neglect of the jury in irish criminal law - icba · web view2. delay / publicity in a strong...

ICBA Seminar,

26 February 2009The Future of Model Jury Instructions in Ireland

Brian Foley B.L. & Genevieve Coonan B.L.

“We would in general welcome a development along the lines referred to whereby Bench

Books would be drawn up by the Judicial Council, when established, that could bring greater

standardisation to the formulae used for certain aspects of judges’ charges.”

Balance in the Criminal Law Review Group, Final Report1

“I do not think I am wrong in detecting, in recent years, a great caution on the part of the

judiciary in penalising the media in respect of pre-trial publications. Even gross cases may

avoid criticism or redress on the basis that jurors will not remember the publication at all (the

so called fade factor) and may not have read it in the first place; that jurors will be instructed

to disregard any material relevant to the case other than what they have heard in the

courtroom and it should not be assumed they will not be able to comply with this instruction;

and that people tend to exaggerate the likely effect of what is in the newspapers anyway. I do

not accept any of these propositions. Neither do I accept their converse: there is a

considerable need for serious research into these topics and for ceasing to rely on guess work

or vague impressions...”2

Per Hardiman J. in Rattigan v DPP3

A. INTRODUCTION

Unlike in Canada, Australia, New Zealand, England and the United States (or their

respective sub-jurisdictions) the Irish criminal process does not benefit from standardised

and publicly available model jury instructions. Indeed, there are very few decent reasons

(save, perhaps, in these times, those relating peculiarly to issues of resources) as to why

Ireland does not have a set of model jury instructions. There is certainly no evidence that

1 Page 235 of the Final Report.2 [2008] IESC 34 at p.15 of his judgment.3 [2008] IESC 34.

The Future of Model Jury Instructions in Ireland | Irish Criminal Bar Association Seminar, 26 February 2009

Brian Foley BL & Genevieve Coonan BL

there has been active resistance to such a development. Rather, it has simply not

occurred. However, with the expected establishment of a “Judicial Council” in the near

future; a body, it seems, somewhat analogous to many of the bodies responsible for

model instructions in other jurisdictions4 – it is likely that change is coming.

In this respect, the aims of this paper are twofold and relatively modest. Both are aimed

at assisting, in some small way, in ensuring that Ireland follows the best practice possible

in any future project on model instructions. First, it attempts a very basic survey of the

prevalence of model charges in other jurisdictions and offers some description of the

standards and methods of those charges and sketches out what may be learned from

international practice. Second, it seeks to engage in some discussion of what may be an

incredibly important requisite to any development of model charges – the need for

research into jury behaviour and comprehension. The point here is simple; if Ireland is

going to develop model instructions, it should do so in the best possible manner and

should learn from the experience of other jurisdictions.

B. MODEL INSTRUCTIONS - ADVANTAGES

Whereas the desirability of model instructions was mentioned in passing in the Final

Report of the Balance in the Criminal Law Review Group, it seems appropriate to begin

with a recitation of some of the advantages which model instructions are generally

perceived to bring.

First, standard directions, properly used, are generally believed to improve the efficiency

of the administration of criminal justice. They allow the court and counsel to save time in

the sense that the need for research into the relevant principles is reduced. Moreover,

well drafted and focused model direction can assist in avoiding over-lengthy charges and

4 See e.g. the Law Reform Commission Report on Prosecution Appeals and Pre Trial Hearings (LRC 81-2006), at 41 where, it appears, one of the first associations between the proposed Judicial Council and the subject matter of this paper may have been made.

2



charges which may be bereft of structure. Moreover, as is increasingly emphasized, trial

judges should discuss the content of charges on particular issues with counsel prior to

summing-up.5 It is arguable that such discussions would tend to be more productive

when done in the context of a collective knowledge of model directions – i.e. a shared

reference point for counsel and court.

Second, it is likely that model instructions would assist in eliminating legal error on the

part of trial judges.

Third, the availability of neutrally phrased directions reduce the possibility that the actual

wording of directions given to the jury to be overly favorable to one side over another.

The logic here is that well worded directions (even if not to be slavishly followed) act as

an anchor setting a frame of linguistic range or a “standard” for each individual

summing-up.

Fourth, the existence of model directions can be a valuable check-list for the trial judge in

respect of the issues which should be addressed and the basis or building block for the

charge.

Fifth, with the benefit of advance preparation and input from those with expertise on the

matter, instructions can assist in the maximisation of jury comprehension and assist the

trial judge in communicating more effectively with juries.

C. WHAT MODEL INSTRUCTIONS ARE NOT

No model instructions are ever intended to be reproduced word-for-word in the summing-up. Thus it has been routinely stated by the Court of

Appeal that an appropriate directions under s.34 of the Criminal Justice & Public Order 5 See e.g. R. v Franklin [1989] Crim. L.R. 499, at 500 (corroboration); R. v Rodrigues [2001] EWCA Crim 444, at para.27 (direction on inferences from silence); JSB Specimen Direction No.7 (joint enterprise)

3



Act, 1994 in England (i.e. the equivalent of s.19A of the Criminal Justice Act, 1984

charge here) is not necessarily one which follows the model directions to the letter but

one which properly and fairly conveys the key issues to the jury.6 In the Queensland the Supreme And District Court Benchbook contains the following enjoinder:-

These notes are not intended as an elaborate specification to be adopted

religiously on every occasion. A summing-up, if to be helpful to the jury, should

be tailored to fit the facts of the particular case, and not merely taken ready-made

"off the peg".

Similarly, the Criminal Trials Courts Bench Book in New South Wales states that:-

There is a danger that publication of standard directions will convert a summing-

up into a series of formulae which are not necessarily appropriate to the facts and

circumstances of each particular case. For that reason, it is important to recognise

that, subject to any appellate indications to the contrary, no particular form of

words is required and an individual judge is free to depart from the suggested

directions and to direct the jury as he or she thinks fit, provided that the directions

are in accordance with the law.

The purpose of model directions is never to replace the summing-up. Rather it is to assist

the administration of justice by permitting a trial judge greater ability to deliver a charge

which puts the jury in the best possible position to determine the relevant factual matters

6 See R. v Birchall Unreported, Court of Appeal, 20th January, 1998; The Times, 10th February, 1998; [1999] Crim. L.R. 311; R. v Milford (Unreported, Court of Appeal, 21st December 2000); R. v Bresa [2005] E.W.C.A. Crim. 1414, at 49-50; R. v Turner [2004] All E.R. 1025, at para 1033.

4



within the appropriate legal boundaries.7 They can only assist in this way if, in fact, trial

judges will be keen to mould the relevant directions to the particular case before them.8

D. MODEL INSTRUCTIONS IN OTHER JURISDICTIONS

1. Canada

In Canada, the Canadian Judicial Council (CJC)9 maintains a set of model “jury

instructions”. The CJC website states that:-

The Council’s National Committee on Jury Instructions created model jury

instructions for criminal cases. These jury instructions provide a “script” for

judges to read when informing juries about the nature of the criminal charge and

the issues that are specific to the case….The purpose of the jury instructions is to

reduce case dismissals resulting from errors in instructing the jury, making the

court system more efficient.

For the most part these instructions are not accompanied by relevant legal commentary

and are not footnoted or annotated with the relevant case-law from whence the directions

are drawn. Sample direction is included at Appendix A.

7 See e.g. State v Avila 166 Conn. 569 (1974), at 574 where it was said that directions should give the jury “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” See also R. v Daley [2008] 1 W.W.R. 1 (Supreme Court of Canada), at para. 32:-

The trial judge must set out in plain and understandable terms the law the jury must apply when assessing the facts. This is what is meant when it is said that the trial judge has an obligation to instruct on the relevant legal issues.

8 See e.g. per Hayne J. in the New South Wales case of HML v The Queen (2008) 245 ALR 204:-Model directions are necessarily framed at a level of abstraction that divorces the model from the particular facts of, and issues in, any specific trial. That is why such directions must be moulded to take proper account of what has happened in the trial. That moulding will usually require either addition to or substration from the model, or both addition and substration.

9 See <http://www.cjc-ccm.gc.ca/> (last visited, 23 February 2009)

5



2. Australia

Several of the Australian jurisdictions utilise model directions. Two very good examples

are those in use in Queensland and New South Wales. The Queensland specimen

directions are found under the title of the “Supreme And District Court Benchbook”.10

These directions, all things considered are more exhaustive than the Canadian Judicial

Council directions. They are also annotated at points with relevant case-law explaining

the particular directions. All in all there are 156 model directions in use in Queensland.

The directions in use in New South Wales (under the auspices of the Judicial

Commission of New South Wales (Criminal Trials Courts Bench Book) are of, perhaps,

an even higher standard. These directions are very well served by legal commentary and

discussion (not just citation) of the applicable case-law. Indeed, at points, the New South

Wales directions approximate a text book on charging. Samples are included at

Appendix B.

3. England and Wales

In England and Wales the Judicial Studies Board maintains a set of Specimen Directions

entitled the Crown Court Bench Book – Specimen Directions.11 The Directions (which

are 59 in number) are not, by any stretch of the imagination, as well annotated or as those

in New South Wales but, on occasion, they are reasonably footnoted. Unlike in some

American jurisdictions, the directions tend to focus on issues of general principle which

may arise in the trial and do not purport to be an exhaustive database on charging on

particular types of offences etc. Sample is included at Appendix C.

4. The United States

10 See <http://www.courts.qld.gov.au/2265.htm> (last visited, 23 February 2009)11 See <http://www.jsboard.co.uk/criminal_law/cbb/index.htm> (last visited, 23 February 2009)

6



Examples in this jurisdiction are multiple as one would expect. On the Federal level, they

include the model directions for the Eighth Circuit (including references to the other

Circuits) in the United States; Manual of Model Criminal Jury Instructions, for the

District Courts of the Eighth Circuit (Judicial Committee on Model Jury Instructions for

the Eighth Circuit, 2008); Pattern Criminal Jury Instructions for the District Courts of the

First Circuit (1998); Fifth Circuit Pattern Jury Instructions (Criminal Cases) (2001) Sixth

Circuit Pattern Criminal Jury Instructions (1991); Pattern Criminal Federal Jury

Instructions for the Seventh Circuit (1998); Ninth Circuit Criminal Jury Instructions

(2000); Eleventh Circuit Pattern Jury Instructions: Criminal (1997) and the Federal

Judicial Center, Pattern Criminal Jury Instructions (1988).

Many (but not all) of the States also have their own model instructions. Indeed, as is

examined in more detail below, there is something of a movement towards reform of the

State level model instructions along the lines of a “plain-English” policy with several

State’s following California’s example in this respect.

The Manual of Model Criminal Jury Instructions, for the District Courts of the Eighth

Circuit is a good example the high standards which are attainable.12 This is a 588 page,

very well annotated document including discussion of relevant legal case-law to the

appropriate instructions. Equally, the Pattern Criminal Jury Instructions for the District

Courts of the First Circuit (1998)13 are very well annotated and extensive. Samples are

included at Appendix D.

5. Updating of Instructions in Other Jurisdictions

12 See <http://www.juryinstructions.ca8.uscourts.gov/crim_manual_2006.pdf> (last visited, 23 February 2009)13 See <http://www.med.uscourts.gov/practices/crpji.97nov.pdf> (last visited, 23 February 2009)

7



In other jurisdictions, the model instructions are continuously monitored and updated to

reflect developments in the criminal law. The JSB in England, for example, has modified

the Crown Court Bench Book in August 2005 (in light of the Criminal Justice Act, 2003),

June 2007 (new directions included) and October 2008 (direction on defendants bad

character updated). The New South Wales Criminal Trials Courts Bench Book is

updated more frequently with 23 updates to date including three in 2008 alone.

6. Public Availability

A notable feature of the model instructions in many jurisdictions is that are made publicly

available. In Australia, for example, it has been noted that the “benchbooks” which were

previously maintained were exclusively for the judiciary. However, recent versions of

instructions have been made widely available. In Queensland, for example, it is said:-

The Judges consider it appropriate that the Benchbook be open to all participants

in the criminal justice process. Copies will therefore be provided to the Director

of Public Prosecutions and the Public Defender, and to the Presidents of the Bar

Association of Queensland and the Queensland Law Society for the information

of their members. Unrepresented accused persons also will have access to a copy.

In New South Wales, the instructions are prefaced as follows:-

Previous editions of the Bench Book have been available only to judges. The

Judicial Commission has decided to make the Bench Book more generally

available. It hopes this will further enhance the contribution of the Bench Book to

the efficient administration of criminal justice by ensuring that the legal

representatives of all parties are aware of what kind of direction is likely and are

able to make submissions directed to adapting the standard directions for the

particular circumstances of the case.

8



There is considerable merit to this approach. If part of the advantage of model

instructions is that they assist in the efficiency of the administration of justice, it makes

sense that no qualification should be put on the availability of same. Indeed, in today’s

culture of transparency it would, perhaps, be bordering on indefensible to maintain

secrecy over model instructions. Moreover, wider availability would tend to permit the

instructions to come under the scope of scrutiny and critique which can only serve to

improve quality over a prolonged period.

7. The Bodies Responsible

Each jurisdiction has its own body responsible for the preparation and maintenance of

jury instructions. For the most part, it appears that the task is entrusted to bodies or

committees of bodies who share at least some of the Courts Service’s functions and who

would, it seems, be more akin to the proposed Judicial Council.

In England and Wales, the Judicial Studies Board (“JSB”) is directly responsible for

training full and part-time judges in England and Wales, and for overseeing the training

of Lay magistrates and chairmen and members of Tribunals. In New South Wales the

instructions are maintained by the Judicial Commission of New South Wales set up under

the Judicial Officers Act, 1986 which, again, has a training function in respect of the

judiciary. In Canada, the responsible body is the Canadian Judicial Council, established

under Part II of the Judges Act, 1970 with part of its mandate being to “improve the

quality of judicial service”. Under its auspices sits the “National Committee on Jury

Instructions.”

It would seem to be consistent with international practice to allocate the task of preparing

model instructions to the proposed Judicial Council. However, the Judicial Studies

9



Institute or, indeed, the Courts Service should not be discounted if political will behind

the introduction of the Council falters. Indeed, the functions of the Courts Service are:

to manage the courts,

to provide support services for the judges,

to provide information on the courts system to the public,

to provide, manage and maintain court buildings,

to provide facilities for users of the courts.

Clearly the Courts Service has an infrastructural remit well beyond, for example, the

Canadian Judicial Council, but it is difficult to see any clear reason in principle why it

could not assume the role. Indeed, it may be noted that in Queensland, it appears that the

Supreme And District Court Benchbook was very much the product of the Judge’s own

initiative:-

The gestation of this Benchbook began in 1999. In April that year, the Judges of

the Supreme Court, in the course of their Annual pre-Easter Seminar, resolved to

compile a contemporary version of the manual prepared by the Judges in the

1980’s with the assistance of former District Court Judge RF Carter. The Judges

of the District Court were of the same view, adopting the recommendation of that

Court’s Strategic Planning and Budget Committee. A committee of Judges

comprising McPherson JA, Thomas JA, Mackenzie J and Robertson DCJ

coordinated much of the early work, with many Judges of both the Supreme and

District Courts providing drafts on particular topics. In recent times, Byrne and

Holmes JJ and Robertson and Dick DCJJ have worked intensively, over extended

periods, to bring the work to its present state…

It would be something of a shame if any impetuous behind the drafting of model

directions was felt to believe inextricably connected with the fate of the proposed Judicial

Council.

10



E. THE WORK NEEDED

1. Law and Empirics

It should not be controversial to propose that propositions of law can be closely

associated to empirical propositions. For example, Ryan v The Attorney General14 shows

that there was a factual basis for believing that fluoridation of water was not dangerous.

Equally, the Supreme Court judgment in PJ Carroll v Minister for Health15 indicates that

“anti-smoking legislation”16 is probably premised on some legislatively held factual

viewpoint about the harmful nature of tobacco and smoking.17 Indeed, one can also go a

little bit further and argue not only that law is sometimes based on empirical evidence but

that it should be. The present audience, for example, would probably be familiar with the

critique open of the Criminal Justice Acts of 2006 and 2007 on the basis that professed

empirical or “real world” reasons for toughening up aspects of the criminal law were not

necessarily rock-solid.

In several jurisdictions where model directions are in use, there have been concerns

voiced about their suitability. In particular, questions tend to be raised in relation to jury

comprehension of the existing charges and directions.18 Further, as many instructions are

14 [1965] IR 294.15 [2005] IESC 26.16 A collective label used by the Court for the Public Health (Tobacco) Acts, 2002 and 2004 and the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003.17 It should be noted that this particular judgment did not deal with the substantive point about the proportionality of “anti-smoking legislation”. Rather, it concerned an appeal against an order of Kelly J in the Commercial Court which prohibited the defendants (i.e. the State) from adducing evidence on the nature and harmful effects of tobacco at trial. The Supreme Court, per Geoghegan J, allowed the appeal on the basis that such evidence would be essential to any argument that the restrictions put in place were, in fact, proportionate.18 This has prompted several law reform investigations into jury instruction. See e.g. New South Wales, Law Reform Commission Consultation Paper, Jury Directions (CP 4, December 2008; Victorian Law Reform Commission, Jury Directions (Consultation Paper 6, 2008); Queensland Law Reform Commission “Jury Directions Review” (2008). For concerns expressed in England see Philips “Trusting the Jury” (Criminal Bar Association, Kalisher Lecture) (23 October 2007) (noting the establishment of a working party in England to consider re-drafting of current model instructions).

11



designed to limit or prevent the occurrence of jury prejudices and or biases, it stands to

reason that those directions should be properly grounded. There is, in short, a need to

base jury directions on sound empirical knowledge about the jury. There is a need to

have an appropriate framework within which to work. Consider, for example, the

following selected areas.

2. Delay / Publicity

In a strong distillation of the reasoning obvious in the previous jurisprudence Hardiman J

held in the case of Rattigan v DPP:-19

“I do not think I am wrong in detecting, in recent years, a great caution on the part

of the judiciary in penalising the media in respect of pre-trial publications. Even

gross cases may avoid criticism or redress on the basis that jurors will not

remember the publication at all (the so called fade factor) and may not have read

it in the first place; that jurors will be instructed to disregard any material relevant

to the case other than what they have heard in the courtroom and it should not be

assumed they will not be able to comply with this instruction; and that people tend

to exaggerate the likely effect of what is in the newspapers anyway. I do not

accept any of these propositions. Neither do I accept their converse: there is a

considerable need for serious research into these topics and for ceasing to rely on

guess work or vague impressions. Moreover, there is some evidence of concern,

by frank and outspoken journalists, as to the effect such publications.”20

Thus, as Hardiman J rightly points out, our jurisprudence has, at various points, premised

conclusions on one or other of the empirical matters referred to in that quote. Indeed, one

well known example is D v DPP21 where members of the Supreme Court each premised

19 [2008] IESC 34.20 [2008] IESC 34 at p.15 of his judgment.21 [1994] 2 IR 465. In this case the accused had stood trial twice on a charge of indecent assault on a boat off the coast of Donegal. On both occasions the jury had been discharged, and retrials had been ordered. At

12



conclusions what were essentially different empirical assumptions about the effect of

exposure of material to the jury and on the ability of directions to obviate any potential

prejudice done thereby. As Hardiman J. points out there are no obvious reasons (in the

Irish context) to believe those assumptions are correct. Nor, as matters stand, are there

any reasons to believe they are incorrect. The point is simply this; the law makes

assumptions about how jurors behave and upon the foundation of those beliefs the Courts

decide whether or not a real risk of an unfair trial may exist.

3. The Majority Verdict

Initial Mention?

the first trial he had been found not guilty of ten other charges by direction of the trial judge. Shortly after the discharge of the jury in the second trial, on the grounds of prejudicial newspaper reporting of the trial, an interview with the complainant was published on the front and inside pages of a national Sunday newspaper. The article was headed "Rape: it began when I was 11", and underneath "Girl tells of her five year ordeal of assaults, pregnancy, a child - and suspended sentences for three men". In it, the complainant said she had been assaulted in six different locations, none of which were named but one of which bore a similarity to that referred to in the remaining indictment against the applicant. The complainant or the applicant was not named in the article but the history of the criminal proceedings to date was given, including the fact that seven men had been charged; three acquitted; three given suspended sentences; the trial of the seventh "halted this week" after prejudicial newspaper coverage; and that the seventh man had originally faced ten charges. The complainant was quoted as saying "I kept thinking I wish I was dead". Could a retrial be prohibited? The Supreme Court all agreed that the applicant had to show that there was a real risk of an unfair trial, but they disagreed somewhat in how that principle should be applied. For the majority, Blayney J held that what risk there was, was not unavoidable. He, essentially, downplayed the relevance of the article nothing that jurors were unlikely to automatically associate with the trial. Denham J paid close attention to the fact that it was a one-off article, rather than part of widespread media coverage. Both judges pointed out that the jury would be directed by the trial judge to put such matters, if they had been exposed to them, out of their mind. Moreover, Denham J pointed that for unfairness to occur a juror must have read, remembered, connected the article to the accused, then be prejudiced, and then disobey the jury direction. Egan J, on the other hand, dissented, and argued that the article was calculated to arouse sympathy for the victim. He said the only way the trial could proceed would be where a sufficient amount of time had passed to allow what he referred to as “fade factor” to occur such that the story may not have been “fresh” in the minds of any potential juror.

13



In England the position is now governed by the Practice Direction of the 31st July,

1967.22 It is said therein that before the jury retires, the trial judge should direct the jury

along the following lines:

As you may know, the law permits me in certain circumstances to accept a verdict

which is not the verdict of you all. Those circumstances have not as yet arisen so

that when you retire I must ask you to reach a verdict upon which each one of you

is agreed. Should, however, the time come when it is possible for me to accept a

majority verdict, I will give you a further direction.23

Thus, the trial judge will instruct the jury to return a unanimous verdict but will mention,

without elaborating in significant detail, that a majority verdict may later become

acceptable. There is relatively little guidance in the Irish authorities on the scope of the

initial directions the trial judge should give to the jury. The nearest authority to the point

seems to be People (DPP) v Cahill24 where the Court of Criminal Appeal noted that:

The jury were initially given the appropriate direction that they would have to be

unanimous in arriving at a verdict of either guilt or innocence. Implicit in that

direction is that, if they cannot so agree, the trial will be aborted. At the

appropriate time, they were advised by the trial judge of their right to return a

majority verdict. Again, it was implicit in that direction that, if they could not

reach a conclusion by such a majority, the trial again would be aborted.25

(emphasis added)

22 (1967) 51 Cr App Rep 454 [1967] 3 All ER 137, [1967] 1 WLR 1198. With minor changes, this Practice Direction has been included in a recent consolidation of criminal Practice Directions which is reported at [2002] 1 WLR 2870. References herein will be to the 2002 consolidation. It might be noted that before the advent of the majority verdict it had been said by Lord Parker CJ in R v Kalinksi [1967] 2 All ER 398 that it was not necessarily fatal for a trial judge to fail to direct a jury that a verdict must be unanimous. For a different view see e.g. R v Cunningham (1951) 101 CCC 123 (New Brunswick Court of Appeal).23 [2002] 1 WLR 2870, at 2904.24 [2001] 3 IR 494.25 [2001] 3 IR 494, at 511.

14



Unfortunately, it is unclear whether Cahill means to equate the initial and “appropriate”

direction with a direction on unanimity only. The English experience tends to indicate

that there is nothing inherently wrong with making an initial reference to the possibility

of a majority verdict. There is, however, something of a thin line to tread here. It may be

argued that a jury, entering deliberations under the impression that only a unanimous

verdict is acceptable, may reach a point – even before the majority direction is given –

whereby the belief may enter the mind that deliberations might become endless. This can

create the risk of the “let’s just get this over with” factor.26 On the other hand there is

also a risk that a jury, cognisant of the fact that majority verdicts may become acceptable,

will be less willing to work at reaching a unanimous verdict. There is, in short, a thin line

between choosing between two methods of direction and the basis for choosing one side

of the line over would have to be some account of how one believes juries, in fact,

behave.

Timing?

It is not controversial to say that the majority direction should be given when it is clear

that the jury have attempted to reach a unanimous verdict for such period of time as the

court thinks reasonable, having regard to the nature and complexity of the case.27 In

deciding when to give this direction the trial judge must always be cognisant of the

principle enunciated in R. v Watson28 that a jury must be free to deliberate without any

form of pressure being imposed upon them, “whether by way of promise or of threat or

otherwise…”.29 This may lend support to the argument that a jury left to deliberate for

too long under a direction to reach a unanimous verdict might become apprehensive of

the risk of being stuck in deliberations with no end in sight. For example, where the jury

has been deliberating for a long time and has indicated a lack of unanimity, if it returns

26 See People (DPP) v Finnamore, Unreported, Court of Criminal Appeal, 21 Nov 2005.27 And, assuming, the requisite statutory time period had passed. See s.25 of the Criminal Justice Act, 1984.28 [1988] Q.B. 69029 [1988] Q.B. 690, at 700

15



with a verdict immediately after being given a majority direction, the suggestion may be

made that the direction facilitated an “easy way out” for the jury. On the other hand,

there is a good deal of sense to the observation made in R. v Thompson30 that it is quite

natural for a jury to return with a majority verdict “quite shortly after they are given a

majority direction”.31

Again, we have an unfortunate duality. On the one hand, we could rationally be

suspicious of a jury who returns immediately after the majority direction. On the other

hand, we should rationally assume that in many cases, this is precisely what one could

expect to happen if a jury – unable to reach a unanimous verdict, are later allowed to

express a majority preference. For example, in some cases the jury may be divided 10-2

from the very beginning of deliberations. After the majority direction, precisely this

verdict may be delivered and there would seem to be very little wrong with that; the

majority direction has simply allowed the consistent majority to find its legal voice. In

contrast, the inference that the verdict was arrived at in an improper manner seems

stronger where the jury was divided eight-four or nine-three for a prolonged period of

deliberation and a “switch” occurs immediately after a majority verdict is given.

R. v Campbell32 illustrates these issues. In this case, the trial judge’s summing up began

on a Thursday and concluded at 11.45am on a Friday. The case had lasted two weeks.

Before it retired, the trial judge assured the jury not to be worried about being sequestered

in a hotel for the weekend in the event that it did not reach a verdict by Friday evening.

He indicated that the jurors would, instead, be sent home and return on Monday to

resume deliberations. At roughly 4.30pm on Friday the jury indicated that it would “like

to conclude tonight if at all possible.” The judge indicated that time was available, but

that “obviously, it cannot go on for too long” and re-stated that if no verdict was received,

the jury would have to break until Monday. He emphasised that members of the jury

must not get into the “frame of mind” whereby they felt under “any pressure of time or in

30 [2004] EWCA Crim 337731 [2004] EWCA Crim 3377, at para. 51.32 [2005] EWCA Crim 2078

16



any sort of rush”. It was at this point he gave a majority direction. The jury returned just

under an hour later with majority verdicts against the accused. On appeal, counsel argued

that giving the majority direction at this point placed too much pressure on the jury. The

suggestion behind this argument, it seems, was that the direction may have given the jury

the impression that it had to reach a decision before the end of the day. It was argued

therefore that it was too soon to give the direction – the majority may have been cobbled

together not out of a sincere impression of guilt, but out of a desire to go home. The

Court of Appeal dismissed the appeal, emphasising, per Calvert-Smith J., the relatively

uncomplicated nature of the evidence that the jury had to consider and the failure of the

defence to adduce any evidence. The Court concluded as follows:

In those circumstances it cannot be said that a six hour retirement was too soon

for the majority verdict direction to be given or that there is anything in the point

that the eventual verdicts may have been the result of improper pressure within

the jury room.33

It may not be unfair to observe that an issue as “simple” as giving of the majority

direction is one which depends, to a large extent, on sound information and

understandings of, inter alia, how jury’s behave under pressure and whether jury’s will,

in fact, try and reach unanimity if majority is possible. Those are serious issues, but

issues which, unfortunately, there seems to be little illumination.

4. Feeding Into the Judges Charge

The summing up (and, indeed, intra trial directions) should have the aim of making the

law as comprehensible and as easy to apply as possible for the jury. But precisely what

does that entail? How do we know what a jury should be told, unless we know a great

deal more about the jury?

33 [2005] EWCA Crim 2078, at para.27.

17



Let us take the issue of pre-trial publicity first. Between 1997 and 2000 the Law and

Justice Foundation of New South Wales conducted a survey aimed at understanding how

prejudicial media publicity might affect the views and perceptions of jurors.34 The report

was later published under the title Managing Prejudicial Publicity: An Empirical Study of

Criminal Jury Trials in New South Wales. Some points of note include:-

A finding that jurors generally tended to remember media reports of the

commission of the offence more frequently than reports of the accused person’s

arrest or other pre-trial proceedings.

Recall of publicity was greater where the publicity began after the trial began.

Despite judicial instructions, on average, one or more members of a jury were

likely to follow newspaper coverage of trials but, notwithstanding this, very few

jurors were willing to accept that such coverage influenced them.

An overall finding that juries were reasonably successful in resisting publicity (of

40 trials surveyed, it was found that 7.5% had verdicts likely to be influenced by

publicity rather than evidence.

Whereas jurors may be likely to actively track down newspaper coverage, they

may react to bias therein with scorn being able to identify inaccurate reporting etc.

The actual findings are not really important for present purposes. Rather, it is the fact of

the study which should be noted. It is not alone. For example, the Australian Law

Reform Commission Report on Contempt in 198735 noted that recall is most pointed in

relation to impressions or value judgments rather than details and facts.36 The same

report specifically noted over exaggeration of the effect of instructions on the jury to

discount publicity. An example of was given of one report of where a direction to ignore

new reports lead the jury to specifically seek out same.37 Indeed, it was expressly noted

that psychological writing on the question of whether it is possible to “put publicity out of 34 Chesterman, Chan and Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of New South Wales, 2001).35 Australian Law Reform Commision, Contempt (ALRC 35, 1987)36 Referring to Asch, “Forming Impressions of Personality” (1946) Journal of Abnormal Social Psychology 25837 Citing from View from the Jury Room, National Times, 4-10 May 1984.

18



ones mind” was divided as to whether same is possible.38 Indeed, there is literature in the

United States specifically on this point.39

In the United States40 an experiment in the late 1970’s involved simulation of a trial by

random selection of jurors, using an audio tape for three hours based on the actual trial

transcript and allowing deliberation. Two types of prejudicial fact were used – reports of

a prior criminal record and of a withdrawn confession. Two juries were exposed – one

with neutral press reporting with only admissible facts contained therein. The other

exposed to inadmissible evidence. It was said that 78% who read the inadmissible

material favoured conviction. Only 55% who read the neutral material did. In a second

experiment, 60% exposed to inadmissible conviction favoured conviction with only 15%

who read the admissible wishing to convict.

Thus, taking the issue of delay alone, it would seem reasonable to propose that if we are

to begin a project of fashioning model jury instructions, we should do so in the best

possible way. It would appear to be naïve, and, indeed, somewhat legally introverted to

believe that the answers will be found in the case books. In the Path of Law Holmes may

have said that law is composed of the prophecies of what the courts will do in practice.

Criminal law, however, should be just as concerned with what juries will so do. It seems

reasonable to propose we should know more about what this may be before deciding on

how best to direct them.

5. Research on Comprehension

A large amount of work has been done in other jurisdictions in researching the extent to

which jurors actually comprehend the instructions they are given. For example, The Law

38 Referring to its own, Evidence Research Paper No 11, Character and Conduct (ALRC 1983)39 See e.g. Lieberman et all, “Understanding the Limits of Limiting Instructions: Social Psychological Explantions for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence” (2000) 6 Psychology Public Policy and Law 677.40 Described in Padawer Singer et al “Legal and Social-Psychological Research in the Effects of Pre-Trial publiciaty on juries” (1977) 3 Law and Psychology Review 71

19



Reform Commission of New South Wales in 1985 carried out a survey on both judges

and jurors41 which included the following points:-

71% of judges believed that some instructions given at the time were too difficult

to be understood. At the time, the chief offenders in this regard were directions

on self-defence and intoxication. Blame was shared between the complexity of

the law and the particular formulation of words used in the relevant directions at

the time.

On the other hand, 95% of jurors surveyed stated that the summing up assisted

them in understanding the case.

The previously mentioned study Managing Prejudicial Publicity: An Empirical Study of

Criminal Jury Trials in New South Wales also made some points of general interest (even

though the report was concerned primarily with publicity). It was noted that difficulties

arose in relation to jurors comprehension of concepts such as “beyond reasonable doubt”.

Indeed, it was also said that in relation to unanimity directions there were jurors who put

“undue weight” on the elements of such directions “which exhort the jury to reach a

unanimous verdict and insufficient weight on those parts which stress the need for each

juror to be sure in his or her own mind that the verdict is the right one”.

The Bureau of Crime Statistics in New South Wales conducted a jury survey between

2007 and 2008.42 It indicated that:-

94.9% of jurors said they understood completely or mostly what the judge had

said in directions on the law

85% said they understood everything or nearly everything on the summing up of

evidence.

41 New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986)42 Published as Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No. 119 (New South Wales Bureau of Crime Statistics and Research, 2008)

20



97.1% of the jurors said that the words used in the summing up were easy to

understand.

The pattern would appear to be that jurors rarely report difficulties with understanding the

summing up. But why would they? Why would a juror, having just taken part in the

criminal process, reveal that they were unsure about their performance? It is more than

arguable that jury surveys are a weak form of data gathering.

On the other hand, in the context of somewhat more sophisticated experiments, the

American Study, “Jury Confusion: a Threat to Justice”43 suggested that a rate of 70% in

jury comprehension was more accurate. Other points made included:-

After being instructed on the law on the true nature and effect of circumstantial

evidence, only 57% believed (correctly) that a conviction could be made out on

such evidence alone. The other 43% believed it correct to reject such evidence or

view it with extreme suspicion or were uncertain about it.

Only 50% of the surveyed jurors believed that the defendant did not have to

present evidence as to innocence.

After being instructed to the contrary, only 26% believed out of courts statements

made by the defendant were to be completely disregarded.

Another interesting exercise was undertaken in Texas whereby jurors, once given

directions, were asked to provide paraphrased versions of what they understood their task

to be, as per the directions. It was reported that only about 17% of the attempts to re-

communicate the direction on the presumption innocence were legally accurate and

correct with a 13% rate of success in paraphrasing generally.44

43 Strawn & Buchanan, “Jury Confusion: A Threat to Justice” (1976) 59 Judicature 478.44 Steele and Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1988) 76 N.Carolina L. Rev 77.

21



Other illustrative work has been commissioned by the New Zealand Law Commission.45

Whereas (as appears to be the norm in such work) jurors replies to surveys indicated that

jurors saw the relevant directions as helpful, the Commission pointed out some serious

difficulties with the jury’s understanding of law. Forty eight trials were selected and of

those thirty five revealed jury difficulty with the law:-

In 19 of the trials, one or more jurors misunderstood the ingredients of the

offence.

In 5 of the trials jurors had difficulty with the notion of “intent” which was not

assisted by the summing up

The term “beyond a reasonable” doubt was difficult for many jurors with jurors

generally understanding it in percentage terms (notwithstanding what was said by

the judge) as 100%, 95% or 50%.

The term “the balance of probabilities” equally betrayed confusion in the

surveyed jurors.

It is quite clear that there is a considerable body of research on the comprehensibility of

jury directions in use in other jurisdictions. The state of the research (none of which is

Irish) prompted the Law Reform Commission of New South Wales to note:-

The results of a body of jury simulate research raise questions about jurors level

of comprehension of judicial directions…The research currently available does

seem to point to a need to make jury directions more comprehensible in order to

assist juries to render verdicts that are in accordance with the law.46

Indeed, as noted above, there is currently something of a movement in Australia towards

wide-ranging reforms of model instructions to make them more comprehensible for the

jury. It would seem important, for Ireland, that any model instruction project include

45 Young et al, Juries in Criminal Trials: Part Two: A Summary of Research Findings, (Preliminary Paper, NZLC, 1999).46 New South Wales, Law Reform Commission Consultation Paper, Jury Directions (CP 4, December 2008; Victorian Law Reform Commission, Jury Directions (Consultation Paper 6, 2008), at 40-42.

22



more than a purely legal focus. It is one thing to provide a lawyer or a trial judge with,

for example, the multiple elements of a summing up under s.19A of the Criminal Justice

Act, 1984, but it quite another thing to find the optimum method of explaining same to

the jury.

7. Other Guiding Principles

In addressing the problems of jury comprehension of directions, there several possible

approaches which have been considered in other jurisdictions in respect of reform. Two

particular avenues (which should be viewed as preventative rather than curative for this

jurisdiction) are considered herein:-

Changing the content of th\e instructions to make them less in “legal-ese” and

more in “plain English.”

Giving the instructions to the jurors in writing or otherwise to take to the jury

room, rather than orally

Plain English

It is sometimes too easy to criticise legal terminology as being too complex. Sometimes

complexity is required. However, there is considerable sense behind a “plain English”

policy for model directions. Unnecessary legal jargon (which lawyers may not always

appreciated as being unnecessary) should be avoided.

It may be interesting to note that in California both criminal and civil jury directions have

recently been re-visited in a extensive “plain-English” reform movement beginning in

1997 under auspices of a twenty-nine member task force operating under auspices of the

Californian judicial council. The fruits of the movement came with reform of civil jury

instructions (in 2003) and then publication of reformed plain-English criminal

23



instructions in 2005.47 The work was by no means an empty formula. Coming up with

the new instructions was “a very challenging enterprise,” according to Corrigan J. of the

Court of Appeal in San Francisco, who chaired the criminal instructions committee. “We

had these two prime directives — to make sure the law was absolutely accurate and to

make sure it could be understood. Sometimes there’s a pretty healthy conflict between the

two.”

One example of change is that direction that “Innocent misrecollection is not uncommon”

has been changed to “People sometimes honestly forget things or make mistakes about

what they remember”. In the aftermath of publication LEXIS-NEXIS conducted a survey

of potential jurors which reported that three out of four preferred the reformed

directions.48

It appears that other American jurisdictions are beginning to follow suit with a policy of

plain-English directions.49 Other states with completed instructions that have a plain

English emphasis are Delaware (civil), Michigan (civil and criminal), Minnesota (civil),

Missouri (civil), and North Dakota (civil and criminal). Committees in several other

states are re-drafting instructions specifically to use more plain English including

Arizona, Florida, Vermont, and Washington.50

47 Some of the time period here owes to copyright issues pertaining to the previous model jury instructions used in California.48 See “California Jury Pool Prefers New Plain-English Instructions, Survey Finds; Thirty-One Percent of Prospective Jurors Look Forward to Being Called to Duty”, at <http://www.businesswire.com/portal/site/google/?ndmViewId=news_view&newsId=20051116005501&newsLang=en.> (last visited 23 February 2009).49 American Judicature Institute, Plain-English Jury Instructions.50 There is always the possibility that one could scoff at the benefit of a plain English policy. It is, however, a serious movement. Literature on the topic includes, Tiersma, “The Rocky Road to Legal Reform: Improving the Language of Jury Instructions,” (2001) 66 Brooklyn L. Rev. 1081; Lazer, “Is Plain English the Answer to the Needs of Jurors?” (2001) 73 N.Y. St. Bar J. 37; Katz, “Plain English Jury Charges”, (2001) 27 Vt. Bar J. 9; Lundy, 29 Champion 52 (May 2005), Column Jury Instruction Corner; Wascher, “The Importance Of Jury The Long March Toward Plain English Jury Instructions” 19 Cal. B. Assoc. Rec. 50 (Feb./Mar. 2005), Special Yls Section:; Feature “Final Approval Of Amendments To Jury Instructions Under Rule 226a, Texas Rules Of Civil Procedure” (2005) 68 Tex. B.J. 204; Easley, “Plain English Jury Instructions: Why They’re Still Needed And What The Appellate Community Can Do To Help” 78 Fl. Bar J. 66 (Oct. 2004); Ward, “California Adopts “Plain-English” Civil Jury Instructions”, 87 Judicature 300 (May-June 2004); Brownstein, “It’s Time to Make Jury Instructions Understandable,” 37 Arkansas Lawyer 24 (Fall 2002); Lieberman & Sales, “Jury Instructions: Past, Present, and Future”, (2000) 6 Psycho., L. & Pub. Pol. 587

24



Written Assistance

Should jurors be given written instructions? There are studies which demonstrate that

written directions improve comprehension.51 In England the practice has developed in

relation to duress (given the complexity of the direction in that jurisdiction) that such

written instructions be given.52 In some Australian jurisdictions it has been held that

written directions can only be an aide memoire to prior oral direction.53 This was

changed in New South Wales by s.55B of the Jury Act, 1977 which gives a trial judge

discretion to give a direction in writing if considered appropriate. Now, in that

jurisdiction, the practice of combining oral and written directions is “widely followed and

is to be encouraged”.54

What effects might this have on a jury? In a case where, for example, duress and self

defence are pleaded by way of defence and if written directions are given in one, but not

the other, will there be undue focus on duress? One might think that either all or none of

the directions should be given in writing. Again, there are no clear answers, but yet it

would seem that these questions are of the kind to which serious attention should be

given as part of any development of model instructions.

There is also a serious question as to whether the use of visual aids ought be considered.

Indeed, there is evidence of Judges in Western Australia using PowerPoint in Court!55

There are no suggestions made herein that Ireland ought to go this far. There is, however,

serious research into the use of such visual aids and jurors, in surveys, have bemoaned the

lack of such. Again, the point is simply that matters like this (which go beyond the

51 See Kramer & Koenig, “Do Jurors Understand Criminal Jury Instructions? Analysing the Results of the Michigan Juror Comprehension Project” (1989) 23 Uni. Mich. Jnl Law Reform 401. See also Heuer & Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behaviour 409.52 See JSB Specimen Direction 4953 See R v Petroff (1980) 2 A Crim R 10154 Per Spigelman CJ in R v Forbes (2005) 160 A Crim R 377 at para. 83.55 Yeats, “Using PowerPoint in Charging Juries” (Australian Institute of Judicial Administration Conference, Melbourne, 8-10 October 2000)

25



traditional pale of pure legal argument and analysis) are just as important in respect of

model directions as getting the law accurate. What is the point of wonderful legally

perfect directions that are simply not understood by those who must apply them?

F. CONCLUSION

The thesis of this paper (if you can call it such) is quite simple. The Irish criminal

process will probably, at some point, introduce model jury directions. There are many

reasons why this would be a welcome development. If, however, effort is to be made in

this regard, it should be the right effort and done to the best of our abilities. This will

require more than the input of lawyers alone. It will require considerable thought and

considerable expertise but there is no reason in the world as to why Ireland cannot

produce “top-class” or “world beating” model jury instructions.

26



Appendix A

Canadian Direction on Presumption of Innocence and Burden of Proof

27



Appendix B

Queensland Direction on Reasonable Doubt

28



Appendix B (Contd)

New South Wales Direction on Necessity

29



Appendix C

Judicial Studies Board Specimen Direction on Burden and Standard of Proof

2. Burden and Standard of Proof

A. Burden of proof

In this case the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

Note

For guidance on comment on the failure of the defence to call a witness see R v Khan [2001] Crim L R 673.

B. Standard of proof

How does the prosecution succeed in proving the defendant's guilt? The answer is - by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'.

Note

Normally, when directing a jury on the standard of proof, it is not necessary to use the phrase 'beyond reasonable doubt'. But where it has been used in the trial, e.g. by counsel in their speeches, it is desirable to give the following direction: 'The prosecution must make you sure of guilt, which is the same as proving the case beyond reasonable doubt': see R v Adey, unreported (97/5306/W2), where the Court of Appeal cautioned against any attempt at a more elaborate definition of 'being sure' or 'beyond reasonable doubt'. Similarly in R v Stephens (2002) The Times, 27 June the CACD said that it was unhelpful to seek to distinguish between being 'sure' and 'certain'.

C. If an issue arises on which the defence bears the burden of proof

If the prosecution has not made you sure that the defendant has (set out what the prosecution must prove), that is an end of the matter and you must find the defendant 'Not Guilty'. However, if and only if, you are sure of those matters, you must consider whether the defendant [e.g. had a reasonable excuse etc. for doing what he did]. The law is that that is a matter for him to prove on all the evidence; but whenever the law requires a defendant to prove something, he does not have to make you sure of it. He has to show that it is probable, which means it is more likely than not, that [e.g. he had reasonable excuse etc. for doing it]. If you decide that probably he did [e.g. have a reasonable excuse etc. for doing it], you must find him 'Not Guilty'. If you decide that he did not, then providing that the prosecution has made you sure of what it has to prove, you must find him 'Guilty'.

30



Note

Direction C is appropriate where the defence bears the 'legal' or 'persuasive' burden of proof, but not where the defence bears only an 'evidential' burden. For a recent example of the former see Lynch v DPP [2002] 1 Crim App R 420. For recent examples of the latter see R v Lambert [2001] 2 Crim App R 511 and R v Carass [2002] 2 Crim App R 77.

Archbold (2003) 4-380 page 466 et seq.Blackstone (2003) F3.1 page 1992 et seq.

31



Appendix D

Sample Direction from Manual of Model Criminal Jury Instructions for the District

Courts of the Eight Circuit on Evidence Admitted Against One Defendant Only

32

neglect of the jury in irish criminal law - icba · web view2. delay / publicity in a strong...

Documents