The judge’s summing up reminds the jury of the salient facts and the Crown and defence cases in relation to them, to the extent which is necessary. Since a jury’s verdict is not reasoned, the summing up provides an assurance that the verdict is founded on the facts described. A review of the facts cannot be left to counsel, whose closing speeches to the jury are no substitute for a judge’s impartial review of the facts. The judge’s summing up need not rehearse all the evidence and arguments and the extent which it is helpful will depend on the case. Providing the salient points are covered and a proper balance kept between the case for the Crown and the defence, the Court of Appeal (Criminal Division) will not be drawn lightly into criticisms on points of detail (paras 50, 52, 53, 54).

A succinct and concise summing up is particularly important in a long, complex trial to assist the jury in a rational consideration of the evidence. The longer the trial, the greater the jury’s need for assistance in relation to the evidence, unless much of it is available electronically. In the latter case, the efficient use of digital material during the trial may result in a longer jury retirement. It is important to avoid boring a jury rather than assisting them, particularly in cases which are based largely on documents with which they are familiar, on which they have heard closing submissions and which they will consider further after the summing up. Unless a defendant has failed to answer questions in interview or give evidence, it is not usually necessary to remind the jury of points made in counsel’s speech (paras 55, 56, 58, 59).

The fact no complaint or suggestion of criticism is made at the time of a summing up may be regarded on appeal as relevant to the validity of any later complaint. Any point which is material should be taken at a time and place when it can be dealt with most conveniently, by a judge who has heard the evidence and is familiar with the nature of the issues at trial, so the jury can consider them, if necessary. Whatever the historic approach (i) it would be inconsistent with the overriding objective in Crim PR for counsel for the Crown or defence not to raise with the judge any error of law or fact in the summing up; (ii) there is nothing inconsistent between defence counsel’s duty to a client and acting in that interest to correct mistakes in the summing up which may result in a conviction. The client’s interests are unlikely to be best served by relying on the success of an appeal against conviction and the possibility of a retrial. If counsel remains silent the Court of Appeal (Criminal Division) is entitled to proceed on the basis that what was said in a summing up was not regarded as an error or a material error at the time. Subsequent trawls through the transcript of a summing up searching for infelicities of expression are unlikely to prove productive of a successful appeal. Nevertheless, there may be difficulties in raising a point of objection after a matter has been summed up by a judge and an accumulation of complaints may properly form the basis of a challenge to the safety of the conviction (paras 61, 66, 67).

If a judge is considering introducing an issue not canvassed in the course of a trial, he or she should warn the defence advocate before final speeches so that the correctness of the proposed course can be discussed and an opportunity afforded to the defence to deal with it. There is a potential tension between the importance of a judge not usurping the jury’s function and his legitimate expression of a view of the evidence. A judge must consider his personal views carefully before he expresses them and if his views constitute the appearance of advocacy on behalf of the Crown, they will not necessarily be regarded as appropriate simply because the jury have been told they are not bound to accept the judge’s views or that it is a matter for them (paras 68, 69).