Crown Court Trial Part 3
SUMMING-UP, JURY RETIREMENT & VERDICT
There are two parts to a judge’s summing-up:
- Part 1 - legal directions;
- Part 2 - a summary of the evidence in the case, including the prosecution and defence cases.
A judge is entitled to give the first part of the summing-up (legal directions) before closing speeches if (s)he thinks it will assist the jury.
SUMMING-UP PART 1 – Legal Directions
Standard Legal Directions
The judge will always give theses standard legal directions:
1.Functions of the judge and jury
The judge and jury have different functions: the judge gives directions on matters of law which the jury must accept and apply to the case; the jury assess the evidence and make decisions on the facts of the case. As such the judge is ‘the judge of the law’ and the jury are ‘the judges of the facts’.
The judge will say that if (s)he appears to express an opinion or emphasise any particular matter, the jury can adopt it if they agree with it but should feel free to reject it if they do not. Similarly if the judge does not mention something which the jury consider important they should take it into account, because the facts of the case are for the jury alone.
2. Burden and standard of proof
"The prosecution bring the case and the prosecution must prove it. This is the burden of proof. The defendant does not have to prove his innocence"
The prosecution bring the case and the prosecution must prove it. This is the burden of proof. The defendant does not have to prove his innocence.
The prosecution can succeed in proving the defendant is guilty of the offence(s) charged by making the members of the jury satisfied so that they are sure of his guilt. Nothing less will do. This is the standard of proof. If after considering all the evidence the jury are sure of guilt the verdict must be Guilty; if they are not sure the verdict must be Not Guilty. The term ‘beyond reasonable doubt’ is rarely used in the Crown Court but being 'satisfied so that you are sure' of guilt means the same.
3. Separate consideration of counts
Where the defendant faces more than one charge (count) each count must be considered separately. The verdict on each count need not be the same, although in some cases, depending on the precise facts, it might be difficult for different verdicts on multiple counts to be reached.
4. Separate consideration of defendants
Where there is more than one defendant in a trial, the case for and against each defendant must be considered separately. The verdict for each defendant need not be the same, although (as with separate consideration of each count) in some cases, depending on the precise facts of the case, it might be difficult for different verdicts to be reached for each defendant.
5. Elements of offence(s)
"Every criminal offence is made up of individual elements. The jury will have to be sure of all the elements of each offence to find the defendant guilty"
Every criminal offence is made up of individual elements. The jury will have to be sure of all the elements of each offence to find the defendant guilty.
For example, if a defendant is charged with Assault Occasioning Actual Bodily Harm (ABH) (an offence contrary to section 47 of the Offences Against the Person Act 1861), to convict the defendant the jury will have to be satisfied of all the elements of this offence:
1. That the defendant assaulted the complainant (the alleged victim); and
2. That the assault caused actual bodily harm.
The jury will then need to be told what an ‘assault’ is and what ‘actual bodily harm’ is:
3. An assault means an intentional or reckless application of unlawful force to the complainant;
4. Recklessness means that the defendant realised the complainant might be subjected to unlawful force (however slight) as a result of what he was about to do and yet took the risk that that might happen;
5. Actual Bodily Harm means some actual or bodily injury; it need not be serious or permament but must be more than transient or trifling.
Focus on the issues
"A summing-up (and a whole case) can be simplified by allowing the jury to focus on the relevant issue or issues"
You can see that something quite simple now seems complicated, particularly if the jury have to wrestle with the concept of what recklessness is. Often, however, it will not be necessary to go into detail over every element of a criminal offence. Instead, the judge will simplify matters by focusing on the areas of dispute (the issues) in the case.
For example, in a case of ABH the defendant might accept the defendant was assaulted and that the assault caused injury (actual bodily harm), but his defence might be that he was mistakenly identified as the assailant, when in fact it was someone else that walked up to the complainant and punched him hard in the face causing a black eye.
In these circumstances the jury would be told that it was accepted that the complainant was assaulted (an intentional punch to the face) and that actual bodily harm was caused (a black eye). The only obvious issue for their consideration would be whether they were sure that the defendant was the assailant. If they were sure the verdict must be Guilty; if less than sure it must be Not Guilty.
This illustrates how a summing-up (and a whole case) can be simplified by allowing the jury to focus on the relevant issue or issues.
"It is common sense that a fair summing-up should include not only an explanation of the charge(s) the defendant faces but also an explanation of his defence to the charge(s)"
It is common sense that a fair summing-up should include not only an explanation of the charge(s) the defendant faces but also an explanation of his defence to the charge(s).
As referred to above, knowing what the precise defence to a charge is allows the judge to focus on the issues in the case.
For example, on a charge of ABH the defence might be identification, or it might be self-defence (such as where a defendant says he was about to be attacked so he threw a punch to defend himself). If the defence is identification (as in the example above) the only real issue for the jury is whether they can be sure the defendant is the person who threw the punch.
If the defence is self-defence the defendant will probably accept punching the complainant and causing his injury, but will assert that he acted to protect himself, therefore the force he used was lawful. In these circumstances the judge will give a clear explanantion of the defence of self-defence and inform the jury that, given the burden and standard of proof, the prosecution must make them sure the defendant was not acting in self-defence before they can find him guilty of the offence of ABH (because the prosecution must prove the defendant was using unlawful violence).
7. Route to verdict
Sometimes there can be a lot to take in during a summing-up. Even explaining the elements of the offence of Assault Occasioning Actual Bodily Harm can seem complex. It can also be a daunting task for a jury to remember detailed legal directions.
To avoid confusion and uncertainty, the jury will be provided with what is known as a written ‘route to verdict’, i.e. a series of questions for the jury to work through, the answers to which will guide the jury to their verdict. Such a written route should be provided except in cases which are so straightforward it would be unnecessary.
An example of a simple written Route to Verdict is as follows:
Illustration – Route to Verdict – ABH
Imagine a case where the defendant (D) is accused of punching the complainant (C) in the face causing bruising and reddening around the eye. D is charged with Assault Occasioning Actual Bodily Harm (ABH). D denies the offence saying he was play-fighting with a friend close to where C was standing; he denies ever landing a punch on C but says that if he did it was an accident and was neither intentional nor reckless. D also says that even if he did punch C he caused him no injury. A potential route to verdict document for the jury could look like this:
- Question (1) Are you sure D punched C in the face? If yes, go to Q.(2); if no, go to (A)
- Question (2) Are you sure D punched C intentionally? If Yes, go to Q.(4); if no, go to Q.(3)
- Question (3) Are you sure D punched C recklessly (meaning he realised C might be subjected to unlawful force (however slight) as a result of what he was about to do and yet took the risk that that might happen)? If yes go to Q(4); if no go to (A)
- Question (4) Are you sure D’s punch caused C actual bodily harm (bruising and reddening around the eye)? If yes go to (B); If no go to (A)
- (A) Your verdict is Not Guilty
- (B) Your verdict is Guilty
There are a number of examples of written directions and routes to verdict in The Crown Court Compendium - Part 1 Jury and Trial Management and Summing Up Appendix 1 on the judiciary.gov.uk website. This can also be found in the Crown Court Trial Further Information section on this website.
Further Common Legal Directions Before the Jury Retire
The judge will give further directions of law depending on the circumstances of the case. Common legal directions given to juries include how to approach:
- Alternative verdicts – often the prosecution include lesser charges on the indictment as alternatives to more serious charges, e.g. grievous bodily harm with intent/grievous bodily harm, or Possession of Drugs With Intent to Supply/Possession of Drugs;
- Circumstantial evidence;
- Adverse inferences from silence (such as failure to mention relevant facts during questioning which are relied on at trial, or failure to give evidence/refusing to answer questions during evidence);
- The good character of a defendant (i.e. a defendant who has no previous convictions or no alleged previous misconduct);
- The bad character of a defendant (i.e. a defendant whose previous convictions or previous misconduct are relied upon by the prosecution);
- Proved or admitted lies told by a defendant;
- Delay in a case being prosecuted;
- Cases involving disputed eye-witness identification;
- Joint enterprise (the principles of joint responsibility for criminal offences).
SUMMING-UP PART 2 – Summary of the Evidence
After giving the legal directions the judge will summarise the evidence. This should not involve reading out a note of everything the jury have already heard, but rather should be a summary of the evidence relied upon by both sides relevant to the issues in the case that require the jury’s consideration. A good summing-up of the evidence will help to clarify the issues in the minds of the jury.
Final Directions Before Retirement
The judge will give two final directions before the jury retires to consider its verdict: First, the only verdict that can be received on each count is a unanimous verdict and they should put any thoughts of a majority verdict out of their minds unless and until they receive a further direction from the judge. Secondly, they will be told to select one of their number to act as the foreman (a man or a woman) who will not only deliver the verdict(s) in court but can chair their discussions in the jury room.
The jury will also be informed that during their retirement any exhibits they wish to see will be made available to them.
The jury bailiffs (who up until that moment will have been court ushers) are then sworn to take the jury 'to some private and convenient place' and neither to allow anyone to speak to them nor to speak to the jury themselves, unless it is ‘to ask if they are agreed upon their verdict.’
The jury then retire and are taken to a private room to deliberate on their verdict.
Can the jury ask for help from the judge after retirement?
"Before retirement the jury will have been told by the judge that they have heard all the evidence in the case and there will be no more evidence presented to them"
Before retirement the jury will have been told by the judge that they have heard all the evidence in the case and there will be no more evidence presented to them. This means that if the jury send a note asking for more evidence their request will have to be declined.
However, juries often send notes asking for clarification of legal directions or to be reminded of precisely what a witness said. They will be brought back into court for any further instructions after the judge and advocates have considered the matter in open court.
Juries sometimes send the judge a note about their inability to reach a unanimous verdict or about their voting numbers (i.e. how many wish to find the defendant guilty and how many not guilty). The judge will not inform the prosecution or defence of the content of such a note, but it might prompt the judge to suggest giving a majority direction if the relevant time limit has passed.
Can the jury reach a Majority Verdict
"A majority direction can only be given at least 2 hours and 10 minutes after retirement, although it is rare to give a majority direction after such a short period of time"
A majority verdict (in favour either of a verdict of Guilty or a verdict of Not Guilty) is permitted only after the judge gives the jury a majority direction. A majority direction can only be given at least 2 hours and 10 minutes after retirement, although it is rare to give a majority direction after such a short period of time. Much depends on the complexity of the case and the issues involved and in a long and complex case it can be days before a majority direction is given. Often the judge will only give such a direction after discussion with the prosecution and defence advocates. Notwithstanding the precise timing of a majority direction, it is extremely important that a jury should never feel under pressure of time to reach a verdict.
There will be 12 jurors at the start of any criminal trial but sometimes jurors are discharged during the trial due to illness or for some other good reason. The minimum number of jurors permissible is 9, so any less would require the trial to be aborted.
When a majority direction is given the jury will be called back into court and told that the time has been reached at which a verdict of Guilty or Not Guilty by a majority can be accepted. They will be told what the permissible majority is and this will depend on the number of jurors left on the jury. When there are 12 jurors the majority verdict can be 11-1 or 10-2. When there are 11 jurors the permissible majority verdict is 10-1. For 10 jurors it is 9-1. For 9 jurors no majority verdict is permitted so no such direction could be given.
If a jury returns after receiving a majority direction, the court clerk will ask the foreman if at least 10 of them (or 9 if there are only 10 jurors) have agreed on their verdict; if the answer is yes the foreman will be asked if the verdict is Guilty or Not Guilty. If it is Guilty the foreman will be asked if that is the verdict ‘of you all or by a majority?’ If it is by a majority the next question is how many agreed and how many dissented? If, on the other hand, the verdict is Not Guilty the court clerk will not go on to ask if it is a majority verdict.
What happens if the jury cannot agree on a verdict?
If a jury cannot agree on a verdict, either unanimously or by a permissible majority, they will be discharged. A jury who are unable to agree on a verdict are known as a hung jury. It is often quite obvious when a jury cannot reach a verdict, not only from the time it is taking to hear from them but also from their body language when they are asked to return to the courtroom.
"When a hung jury has been discharged the usual practice is for the defendant to be tried again by a different jury. The prosecution will usually be given 7 days to notify the court and the defence if they wish to proceed for a second time"
If a jury have had a majority direction but still cannot reach a verdict, they will often send a note to the judge to the effect that they have reached the end of the line. In such a situation, if the judge feels there is nothing to be gained by continuing, the jury will be discharged.
When a hung jury has been discharged the usual practice is for the defendant to be tried again by a different jury. The prosecution will usually be given 7 days to notify the court and the defence if they wish to proceed for a second time. The reasons for this include the wish to consult with witnesses (who would have to attend court for a second time) and also to consider if there are any fundamental weaknesses in the case that tend against asking for a retrial; for example, sometimes a prosecution witness who appeared credible might have been shown to be unreliable during cross-examination by the defence.
If a jury are unable to agree following a second trial, the convention is for the prosecution not to seek a third trial but to offer no evidence (which results in a Not Guilty verdict). It will only be in exceptional cases that a third trial would be sought.
It is worth noting that sometimes juries are discharged for reasons other than not being able to agree on a verdict. For example, the prosecution or defence might have introduced evidence which the judge had previously ruled inadmissible, or a juror might have improperly carried out research on a witness and informed his fellow jurors of his discoveries; in these situations the judge may take the view that the defendant can no longer have a fair trial and discharged the jury. When a jury are discharged for reasons other than being unable to reach a verdict, this will not count as a first or second trial for the purposes of the prosecution deciding whether or not to seek a retrial.
"If the verdict is not guilty, the defendant will be discharged and free to leave court if he is not facing other charges"
If the verdict is not guilty, the defendant will be discharged and free to leave court if he is not facing other charges. Even if he faces no other charges but he was produced from the cells, he will have to go back to the cells before release to deal with the release paperwork and collect his belongings.
A defendant who is found guilty, whether unanimously or by a majority, will be sentenced. There is no difference in effect between a unanimous and a majority guilty verdict – both mean unequivocally that the defendant has been found guilty of the offence. As such there can be no reduction in sentence because a conviction was by a majority and a majority verdict does not provide of itself a ground of appeal.
Sentencing can take place either immediately or at a later stage if further information is required. In very general terms, when cases are in the lower category of seriousness the sentence will often be imposed immediately (e.g. a fine or conditional discharge) but where the case carries a potential sentence of imprisonment there will often be an adjournment for a pre-sentence report. In such a situation a date will be fixed for sentence on a later occasion and, in the meantime, the defendant will either be remanded on bail (with or without conditions) or in custody.
The jury take no part in the sentencing process, although if the sentence is adjourned to a later date the jury will be informed so that they can return to see what sentence is imposed.
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For information on the sentencing process click here.
For information about appealing against a conviction click here.