James Morton has concerns over a jury's recent award of £50,000, and in a light-hearted look at the unusual habits of some judges, outlines how to sum up for a conviction

Whatever was an experienced and well-liked judge doing behaving towards the defence in such a manner that the Court of Appeal has quashed convictions in two cases heard by him? It must have been ill-judged because, we read, the defendant ‘not unfamiliar with the legal system’ (The Times, 22 July) was almost in tears, not over his conviction, but for the way he had been treated.


Times have changed. It was as late as 1960 that a judge told a jury that they had already disrupted his travel arrangements and that if they did not return a verdict inside the next ten minutes he would keep them in overnight (McKenna [1960] 1 QB 411). They returned a verdict inside the time limit and the appeal court quashed it.


Nevertheless, the court would have nothing to do with a 1968 appeal from Middlesex Sessions, when, as counsel was about to address him, the chairman said ‘Oh God’ and then laid his head on his arm and began groaning, something he continued to do intermittently throughout the speech. The conduct could not be condoned, but it was impossible to say the conviction was unsafe or unsatisfactory (Hircock [1970] 1 QB 67).


Towards the end of his career as a mid-Victorian Lord Chancellor, Lord Brougham ‘became careless and heedless on the bench, and it was common talk how he would write letters, correct proofs, read the newspapers, do anything, in short, but follow the arguments or listen to the affidavits’.


His Lordship thought the criticism was wholly unjustified and when a barrister confronted him by stopping in mid-sentence and waiting until Brougham paid attention, the judge commented: ‘You may as well say that I am not to blow my nose or take snuff while you speak.’


In the 1890s, Sir James Fitzjames Stephen, whose son was vaguely suspected of being Jack the Ripper, became mentally disturbed and once began to sum up without calling on the defence. (But then we have all seen amateur district judges give verdicts before the defence has addressed them.)


Fifty years later, the bank robber Alfie Hinds, himself ‘not unfamiliar with the legal system’, thought it was easy to tell when Lord Goddard had lost interest in a case – he started picking his nose. About the same time, Mr Justice Hallett stood down after the Court of Appeal had criticised him for asking too many questions. Now the days are long gone when the judge could say: ‘Here is the ham, here is the defendant. If you agree with me that he stole it, you will convict him.’ But that seems to me to be a model, succinct, summing-up.


Just as in the US, where judges give standard directions on the law, so perhaps those ambitious for a place on the bench should have guidance on how to sum up for a conviction. Many say that the easiest way to pot a defendant is to sum up down the middle, but for those without the necessary experience I have taken the trouble to draft a short precedent on dealing with the challenged evidence of a police officer. Readers may wish to adapt and improve the text, but, if it finds favour overall, others may follow: ‘Members of the jury, you have heard Chief Inspector Smith, a man who holds a medal for gallantry, has had 53 commendations during the nearly 30 years of valuable service to the force and the community as a whole [recite last three if within living memory] and who on his way to court to give evidence in this very case was able to rescue a child [or dog – possibly better, given the British love of animals] from a fire [or drowning or a runaway horse, or at worst helped a pregnant woman give birth], say that he found the banknotes stuffed behind a false fireplace in the defendant’s bedroom and that when he asked the defendant, Smith, about the cache he replied, “I never thought you’d find it there. I’ve used it many times before”.


‘Now, of course and as might be expected [a slight smile to the jury is permitted], the defendant [a man who has 17 convictions] has a completely different version of the matter. It is wholly up to you whether you accept the evidence of this gallant officer or that of the defendant. [Here a small shift of the buttocks is allowable].


That should be Court of Appeal-proof.


For those who want to read more of what happened to tiresome judges, some of whom were sentenced to death – albeit many years ago – they should read David Pannick’s highly entertaining book Judges.




****



Until now I have been a great supporter of the jury system in both civil and criminal cases. However, I find it odd that a jury can award £50,000 to a serial womaniser, a man convicted of having sex with an under-age girl, who has fled his home country to avoid a prison sentence and who is allowed to bring an action here but, to avoid the possibility of arrest and extradition, to give evidence on videolink.

Many might ask what reputation has he and think that a penny would have been the right result. Perhaps the jury should not fix the damages. Still, as they say, hard cases make bad law. There is always the Court of Appeal to determine if they are correct. It is interesting to note that the costs of the case seem to have crept up to around £1.5 million.


James Morton is a former criminal law specialist solicitor and now a freelance journalist