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Summing up the evidence

The second part of the judge's summing up is traditionally a summary of the prosecution and defence cases and a review of the evidence. Lord Hailsham said that judges should give a "succinct but accurate summary of the issues of fact [and] a correct but concise summary of the evidence and arguments on both sides."[1] Lord Denning said "All that a judge should do is give a short outline of the evidence."[2] Not, though as short as the summing up reportedly given by Mr Commissioner Kerr at the Old Bailey in the nineteenth century which comprised a dozen words.  "Gentlemen of the jury, the man stole the ducks. Consider your verdict."[3] Or the summing up in a case where a confession had been entered as evidence. "Gentlemen, the prisoner said he did it. His counsel argues that he did not. I simply remind you that the prisoner was there. His counsel was not!"[4]

Sir Robin Auld suggested that if jurors were to be given a written "case and issues summary" at the beginning of the trial, judges would not need to remind juries in great detail of the evidence.This sounds attractive, but, in the absence of such a written "case and issues summary", jurors may not realise the importance of one piece of the evidential jig-saw until all the other pieces are in place. Further, if, as seems likely from the research of patients' recall of diagnoses, jurors do not recall everything first time round, the judge's summing up of the evidence may be more important than we think.

When it comes to the facts, it is the jurors' judgment alone that counts. In the majority of American state jurisdictions it is the duty of the trial judge to abstain from any expression of opinion or comment on the facts or evidence.[5] For example, Article 772 of the Louisiana Code of Criminal Procedure (1996) provides that "The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted." That "no-judge-comment" rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. In Louisiana, if the effect of a [judge;s] question or comment is to permit a reasonable inference that it expresses or implies the judge's opinion as to the defendant's innocence or guilt, this constitutes a violation of the defendant's statutory right to no-comment and thus requires reversal.[6]

However, the tradition here is that judges have frequently sought to influence juries' decisions on the facts by comments in their summing up. Lord Birkett, an eminent barrister, politician and then judge, when comparing life on the bench unfavourably with the merits of practice at the bar, is supposed to have said "I still have the power of dominating juries however; they do whatever I wish."[7] Lord Denning recounted how, in a trial of a defendant charged with being in possession of house-breaking implements by night, he summed up in his "most sarcastic and ironic manner", saying "Members of the jury. If you think the accused was at the door at midnight intending to present those implements to the house-holder as a gift! - as a tribute of the esteem in which he held him, then of course you will find him "Not guilty". The jury did find the defendant "not guilty".[8] In 1972, Ackner J, presiding over the trial of a teacher accused of assaulting a 15 year-old pupil was clearly summing up for an acquittal when he asked "Do you think we have reached the stage in schools in this country where an insolent and bolshy pupil has to be treated with all the courtesies of visiting royalty?"[9] Serjeant Sullivan went so far as to suggest that foremen of juries at the Old Bailey in the 1930s should be asked "did they find for his Lordship or against him?"[10]

In 1968, W. R. Cornish wrote "The judge is free to comment as he likes on the strength of the case made out by either side. The judge's discretion in commenting upon the evidence is limited only in a minor degree."[11] The Court of Appeal has said that the judge

is not only entitled, but ought, to give the jury some assistance on questions of fact.  Of courses, questions of fact are for the jury and not for the judge, yet the judge has experience on the bearing of evidence, and in dealing with the relevancy of questions of fact, and it is therefore right that the jury should have the assistance of the judge. It is not wrong for the judge to give confident opinions on questions of fact � It is necessary for him sometimes to express extremely confident opinions.[12]

That was in 1909, but the passage is still quoted prominently in Archbold.[13]

The modern principles of a fair trial were best encapsulated by Lord Lane , LCJ in R v Marr,[14] when he said


It is "an inherent principle of our system of trial that 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" by the judge.

In R v Wood[15] Staughton LJ said "We do not doubt that the degree of adverse comment allowed today is substantially less than it was 50 years ago." Nevertheless comments on the evidence are still made or implied. Nowadays they are generally more subtle and frequently dressed up with the rubric "Members of the jury, you may think that, but it is entirely a matter for you." It is also customary for judges to include at the beginning of their summing up the mantra "If I appear to express any views or comments about the evidence, do not accept them, unless you agree with them."

Comments about the evidence from judges may have been appropriate when jurors came from a more limited social background.[16] Prior to 1972, there was a property qualification which meant that jurors were predominantly white, "male, middle-aged, middle-minded and middle-class."[17] D. N. Pritt, wrote in 1938 that the knowledge of jurors was such "as might be found in the smoking room of a suburban golf-club."[18] Even in 1970, when rating re-valuation had made jurors more representative, "the typical juror was the male head of a family having a separate unit of housing. [There was] a bias against women and young adults (who [had] not yet got their own housing)".[19]

But are any judicial comments on the factual aspects of the evidence now necessary, appropriate or fair? Such comments can be made perfectly adequately by advocates in their closing speeches. Why should judges make comments which may be interpreted, rightly or wrongly, as favouring one side over the other, or stepping down into the arena? The key difference between 1909 and the present day is that now all people aged between 18 and 70 who are on the electoral register and who have been ordinarily resident in the United Kingdom for at least five years are required to do jury service.[20] The suggestion that modern judges are "out of touch" is a journalistic fiction. Circuit judges' daily diet of drink and drugs, sex and violence mean that they are only too aware of the realities of day to day life in town centres and inner cities.However, jurors now come from a wide variety of social and ethnic backgrounds. They are genuinely representative of society. They are likely to be as familiar with the social matrix from which the evidence arises as judges, if not more so.

There is also a risk that judicial comments which are interpreted as being pro-prosecution are counter-productive. Some prosecutors say that an entirely neutral summing up is far more likely to result in a conviction that one which appears to be biased towards the prosecution. Serjeant Sullivan, an old-style Irish advocate, wrote that "speeches on behalf of the prosecution delivered from the Bench in my own country had created a rampart against the conviction of guilty men. I have no hesitation in saying that [a juror] is far more likely to arrive at a true conclusion of fact left to his own judgment than he is when influenced by the exhortations from the Bench."[21]


In an article entitled Ladies and gentlemen of the jury, you have had your day, Simon Jenkins recently wrote "Jury trial has outlived its usefulness. To pretend that it delivers justice is absurd. This archaic theme park democracy is expensive, a waste of time and adds nothing to fair trial. Abolish it."[22] That is probably a minority view. More people would still agree with Lord Devlin's oft quoted words

The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.[23]

There is an element of hyperbole in both these comments. Juries are not perfect - sometimes, although, in my experience, not very often, they deliver inexplicable verdicts and the absence of reasons for their decisions sits ill with twenty-first century jurisprudential norms, in which the giving of reasons is a key part of the decision making process. However, trial by jury retains the confidence of the general public[24] and it would be hard to devise a better or fairer process.Now that juries are representative of society, they genuinely provide trial by defendants' peers. Trial by jury avoids decisions on the facts by case hardened judges who have "heard it all before", and, arguably, twelve (or thirteen) heads are better than one. Dividing decisions on fact and law between lay jurors who can use their collective common sense and experience of ordinary life and judges with specialist legal knowledge is a remarkably sophisticated approach.

Nevertheless, it is important that the jury system adapts to reflect the changes which have occurred.[25] Apart from the increased complexity of legal directions, the structure of the judge's summing up has changed little. Greater use of written directions and fewer judicial comments on the evidence are developments which are now overdue.

Nic Madge

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[1] R v Lawrence [1982] AC 510 at 519.

[2] Lord Denning The Family Story, p163.

[3] Sir Travers Humphreys, Criminal Days, 1946, p75.

[4] Ex rel John deP. Wright Superior Court (Ontario) Thunder Bay

[5] See e.g. State of Louisiana v. James Williams, No. 64409, 375 So.2d 1379 (La. Sp. Ct. 1979)

[6] State of Louisiana v. James Williams, No. 64409, 375 So.2d 1379 (La. Sp. Ct. 1979) (armed robbery conviction reversed on appeal as a result of intensive and effective cross-examination of medical specialist on hypothetical basis by the judge) and State of Louisiana v. Joe L. Walker, Jr. No. CR 97-1180, 710 So.2d 304 (La. App. 3 Cir. 3/6/98) (second degree murder conviction reversed where, after request by jury to define manslaughter, the trial judge defined manslaughter and then said manslaughter just doesn't fit this set of facts  but it is always available to you, if you chose to do it.)

See too David Wolchover Should Judges Sum up on the Facts? [1989] Crim L R 781.

[7] F Montgomery Hyde, Norman Birkett, p540.

[8] Lord Denning, The Family Story p146.

[9] Obituary of Lord Ackner, The Times 23 March 2006.

[10] Serjeant A. M., Sullivan QC, The Last Serjeant, p288.

[11] Cornish, p123.

[12] R v Cohen and Bateman 2 Cr App R 197, 208. See too R v O'Donnell (1917) 12 Cr App R 219 where the judge described the defendant's story as "a remarkable one" (conviction upheld) and R v Evans (1990) 91 Cr App R 173 where the Court of Appeal held that a judge was entitled to draw attention to discrepancies in the defendant's case. "Providing the matters with which he deals are matters which have been given in evidence, it is open to him to comment upon them."; cf Mears (1996) 97 Cr App R 239, PC at 244 where the judge's comments when summing up "went beyond the proper bounds of judicial comment and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting."; R v Berrada (1989) 91 Cr App R 131, CA where the judge described the allegation that police officers had fabricated an interview as "really monstrous" and "wicked". The Court of Appeal stressed that the duty of the judge is "to state matters impartially, clearly and logically, and not inappropriately to inflate evidence to sarcastic and extravagant comment."

[13] Para 7- 67 of the 2006 edition. See too commentary in Blackstone at para D24.31.

[14] 90 Cr App R 154.

[15] [1996] 1 Cr App R 207, CA."The judge's summing up was described as 'old-fashioned or robust'." Two particular passages were characterised as "the stuff of advocacy." However that alone would not have resulted in the defendant's appeal being allowed. It was the combination of the character of the judge's summing up and prejudicial material in the press which meant that the defendant did not receive a fair trial. See too the summing up of Lord Goddard, LCJ, the trial judge in R v Bentley (Derek) [2001] 1 Cr. App. R. 21, as summarised by Lord Bingham, LCJ. It included the following passage "the police officers that night, and those three officers in particular, showed the highest gallantry and resolution; they were conspicuously brave. Are you going to say they are conspicuous liars?  Do you believe that those three officers have come into the box and sworn what is deliberately untrue - those three officers who on that night showed a devotion to duty for which they are entitled to the thanks of the community?"

[16] For more detail on the changes in composition of juries, see Peter Thornton QC, Trial by Jury: 50 Years of Change [2004] Crim L R 683.

[17] Patrick Devlin, Trial by Jury p20.

[18] A Barrister, Justice in England (1938) p54.

[19] R. M. Jackson, The Machinery of Justice in England, 5th edition, p308.

[20] Juries Act 1974 s1.

[21]A. M. Sullivan QC, The Last Serjeant, p288. See too David Wolchover Should Judges Sum up on the Facts? [1989] Crim L R 781.

[22] The Sunday Times February 12, 2006.

[23] Patrick Devlin Trial by Jury, p164.

[24] "Public confidence in juries is consistently high. People trust juries. The same cannot be said for many other parts of the judicial system." Guy Mansfield, chairman of the Bar Council, The Independent, 21 June 2005.

[25] District Judge William Schwarzer, Director, Federal Judicial Center , has said, in the American context "Unless trial by jury is reformed, it may lose credibility and sink into disrepute." Reforming Jury Trials 132 F. R. D. 575.