juryless trials “in extreme cases” will be scrapped.

The Lord Chief Justice has defended the system in a recent speech, arguing that “the jury system ensures that in our jurisdiction no one can be convicted of a serious crime or subjected to a lengthy term of imprisonment unless he has admitted his guilty in open and public court or a body of his fellow citizens has considered the evidence and satisfied itself on the basis of that evidence that they are sure of guilt.”

Lord Justice Moses’s full speech can be read here, and a (helpful!) summary here

Update, 24 November 2010 – Louise Christian, solicitor and co-founder of Christian Khan solicitors, has responded to the speech in the Guardian. She detects in Moses’s approach that he “would have preferred abolition of the jury trial and that “the respect” he wants to give juries is actually no such thing”. She also argues that his recommendations to do away with judges’ summings-up are “dangerous” as the questions-based approach would

afford the judge a wholly unconstitutional power to interpret the facts and how they relate to the final verdict and would disempower the jury to a very great degree.

But Lord Justice Moses’s proposal was that counsels for both the defence and prosecution would input into the questions, similar to how a join expert conference works in a clinical negligence case, where the questions are agreed between the parties in advance. This could, subject to a judge deciding to ignore the recommendations, solve the problem Ms Christian identifies. She goes on to explain why the system used in inquests would not be appropriate in criminal trials:

… above all, Moses shows no appreciation of the importance of the ordinary person deciding on the facts. Perhaps he should watch the film 12 Angry Men, which is a brilliant exposition of how juries’ discussions on the facts matter. Those of us involved in inquest work know only too well how frustrated juries often feel at only being allowed to answer the questions put to them, but of course the jury in an inquest is not allowed to reach decisions which result in people being sent to prison.

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