Judicial Studies Board Specimen Directions and the Enforcement of Orthodoxy: A Modest Case Study
| Published date | 01 April 2002 |
| DOI | 10.1177/002201830206600209 |
| Date | 01 April 2002 |
| Author | Roderick Munday |
| Subject Matter | Article |
Judicial
Studies
Board
Specimen
Directions
and
the
Enforcement
of
Orthodoxy:
A
Modest
Case
Study
Dr Roderick Munday*
Abstract
Judges summing up to juries in criminal cases
must
deliver
directions on a wide range of issues, substantive
and
evidential. The
Crown
Court
Bench
Book,
issued by
the
Judicial Studies Board, publishes specimen
directions, designed to ensure
that
juries are correctly directed on
the
legal
rules
that
they
must
apply to
the
facts. Judges were
never
meant
to follow
these directions 'mechanistically'. Several decisions of
the
Court of Appeal
would suggest otherwise. This article offers a critique of two recent
decisions, involving good character directions,
where
the
Court of Appeal
has again enforced strict adherence,
and
argues for a greater degree of
judicial autonomy.
'I see
nobody
on
the
road:
said Alice.
'I
only
wish I
had
such
eyes:
the
King
remarked
in a fretful
tone.
'To be able
to
see Nobodyl
And
at
that
distance
tool'
Lewis Carroll, Alice through the
Looking-Glass
(1872)
In swimming there is a form of racing
known
as 'freestyle'. 'Freestyle',
one
rapidly discovers, is a misnomer. Any swimmer with ambitions
to
keep up
with
the competition will adopt the crawl. The crawl is
not
obligatory. There is simply no realistic alternative. In his preface to
the
Judicial Studies Board's specimen directions
(The
Bench Book'), Lord
Bingham of Cornhill states
that
the
Board's specimen directions 'should
never
be used "mechanistically" ,
and
that
they
should be
'the
servant,
not
amaster
...
They
must
be adapted to
the
circumstances of
the
individual case'. There are innumerable Court of Appeal dicta to like
effect. In truth, this is
not
always the way in which the directions look to
operate. Indeed, arecent pair of cases, Lloyd
and
Scranaqe,
demonstrates
just
how
closely trial judges sometimes need to
adhere
to the JSB's
specimen directions
and
to the stipulated modes of delivery. For judges,
too, 'freestyle'
may
be something of an illusion.
The
good
character
direction
In 1993 Lord Taylor CJ signalled that a'dramatic change'
had
taken
place in the English law of evidence.' Lord Steyn was subsequently to
speak of 'a veritable sea change' in judicial thinking.? Both judges were
referring to
the
fact that trial judges were required to deliver aset-piece
*Fellow of Peterhouse, Cambridge.
1
Vye
[1993] 1 WLR 471 at
474.
2 Aziz [19961 AC 41 at 50.
158
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