Thursday, 25 May 2017

The Trial: Murder in the Family


The Trial: Murder in the Family was screened by Channel 4 over 5 episodes in May 2017.  Simon Davis (played by actor Michael Gould) is charged with the murder of his wife Carla.  The programme has a fictitious script but counsel are practising barristers Max Hill QC and Michelle Nelson for the prosecution.  John Ryder QC and Lucy Organ appear for the defence.  The judge is played by retired judge Brian Barker QC who had a very distinguished career at the Bar and as a trial judge.  He sat in the Central Criminal Court from 2000 to 2015.  The jury is made up of 12 members of the public and we get to see how they go about their consideration of the evidence and their individual viewpoints.



Bail?   There has been some public comment that Simon is on bail as his trial progresses.  Bail is quite rare in murder cases but it is possible.  The Bail Act 1976 gives any charged person the basic right to unconditional bail but the Act provides for exceptions to that right - for example if there are substantial grounds to believe that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody - see Schedule 1 to the Act.  Sometimes it is possible for any risks to be managed by granting bail with conditions such as conditions to live at a particular address, to report to the Police at specified times etc.

No comment?  In the first episode we see Simon Davis being interviewed by the Police.  He has been advised to respond "No comment" to all questions and he appeared to be uncomfortable with that stance.  He probably felt that he ought to answer Police questions whenever he could.   There is a "right to silence" but, since reforms brought about by Part III of the Criminal Justice and Public Order Act 1994, it is a right that has to exercised with considerable care.  For more on Investigative Interviews see College of Policing.

Mullen - a witness "tendered" to the defence:

Mullen was a witness who, on the morning of Carla's death, had been out jogging.  He testified that he had seen Carla's boy friend (Lewis Skinner) at 10.03 hrs in the vicinity of Carla's home.  This evidence was a difficulty for the prosecution case.  They did not call him as a prosecution witness but they chose to tender him for cross-examination by the defence.  This was the correct thing to do in the interests of justice so as to promote a fair trial.  The principles were set out by the Court of Appeal (Criminal Division) in R v Russell-Jones [1995] 3 All ER 239.
The defendant

Plainly, Mullen's evidence was helpful to the defence in enabling them to put to Lewis Skinner the possibility that he was Carla's killer (which, on oath, he denied).

Bad character evidence:

The programme did not look at any detail of "bad character" evidence.  The prosecution may wish to bring into evidence the bad character of either the defendant or a defence witness.  The defence may wish to bring into evidence either the good character of the defendant or the bad character of a prosecution witness.  The rules relating to this are now mainly set out in the Criminal Justice Act 2003 Part 11 which was a major overhaul of the law.  The term "bad character" is widely defined and extends beyond criminal convictions or cautions.

The outcome of the 2003 Act is a far from simple situation and has been described by one textbook as "something of a dog's breakfast" - (Adrian Keane - The Modern Law of Evidence).  The viewer was left to assume that the relevant rules had been complied with.

Should the defendant testify?  Later in the programme we see Ryder QC discussing with his "junior" (Lucy Organ) whether to advise Simon to testify in court.  A defendant may not be compelled to do so but there is the problem that the jury - (or Magistrates in the Magistrates' Court) - might draw adverse inferences from failure to do so.  Simon, on Ryder's advice, had considered this overnight and decided that he wished to testify.  Lucy Organ had doubts about this because of Simon's brooding manner and appearance.  That brings us to the question of witness demeanour on which I say a little more below.

Burden and standard of proof?  It is a pity that the programme did not mention the vital point about the burden and standard of proof.  The burden is with the prosecution to establish guilt and the standard is that it must be proved so that the jury is sure of guilt or, in the older formula, beyond a reasonable doubt.

This is a BIG omission because the scenario was finely balanced as to whether it was Simon who killed Carla or, possibly, it may have been Skinner with whom she had been in a recent intimate relationship and Skinner had been placed in the vicinity of Carla's home near the time of her death by Mullen's (possibly mistaken) evidence.  If the jury decides that it is more probable than not that Simon killed Carla then the correct verdict is NOT guilty.  More probable than not is the civil standard of proof and it is the more demanding criminal standard that is applicable here.  The jury have to seek unanimity but, if the judge permits it, a majority of 10:2 or 11:1 of them may return a verdict.  Historically, juries had to be unanimous to convict the defendant.  It was not until the Juries Act 1974 that majority verdicts became possible.  If the jury is unable to reach even a majority verdict then the jury would be discharged.  This is not an acquittal and a retrial is possible.

Judge's summing up:

The programme did not show the trial judge "summing up" the evidence and directing the jury as to the law including the burden and standard of proof.  In practice, this is a crucial stage of the trial and errors by the judge can lead to appeals.

Demeanour?   It is inevitable that jurors bring with them their own viewpoints and those will have been shaped by events and experiences in their own lives.  It is also natural enough that we, as individuals, form views about the characters of others we meet.  In everyday life we do not always need to express those views - "Still tongue: wise head" - but the views are nevertheless present.

In the programme we see a number of the jurors asserting views such as - "I can tell when someone is lying."   Is it possible to decide this from demeanour?  

The courtroom witness box is a forbidding place for many - perhaps most.  When the individual is in this unusual situation it can be problematic to place excessive reliance on demeanour.  It is not necessarily a reliable guide and numerous possibilities arise such as the truthful but stressed witness who appears hesitant and doubtful.

Another situation is where an expert speaks with the confidence and authority which brooks little or no argument. Expert witnesses are those recognised as such by the judge.  Unlike non-expert witnesses, they may give opinion evidence but their evidence must be objective and unbiased and within the expert's area or areas of expertise.  Expert evidence is admitted on matters that lie beyond the common experience and understanding of the jury.  For more on this see Criminal Procedure Rules Part 19 and Crown Court Compendium at 10-3.  Expert witnesses are available in numerous fields -see Law Society - and there is an Expert Witness Institute.

There are also those witnesses who are either trained to give evidence or have done so before - e.g. Police Officers.  It emerged that one of the prosecution witnesses (Lewis Skinner) had been a Police Officer but had been dismissed from the force following conviction for Assault Occasioning Actual Bodily Harm.  Ryder perhaps hoped that, under cross examination, Skinner would lose his temper but he did not do so.  (Was the number of times Skinner drank water a sign of lying?  He seemed to give away his previous experience in court when he asked Ryder - Was that a question?  A somewhat irritated Ryder then put the point as a question).

The common law certainly does not rule out reliance on demeanour even though it may be highly subjective.  In a Canadian case (R v Lifchus 1997), Cory J said:

"... there may be something about a person's demeanour in the witness box which will lead a juror to conclude that the witness is not credible. It may be that the juror is unable to point to the precise aspect of the witness's demeanour which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed. A juror should not be made to feel that the overall, perhaps intangible, effect of a witness's demeanour cannot be taken into consideration in the assessment of credibility."

The following links may be of interest on this important topic:

New Zealand Law Society - Demeanour evidence as the backbone of the adversarial process

Gilles Renaud - Evidence of demeanour - where the author draws on the early works of Georges Simenon.

The outcome:

The programme ended with the jury being discharged because they were unable to reach a majority verdict.  We were informed that 4 jurors had decided that Simon Davis was guilty: 8 had decided not guilty.  We were also informed that, IN FACT, Simon Davis was the killer of his wife Carla!

Overall, this was a fascinating programme offering the public some insight into the court process, the reasoning of counsel and the way juries may go about their vitally important task.

Other commentators:

For another view of the programme see The Secret Barrister's blog and barrister Matthew Scott offers his view HERE - "All the same it was the closest that television has got since the long lamented Crown Court to the accurate depiction of a criminal trial. There is plenty of scope for another series."  Matthew Scott also comments on the point that, in the prosecution closing speech, Max Hill "made an acid comment about Ryder’s failure to ask the officer-in-the-case why he had not charged the other potential suspect with murder."  It emerged that he and Ryder had agreed out of court that the latter would not cross-examine the officer at all.  "It seemed very close to a trick – the sort of advocacy that ought to be anathema to the prosecution in any trial, and especially a murder trial."

The trial - counsel

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