As the civil courts are being exhorted to take an ever more stringent stance on proportionality, the recent Court of Appeal decision in Lorenzo v The Chief Constable of the West Midlands [2012] EWCA Civ 1863 is a timely reminder of the importance of providing a cautious, realistic time estimate for civil jury trials. It contains a number of other painful lessons to be learned for jury trial preparation.
Background
Mr Lorenzo sued the West Midlands Police for assault and false imprisonment. Following allegation of assault, Mr Lorenzo was arrested at his house and taken to a police station. He subsequently alleged that he was assaulted by police officers on six separate occasions, including assaults inside the custody suite, and was subjected to racial abuse. The trial of his civil claim, to be heard by judge and jury, was listed for five days.
Mr Lorenzo’s legal team informed the court that, due to a religious holiday, the hearing could not take place on the Friday afternoon. Unfortunately neither the Claimant’s legal team nor the Court informed the Defendant of this prior to the first day of the hearing: the five day trial had become a four-and-a-half day trial before it had even started. It appears that the trial then proceeded rather more slowly than had been anticipated. This was in part due to two factors that the Court of Appeal identified.
First, cross-examination of the Claimant was very thorough: he was cross-examined, “very minutely on everything.” As a retrospective assessment by an appellate court of the time that a cross-examination took, this seems rather a rather sweeping observation: sometimes – even in a jury trial – lengthy, detailed cross-examination can be highly effective.
Secondly, the CCTV evidence from the custody suite had not been prepared in a way that was adequate “either to demonstrate to the witness by way of cross-examination or to the jury the points that the defence sought to advance in cross-examination.” While it is not expressly stated in the Court of Appeal’s judgment what format they would have preferred the CCTV material to have been presented in, it is clear that reference to the CCTV took up a considerable amount of court time.
By the Friday morning, it was apparent that there would not be enough time to finish hearing all the witnesses and send the jury out to consider their verdict on the following Monday. After debate about the appropriate way forward, the Judge was of the view that a retrial would be disproportionate, and would be likely to lead to the withdrawal of public funding for the Claimant. The Judge therefore decided to refuse permission to allow the Defendant to call four of his witnesses, including the senior officer at the police station, an Acting Inspector. In doing so, the Judge acknowledged that this would deprive the Defendant of some corroborative evidence in relation to alleged assaults in the prison cells.
As a result of this decision, closing speeches and the Judge’s summing up took place on the following Monday, and the Jury was sent out on the same day. It appears the Jury were told that they had to return verdicts (on up to twenty questions, if all multiple parts were added up) that day.
Having later been given a majority direction by the Judge, the Jury returned at 5.15pm on Monday, stating that they had made their findings, but that there were two questions on which they had done no better than reach a majority of six to two. The Judge sent the Jury out again, stating, “I would ask you to make a last attempt at those last two questions … so do not feel under any pressure to give way in order to simply reach a verdict on which you are all agreed or on which seven to one of you agree”.
The Jury returned shortly afterwards, and answered all the questions on which they had reached a majority conclusion, except for the two on which they had not, and which the parties then accepted did not require resolution.
Some questions were answered by the jury in favour of the Claimant and some the Defendant.
Proceedings in the Court of Appeal
The Defendant appealed, on the grounds that the Judge was wrong to refuse to allow him to call the four witnesses he intended to call, and that improper pressure was placed on the Jury to reach a verdict on the Monday.
On the first ground, the Court of Appeal noted at paragraph [7] that the Judge’s reasons demonstrated that “he carefully considered and weighed the matters he was required to consider, before taking what has to be accepted was the serious step of declining to allow the police to call all the witnesses they wished to keep”. It concluded at paragraph [21] that the approach of the Judge amply demonstrated “the proper deployment of that Overriding Objective in the context of CPR 32.1, which enables the judge to exercise the power to curtail the evidence being adduced.”
On the second ground, the Court of Appeal was of the view that the jury were not told on the Monday that they had to reach verdicts on that day or otherwise they would be discharged. The mere expectation that they should return their verdict on Monday fell far short of establishing that they were subjected to improper pressure. The appeal therefore failed on both grounds.
Commentary
No doubt the Defendant in this matter felt much aggrieved at the outcome, and the impartial observer might have considerable sympathy for him and his officers. Nevertheless, the outcome of the appeal highlights a number of important lessons when planning for a jury trial. Either side stands to be the loser if they are not applied in future:
- A realistic view must be taken of the prospect of a civil jury trial lasting more than one week: the way many County Courts manage their jury lists means that jury trials are either allocated a one or a two week slot – there is often little or no allowance made for overrun. The courts do not always tell the parties where there is ‘no prospect’ of a case being allowed extra time.
- Far more damage is done by an unrealistically short time estimate than a pessimistically long one.
- Allowance must be made for the time and disruption caused by repeated reference to CCTV footage. Even a mere minute of controversial CCTV footage, subjected to scrutiny, can add two hours (i.e effectively, half a day) to the length of a jury trial.
- CCTV footage must be prepared in a way that facilitates its effective presentation in court.
- Parties must inform each other, and not simply the Court, of all issues relating to listing and practical arrangements for trial. Indeed, the overriding objective requires that such cooperation be lent.
- Parties should anticipate that Courts will increasingly (perhaps invariably) require them to provide, and adhere to, trial timetables
Finally, it is worth noting that there remains no recent decision on whether (and if so, in what circumstances) a court could decide that – in the absence of the parties’ agreement – a majority verdict of 6-2 in a civil jury trial would constitute a proper decision. The Court of Appeal referred to this issue at paragraph [32], before observing, “this is not the case to identify with precision the principles which apply in order to achieve consistency between the civil rules and the use of juries to which the Juries Act 1974 applies.”