Listening to summing-ups by Crown Court judges would send their colleagues on the Court of Appeal to sleep after only half an hour, Lord Justice Moses has predicted.
In the annual law reform lecture at Inner Temple, he said Lord Justice Auld’s “important and clear” recommendations on criminal procedure, published along with his review in 2001, had been forgotten.
“The Court of Appeal do not sit and listen to the summing-up; indeed, if they had to, few would remain awake for longer than 30 minutes, even with the aid of a flacon [flask] of Portuguese smelling salts,” he said.
Moses LJ said the prospect of an appeal frightened judges into producing a “defensive” summing-up.
“The trial judge is not fearful of criticism from the Court of Appeal or should not be. But trial judges are fearful of the expense and distress of an appeal, and the expense and distress of a re-trial, and it is that which leads them to this endless exercise in composing a defensive summing-up, a summing-up crafted to defend the trial from appeal.”
Moses LJ said he would go further than Lord Justice Auld and require defence counsel to set out the defence at the outset of a trial.
He said that in trials lasting more than a week the judge should provide regular written and oral summaries.
Moses LJ said the factual issues should be debated in court by counsel and resolved by the judge and the issues in the form of questions written down before speeches to the jury.
He said the Auld review recommended that the judge should devise and put to the jury a series of factual questions, the answers to which would lead logically to a verdict of guilty or not guilty. The jury would answer the questions in open court.
Moses LJ said these proposals would “reduce the risk of deadlock and the expense and agony that causes”.
He went on: “A criminal trial costs about £4,300 a day and £7,000 a day at the Old Bailey. Summing-ups regularly last a day in trials lasting more than two weeks.
“There were 389 of such trials in the year to April 2010. £4,000 or even £7,000 is an expensive ticket to listen to a replay of the drama delivered in monotone. The judges’ summing-up is a frequent source of appeals against conviction. Conviction appeals cost about £14,000 day.”