After a morning break today, and following the second set of videos being shown to the jury, HHJ Smith gave 4 pages of legal directions to the member of the jury.

He explained that these were the first legal directions, and they were likely to receive more in due course. He told them that the “old fashioned way was to give the jury directions of law right at the end of a case”, that they’d hear all the evidence, then get directions of law from the trial judge, however, “over times things have evolved, and its realised that it might be sensible to give some directions earlier in a case” so he’d decided to give them these, right at the start, before they heard from any witnesses.

He was of the view that they would help the jury “I think to see the framework in which we’re all working and the important considerations for this case”. He talked them through them.

Firstly, in relation to the different functions that the judge and the jury have. He had previously explained these and was providing them in black and white for the jury to turn to if needed.

“There are 13 judges in the case, I’m one of them, and the other 12 are you. As I’ve already said, while we try the case together, you and I have completely different jobs to do. I, and nobody else, is judge of law…. firstly I must give directions about the law you must apply to this case, you must accept my direction and follow them, secondly, also means at the end of the case I’ll summarise for you what appears to me to be the salient features of evidence in the trial, but its important that you remember that you, and nobody else, decides who’s being truthful, in the sense of trying to give an honest account, and who is not…. you and nobody else decides which evidence is accurate…. which evidence is reliable. My summary of the evidence is just that, a summary and inevitably there is an editing process involved in summarising for you, otherwise would be reading the whole thing out”.

He went on to advise the jury even if he mentioned something or emphasised a piece of evidence, they were free to adopt it or bring it into their consideration, but were not required to, in fact they should only consider it if they think independently of HHJ Smith, that it’s important. He also highlighted the opposite situation, where he may miss something out, that they feel is important, it is for them to give the weight that they think it deserves.

He then explained the difference between inference, which is permitted, and speculation which is not. He used the analogy of a jury being shown CCTV without sound of a fight in a bar, a lady was dancing, so its a sensible inference and a common sense conclusion that music was playing, even though they do not hear it. If the jury stray into what tune was playing, without any further evidence, then that’s speculation which isn’t permitted.

HHJ Smith reassured the jury that they did not have to decide all disputed points, only the ones that they think are necessary to make their judgement. He also told them some points are not disputed and he would draw their attention to that when it arises. They were told when they heard competing evidence they’d need to decide how honest, reliable and accurate each witness is, and they must apply the same standards for all witnesses, whether they’re called by the prosecution or defence.

He discussed the burden and standard of proof, as already mentioned.

“The prosecution brings the case and must prove it by making you sure of it, nothing less than that will do. It’s a criminal case brought by the prosecution so the burden of proving it, the responsibility of proving it remains on the prosecution throughout. A defendant doesn’t have to prove they are innocent”.

He reinforced to the jury that if they are sure the defendant is guilty in respect of an allegation then their verdict must be guilty, but if they are anything less than sure, in accordance with their solemn promise, then their verdict will be not guilty because the prosecution won’t have made you sure.

The jury were directed that they’ll have to return separate verdicts in this case. There are 9 defendants and a number of different counts on the indictment (see Opening blog post for full charge sheet). HHJ Smith explained that in each case there will need to be separate verdicts, so more than one verdicts will be required for some of the counts where more than one defendant appears.

“Those verdicts whether amongst defendants, or in particular counts, do not have to be the same, because your verdicts will depend upon your assessment of the evidence in the particular case, so verdicts may or may not be the same for each defendant or each count”.

He said that each criminal offence has a set of ingredients, and they jury needed to be sure that each ingredient exists to convict a particular defendant on a particular offence or count.

He said in due course he’d provide ‘routes to verdict’ for the jury, and that there are likely to be two of them in this case because there are two slightly different charges to consider. The routes to verdict take the form of questionnaires that the jury will use to reach the right verdict, according to their assessment of the evidence.

All but one count relates to allegations of ill-treatment, so HHJ Smith thought it might be useful to provide the jury with direction of what the law means when it talks about ill-treatment, and similarly wilful neglect.

The jury were told when the offence needs to prove ill-treatment, the prosecution need to make them sure of two things:

1) that the defendant engaged in deliberate conduct which can properly be described as ill-treatment, and

2) either the defendant knew they were inexcusably ill-treating the residents, or were reckless as to whether they were inexcusably acting in that way.

So two aspects, the thing they did, and what they were thinking at the time.

The prosecution do not have to prove, for an allegation of ill-treatment, that any suffering or injury to health was caused.

With regards to wilful neglect, that relates solely to Karen McGhee, the registered nurse, the prosecution need to prove to the jury, for them to return a verdict of wilful neglect:

You need to be sure that the defendant, here of course Karen McGhee, failed to act in accordance with a duty placed upon her, and either knew, she knew was a risk to a resident’s health or wellbeing might suffer if she did not act in a particular way, or she was unaware to such a risk owing to the fact she did not care whether the resident was at risk.

HHJ Smith suggested that they store the legal directions in the pocket in the first jury bundle, and suggested that there will be further directions added in due course.