Summing up – a precis or a chance to show flair, bias and artistic temperament
News that research by the Ministry of Justice has shown that juries often fail to understand the judge’s legal directions has focused attention on the purpose of the summing up in criminal trials.
The research has suggested that very often juries fail to understand even simple explanations of the law. The recommendation that juries should be given written legal directions seems to make excellent sense and will no doubt be adopted.
But what of the other task the judge has in summing up a case? He — or more and more often she — is required to summarise the evidence. Usually this occupies much more time in a summing up than the legal directions. It is generally accepted, at least in Britain, that delivering such a summary is a necessary part of a judge’s task, although there is no rule of law to that effect, and occasionally in short cases they do not.
It may be that even in more complicated cases more judicial abstinence would not go amiss. Very often a judge’s summing up of the facts does far more harm than good.
The flagrantly biased summing up is rarer than it used to be. This may be because it tends to be counter-productive. If a jury, with its innate sense of fairness, realises that the judge, who is meant to embody moderation and neutrality is biased to one side or the other it is likely to ignore him, or do the precise opposite of what he is urging.
Even if he is successful in his attempt to steer the jury he may lay himself open to an appeal. One judge’s recent trenchant comments to defence counsel at Snaresbrook Crown Court that he had “never heard such rubbish” and his assertion that another barrister was “silly” did not survive the scrutiny of the Court of Appeal, which was equally clear in its ruling that he was wrong to shake his head, roll his eyes and throw down his pen in irritation at defence submissions.
Nevertheless, in practice, judges can still use the summing up to guide the jury towards a particular verdict. Of course, a disingenuous judge has plenty of other opportunities to do so during a trial, but none better than during the summing up when he has the last word.
At some point during the summing up he is obliged to utter the fatuous — but legally essential — aside that “if you find my views on the evidence helpful you may adopt them, but otherwise you should ignore them unless they happen to coincide with your own”, which begs the question, if we should ignore him unless we agree with him already, why on earth should we waste our time listening to the old boy at all?
However, before the jury has had time to think of that the disingenuous judge will have embarked upon a craftily concealed speech for one side or the other, generally, it has to be said, for the prosecution, knowing that the more he appears to be speaking from a position of lofty disinterest the more effective his advocacy will be, and the less likely it will be that the resultant conviction will be overturned on appeal. Some judges get extremely good at this deplorable practice.
The type of summing up most feared by the guilty is often adopted by very rich commercial law QCs who are obliged to sit as criminal recorders for a few weeks in order to further their much grander judicial ambitions.
He may believe that the question of whether a man should be locked up in an evil-smelling cell half the size of his yacht’s for’ard saloon is beneath his considerable intellect, but he delights in constructing a summing up as a work of art. In a few deft sentences the issues in the case are presented with the limpid elegance of a Matisse nude.
The picture of the defendant that emerges is seldom flattering. But should counsel — worrying nervously about the unsavoury consequences that this artistry might have for his client — venture to suggest that he may have left out some important piece of evidence that might radically change the picture, the rich recorder’s reaction is to fly into a Whistleresque bate. He will refuse to acknowledge that the picture could be improved in any way.
Much better from the point of view of most defendants is the Jackson Pollock-style of summing up. Equipped by a diminishing attention span, a failing memory and a long lunch, the learned judge hurls pots of evidence higgledy-piggledy at the jury without restraint or discretion.
Defendants are usually reassured by this approach because even if it is clear where the judge is trying to go, the jury is disinclined to follow. So he is regarded as fair. Sadly for them, Jackson Pollock judges tend to be identified fairly early in their careers. A visit from an anonymous official is followed by an indefinite diplomatic illness and, if they recover, by a discrete transfer to the office of the parking adjudicator.
The judge who tries to sum up the facts neutrally and fairly is in very nearly as unsatisfactory a position. His miserable objective is total blandness. If he succeeds he will repeat to the jury what they remember perfectly clearly anyway, as well as things they had sensibly forgotten and the summing up will strike the jury for what it is — a pointless exercise in time wasting. At best it will send them to sleep, at worst it will bore and irritate them.
In some cases it is no doubt necessary for the judge to remind a jury of evidence that may have been heard many weeks or months earlier. Sometimes complicated scientific evidence needs to be revisited. In such cases it may well be that written summaries of evidence should be used more than they generally are.
But most cases are over in a few days. Prosecution and defence counsel will remind the jury of the important pieces of evidence. Jurors will have taken notes. At least in short cases, what real purpose is served by the judge’s summary of the evidence? Would it not be better if (as in many American states) it was not done at all?