ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. May 2008 337
May 2008
Editorial
Criminal evidence; JSB specimen directions
The Judicial Studies Board plays an extremely important role in training and
supporting the judiciary, not least in criminal justice matters which are so prone
to hasty legislative change. A familiar aspect of the Board’s work, and one which
impacts tangibly on all Crown Court trials, is the provision of specimen directions.
Their development and use have been criticised by many, as for example with
typical flair by Dr Munday, ‘‘Exemplum Habemus’’ (2006) J Crim. Law 27.
The directions have recently been criticised by the Lord Chief Justice in his
Kalisher Lecture ‘‘Trusting the Jury’’ (2007) (www.judiciary.gov.uk/docs/speeches/
lcj trusting juries 231007.pdf ) echoing his views when presiding in Campbell [2007]
EWCA Crim 1472. In his lecture, Lord Phillips voiced concern ‘‘at the number
of directions that are given to juries that, at the end of the day, are no more than
matters of common sense’’ and announced that ‘‘Lord Justice Latham is leading
a working party to see whether some of these cannot be dispensed with, or at
least simplified’’. Since many of these directions are given in the Crown Court in
England and Wales every working day, their reform is of considerable importance.
His Lordship’s desire to prevent unnecessary direction of jurors is of course
welcome. As a matter of principle jurors ought to be given directions only where
they will be of assistance and only then in a form in which they can be readily
understood and applied. Over-directing juries has long been a concern (see E.J.
Griew, ‘‘Summing up the Law’’ [1989] Crim. L.R. 768) and it certainly seems that
some current directions are unnecessary, revealing nothing to jurors which would
not already have occurred to them. Equally, it is doubtful whether some of the
directions are as clear as they might be or whether they assist jurors. However, before
pressing ahead with revision and possible removal of some directions we must be
confident of how if at all they are defective, what purposes they serve and what juries
need from them. All too often we have been prepared to make false assumptions
about jurors and their decision making (see, recently C. Thomas [2008] Crim. L.R.
Issue 6 and W. Young, ‘‘Summing Up to Jurors in Criminal Cases’’ [2003] Crim.
L.R. 665). If we are serious about crafting optimal jury directions we should invest
time and money in appropriate empirical studies. This extends not just to what
areas of law require directions, but the form they should take to ensure maximum
effectiveness. There have, for example, been repeated calls for greater use of written
directions: see N. Madge, ‘‘Summing Up: A Judge’s Perspective’’ [2006] Crim.
L.R. 817; R. Auld, Criminal Courts’ Review (2001), Ch.5 para.50.
In reforming the specimens, a further dimension must be borne in mind: although
primarily for the benefit of the jury their benefit to judges is undeniable. Judges’
need for specimens is perhaps greater than ever as criminal legislation becomes
increasingly complex and technical. (Anyone doubting that should cast an eye over
the labyrinthine Pt 2 of the Serious Crime Act 2007). As legislative complexity
increases so does the risk of error in directing the jury, and consequently specimen
directions assume greater significance. When regard is had to the hundreds
of Recorders sitting in criminal trials, for many of whom their own practice lies
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