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Judges should consider Jury Manual directions for themselves: appeal court

6 October 2014

The Judicial Institute for Scotland's Jury Manual, with its specimen directions for judges, is not a legal authority, and the ultimate responsibility for analysing the legal issues that arise in a trial and for correctly formulating directions to a jury remains with the trial judge, the appeal court has stated in a new judgment.

Lord Eassie, Lady Paton and Lady Smith made the comment in refusing an appeal against conviction by Paul Deeney, who was convicted of murdering Mark Osborne by stabbing.

The trial judge had borrowed from the Jury Manual in giving directions on self defence, in particular stating that if the accused acted in self defence he could be acquitted, and if the jury found each of three conditions satisfied they could hold that he acted in self defence. For the accused it was argued that this was liable to suggest to the jury that, even if the conditions for the plea were satisfied, it remained for their discretion whether to uphold that defence: it ought to have been made clear that if the prosecutor had not shown, beyond a reasonable doubt, that the tests were not met, the duty of the jury was to acquit.

Lord Eassie, giving the judgment of the court, said that while as a matter of strict grammar the directions could be interpreted that way, it was unlikely that a jury listening to the directions would conclude that they had been left with a discretion. In other places the judge had also said the accused wouldn't be guilty if he acted in self defence, and if the evidence raised a reasonable doubt an acquittal must result.

Regarding the Manual, he commented: "We have sympathy with the notion that a trial judge should not readily be criticised for adopting a suggestion made in the Jury Manual. Nevertheless, the Jury Manual is not prescriptive. It comprises notes for the guidance of judges and, as such, is a useful tool for consultation and consideration by members of the judiciary in Scotland who are faced with the responsibility of giving directions to a jury. But, that said, it is not a legal authority; its suggestions are simply suggestions and are not binding; the ultimate responsibility for independently, and correctly, analysing the legal issues to be addressed and for correctly formulating directions to the jury in appropriate language remains, constitutionally, with the trial judge – the judge’s charge being in every case unique and peculiar to the trial in question. Experience has shown that on occasion, despite the best endeavours of its authors, the guidance in the Jury Manual may fail to meet what, in practice, is generally required, or what is required by the circumstances of the particular trial."

The court also rejected grounds of appeal based on directions regarding prior statements, and expert evidence.

Click here to view the opinion.

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