The Judge's Summing-Up At Trial

[Erik Narramore]

If we can take a step back, I will not say that the judge's summing up was fair or unfair.  I say it was 'slanted' and that, according to published material on the case, one or two jurors were interviewed and stated that the judge's summing-up was crucially persuasive.  That doesn't mean it was unfair. 

The fairness or otherwise of the judge's summing-up was addressed at the 1989 appeal (Jeremy's first appeal).  Jeremy was again represented by Geoffrey Rivlin, Q.C.  I think it was Lord Lane who in the judgment dismissing the appeal said that a judge's summing-up need not be neutral and can be slanted towards the prosecution or the defence in order to represent to jurors a judicial view of the relative strengths of the evidence and arguments.

Strictly, Lord Lane was correct about this.  There is a whole debate about whether there should be summing-up at trial at all, due to the way it will tend to impose a judge's view of things on a lay jury.  Supporters of the summing-up process believe it assists the jury.  It does seem a bit contradictory to say that you are putting your trust in a jury, before having a judge explain to them the evidence they have already heard.

That aside, Lord Lane's point was that there is a difference between 'neutrality' and 'impartiality'.  Judges must always be impartial - that is fundamental - but they are not required to be neutral, indeed there will be times when judicial neutrality impedes justice.  In Lord Lane's view, the trial judge is a man of the world and should not just sit on the fence, but get stuck in, and if either or both the prosecution or the defence have weak arguments, then he should let it be known to the jury in his summing-up.  Of course, there are ways of letting it be known.  Part of good judgemanship is to have a care for tone and atmosphere and how you put things across.  Being a judge is theatre.  The judge has to strike a balance in maintaining public confidence in the ability of the criminal justice system to dish out justice efficiently while also being fair to the defendant.  Even if the defence has been terrible, the judge can't sum-up to the jury in such a way that it could be construed as the judge directing a Guilty verdict.

In giving his summing-up in the Bamber case, the judge was of course influenced by the evidence heard, and the defence put themselves in something of a straight-jacket by accepting two crucial prosecution points, which were in turn premised on a police interpretation of the evidence:

(i). that Nevill was injured prior to telephoning Jeremy;
(ii). that the killer must have used the rifle with the silencer attached to it and therefore the killer returned the silencer to the gun cupboard.

I hold no brief for Judge Drake, but rather than blame him, I am more inclined to question the legal strategy of the defence.  It seems to me that Rivlin, Q.C. decided to run a 'reasonable doubt' defence rather than refute the prosecution case entirely on the basis of innocence.  I have discussed on a different thread I started the distinction between these two basic strategies (which, of course, in reality overlap considerably, and did in this case). It would be easy to criticise Rivlin for this, but remember that we are looking at this with the benefit of leisurely hindsight.

I mention all this to show that while, informally, we may agree that the judge's summing-up was not fair for all sorts of reasons, in strict legal terms plenty of judges and lawyers would counter that it was 'fair', irrespective of what else they think about the case.

[Erik Narramore]

Impartial - treating the parties equally, being fair and unbiased.  This is essential for a judge and his fundamental duty.  He is not a 'judge' and the trial is unfair if he can't be impartial.

Neutral - not taking sides.  It seems to me this is impossible for a judge in reality because he has to make decisions - such as what evidence to admit, whether to allow certain questions during a cross-examination, what sentence to give a convicted offender - and inevitably he will be guided in this by indicators of the comparative strengths of the parties' positions, and thus decisions will trend in favour of one party over the other so that the judge will be seen to favour one side or the other's arguments.  The judge also has to give signals to counsel (the barristers) and jurors about the strengths and weaknesses of each side's evidence and arguments.  The trial couldn't function if a judge were strictly neutral.  (Of course, here I refer to a judge's neutrality, not the concept of judicial neutrality - a different thing).

The language is tractable, though, and Jeremy Bentham would disagree with me:

'It is the duty of the judge to be impartial;—therefore it is his duty to be partial'. J. Bentham, Rationale of Judicial Evidence, Works (1843)

I believe Bentham is guilty of confusing impartiality with neutrality, whereas Lord Lane at Jeremy's first appeal in 1989 was speaking to what I see as the correct distinction between the two, even if he did not use these terms in so many words.

Maybe dropping the summing-up procedure would be an improvement for criminal trials.  It's a question that could perhaps be debated in the off-topic section.

[Erik Narramore]

I speculated without the benefit of the full transcript, so unfortunately I was not aware of a flaw in the summing-up, identified by a barrister in the documentary, who does have it.  He pointed out that the judge had failed to summarise Jeremy's evidence while waxing on about Julie.  It seems that Anthony Arlidge was also less-than-impressed with the summing-up, which is quite telling given that he was prosecution counsel.

Of course, we must also remember that none of us were at the trial (or I assume none of us were there), so we can't know things like tone of voice, body language, and other mannerisms, that can give life to a dry text and afford it a meaning that is quite different to the impression given on reading it decades later.  Related to this, I had omitted to mention in my earlier post the inclusion in the documentary of part of the interview given by Judge Drake.  I think that happened in the 1990s.  I had always wanted to see that.  I wish we could see more of it.

I would also like to see more of Colin's interviews from the 1990s - including (if I'm not mistaken) an appearance on the Moral Maze and an interesting BBC2 programme that used to run, the name of which has slipped my mind.