Burnett: Troubled by judge’s failure to seek submissions on discharging jury
A judge was wrong to discharge the jury in a criminal trial after “inappropriate” remarks by the defence barrister in his closing speech, the Lord Chief Justice has ruled.
Lord Burnett, giving the judgment of the Court of Appeal, said His Honour Judge Wright in Liverpool could have “ameliorated” the effects of the comments by Mark Le Brocq with “a short, tailored direction”.
Mr Le Brocq, of Linenhall Chambers in Chester, was appealing against a wasted costs order of £4,200 that HHJ Wright subsequently made against him.
The judge also made “adverse comments” that aspects of the barrister’s work were unreasonably done and should not be remunerated under the legal aid order.
Mr Le Brocq appeared as defence counsel in a trial of nine counts alleging sexual offences against a single child complainant.
The judge discharged the jury following Mr Le Brocq’s closing speech. He took the view that comments made by the barrister compromised the fairness of the trial. A retrial was ordered at which the defendant was acquitted.
As she was 15, all of the complainant’s evidence was video recorded in advance of the trial, in accordance with section 28 of the Youth Justice and Criminal Evidence Act 1999. It was accepted that she had been untruthful with the police in some respects.
At the ground rules hearing, at which the judge had to approve the questions Mr Le Brocq would ask her, HHJ Wright refused to let him ask whether the complainant’s relationship with an older boy – about which she had lied – was sexual in nature.
However, a question asked by the prosecution counsel during re-examination indicated that the relationship had been sexual.
The judge allowed it to stay in by reason of relevance, rather than because the defence had made an application under section 41 of the 1999 Act, which governs questions about a complainant’s previous sexual conduct.
At trial, the agreed facts document also indicated the nature of the relationship. After it was read to the jury, the judge expressed his unhappiness, but said there was nothing he could do about it.
Despite the prosecution barrister accepting sole responsibility for drafting the relevant section, the judge said it was the responsibility of both advocates.
There were two aspect of the closing speech that led the judge to discharge the jury. The first was Mr Le Brocq’s description of and attack on the fairness of the section 28 procedure, which he said “amounts to a virtual emasculation of the defence case”.
He said having to have questions approved and only ask them in a certain way was “basically pussy-footing around the issues and not putting them directly”.
He argued that the complainant had “not been properly tested in cross-examination”, but that the rules which governed it did not apply to his closing speech.
The second aspect concerned Mr Brocq’s discussion of the complainant’s previous sexual behaviour, calling her “sexually precocious” and saying she was “no wide-eyed innocent girl”; she was “perfectly capable of fabricating sexual allegations against this defendant”.
Discharging them, HHJ Wright told the jurors that he had previously ruled that the complainant’s sexual behaviour was “totally irrelevant to the merits of this case”.
But the Court of Appeal found that the judge “overstated the seriousness of counsel’s misconduct in his submissions about the sexual behaviour of the complainant because the relevant evidence was properly before the jury”.
The judge’s criticism of Mr Le Brocq for agreeing to prosecution counsel’s draft of the agreed facts, and his observation that he had ruled the complainant’s sexual history irrelevant, were both ‘”misplaced”.
The court said Mr Le Brocq was not prevented from commenting on it altogether, but “he strayed beyond the bounds of appropriate comment”. However, the judge was yet to give legal directions, which would have “cured the difficulty”.
The court agreed with the judge that Mr Le Brocq’s attack on the section 28 procedure “should not have been made… because it amounts to going behind the ruling made at the ground rules hearing”.
However, Lord Burnett continued: “We have no doubt that these inappropriate comments were capable of being ameliorated by a short, tailored direction.
“That would have explained why the modern approach to vulnerable and child witnesses is taken and would have directed them to ignore that part of the closing speech.”
The Lord Chief said the court was “troubled” that HHJ Wright failed to seek submissions from counsel before discharging the jury.
The major factor in decisions of this nature was the ability of the judge to ensure the fairness of the trial notwithstanding the admission of inadmissible evidence.
“In this case, the judge himself had admitted the evidence. The question was whether counsel had made inappropriate comment about admissible evidence which was before the jury.
“This is an easier situation for a judge to deal with by direction to the jury than a case where they have heard something, perhaps something very striking, which they should not have heard at all…
“We have concluded that the circumstances which confronted the judge after counsel’s closing speech fell a very long way short of justifying the discharge of the jury.”
The court revoked the wasted costs order.
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