1.0 SUMMING UP - A SUGGESTED STRUCTURE

A   FUNCTIONS OF JUDGE AND JURY

  1. The Jury:
    2. To decide on the evidence what the facts are: to decide which evidence they accept and which they reject: they alone are the judges of facts.
  2. The Judge:
    3. To tell the jury what the law is - directions which the jury must accept and apply to the facts; and to remind the jury of such evidence as he thinks may help them, but the jury to take into account anything omitted by him which they consider important and to ignore if they think fit to do so any view of the facts which the judge expresses or which the jury thinks he holds.

B   BASIC DIRECTIONS ON LAW

       (NB    If it is necessary or desirable to repeat any direction, do so in identical terms.)

  1. Burden and Standard of Proof
    1. Burden of Proof
      2. "The burden of proof is upon the prosecution. It is for the prosecution to establish the defendant's guilt."
    2. Standard of Proof
      3. "Before you can convict you must be satisfied beyond reasonable doubt of the defendant's guilt."
  1. Separate Consideration - to the case of each defendant and separate consideration to each count in the indictment - illustrate from the indictment.
  2. The Indictment
    3. Refer to the offences set out in each count. If there are several counts relating to the same type of offence (eg theft) take one count as an example.
    1. Define the Office
      2. If in doubt take the definition straight from Archbold/Blackstone.
    2. Explain the ingredients of the offence
      3. eg theft:
      "Dishonest"
      "Appropriation"
      "Another persons property"
      "With intention to deprive the owner of the property permanently"
      etc.
      The advantage of 'spelling out' the offence in this way is that you can eliminate all matters which are not in dispute, at the start of your summing up, eg:
      "In this case, it is not disputed that there was an appropriation of the property from the shop by the defendant - the only dispute is whether the appropriation was dishonest."
      This enables you, when embarking upon the review of the evidence, to deal with those matters not in dispute, in a few sentences, and to concentrate in some detail on the matters which are in dispute.
    3. Having defined the offences set out in the Indictment, point out:
      1. those counts which are 'coupled' in the alternative eg
        GBH with intent
        ABH
        and explain the differing ingredients which must be proved in each count;

      2. those counts which are alternative,
        eg Theft and
        Dishonest handling.

C   OTHER DIRECTIONS

Deal as necessary with
  1. Attempts
  2. Joint Enterprise
  3. Corroboration
  4. Identification
  5. Other matters of evidence, eg
    1. Admissions/Confessions
    2. Recent complaints
    3. Co-defendant's statements or evidence
    4. Previous inconsistent statements
    5. Circumstantial evidence
  1. Law relevant to the defence, eg
    1. Alibi
    2. Automatism
    3. Drunkenness/Influence of drugs
    4. Duress
    5. Provocation
    6. Self defence. (Unlawful) - for prosecution to prove ..... with ingredients of offence
  1. Defendant not giving evidence
    1. effect of under Articles 3 and 4 of the Criminal Evidence (NI) Order 1988 (as amended)
    2. mixed statements
  1. Lies of defendant - effect of
  2. Plea of guilty by one defendant - effect on co-defendant
  3. Hostile witness

D   SUMMARY OF EVIDENCE FOR PROSECUTION AND DEFENCE

Where possible, avoid referring to those parts of the evidence which have nothing to do with matters in issue, and concentrate in some detail on evidence which is relevant to those matters. Do not forget to review the case for the defence. Always mention the defendant's good character if he has one (relevant to his credibility): deal with his bad character if necessary, providing (obviously) it has been properly admitted to evidence.

E   DIRECTIONS RE VERDICTS ETC

  1. Remind the jury that:
    2. separate verdicts must be returned in respect of each defendant named in each count;
  2. If you are not yet prepared to accept a majority verdict, tell the jury:
    3. "I must ask you once more to retire and continue to try to reach a unanimous verdict; but if you cannot, I will accept a majority verdict which is a verdict with which at least 10 of you agree." See Specimen Direction 6.1A
  3. If bring back - do the talking yourself.

F   AIDS TO SUMMING UP

don't be a reader out: summarise interviews
“We would take this opportunity to remind Crown Court judges of the desirability of attempting to deal in their charges to a jury, for the sake of clarity and ease of comprehension, with a series of issues as a structure and then bolting on what I might call the cladding of the evidence in relation to each issue. We would remind Crown Court judges that a simple rehearsal of one witness’s evidence after another, however carefully and accurately done, may not make it as clear to the jury as is desirable and that they must look at each issue and consider the evidence in relation to it.” Sir Robert Carswell LCJ in R v McMoran [1999] NIJB 50 at 51f. “Directions to juries should not be formulaic mantras, nor should they introduce instructions or qualifications which are unnecessary for their consideration of the particular case before them. Rather they should be adapted to the facts and issues of each case, to give the jury the most effective guidance.” Sir Robert Carswell LCJ in R v Stevens (as yet unreported, 5/7/2002)
  1. In all but the simplest cases, prepare an outline of your summing up, containing the references which you intend to make to the evidence, before you begin.
  2. Keep your notebook (and the depositions when you can use them) tabulated so that reference to particular parts of the evidence may be made without undue delay. It often helps to enumerate the issues, for your own purposes, at an early stage so that they can be identified with the evidence in your notebook.
  3. Retire after speeches, even if only for a few minutes, if you feel the need to do so.
  4. Long case: work on summing up every day.

G   ANSWERS TO QUESTION BY JURY - put in writing if necessary

  1. Consider it in your room and prepare a draft answer to it if it is in any way difficult or controversial.
  2. In the absence of the jury but in open court in the presence of the defendant show counsel the question and inform them how you propose to answer it. Then invite the assistance of counsel with your proposed answer before deciding upon its final form. If it involves a matter of law and you think it would be helpful to the jury, put your answer in writing and, having invited counsels' comments on it, give it to the jury accompanied by an oral explanation, but if already covered in summing up - direct in same terms as far as possible.