The court (per Gage LJ) considered it strongly arguable that the practice of allowing to the jury the right to acquit an accused at any time after the close of the prosecution case, could not survive Article 6. Gage LJ identified the dangers involved in a judge telling a jury that it has a right to stop a case: ‘First and foremost this practice involves the jury in making a decision which will affect the future conduct of the trial without, as happened in this case, the benefit of speeches from all counsel or any legal directions from the judge. Secondly, the nature of the decision which the jury is asked to make is to decide whether or not the prosecution witnesses may be capable of belief. In other words the jury must reach a provisional conclusion. However, there is a risk that they may go further and decide at that stage that the witnesses are not just capable of belief but they are indeed telling the truth. Such a provisional conclusion, once reached, maybe very difficult to displace. Thirdly, as was explained in Kemp, juries are often keen to register independence and may react against what might be perceived to be pressure from judge to acquit a defendant. Fourthly, even though a judge may strive to avoid inviting a jury to acquit, a practice which has always met with disapproval, it may be very difficult to avoid giving that impression rather than simply informing a jury of its right to acquit, the latter conforming with the old practice before it also was disapproved. As the court said in Kemp ‘It may not be always very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case’. Fifthly, this practice is inherently more dangerous when a number of defendants are involved and the factual evidence is complex. Sixthly, it is unfair to the prosecution when it is given no opportunity to address either the judge or the jury and correct a mistaken impression of its case. The same applies to defendants, albeit in all such cases, the presumption will be that the judge has only adopted this procedure in order to obtain, more quickly, verdicts favourable to the defence. Seventhly, there may be particular dangers when as in this case the defence are contemplating not calling any evidence. Eighthly, since the coming into force of the provisions of s.58 of the Criminal Justice Act 2003 the prosecution has a right of appeal against a determinative ruling of a judge but will have no right of appeal against an acquittal by a jury following a judge informing them that they have a right to stop the case.’
Judges:
Gage LJ, Walker, Openshaw JJ
Citations:
[2007] EWCA Crim 854
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v SH CACD 3-Aug-2010
The prosecutor had appealed immediately against the judge’s withdrawal of a charge of racially aggravated use of insulting words or behaviour. The judge then ignored his obligation to continue the trial without mentioning the issue to the jury. He . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Human Rights
Updated: 11 July 2022; Ref: scu.251780