Or does the grandeur of the law seep into the summing-up, so that the jury hears “a lecture in a foreign language about foreign subjects”, as Lord Justice Moses called it when giving the 10th Annual Law Reform Lecture in November 2010?
In February 2010, research for the Ministry of Justice – Are Juries Fair? – found that jurors do not recall what the judge has told them about the law. 243 real jurors on 23 juries at Winchester Crown Court watched the same (recorded) mock trial, but only 31 per cent of them could identify, from a series of plausible alternatives, the two questions the judge had put to them about self-defence. Even among those who were also given a one-page written summary, not quite half could identify both questions (see further www.justice.gov.uk/publications/are-juries-fair.htm).
In the research, no relationship was found between the verdicts given, and how many of each jury had fully understood the questions. But what is the point of summing up, if the jury doesn’t understand and remember what the judge says?
In 2009, the senior judiciary and Judicial Studies Board (“JSB”) had another concern about judges’ legal directions. Too many judges, they found, were reciting specimen directions from The Crown Court Benchbook: Directing the Jury, without adapting them to the case or putting them into everyday language. But a judge who departed from the standard directions might well be criticised on appeal.
The 2010 Benchbook
In March 2010, the JSB therefore published a new Crown Court Benchbook, designed to wean judges away from precedents towards individually-crafted directions in each case. On 18 November its principal author, Lord Justice Pitchford, presented it to the Criminal Bar Association (“CBA”). The presentation, Directing the Jury: The Modern JSB Approach, is available to view (at the cost of £20) on the CBA website (www.criminalbar.com).
The first question put to Pitchford LJ was: “Where are the directions for us to cut and paste?” The specimen directions, though still available elsewhere, were not updated or even included in the new book. Instead, the 2010 Benchbook lists the points for the judge to consider in each case. The senior judges were still deciding, Pitchford LJ told the CBA, whether to issue a companion volume of new directions. If they do, it could help new judges, those pressed for time, and those whose background is in civil litigation. But how much will it help the jury?
Although it matters less, since the judge is encouraged to depart from its text, the 2010 Benchbook is closer than the 2009 edition to the everyday language of lawyers. But is that the language of the jury? In his Law Reform lecture “Summing down the summing up”, Moses LJ said: “however clear the new directions are to a lawyer, they are in a foreign tongue to a member of the jury. The concepts are alien ... Everyday routine, in everyday life, does not require people to distinguish between inference and suspicion, and few, if any, in their everyday lives, ask themselves whether they are driven to a conclusion.” (The text of the lecture is available at: www.judiciary.gov.uk/media/speeches/2010/speech-moses-lj-summing-down-su....)
The 2010 Benchbook recommends plain English, while suggesting judges should talk to the jury in such terms as: “oral evidence”, “he gave an account”, “you will appreciate that”, “sufficient to establish”, “conclude that”, “recollection of the essential events” and “counsel”. One London firm of solicitors now writes to its personal injury clients about their “lawyer” or “barrister”, rather than “counsel” – not because it underestimates their intelligence but because clients used to ask in reply what “counsel” meant. It would be a rare and brave juror who interrupted the summing-up to ask the meaning of a word. No wonder one juror recently consulted the internet, though warned against it, to look up (among other things) the meaning of legal terms: see R v Thompson  EWCA Crim 1623.
How this affects counsel
Framing directions: Pitchford LJ asks judges to involve counsel in choosing and framing directions, while counsel should ask for specific directions on points of law or evidence. Pitchford LJ suggested these could include:
- Identifying exactly which facts are in issue;
- Listing weaknesses in identification evidence – you don’t want the judge to miss any out;
- Bad character and hearsay directions – pointing out to the judge any danger that the jury will use the evidence for a wrong purpose;
- The Lucas direction or adverse inference directions (see R v Lucas (1981) 73 Crim App R 159).
Written directions and questions: The Court of Appeal has already approved the use of written material to support a summing-up, most recently in the Thompson case, and the 2010 Benchbook gives examples. However, the Court of Appeal, the Lord Chief Justice and JSB all stress it is for the judge to decide in each case whether to use this technique. Some judges give the jury a written set of questions (or “route to verdict”) in every case, inviting counsel to agree or debate the draft before the jury sees it. Others may do so only in the most complicated cases.
Moses LJ, in his lecture, proposed that, used in every case, at the beginning of trial as well as the end, a set of questions could replace much of the summing-up, making the jury’s task easier while saving days of valuable court time. Pitchford LJ predicts that their use will increase, and that further research will assess their value.
Appeals: The 2010 Benchbook comes with a strong warning, from its authors and from the Lord Chief Justice, that “the contents of the Benchbook have no legal authority ... the directions are not binding”. Pitchford LJ warned the CBA against annoying the Court of Appeal by basing an appeal on a difference in wording between the Benchbook or specimen directions and the direction given. Instead, appellants must identify (perhaps using the Benchbook as a convenient textbook):
- the principle offended by the direction given;
- what the correct direction would have been, and why; and
- how the wrong direction affected the safety of the verdict.
Should judges abandon legal language when summing up? One might start by editing out the hard words and elegant expressions from the Benchbook. It would be interesting, in the next research for the Ministry of Justice, to test the effect of plain English, or to challenge the jurors to explain some of the words they hear in the summing-up.
Or will written questions eventually replace at least some of the summing-up? As the Lord Chief Justice said in his Mansion House speech in July, though speaking of the parties rather than the judges, “In the Crown Court, time continues to be treated as an unlimited resource. This cannot continue”.
Meanwhile, Crown Court advocates can at least make sure the jury finds every word of their own questions and speeches at least as clear as the TV or the internet.
Daphne Perry is a former barrister, now a trainer, writer and consultant on plain English for law and business. E-mail: email@example.com.
Do judges speak the jury’s language?
You are entitled to draw inferences, that is come to common sense conclusions based on the evidence which you accept, but you may not speculate about what evidence there might have been or allow yourselves to be drawn into speculation.
The evidence is complete and it is not possible to hear more. The jury should not speculate about evidence which has not been given and they should decide the case on the evidence which they have seen and heard.
Could it be clearer still?
There is no more evidence. Decide the case based on what you have seen and heard. Do not guess about what else there might have been.