Neutral Citation no. (2001) NICA 50	Ref:     	NICC3536	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	30.11.2001	
(subject to editorial corrections)	 	 	

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
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THE QUEEN
 
v
 
IAN MATTHEW JOHN ROSS MONTGOMERY
 
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NICHOLSON LJ
 
JUDGMENT
 
            This is an appeal by Ian Montgomery, a serving police officer, against conviction on eight counts of an indictment, the first count of which alleged that on 25 December 1993 he unlawfully and maliciously wounded his wife, (who at the time was also a serving police officer) contrary to section 20 of the Offences Against the Person Act 1861.  The next four counts alleged assault occasioning actual bodily harm, contrary to section 47 of the Act.  The particulars in respect of three of the counts specified precise dates and the fourth involved a specific allegation of kicking of her ribs in the summer of 1986.
            We were told by Crown counsel that the sixth to ninth counts were “sample counts” alleging assault between 1 January 1981 and 1 August 1998 contrary to section 47.  It was indicated that no specific incidents were relied on as the evidence of Mrs Montgomery was that there was violence shown to her throughout the marriage.   But there was, we were told, supportive medical evidence of these general allegations.
            The trial was by Judge and jury at Belfast Crown Court sitting at Antrim, commencing on 23 October 2000 and lasting five days.  By unanimous verdicts the jury convicted the appellant on counts one to three and five to nine and acquitted him on count four.  Mr Lynch QC and Mr Sefton appeared for the Crown and Mr T McDonald QC and Mr C McCreanor appeared for the appellant at the trial and on the appeal.  Leave to appeal was given by the single judge.  We are indebted to counsel for their lucid and succinct submissions.
            The summing-up lasted for 15 to 20 minutes.  The Judge was unwell and when questions were asked by the jury counsel for the Crown and the Defence answered the questions at the request of the Judge (made in Chambers) and assisted him as far as they were able.
            The summing-up was inadequate in many ways but as a result of requisitions some of its inadequacies were rectified by the Judge.  We do not consider that any purpose is served by referring to the deficiencies which were rectified, save to say that in no circumstances should a jury be told that “no explanation can be given as to what is a reasonable doubt.”
            There were three distinct types of offence as we have indicated; one count of unlawful and malicious wounding, contrary to section 20, four counts of assault occasioning actual bodily harm contrary to section 47 and four counts of assault contrary to section 47 of the Act of 1861.  No attempt was made by the Judge to distinguish between them in any satisfactory way.  In our view it was essential that he did tell the jury what the different offences involved.
            The Judge did not tell the jury to deal with each count separately or give any adequate direction about the sample counts.  In respect of the first five counts Mrs Montgomery gave evidence which enabled the complaints and the evidence which supported them, whether medical or otherwise, to be pinpointed.  The appellant sought to explain away the charges in different ways.  Some, he alleged, were caused by falls when Mrs Montgomery was under the influence of alcohol; others, he alleged, resulted from assaults by her against him in a drunken state which he fended off and in the course of which she may have been injured.  He also alleged that his wife had provoked him.  This is not a legal defence to any of the charges.  No reference was made to this by the Judge as a matter of law.
The Judge spoke generously of the appellant’s evidence but did not deal with the evidence on any count separately.  This was a fundamental omission.  As a result the defence or defences on each of the counts was omitted.  
            A judge’s failure to sum up evidence was held to be inadequate in R v Amado-Taylor [2000] 2 Cr App R 188.  We adopt with minor amendments the propositions relevant to this case as set out below:-
1.         Counsel’s closing speeches are no substitute for a judicial and impartial review of the facts from the trial Judge (per Henry LJ at 191D).
2.         Evidence needs to be marshalled and arranged issue by issue; that is the Judge’s responsibility (at 191E).
3.         Generally speaking, the longer a trial lasts, the greater will be a jury’s need for assistance from the judge relating to the evidence … it is generally of assistance to the jury if the judge summarises those factual issues which are not disputed and where there is a significant dispute as to material facts the judge should identify succinctly those pieces of evidence which are in conflict.  By so doing, the judge can focus the jury’s attention on those factual issues which they must resolve (192F – 193A).
4.         The summing-up should place fairly before the jury such defence(s) as [are] advanced (at 193A).
            The trial Judge gave no direction about specimen charges.  After the jury had retired to consider their verdicts they returned and asked: 
“We would like specimen charges clarified on charges six to nine; ie what is the difference between if found guilty of all four or just two?”
 
The reply given by counsel on behalf of the Judge (at his request in Chambers) was:
“Specimen charges cover an alleged course of conduct other than those alleged at counts one to five on the indictment.  If you, the jury, are not satisfied beyond reasonable doubt that four offences took place, you can convict of a lesser number or of none at all.  It must be borne in mind that no specific evidence relating to individual counts six to nine has been given and that the burden of proof, namely that you must be satisfied beyond all reasonable doubt, applied to these counts as to all of the other counts.”  
 
The problem presented to counsel was unique in our experience in that they had to answer the question which the jury asked the Judge.
            In R v M [1999] NI 45 this Court dealt with specimen counts and stated: 
“Where it is impossible to identify the circumstances of particular incidents the jury should be directed that they must be satisfied that the offence alleged took place on at least one occasion and in respect of each similar count that the offence took place on a further occasion.”
 
            That is to say, it is important that the jury, when dealing with a specimen count, direct their attention to one and the same incident.  They must be sure that they are all dealing with the same incident, not different incidents, and that they are satisfied beyond any reasonable doubt of the guilt of the accused on the specimen count which they are considering.  The complainant may allege numerous assaults and it may not be possible to put a date or time to any of these allegations.  But the jury must not approach the evidence in such a way that some of them think one allegation is made out, others think that another allegation is made out and the votes of the jury are then added together.  
In this case the jury convicted on four specimen counts.  Although the complainant gave general evidence, she was dealing with specific incidents however imprecisely.  It was not possible to particularise them by giving a date and time.   The direction to the jury needs to be formulated, however,  so as to ensure that the jury focus their attention on one and the same incident in respect of a specimen count and are satisfied beyond reasonable doubt that the prosecution has proved the offence which is alleged.
            In a case involving allegations of persistent violence over many years, as in the present case, the appropriate course may well be to choose a number of sample or specimen charges to illustrate that course of conduct and for the jury to hear the whole of the complainant’s account of the alleged violence over that period of years.  In this case it may have been desirable to confine each of the specimen counts to a period of less than 17 years and, therefore, to different periods of time in the marriage.
When there is a variety of defences as distinct from a blanket denial that any event occurred leading to physical injury, it is important that the jury are given a direction which ensures that they consider the defences put forward by the accused and reject all of them in respect of each of the specimen counts. 
            As a result of the failure to deal with the evidence on the specific charges or the defences of the appellant on any of the charges in an adequate way, the convictions cannot stand and must be quashed.
            We do not intend to give specific guidance on summing-up.             Within limits it is for an individual judge to sum up as he considers appropriate.  Thus Lord Hailsham LC said in R v Lawrence [1982] AC 510 at 519:-
 “It has been said before but obviously requires to be said again.  The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case.  The search for universally applicable definitions is often productive of more obscurity than light.  A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s notebook.  A direction to a jury should be custom-built to make the jury understand their task in relation to a particular case.  Of course it must include references to the burden of proof and the respective roles of jury and judge.  But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.”
 
The Judicial Studies Board for England and Wales and the Judicial Studies Board for Northern Ireland have produced Crown Court Bench Books and Specimen Directions.   In his foreword to the book produced for Northern Ireland the Lord Chief Justice stated:-
“If the tasks which judges have to undertake were drawn up in order of difficulty, that of summing up to a jury in a criminal trial ranks very high.  It calls for high qualities of precision and clarity in the manner in which the judge sets out the law and the material facts to which it has to be applied.  The charge has to be comprehensive, yet as concise as the nature of the case will permit.  It must deal fully with the strengths and weaknesses of the case on each side, preserving a balance which will meet the exacting demands of justice.  Nothing must be distorted and none of the essential directions must be omitted.  Above all, a charge which satisfies all of these requirements is an art, but is one which must be firmly based on skill and knowledge.
 
The preparation of this Bench Book has been carried out under the auspices of the Judicial Studies Board for Northern Ireland, and I would pay tribute to the industry and skill of the compilers.  They have put together a systematic collection of specimen directions, which are designed to give judges assistance in dealing with a wide variety of topics which they have to cover in summing-up to juries.
 
Judges of all degrees of experience will find in this book a veritable mine from which they may extract material for use in preparing their charges to juries in criminal trials.  The compilers wisely refer in the Introduction to the reminder given by Lord Lane CJ that such specimen directions will often require adaptation to the circumstances of a particular case; as Lord Hailsham of St Marylebone LC expressed it, a direction to a jury should be `custom built’”.
 
            It is also important to remember that the law does not stand still and many directions require to be given with the most recent legislation and decisions of the House of Lords and Court of Appeal in mind and a revised edition of the Bench Book is, we understand, to be produced shortly.  But judges should be slow to re-formulate fundamental principles of law and in our view should have available and consult the Bench Books so as to ensure that they do not omit fundamental directions.
            As is our invariable practice we invited submissions about a re-trial.  It was urged on behalf of the appellant that he faced charges stretching back to 1981.  But the trial was in October 2000 and the appellant was sentenced in March 2001.  In our view there is no realistic possibility of adverse publicity.  The interests of justice require a re-trial and we so order.  Consideration should be given to amendment of the particulars in respect of the specimen charges, having regard to our comments about them.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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THE QUEEN

v

IAN MATTHEW JOHN ROSS MONTGOMERY

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J U D G M E N T  O F
NICHOLSON LJ
 
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