BSB 9 - Jury trial procedure
1. Proceeding in the absence of the defendant
will consist of the general rule that an accused should be present throughout his trial, the exceptions
to the general rule, the principles to be considered and sickness of the accused.
The relevant material is addressed in paragraphsD15.82-84, D15.85 (1) and (2). D15.86-15.87and
D15.89 of Blackstone’s Criminal Practice 2021.
D15.82
As a general principle, an accused should be present throughout the trial. The attendance of
the accused at the Crown Court is secured by the magistrates remanding in custody or on bail
when the case is sent for trial. If, having been bailed, the accused fails to attend on the day notified
as the day of trial, a bench warrant may be issued forthwith for the accused's 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
(see also Hamou [2019] EWCA Crim 281, [2019] 4 WLR 149 at D15.85). It is then the almost
invariable practice for the accused to be present throughout the trial. The implication of this rule is
that the accused must not only be physically present, but must have the proceedings interpreted if
that is necessary (Kunnath v The State [1993] 4 All ER 30). CrimPR 25.2(1)(b) (see Supplement,
R25.2) provides that the court must not proceed if the accused is absent, unless the court is
satisfied that the accused has waived the right to attend and the trial will still be fair despite the
accused's 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.
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.
D15.84
Principle
s to be
Consider
ed
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 the trial and a right to be legally
represented.
(b)
Those rights can be waived, separately or together, wholly or in part, by the accused:
(i) they may be wholly waived if, knowing or having the means of knowledge as to when and
where the trial is to take place, the accused is deliberately and voluntarily absent and/or withdraws
instructions from legal representatives;
(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 away as to obstruct the proper course of the
proceedings and/or withdraws instructions from legal representatives.
(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 the accused's legal representatives. The judge is required to
warn the defendant at the PTPH of the risk of the trial continuing in the defendant's absence
(CrimPR 3.21(2); see Supplement, R3.21).
(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 being absent from the trial or
disrupting its continuation, and, in particular, whether the behaviour was deliberate, voluntary and
such as plainly waived the 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 the right to representation;
(v) the extent to which the absent accused's legal representatives are able to present the
defence;
(vi) the extent of the disadvantage to the accused in not being able to give his or her account of
events, having regard to the nature of the evidence;
(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, the judge must ensure that the trial is as fair as the circumstances permit.
In particular, reasonable steps must be taken, 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 the judge must warn the jury that absence is
not an admission of guilt and adds nothing to the prosecution case.
D15.85
(1)
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 (Anthony William) [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
and (2)
(2) even if the accused absconded voluntarily, it would generally be desirable that the accused
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'.
D15.86
Misbehaviour of the Accused If the accused behaves in an unruly fashion in the dock, e.g., by
shouting out, or is apparently trying to intimidate jurors or witnesses, and thereby makes it
impracticable for the hearing to continue, the judge may order that the accused be removed from
court and that the trial proceed in the accused's absence (Lee Kun [1916] 1 KB 337).
In practice, the judge would warn the accused before taking the extreme step of barring from court,
and it may be appropriate to permit a return to the dock at a later stage if the accused undertakes
not to repeat the 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 B14.89). 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 the accused where the right to be present has been unequivocally waived (Smith
(Henry Lee) [2006] EWCA Crim2307). As is made clear at CrimPR25.2(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.
D15.87
Voluntary Absence of the Accused If the accused, having been present for the commence-ment of
his trial, later goes voluntarily absent, 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 the accused's absence (Jones (Robert Edward Wynyard) (No. 2) [1972] 2 All
ER 731). Should the accused be convicted, sentence may also be passed in the accused's
absence (Jones (No. 2)). In Simms [2016] EWCA Crim 9, it was held that the same principle
applied where D had voluntarily rendered himself incapable of participation in the trial through
intoxication (or through 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) D had deliberately absented himself and (b) there
were reasonable steps that could be taken to secure his attendance.
In Hamou [2019] EWCA Crim 281, [2019] 4 WLR 149, the Court of Appeal restated that a trial can
proceed in the absence of an accused who has not been arraigned, however, the court was first
required to be satisfied that the accused had waived the right to be arraigned. If the indictment had
been amended after the accused had absconded, it could not necessarily be assumed that the
accused had waived the right to be arraigned on that amended indictment, although this also
depended on a fact-specific analysis.
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 the accused's arrest under the BA 1976, s. 7
(see D7.98).
D15.89
Absent Defendant's Legal Representatives The position of defence legal representatives when a
trial continues in the absence of an accused who has absconded was considered in Shaw [1980] 2
All ER 433. The accused's instructions are not deemed to have been withdrawn and counsel and
solicitor are not therefore automatically required to withdraw from the case. Whether counsel should
continue to act and to what extent are essentially matters for counsel having regard to the guidance
given in the Code of Conduct of the Bar (per Kilner Brown J in Shaw at p. 1529G). Counsel can
advance existing instructions and even fresh instructions provided by the offender after having
absconded (Pomfrett [2009] EWCA Crim 1939, [2010] 2 Cr App R 28 (281)).
In Kepple [2007] EWCA Crim 1339, the Court of Appeal said that counsel was entitled to
cross-examine witnesses in the continuation of the trial of an absent accused, providing he
considered that he had sufficient instructions to do so, as long as he did not suggest what the
absent accused's account would have been.
Where an accused absconds and is convicted in his or her absence, the limited circumstances in
which legal representatives (assuming they have chosen not to withdraw) may give notice of appeal
on the accused's behalf are dealt with at D26.14.
2. Unrepresented defendants
will consist of the accused’s right to give or call evidence and restrictions on the accused.
The relevant material is addressed in paragraphs D17.17-17.19 of Blackstone’s Criminal Practice
2021.
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 the
accused such assistance in conducting his or her defence as may seem appropriate. The Crim PD
includes reference to a defendant providing assistance to the jury as to the issues in the case after
the prosecution opening (Crim PD VI, para. 25A.2; see Supplement, CPD.25A), but only if the court
invites the defendant to do so by reference to considerations as to whether the issues are already
clear, the prosecution has already fairly identified them, or there is a risk that the defendant might
suffer injustice or prejudice in trying to do so (Crim PD VI, para. 25A.4) (see also the guidance in the
Crown Court Compendium, ch. 3-5).
Alternatively, where the accused dismisses 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.
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 the right to give
evidence in person, to call witnesses in his or her defence (whether or not the accused 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 Crim PD VI, para. 26P.5 (see Supplement,
CPD.26P), 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?
Restrictions on the Accused
D17.19
Crim PR 25.11(6) (see Supplement, R25.11) recognises the role of the trial judge in asking questions
of witnesses on behalf of an unrepresented defendant in that defendant's interests. Beyond that,
there are limitations on what such a defendant can do personally.
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 D'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 (Milton) [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 Crim PR 23.4 (see
Supplement, R23.4)
3. Abuse of process in the Crown Court
will consist of the court’s power to stay proceedings.
The relevant material is addressed in paragraphs D3.66-3.68 of Blackstone’s Criminal Practice 2021.
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 3.29(4): see Supplement, R3.29);
(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)).
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.
There are thus two main categories of abuse of process:
D3.68
(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.'
The relationship between the two categories of abuse of process was considered in Hamilton v Post
Office Ltd [2021] EWCA Crim 577. Holroyde LJ (at [127]) said that the Court was satisfied that it is not
necessary for an accused who raises category 2 abuse to prove misconduct that goes beyond what
establishes the category 1 abuse. In those exceptional cases where abuse of process is raised, it will
often be abuse in one category only; where both categories are raised, there may be a distinction
between the matters relied on in each category. However, as a matter of principle, there is 'no reason
why the same misconduct cannot provide the basis for a finding of both categories of abuse'. It follows
that, 'depending on the nature and degree of the abusive conduct, the same acts and/or omissions may
both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court
to prosecute at all (and thus, category 2)'.
4. Procedural steps in a jury trial
including the different ways in which evidence may be presented or proved, dealing with points of law
during trial and submission of no case to answer will consist of the opening speech, calling
prosecution witnesses, reading statements, agreed facts, objections to prosecution evidence,
editing of prosecution evidence, submissions of no case to answer, defence opening speeches,
the defence case, order of defence evidence, the accused as a witness, the decision to call the
accused, and the discretion of the judge to call or recall a witness.
The relevant material is addressed in paragraphs D16.10-12, D16.17, D16.36, the first paragraph of
D16.37, D16.40-16.41, D16.51, D16.53-58, D17.7-17.9, D17.12 and D18.10 of Blackstone’s
Criminal Practice 2021.
D16.10
Opening
Speech
Crim PD VII, para. 25A.1 (see Supplement, CPD.25A), 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'.
Crim PR 25.9(2)(b) (see Supplement, R25.9) 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 Crim PR 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 (Crim PD VII, para.
25A.4) (see also D16.16 and D17.7).
The following are matters that may affect the style and content of a prosecution opening speech.
D16.11
Emotive
language
D16.12,
Submission
s as to Law
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).
D16.12
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 (Crim PD VI, para. 25A.3; see Supplement, CPD.25A).
WITNESSES THE PROSECUTION SHOULD CALL OR TENDER
D16.17
General
Rule:
Witnesses
on Back of
Indictment
D16.17
Having opened the case, prosecuting counsel calls witnesses and reads out any written statements
admissible under exceptions to the rule against hearsay. The rules relating to witness statements are
set out in Crim PR Part 16 and CPD V, para. 16A (see Supplement, R16.1 et seq. and CPD.16A).
Although counsel has a discretion not to call witnesses whose statements have been served as part of
the prosecution case (sometimes still referred to as witnesses on the back of the indictment), as a
matter of practice the statements of all witnesses whose statements have been served should be
called or read. Counsel must exercise the discretion in a proper manner and not for what Lord
Thankerton described in Adel Muhammed El Dabbah v A-G for Palestine [1944] AC 156 as 'some
oblique motive' (e.g., unfairly so as to surprise or prejudice the defence).
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). Crim PR 16.4 and Crim PD V, paras. 16A.1 to 16A.6, set out the
procedure (see Supplement, R16.4 and CPD.16A).
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 Crim PD I, paras. 3B.1 to 3B.5: see Supplement, CPD.3B).
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 or she
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 Crim PR, though, subject to special
circumstances, the time-limit is set by r. 16.4 at five business days.
the first
paragraph
of 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 Crim PR 16.4(4)).
Where objection had been taken it remains open for the prosecution to seek to read the statement.
Under the procedure set out in the CPIA 1996, sch. 2, para. 1(4), the court was able to permit such a
course where it was in the interests of justice.
In the Parliamentary debate on the subject at that time, it was stated by the government that it was
anticipated that the courts, in applying the 'interests of justice' test, would turn for guidance to the CJA
1988, s. 26 (see Baroness Blatch, Hansard, HL col. 951 (26 June 1996)). That section referred to the
admissibility of certain hearsay statements under the CJA 1988, ss. 23 and 24 (now replaced by the
CJA 2003, ss. 116 and 117). Although s. 26 itself has been repealed, the test under the CJA 2003
retains some of the features of the 1988 Act (see F17.7).
In considering whether the admission of such a statement under the 2003 Act would be in the
interests of justice, the court must have regard to its contents, the risk of unfairness to the accused
resulting from the inability to controvert the statement, and any other circumstances which may
appear to be relevant.
In any event, a trial judge will no doubt be extremely wary about overruling the objections of the
defence, and thus denying the accused the right to see those who are giving evidence against the
accused, let alone the right to cross-examine them. Any suspicion that objections were overruled for
reasons which were less than compelling would be contrary to well-established principle and, in
addition to the normal channels for challenge, would be likely to lead to the prospect of a challenge
based upon the ECHR, Article 6(3)(d) (see A7 and D30.7).
D16.40
Agreed
Facts
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 Crim PR 25.13; see
Supplement, R25.13).
Objections to Prosecution evidence
D16.41
D16.41
Standard
Procedure
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) Pursuant to Crim PR 16.4(4) (see Supplement, R16.4) the defence should notify the prosecution
of their objection to its introduction in evidence.
(b) Further or alternatively, defence counsel should inform prosecution counsel of the objection
before the latter opens the prosecution case to the jury. In the 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).
(c) 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).
(d) 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 F18.73).
(e) 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.
(f) The judge then announces 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).
(g) 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.
(h) 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.
Submission of No case to Answer
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.
Crim PD V, paras. 16A.1 to 16A.6 (see Supplement, CPD.16A), 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)'.
D16.53
D16.53
SUBMISSIO
N OF NO
CASE TO
ANSWER
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 the
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.
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):
Test to be
Applied
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.
D16.55
First Limb As Lord Lane remarked, the first limb of the test set out in Galbraith [1981] 2All 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).
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 or her 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 or her own testimony by conceding uncertainty about
vital points, or if what the witness 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.
D16.57
Reliability of Evidence under the Second Limb It is often central to the application of the test in
Galbraith [1981] 2 All ER 1060 to undertake an assessment of the reliability of the evidence adduced
by the prosecution. This was illustrated in Shippey [1988] Crim LR 767, where the trial judge (Turner
J) found there was evidence to support the prosecution's assertions, but that the evidence as a whole
contained 'really significant inherent inconsistencies'. On a literal view of Galbraith and Barker (1975)
65 Cr App R 287, the case should therefore have gone to the jury for them to weigh the
inconsistencies, but Turner J took a more robust view. He said that 'taking the prosecution case at its
highest' did not mean 'taking out the plums and leaving the duff behind'. It was for the judge to assess
the evidence and, if it was 'self-contradictory and out of reason and all common sense', then the judge
could properly conclude that it was 'inherently weak and tenuous' within the meaning of the second
limb of the Galbraith test.
However, it has since been emphasised, in Pryer [2004] EWCA Crim 1163, Silcock [2007] EWCA Crim
2176, and most comprehensively in Christou [2012] EWCA Crim 450, that Shippey should not be
elevated from a decision on specific facts into a legal principle. The proper test to be applied remains
that enunciated in Galbraith, and the decision in Shippey merely illustrates the requirement that the
court consider the evidence as a whole, including both its weaknesses and strengths.
D16.58
Proper Approach to a Submission of No Case to Answer The following propositions are advanced as
representing the position that has now been reached on determining submissions of no case to
answer:
(a) If there is no evidence to prove an essential element of the offence, a submission must
obviously succeed.
(b) If there is some evidence which, taken at face value, establishes each essential element, the
case should normally be left to the jury.
(c) If, however, the evidence is so weak that no reasonable jury properly directed could convict on
it, a submission should be upheld. Weakness may arise from the sheer improbability of what the
witness is saying, from internal inconsistencies in the evidence or from its being of a type which the
accumulated experience of the courts has shown to be of doubtful value (especially in identification
evidence cases, which are considered in D16.59).
(d) The question of whether a witness is lying is nearly always one for the jury, save where the
inconsistencies are so great that any reasonable tribunal would be forced to the conclusion that it
would not be proper for the case to proceed on the evidence of that witness alone.
Having identified those general principles, it is appropriate to consider various particular types of
evidence and categories of cases. (For a striking example of a court's failure to follow proper
procedure and an early intervention by the trial judge which led to the 'acquittal' being declared a
nullity in the Court of Appeal, see D [2012] EWCA Crim 2181.)
Trial on Indictment: the Defence Case
D17.7
DEFENCE
OPENING
SPEECH
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; Crim PR 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. Crim PD VI,
para. 25A.4 (see Supplement, CPD.25A), 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.
D17.8
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 the accused 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 (Milton) [1998] 2 Cr App R
364), or where the court is being used as apolitical sounding board (King (1973) 57 Cr App R
696).
D17.9
Order of
Defence
Evidence
The accused should normally be called before any other defence witnesses (PACE 1984, s. 79;
Criminal Evidence Act 1898, s. 2; Crim PR 25.9(2)(h); see Supplement, R25.9). 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 the trial, and therefore would otherwise have the opportunity to adjust his or
her evidence to accord with that of the 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 (Joan) [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 accused (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 (Crim PR 25.11(2)(a); see Supplement, R25.11). 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.
The Accused as a Witness
The decision whether to testify or not is for the accused.
D17.12
Decision to
Call the
Accused
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 having, of his or her own accord, decided
not to give evidence, and (b) that the accused has done that bearing in mind the advice, regardless of
what it was, given 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 B1.90), 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).
D18.10
Judge
calling or
Recalling a
Witness
Crim PR 16.4(5) (see Supplement, R16.4) identifies the discretion of a court to require a witness to
give live evidence 'on its own initiative'. In fact, it has long been recognised that 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.
5. Speeches and summing up
will consist of discussion with counsel of the law, counsel’s duty to assist the court, order of speeches,
limitations as to content, and the judge’s summing up (including written directions, standard
directions, defences, the facts, appointment of a jury foreman and unanimity).
The
D18.13
relevant material is addressed in paragraphs D18.13-18.14, D18.16, D18.18-18.21,
D18.23-18.30, D18.33, D18.36-18.39 and D18.42-18.43 of Blackstone’s Criminal Practice 2021.
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 Crim PD VI, para.
26K16, see D18.21), 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 (N [1998] Crim LR 886; Wright
[2000] Crim LR 510).
Such a discussion should take place before speeches, which are required to be 'consistent with'
directions already provided to the jury in a split summing-up (Crim PD VI, para. 26K.18; see
Supplement, CPD.26K).
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 (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.
D18.14
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 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 (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.
D18.16
Order of Speeches
D18.16
Crim PR 25.9(2)(j) and (k) (see Supplement, R25.9) 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).
D18.18
Order of Speeches
D18.16
Crim PR 25.9(2)(j) and (k) (see Supplement, R25.9) 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).
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 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 (Pacey (1994) The Times, 13 March 1994;
Cairns [2002] EWCA Crim 2838, [2003] 1 WLR796) 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 (see D16.21).
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 (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 the accused's evidence (see D9).
D18.20
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 (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 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 (Wickham (1971) 55 Cr App R 199). 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
(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 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
D18.21
Preliminary
and
General
Matters
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, R25.14) sets out the appropriate steps to be followed on summing-up. CrimPD
VI, para. 26K.16 (see Supplement, CPD.26K), 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 use of written directions is also strongly advocated (para. 26K.11, see
D18.24). 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).
D18.23
Duties of
counsel
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 that was considered to be in the best interests of the 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 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 (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.
D18.24
Written
directions
In virtually all cases, under Crim PR 25.14(3)(b) and (4) (see Supplement, R25.14), 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. Crim PD VI, para. 26K.11 (see Supplement, CPD.26K),
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 (Gammans (13 November 1998 unreported)).
While in Lawson [1998] Crim LR 883 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 Crim PD VI,
Part 26K, 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'
(Atta-Dankwa [2018] EWCA Crim 320, [2018] 2 Cr App R 16 (248); PP [2018] EWCA Crim 1300).
(The Crown Court Compendium, ch. 1-9, describes 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. See McKechnie (1992) 94
Cr App R 51 and Taxquet v Belgium (2012) 54 EHRR 26 (933).
D18.25
Standard
Directions
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. Crim PD VI, para. 26K.17, provides a useful checklist of directions
that could form part of part one of a split summing-up.
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 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 [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.
D18.26
Directions
as to the
functions of
judge and
Jury
D18.27
Burden and
Standard of
Proof
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).
See also the Crown Court Compendium, ch. 4. As regards the facts, the jury are the judges (Wootton
[1990] Crim LR 201). 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.
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, 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 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 (Malinina [2007] EWCA Crim 3228).
D18.28
Separate
Considerati
on 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, 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). In Adams [2019] EWCA Crim 1363,
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.
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 (Lionel) (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, chs. 7-2, 7-3 and 7-4, may be appropriate (see also A4.10).
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.
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 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, at ch.17-1 in
relation to interview and ch. 17-5 in relation to 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 (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 [1999] 1 Cr App R 377). As to the interrelation of the directions relating to silence and lies,
see Spottiswood [2019] EWCA Crim 949 and Wainwright [2021] EWCA Crim 122 (see also the
Crown Court Compendium, ch. 16-3).
This topic is discussed in more detail at F20.9, F20.24 and F20.31.
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:
Defences
(a) self-defence (see Palmer [1971] AC 814, Lobell [1957] 1 QB 547, Harvey [2009] EWCA Crim
469, the Crown Court Compendium, ch. 18-1 and A3.55);
(b) alibi (see Anderson [1991] Crim LR 361, the Crown Court Compendium, ch. 18-2 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) loss of control (see Clinton [2012] EWCA Crim 2, [2013] QB 1, and the Crown Court
Compendium, ch. 19-2); and
(d) diminished responsibility (see Terry [1961] 2 QB 314, the Crown Court Compendium, ch. 19-1,
and B1.25).
Where an accused is unrepresented, the judge should also remind the jury to bear in mind the
difficulties for the accused of representing him or herself at trial (De Oliveira [1997] Crim LR 600, and
see Johnson [2013] EWCA Crim 2001). See also the Crown Court Compendium, ch. 3-5.
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:
The Facts
(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.
(c)
In Reynolds [2019] EWCA Crim 2145, [2020] 1 Cr App R 20 (348), the Court of Appeal stressed
that, since the jury's verdict was not reasoned, the summing-up provides the record of the facts on
which that verdict was founded and, in a long case, was needed to provide a 'rational consideration of
the evidence' (at [55]).
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 or her 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).
D18.38
Crucially, in Curtin [1996] Crim LR 831, the Court of Appeal stated that it was part the judge's duty to
identify the defence. The way in which this is done will depend on the circumstances of the case,
however the following propositions apply:
Summarisin
g the
(a)
Defence
case
Where the accused has given evidence, it will be desirable to summarise that evidence.
(b) Where the accused 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.
D18.39
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
the 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 it is emphasised to the jury that they are entitled to ignore opinions, the judge may
comment on the evidence in a way which indicates his or her 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).
D18.42
Appointme
nt of a
Foreman
D18.43
Unanimity
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
(see the Crown Court Compendium, appendix VIII, for guidance on how the judge should direct the
jury to select a foreman).
Finally, the judge should invite the jury to retire and to seek to reach a unanimous decision (Crown
Court Compendium, ch. 21-1). 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 the judge can accept
a verdict which is not the verdict of them all, a further direction will be given (Crim PD VI, para. 26Q.1
(see Supplement, CPD.26Q)). 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 this is done, 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.
6. Verdicts
will consist of retirement of the jury, questions from the jury, majority verdicts (including time
requirements and minimum number), verdicts of guilty of a lesser offence, the judge’s discretion
in directing the jury as to alternative offences, returning the verdict and juries unable to agree on
a verdict.
The relevant material is addressed in paragraphs D19.2, D19.18, D19.35-19.36, D19.38-19.39,
D19.41-19.42, D19.58, D19.69 and D19.90 of Blackstone’s Criminal Practice 2021.
Retirement of the Jury
D19.2
Basic Rules
D19.18
Questions from
the Jury
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.
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.
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 Crim PR 25.14(5) (see Supplement, R25.14), Crim
PD VI, paras. 26Q.1 to 26Q.9 (see Supplement, CPD.26Q), and the Crown Court
Compendium, ch. 21-4.
Unanimous verdict
D19.36
Time
requirement
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 Crim PD VI, para. 26Q.3 (see Supplement,
CPD.26Q), which states that the jury should be allowed at least two hours and ten
minutes for deliberation before the majority direction is given. Crim PD. 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.
D19.38
Minimum
Number for
Acceptable
Majority
D19.39
Statement of
Size of Majority
and Minority in
Open Court
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.
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.
D19.41
VERDICT OF
GUILTY OF AN
ALTERNATIVE
OFFENCE
D19.42
General Rule
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.
The general provision on the availability of alternative verdicts is contained in the CLA
1967, s. 6(3), which provides as follows:
Where, on a person's trial on indictment for any offence except treason or murder, the
jury find him not guilty of the offence specifically charged in the indictment, but the
allegations in the indictment amount to or include (expressly or by implication) an
allegation of another offence falling within the jurisdiction of the court of trial, the jury
may find him guilty of that other offence or of an offence of which he could be found
guilty on an indictment specifically charging that other offence.
There are thus two principal situations covered by s. 6(3). One is where the offence
charged expressly includes an allegation of another indictable offence; the other is
where it impliedly includes such an allegation.
Judge's Judgement 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 (Shenae Baffrene) [2014] EWCA Crim
2176, but see Brown (Delroy) [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).
Returning the verdict
D19.69
D19.69
General
Procedure
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 Crim
PR 25.14 and Crim PD VI, para. 26Q (see Supplement, R25.14 and CPD.26Q).
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).
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.