Wednesday Law Report: Judge's duty to jury is a continuing one

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The Independent Culture
19 May 1999

Regina v Nawaz and others

Court of Appeal, Criminal Division (Lord Justice Judge, Mr Justice Garland and Mr Justice Penry-Davey) 13 May 1999

A JUDGE in a criminal trial was under a continuing duty to provide appropriate assistance to a jury, in retirement as well as during the rest of the trial, and was entitled to act on his own iniative if he thought fit.

The Court of Appeal dismissed the appeal of Haroon Sharif and refused the applications for leave to appeal of Mohammed Nawaz and Alan Swanton against their convictions of two counts of murder.

The prosecution arose out of a house fire as a result of which two children died, and which had been started by Swanton and another co- accused, Leidl. The Crown's case was that their actions were the culmination of a joint enterprise involving a large number of participants.

Sharif appealed against his conviction on the ground, inter alia, that the judge should not have provided the jury with a summary of the case against him and his co-accused Riaz Munshi on the eighth day of their retirement.

Gaurang Naik (instructed by Noble, Shefford) for Nawaz; Christopher Hotten QC (assigned by the Registrar of Criminal Appeals) for Sharif; Julian Baughan QC (instructed by the Crown Prosecution Service) for the Crown.

Lord Justice Judge said that the evidence in the trial had lasted about five and a half weeks. Counsels' speeches had occupied about three days. The summing up had begun on 17 November and the jury had retired on 18 November. On 23 November a majority direction had been given and verdicts of guilty had been returned on all the accused except Sharif and Riaz.

When the jury returned to court on 30 November to begin the eighth day of their retirement, the judge had invited them to indicate whether they would like to be provided with a brief summary of some of the salient features of the case relating to Riaz and Sharif. Shortly afterwards a note had been received which read: "The jury have requested that you read to us the relevant points in relation to Riaz Munshi and Haroon Sharif as earlier suggested." Counsel for Riaz had objected to any further summing up. Counsel for Sharif's position was that if anything further was to be said there should, in effect, be a full summing up of all the relevant evidence. The judge had rejected that suggestion.

It was submitted by counsel for Sharif that it was too late, and inappropriate, for a summary to be provided for the jury after it had been in retirement. The court disagreed. The jury had systematically considered the case of each defendant, producing verdicts on each defendant in the sequence in which they were listed in the indictment. By 25 November they were considering the cases of the last two defendants. There was no suggestion that they had reached a point of exhaustion, or that continuing deliberation would simply be a waste of time, itself creating a form of pressure on individual jurors to compromise their oaths.

In the court's judgment there was a continuing duty on a trial judge to provide appropriate assistance to a jury in retirement, as well as during any other part of the trial. He was not restricted to responding to requests received from the jury, and from time to time, if he saw fit, he was entitled to act on his own initiative.

The summary was expressly not intended to be, and was not, a full summing up. It lacked the volume but not the balance of the original summing up, and provided the jury with an accurate and helpful synopsis of the essential features of the case.

In due course on 30 November they had convicted Sharif by a majority and had indicated that they were unable to reach a majority verdict in the case of Riaz, and had been duly discharged. In deference to the argument of Sharif's counsel the court had studied the transcript of events from 25 November until verdict and, having done so, was unable to discern any basis for concluding that the process by which it had been reached provided any reason for doubting its safety.