Criminal trials in Britain
“Witness A testified that….” “Witness B testified that the defendant…..” “Witness C testified ….” “Witness D testified to the ……”
That was not what I expected to hear the Judge tell the jury as he instructed them prior to sending them out to consider and determine whether the defendant in a sexual molestation trial should be found guilty or acquitted of the charges he faced. I listened to those instructions when I visited the courthouse in Oxford as I took a break this summer from accompanying our church’s Bach Cantata Choir on a concert tour to England and Germany.
After the jury was escorted by two bailiffs dressed in robes and wearing wigs to deliberate, I went to another courtroom to observe the conclusion of another sexual assault trial. There, the prosecutor was finishing his cross examination of the defendant. Next came the low-key, matter-of-fact summations from the prosecutor and defense lawyer. Garbed in their robes and wigs and with references to their laptop computers, the lawyers described in a very dispassionate manner their respective theories of their cases. There was no emotion, no passion, no raised voices, no histrionics. Just a straight-forward recitation of the evidence, as each interpreted the facts before the jury.
Just then, the first judge’s clerk summoned me; the judge could spare me a few minutes to chat. She escorted me to chambers where, for more time than I expected, Judge Ian Pringle and I discussed the British justice system and its differences from our system in Illinois.
Some judges summarize the evidence for the jury; others do not. It is a matter of discretion. But, a judge’s summary of the testimony and evidence is not uncommon and is accepted. In Britain, it is not viewed as intruding on the province of the jury for the judge to determine which facts to believe and which facts to rely upon in deciding whether the defendant is guilty of the charges.
Jury instructions also may include a roadmap to the ultimate decision. One example of the roadmap is posing a series of questions for the jurors to consider. Answer “yes” to a question, move on to the next question. Answer “no” to any question and acquit the defendant.
Before the Criminal Evidence Act in 1998, defendants were not allowed to testify. However, even after this Act permitted such testimony, defendants rarely testified until another change in the law in 2003. Now a defendant’s testimony, while not required, is expected. If the defendant does not testify and remains silent, the jury can draw an adverse inference from that silence unless the defendant is said to be following the advice of counsel. And, the jury is instructed it must decide whether to believe that statement is made in good faith. If the jury decides it is not, the jury is told to hold that against the defendant, as well.
Here is one judge’s instruction to the jury about a defendant’s failure to mention facts when charged or questioned:
1. Before being interviewed about the allegations against him the defendant was cautioned. He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court and that anything he did say might be given in evidence.
2. As a central part of his defence, the defendant in his evidence denied ever sexually touching Miss xxxx, claiming that the contact between them was purely accidental and that the suggestion that he tried to kiss Miss xxxx was utterly outrageous. Of course, he failed to mention these matters when he was interviewed. This failure may count against him. This is because you may draw the conclusion from his failure to answer questions that he had no answers that he then believed would stand up to scrutiny and has since settled on this account in order to meet the prosecution case. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution’s case and when deciding whether his evidence about these allegations is actually true.
3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonable have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny; third, that apart from his failure to mention those facts, the prosecution’s case against him was so strong that it clearly called for an answer by him.
4. The defendant has given evidence that he did not answer questions put to him by the police on the advice of his legal representative. If you accept the evidence that he was so advised, this is obviously an important consideration, but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind, members of the jury, that a person given legal advice has a choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he later relied on at his trial might harm his defence. Accordingly, decide whether the defendant could reasonably have been expected to mention the facts on which he now relies. If, for example, you considered that he had or may have had answers to give, but genuinely and reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him. However, if you are sure that the defendant remained silent not because of any legal advice but because he had no answer or no satisfactory answer to give at the time and merely latched onto the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him, subject to the direction I have given you under this heading.
Another fundamental difference between the United States and Britain is how judges are chosen. Judge Pringle’s path to the bench was typical. A native of Scotland, Judge Pringle read law at Cambridge, passed his examinations, and served four years in pupilage in London. He then practiced for more than 32 years in Bristol; much of his practice was in litigation, both civil and criminal. In 2003, he was selected as Queen’s Counsel. From that selection until 2012, he tried only serious criminal cases – about half for the prosecution and half for the defendant.
In 2012, he applied to become a judge. He passed an examination. He read a fact scenario for 30-minutes and was then interviewed by a Justice. He passed and was assigned to preside in Oxford. He now oversees the courthouse I visited—what we could call the presiding judge of the Oxford courthouse. In that role, he supervises four criminal, one civil, one family, and five other judges as well as the facility.
Judge Pringle and his judicial colleagues use sophisticated electronic assistance to manage their calls. An electronic docket system, which he demonstrated, lets him pull up an entire case: the indictment, case history and summary of the case, all witness statements and testimony, and all exhibits.
Another difference caught me by surprise: after Judge Pringle left the bench, I attempted to approach his courtroom clerk to ask for an interview. I was quickly and summarily stopped and prohibited from approaching court staff without permission. I was firmly told to remain in the public seats. After a few minutes wait, the clerk approached me where I stated my wish to be able to speak with the Judge. I found it to be a formal and regulated atmosphere, even when the court was not in session.