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In Esdaile, 1858, a crown prosecution, the right was exercised without objection by another counsel, the attorney-general, who had conducted part of the case, becoming Lord Chancellor during its course. In Beckwith, 7 Cox C. C. 505, 1858, a, prosecution by the poor law board, Byles J. refused to permit it to the representative of the attorneygeneral, saying that the right was confined to the attorney-general of England in person, and if I could do so I would not allow it even in that case,' despite Gardner, 1 O. & K. 628, 1845, to the exact contrary, cited to him. In Christie, 1 F. & F. 75, 1858, a prosecution by the Board of Trade, Martin B. refused to permit it to the attorney-general of the county palatine, and said that he thought the practice in any case was a bad one. In Wood, &c., 88 Sess. Rep. C. C. C. 261, 1878, Hawkins J., allowing the claim, explained that the prosecution must be really at the suit of the crown,' i.e. on behalf of the country,' and not merely nominally for the crown as 'ordinary prosecutions' are. In Taylor, 1859, Byles J. said, he did not admit the right of counsel for the crown-who was not the attorney-general-prosecuting for the mint. The controversy is now closed, for in 1884 the English judges resolved, 'That in those crown cases in which the attorney- or solicitorgeneral is personally engaged, a reply, where no witnesses are called for the defence, is to be allowed as of right to the counsel for the crown and in no others.' 5 St. Trials, N. S. 3, note c and authorities, ib. vol. 2, 1019. In Brown, 1899, the A.-G., Sir R. Webster, renounced the right, as it was an ordinary case.' This settles the point in the sense of Hawkins J. above, i.e. the right is, in fact, exercised only in cases where in the public interest a law officer appears; neither now practises privately.

In O'Connell, above, the H. L. held that when the crown is defendant in error it is not necessarily entitled to the final reply.

Sometimes, apparently, another counsel with the crown lawyer was allowed to reply: Layer, at 287, 1722.

Counsel for the prosecution should abstain from appeals to the jury likely to inflame or prejudice their minds: Banks, 12 Cr. A. R. 74, 1916.

iv.

Additional evidence] is occasionally permitted during the reply: Morrison, 22 Cox C. C. 214, 1911, where defendant's counsel called a witness, who was cross-examined and re-examined, and then addressed the jury on that evidence, and counsel for the crown resumed.

Evidence on sanity] At what stage, if at all, the judge should call witnesses, see Mental Unsoundness.

Judge's summing up or charge' to the jury] Blackstone, who says nothing of the speeches of counsel, says: "When the evidence is gone through on both sides, the judge sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence: 1 Comm. 375. When these words first appeared (1765) the subject had received little attention, but the C. C. A., which has devoted a great deal to it, has, it may safely be said, but developed the principles here laid down, with, of course, a corresponding interest in the contemporary incidents of a trial. Some valuable remarks on the point, in the H. L., will be found in Prudential Assurance Co. v. Edmonds, 2 A. C. 487, 1877.

An authoritative statement by Stephen J. is made 1 Hist. Cr. L. 455 (1883): I think that a judge who merely states to the jury certain propositions of law and then reads over his notes does not discharge his duty. . . I further think that he ought not to conceal his opinion from the jury, nor do I see how it is possible for him to do so if he arranges the evidence in the order in which it strikes his mind. . . . The act of stating for the jury the questions which they have to answer, and of stating the evidence bearing on those questions, and showing in what respects it is important, generally goes a considerable way towards suggesting an answer to them, and if a judge does not do as much at least as this, he does almost nothing. The judge's position is thus one of great delicacy it is not easy to be

true and just.'

.

In Arnold v. The King-Emperor, 1914, A. C. 644; 83 L. J. P. C. 299; L. R. 41 Ind. App. 149; 111 L. T. 324; 30 T. L. R. 462, L. Shaw, delivering the judgment of the Jud. Com. of P. C. (which also included L. Sumner, L. Parmoor, Sir John Edge and Mr. Ameer Ali) said: A charge to a jury must be read as a whole. If there are salient propositions of law in it, these will, of course, be the subject of separate analysis. But in a protracted narrative of fact, the determination of which is ultimately left to the jury, it must needs be that the view of the judge may not coincide with the views of others who look upon the whole proceedings in black type. It would, however, not be in accordance either with usual or with good practice to treat such cases as cases of misdirection if, upon the general view taken, the case had been fairly left within the jury's province.' 24 Cox C. C. 299.

General rules: misdirection non-direction] The C. C. A., dealing exclusively with criminal trials, has rather insisted by criticism on its view of a defective summing up than positively asserted the criterion of a good one. One of its general rules was thus expressed by Alver

stone L.C.J.: 'Summings up are not to be criticised because particular expressions are or are not to be found in them, unless they amount to a misdirection. A summing up is not a lecture on law; it must be looked at from the point of view of the questions raised at the trial. The court must look at how the case was conducted. If conducted on a wrong view of the law, the court ought to interfere. Except for a few chance epithets which may have been suggested to the judge's mind by the way in which the case was conducted, there is nothing in the summing up as a whole to which the law can take exception. The observation 'not to allow people to do with impunity what has here occurred' had perhaps better not have been made. . . . R. C. Mason, &c., 1 Cr. A. R. 76, 1908. So in Meyer, ib. 10, where, perhaps, the direction did not distinguish between larceny by a bailee and that by a trick, but the case had in fact been contested as the former, the court thought an 'omission to direct the jury on a point which was not taken at the trial may not matter if no injustice is done.' So Stoddart, 1909, at end of judgment.

Where the point was not raised the judge was not bound to direct that unlawful wounding could be found on a charge of wounding with intent to murder: Vaughan, 1 Cr. A. R. 25, 1908. When there might well have been an alternative defence (denial or justifiable force), but was not, the C. C. A. refused to interfere because there was no direction on the point: Deane, 7 Cr. A. R. 69, 1911; sa J. May, 1912.

Misstatement of evidence] Where a gross misstatement of evidence was alleged as misdirection, the C. C. A. thought that, if it was made, counsel ought to have corrected it at once, but doubted, in view of the conduct of the case, whether it had been made, Kams, and insisted strongly on the necessity of care in the summing up of these difficult cases: cf. H. Martin, 1908, below. In Savosky, 1 Cr. A. R. 98, 1909, and F. A. Mason, 2 Or. A. R. 59, 1909, c. q. on the ground of misstatements of facts or of their effects: see under Law, below, II. In Schofield, 12 Or. A. R. 192, 1917, the court treated appellant's remark on arrest, 'Just my luck,' as an admission: c. q. Cf. Feldman.

Jury misled] Where the judge led the jury to think that he would pass no sentence (for bigamy), 18 mos. imp. w. h. 1. were reduced to one day: G. S. Ellis, 13 Cr. A. R. 196, 1918.

Non-direction] In Prudential, &c. v. Edmonds, at 507, L. Blackburn said: Although it is generally said and said truly that nondirection is not a subject of a bill of exceptions, yet when the facts are such that in order to guide the jury properly there should be a direction of law given, the not giving that direction of law would be a subject for a bill of exceptions and would be a ground for a venire de novo. When once it is established that a direction was not proper, either wrong in giving a wrong guide or imperfect in not giving the right guide to the jury, when the facts were such as to make it the duty of the judge to give a guide. there must be a venire de novo.' The view of the C. C. A. was expressed in Bradshaw, &c., 4 Cr. A. R. 280, 1910; Vassileva; and T. Finch, 12 Cr. A. R. 77, 1916 -'non-direction may amount to misdirection': c. q. The judge may be asked to deal with certain points before leaving the case: McDougall, 1912; or to correct suggested misdirection: Wann, 7 Or. A. R. 187; J. May, 8 Cr. A. R. 66. But he may use his discretion in the interest of defendant by not directing the jury to inadmissible questions which

have been asked, especially if they were asked early in a long trial: L. Cohen, 1914, citing D. Watson, 1913.

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Defence must be put] One general rule is paramount': Dinnick; viz. the summing up must fairly put the case for the defence whatsoever it be, especially when defendant has no counsel: Totty, 10 Cr. A. R. 79; 24 Cox C. C. 227, 1914; Warner, 1908; Immer, 13 Cr. A. R. 22, 1917; as carefully as that of the prosecution': Keating, 2 Or. A. R. 61, 1909; Dinnick, 3 Or. A. R. 77; 26 T. L. R. 74, 1909, where the defence that the 'brawling' charged was within defendant's right was not put to the jury: c. q., as in H. Field, 1910; G. H. Richards (i), 4 Cr. A. R. 161, 1910, and B. Taylor, 11 Cr. A. R. 41, 1914, where the direction was that unless the jury believed that all the prosecution's witnesses had committed perjury out of spite to defendant (who gave a possible explanation), they must convict. Frampton, 12 Cr. A. R. 202, 1917: c. q. Evidence ignored; Badash, 13 Cr. A. R. 17, 1917: c. q.

Inadmissible evidence] See that title and Similar Acts, below. When such evidence had been given but stopped by the judge who had sufficiently warned the jury against it, the C. C. A. did not quash, but added: There might be a case where the question asked is so serious in its application to the particular facts of the case that it might not be sufficient to tell the jury to banish it from their minds': Kurash, 1915, 2 K. B. 479; 84 L. J. K. B. 1497; 79 J. P. 399; 113 L. T. 431; 25 Cox C. O. 55; 11 Cr. A. R. 170.

Popular language] In H. Pope, 1910, Darling J. said: 'Counsel has urged that the summing up was so bad that the C. C. A. ought to quash the conviction. The summing up was forcible and expressions apt for addressing the jury at the moment were used by the learned judge. Even a judge is not disentitled to use advocacy if it is proper for the occasion. He must see that the balance is held evenly between the prosecution and the defence. If a statement is pressed too hard by the defence the judge must put it in a proper light for the jury; and the same observation applies to the prosecution. Counsel had criticised many points of the summing up. But almost everything may be criticised. What we must consider is whether the summing up was so one-sided as to lead to the conviction of the prisoner. regards the intent to defraud,' the judge asked the jury whether the prisoner did it honestly or whether he did it dishonestly. In the first place he used the technical words and then he gave the popular words which would be understood by the people he was addressing. Isolated passages must be considered in reference to their context and to the summing up as a whole. The critical parts of a summing up are the beginning and the end, like the exordium and the peroration of a speech. But the nature of a false pretence in law, as differing from mere dishonesty, ought to be pointed out.' G. Baker, 4 Cr. A. R. 153, 1910.

As

In practice it is often impossible to deal with the facts and the law of a case separately, but for convenience decisions are here classified under those two heads. In J. Gray, 1911, the C. C. A. found almost every possible defect in a summing up.

I. THE FACTS.

'However strong a judge's view may be of the evidence, he should leave questions of fact to the jury, and it is unfortunate that his interlocutory remarks and the early part of his summing up, and, no doubt, the way in which the observations were made, could lead the jury to believe that there was no issue for them in that matter, and if they had any doubt his final observation might have been fatal to that doubt': Beeby, 6 Cr. A. R. 141, 1911; he must not take the decision out of the hands of the jury': G. Bryant, 13 Cr. A. R. 51, 1918: c. q. Perhaps one rule is that the judge should consider whether the proved facts are consistent with innocence.

Omission] As L. Esher said, omission is not of itself necessarily misdirection; it is only when the omission is such as is calculated to mislead the jury that it amounts to misdirection': Vassileva, 6 Cr. A. R. 231, 1911: c. q. because it was not pointed out to the jury that the proved facts were consistent with innocence; cf. Page, 1915; so Caley, 12 Cr. A. R. 231, 1917. In A. Hill, 7 Cr. A. R. 250, 1912, receiving, there was no direction whether the property in question was stolen: c. q. So when there were so many omissions that what was said was worse than no summing up at all': McGill, 10 Or. A. R. 267, 1914. In Finch, 1916, the C. C. A. said that the jury was entitled to the assistance of the judge on the facts: in H. Kurasch, 13 Cr. A. R. 13, 1917.

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In M. Cohen and Bateman, 73 J. P. 352; 2 Cr. A. R. 197, 1909, though the court thought that the summing up was not what it ought to have been (Cr. A. R. 210, 212), it observed: 'In our view a judge is not only entitled, but ought to give the jury some assistance on questions of fact as well as on questions of law. Of course, questions of fact are for the jury. . . Yet the judge has experience on the bearing of evidence and in dealing with the relevancy of questions of fact. . . . It is not wrong for the judge to give confident opinions upon questions of fact. It is impossible for him to deal with doubtful points of fact unless he can state some of the facts confidently to the jury. It is necessary for him sometimes to express extremely confident opinions. The mere finding, therefore, of very confident expressions in the summing up does not show that it is an improper one

one must give credit to the jury for intelligence and for the knowledge that they are not bound by the expressions of the judge upon questions of fact: cf. the cases under Law, below, and O'Donnell, 12 Or. A. R. 219, 1917. So where the judge expressed a strong view' on the defence of no animus furandi: Melville, 2 Or. A. R. 173, 1909; or considerably overstated the force and cogency of the evidence' about a certain sum of money: Monk, 7 Cr. A. R. 1912: fraud on creditors: five judges. And he is entitled to make an independent suggestion on the evidence: Ryder, 9 Cr. A. R. 100, 1913; ib. 109, Bentley, both murders; though in G. J. Smith, 1915, the C. C. A. thought it would have been better if he had not added to the suggestions of the crown and the defence. But positive expressions of belief in defendant's guilt are to be deprecated: Randles, 1 Or. A. R. 194, 1908; Hepworth, 4 ib. 128, 1910; Pratley, ib. 161, 1910.

Specific facts] In cases of any complexity there ought to be a direction on the facts that must be found to convict, and where the