London, WC2A 2LL
B e f o r e :
MR JUSTICE EDIS
MRS JUSTICE MCGOWAN DBE
|R E G I N A|
165 Street London EC4A 2DY,
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(Official Shorthand Writers to the Court)
Mr M Walsh appeared on behalf of the Crown
Crown Copyright ©
LORD JUSTICE SINGH:
"Members of the jury, did [BD] warn MJ in the month before his sacking not to kiss her daughters? Why? Did he take [ED] outside to sit and see the deer? If so, why? If not, why did she say that? Was [SD] massaged by the defendant? Was it done openly? What caused [CY] to complain of kissing by the defendant?"
The Recorder continued:
"These are some questions, members of the jury, that you may consider when you go out to think about your deliberations in this case but I use and I suggest the word 'may', members of the jury, because in this case our roles are quite different from one another. As I said to you already, members of the jury, you are the judges of the facts. I am the judge of the law.
My job is to oversee the trial process, to deal with points of law or procedure as they arise now at the end of the trial to tell you how the law applies to this case. I'm going to give you my legal directions in writing in a moment and you must follow them. They provide you with the legal framework in which you are to do your job of deciding the facts. As I say, members of the jury, your job is quite different to mine. Your job is to judge the evidence and to reach verdicts based on the evidence. No one else plays any part in that. Although I will remind you of some of the evidence in this summing-up, I play no part in judging it. That is your job and your job alone."
Later in her summing-up, at the point when she had finished going through directions of law and was, as she put it, on the brink of turning to the evidence, she gave a direction in standard terms (see page 9 C to E) as to the respective roles of a judge and a jury in a criminal trial when it comes to the evidence. So far as material, she said:
" ... when it comes to the evidence, members of the jury, about the evidence, all about the facts, that's your job alone and it's your judgment alone that counts.
As I go through the evidence, if I appear to express an opinion or emphasise a particular part of that evidence, only adopt that opinion or emphasis if you agree with it because it's you, not me, that judges the evidence in the case. I should add, members of the jury, it's not my intention to express any view of the evidence, so please don't try to second guess what I may think about the case. It's your views alone that matters [sic]."
" ... in each case the context only permitted one reply: that it was unlikely that Chantelle had made the whole thing up, or that Mr Buckley had put her up to concocting this false story, yet the defence were quite entitled to raise the question of her truthfulness ... "
Later, at page 10, Henry LJ observed:
" ... we think to ask essentially the same rhetorical question seven times was excessive, unhelpful to the jury, and unfairly damaging to the defence.
The linked complaint as to unfairness relates to comments the judge made as to the evidence he was summarising and the almost exclusively one-way nature of those comments - hostile to the defence ... "
At page 13, Henry LJ made this observation:
"Juries are more robust than people often give them credit for, and comment one way or the other is often necessary to keep a fair balance in adversarial proceedings, particularly where one side or the other (more usually but not invariably the defence) has in counsel's address apparently made headway with a point which in the view of the court is unmeritorious. Judges must not feel that they have to be Trappist in austerely eschewing comment, provided that the standard Direction is given. But the giving of that standard Direction will not excuse excessive and largely one-sided comment."
Finally, as to the particular facts of Spencer, Henry LJ said this at page 14:
"In our judgment, the rhetorical questions and the comment here were excessive, were unduly partisan, unbalanced the trial process and made the jury's task more difficult."
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