8.5 Speeches, Summing Up & Verdicts

8.5 Speeches, Summing Up & Verdicts

The closing stages of a Crown Court trial follow a fixed sequence with fixed rules. They are examinable precisely because the details — who speaks when, how long before a majority direction, what the foreman must say — are capable of a single correct answer.

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1. The order of speeches

The defence having the last word is a fixed feature of the adversarial trial. Where there are co-defendants, they close in the order their names appear on the indictment.

Limits on content. Counsel must not:

• Assert their personal belief in the client's innocence or in a witness's veracity;
• Refer to matters not in evidence;
• Comment on the defendant's failure to give evidence in terms suggesting it proves guilt (that is the judge's territory, under s.35);
• Make submissions of law to the jury inconsistent with the judge's directions.

Counsel have a duty to assist the court by raising, before speeches, any legal issue that will need to be covered in the summing up, so that directions can be discussed and agreed. Failing to raise a point and then relying on it as a ground of appeal attracts judicial criticism.

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2. The summing up

The judge sums up the law and, so far as necessary, the evidence. The standard content:

On the law

• The division of function: the judge decides the law, the jury decides the facts;
• The burden (on the prosecution throughout, save for any statutory reverse burden) and the standard ("so that you are sure");
• The elements of each offence and of any defence;
• The direction to consider each count separately and each defendant separately;
• Any evidential warning the case requires — Turnbull on disputed identification, Lucas on lies, s.34 or s.35 on silence, bad character, hearsay under s.124, the limited use of a co-defendant's confession, expert evidence, and the good character direction under Vye/Hunter;
• That any majority direction will come later, and that for now they must try to reach a unanimous verdict.

On the facts

• A fair and balanced summary, putting the defence case as well as the prosecution's;
• Identifying the real issues — the modern approach is a focused summary rather than a recitation of the evidence;
• Making clear that any comment the judge makes on the facts is comment only, and the jury is free to disregard it.

Written directions. Under CrimPR Part 25 the judge must give the jury directions on the law in writing unless there is good reason not to, and the Crown Court Compendium provides model directions. The route to verdict — a series of factual questions with the consequence of each answer — is now standard, and is the practical mechanism by which juries are kept on track.

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3. Alternative verdicts

Section 6(3) of the Criminal Law Act 1967 allows a jury, on an indictment for an offence, to convict of another offence expressly or impliedly included in the allegation. Common pairings: s.18 → s.20; robbery → theft; murder → manslaughter.

The judge must decide whether to leave an alternative. The guiding principles are that an alternative should be left where it is realistically available on the evidence and where a failure to leave it would leave the jury with an unfair "all or nothing" choice, but not where it would be unfair to the defence (because it was never explored) or would confuse the issues in a case where the parties have joined battle on a single question.

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4. Verdicts

Unanimity first

The jury retires under a direction to reach a unanimous verdict. On retirement they are placed in the charge of a jury bailiff, they must not separate without leave, and any note from the jury must be read in open court (save where it discloses the state of voting) and dealt with in the presence of the parties.

Majority verdicts — Juries Act 1974, s.17

• The court shall not accept a majority verdict unless the jury have had such period for deliberation as the court thinks reasonable having regard to the nature and complexity of the case, and in any event not less than two hours (s.17(4)). The familiar two hours and ten minutes comes from the Criminal Practice Directions, which add ten minutes for the jury to settle.
• Acceptable majorities: with 12 jurors, 11–1 or 10–2; with 11, 10–1; with 10, 9–1. With 9 jurors the verdict must be unanimous.
• Section 17(3): where the jury convicts by a majority, the foreman must state in open court the number who agreed and the number who dissented. A conviction returned without that statement is unsafe. There is no corresponding requirement for a majority acquittal, so that the defendant is not stigmatised.

Hung juries and discharge

Where the jury cannot agree even by a permissible majority, the judge discharges them from returning a verdict. That is not an acquittal. The prosecution may seek a retrial; the conventional practice is that after a second jury has also failed to agree, the prosecution will offer no evidence unless there are exceptional reasons.

Jury size. A trial may continue with as few as 9 jurors where jurors have been discharged (Juries Act 1974, s.16). If the number falls below 9 the jury must be discharged.

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Exam traps in this section

• A defence opening speech requires a witness to fact other than the defendant.
• Two hours is the statutory minimum in s.17(4); two hours ten minutes is the practice-direction figure.
• The foreman must state the numbers on a majority conviction only.
• A hung jury is not an acquittal.
• With 9 jurors the verdict must be unanimous.