Exemplum Habemus: Reflections on the Judicial Studies Board's Specimen Directions
| Date | 01 February 2006 |
| DOI | 10.1350/jcla.2006.70.1.27 |
| Author | Roderick Munday |
| Published date | 01 February 2006 |
| Subject Matter | Article |
Exemplum Habemus: Reflections
on the Judicial Studies Board’s
Specimen Directions
Roderick Munday*
Abstract This article examines the increasingly prominent role specimen
directions published by the Judicial Studies Board, and even some of the
Board’s teaching materials, now play in criminal cases. The specimen
directions are virtually ignored in the academic literature, yet are sympto-
matic of those mildly dysfunctional systems that operate with autono-
mous juries. Evidence abounds that when summing up trial judges lean
heavily upon these sometimes flawed materials, that appellate courts
make extensive reference to them in their judgments, and that counsel’s
arguments are often directly shaped by them. Additionally, there is a
significant dialogue being conducted between appellate courts and the
Board. This article points up the extent to which the specimen directions
have come to mediate UK criminal law and criminal evidence.
‘THE DEAN: Exemplum habemus . . .’
Tom Sharpe, Porterhouse Blue (1974)
as adapted for television by Malcolm Bradbury
Were it drawn to their attention, it might perplex our European neigh-
bours to discover that a substantial proportion of the judges, full- and
part-time, who try the most serious criminal cases in England and Wales,
are not exactly steeped in criminal practice. Frequently, those judges’
first meaningful encounter with criminal law, evidence and procedure
for many years (or even at all) will follow close upon their appointment
as recorders. Anyone remotely familiar with those criminal disciplines,
which can of course affect the liberty of the subject in the most direct
way, will be aware of their rigour and their complexity. Given the cast of
comparative amateurs drafted in to preside over many criminal trials in
the Crown Court, the wonder is that the system works as well as it does.
In an age that places increasing faith in professional specialisation, the
Judicial Studies Board (JSB) can therefore take credit in contributing to
reduction of the potential for operational dislocation. Without seeking to
diminish the Board’s achievements, this article will survey one of its
principal instruments, those specimen directions issued by the Board’s
Criminal Committee that are intended to guide judges when they direct
juries on how to approach the multiplicity of issues that can inevitably
arise in criminal trials. Hitherto, this topic has received little or no atten-
tion. The principal object of this article will be to portray the various
ways in which the advent of the specimen directions appears to have
affected trial dynamics, and even the legal reasoning, in criminal cases.
* Fellow of Peterhouse, Cambridge.
27
1. The world of specimen directions
(a) The role of the Criminal Committee of the Judicial Studies Board
The JSB’s Criminal Committee, as listed in the Board’s Annual Report
2004–2005, comprises a High Court judge (who presides over the com-
mittee), six circuit judges, two recorders, the Registrar of Criminal
Appeals, one barrister, a Law Commissioner, one academic, as well as
representatives from the Home Office and the Department for Constitu-
tional Affairs. The current chairman is Crane J. The Committee’s general
task, as defined in its Annual Report 2001–2002, is to ‘provide induction
and continuation training to enable full-time and part-time judges in the
Crown Court to do their work effectively’, it being ‘an essential element
of the philosophy of the JSB . . . that the training of judges and magis-
trates is under judicial control and directions [sic]’.1As the JSB’s website
proceeded to inform us, perhaps blissfully unaware of how alarming this
statement would have appeared in virtually any other jurisdiction in
Europe, ‘[n]early all newly appointed recorders hear criminal matters as
the first stage in their judicial career’. To get them up to scratch, entrants
to the judicial novitiate ‘are required to attend a residential four-day
induction course,2which helps prepare them for their first sittings by
instructing them in the basic judicial skills’. The aim of the induction
course is ‘to equip newly appointed recorders with the knowledge and
skills necessary to perform their judicial role effectively in the Crown
Court’. Newly appointed recorders will also be introduced to the speci-
men directions—and, subsequently, may find themselves roundly re-
buked should they subsequently omit to avail themselves of these
directions in their summings-up.3
Until July 2001 the drafting and compilation of the specimen direc-
tions that make up the so-called Criminal Bench Book were primarily
the responsibility of two members of the Criminal Committee, Judge
Rivlin QC and Judge Grigson, who were assisted from time to time by
1 These details are taken from the JSB’s website, available at www.jsboard.co.uk/
criminal_law/, accessed 21 November 2005. Unlike its Scottish counterpart (at
www.judicialstudies-scotland.org.uk/, accessed 21 November 2005), the English
JSB used to spare us a detailed, three-year ‘Business Plan’—even if the former’s
Plan does hold out the civilised prospect of ‘Tea-time Seminars for Senators’. No
longer, however. The JSB website now displays its ‘Strategic Plan 2005–08’, as
well as a ‘Management Plan’. For an account of the origins and general objectives
of the JSB, see M. Partington, ‘Training the Judiciary in England and Wales: The
Work of the Judicial Studies Board’ (1994) 13 CJQ 319–36.
2 The Annual Report 2002–2003 refers to a five-day induction course, although the
Criminal Committee page of the JSB website continued to speak of a four-day
course.
3 For example, Foley and Melville,The Times(17 March 1997), per Dyson J: ‘It is
difficult to understand how it came about that the recorder so completely ignored
the guidance given by the court in [R v Cowan [1996] QB 373] and that clearly
stated in the Specimen Directions published by the Judicial Studies Board’.
Similarly, in Mullin [2003] EWCA Crim 3775, another case involving a Cowan
direction, Curtis J roundly castigated a trial judge who had ‘made no attempt to
follow the JSB guidelines. These, of course, are not automatic, or any form of
straitjacket on judges, but are there to assist them. His direction to the jury was
woeful. . . . The lamentable result is that in a perfectly straightforward trial, where
the Crown had a strong case, it is impossible for us to say that the appellant’s
conviction is safe’ (at [6] and [9]).
The Journal of Criminal Law
28
Mitchell J, the late Sir John Smith and Dr David Thomas. The personnel
will alter from time to time: the April 2003 update, for instance, was
drafted by Judge Maddison and Judge Clifton, whose work was over-
seen by Crane and Grigson JJ and Professor Diane Birch. The directions,
which this team composes and continues to hone, in Kay LJ’s words,
‘attempt to do no more than reflect the law and interpretation of the law
as laid down by the courts’.4
(b) A mixed message and a judicial predicament
In his judgment in Foley, Judge Colston spoke approvingly of the JSB’s
training programme and, more specifically, of the role the specimen
directions play both in readying neophyte judges for their task and in
guiding all judges who preside over criminal jury trials:
In recent years the Judicial Studies Board has done much, both by way of
courses and by way of written material in the form of specimen directions,
to assist those, especially assistant recorders, who have the task, and it is
never an easy one, of presiding over a criminal trial. . . . (E)xperience
shows that what appears to be an entirely simple case may throw up issues
of fact and law which require skill and care from the judge if his summing-
up is going to be concise, accurate and helpful. In achieving those goals, the
Judicial Studies Board specimen directions are frequently, even for experi-
enced judges, an excellent starting point, though they may need modifica-
tion in the individual case.5
The specimen directions therefore provide models for the assistance of
judges and recorders when summing up to juries on issues of criminal
law, procedure and evidence. The directions, which were at one time
reserved for the exclusive use of the judiciary,6are now accessible to one
and all on the JSB’s website.7As the foreword to the Criminal Bench Book
stresses, the specimen directions are ‘intended . . . to reflect in clear and
summary form the law as it stands’. Yet, at the same time it cautions that
the directions ‘become authoritative only when and to the extent that
4 Old directions are amended, and new directions added, from time to time. At the
time of writing the latest ‘updates’ were added, in August 2005, in order to take
on board the new rules affecting hearsay evidence.
5 14 June 1996, Transcript No. 96/0922/X4 at [9]. The need for the most
elementary instructional aids was openly avowed in the July 2001 edition of the
Criminal Bench Book. This compilation saw the addition of ‘a checklist of points for
summing up’. ‘This helpful document’, Kay J, the then ‘Chairman of the JSB
Criminal Committe’ [sic], informed us, ‘has been handed out to new assistant
recorders at the Board’s induction courses and it was thought that they, and others
[Who, one wonders?], might find it useful if it was included with the Specimen
Directions’. For judicial references to the checklist see, Crossett [2001] EWCA Crim
3050 at [31], per May LJ; True [2003] EWCA Crim 2255 at [34], per Rix LJ.
6 See R. Munday, ‘The Bench Books: Can the Judiciary Keep a Secret?’ [1996] Crim
LR 296, and ‘Reply to Letter of Kennedy L.J.’ [1996] Crim LR 530.
7 Curiously, the April 2003 edition of the Criminal Bench Book continued to warn
those who accessed the specimen directions ‘not to use the Specimen Directions
for reproduction in any commercial publication, or to use the Specimen Directions
as a part of any commercial activity, other than for the purposes of preparing for a
criminal court case, either as a practitioner (ie a solicitor or a barrister) or as a
member of the judiciary’. Otherwise, they were for personal use only. Technically,
then, the academic lawyer writing about them remained outside the JSB’s magic
circle. The wording has since been lightly amended.
Reflections on the Judicial Studies Board’s Specimen Directions
29
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