There were news reports in July 2014 that a child sex trial had to be abandoned because the Judge fell asleep. How common is this, and much of a problem is it?
In this case, the jury were discharged and there will have to be a re-trial, which causes obvious difficulties for all concerned.
We should say at this stage that the facts aren’t clear and, most importantly, it is not clear if the Judge was actually asleep or not. The Judicial Conduct Investigation Office will consider the matter and issue a report in due course.
Does a sleeping judge make a conviction unsafe?
You’d think that the answer would be ‘yes’, or even more along the lines of ‘hell, yes – obviously’. But you’d be wrong. It will be no surprise that this is not the first time this has happened.
The Guardian has a background piece from a few years ago which is worth reading, but what does the law say?
The case of Betson  EWCA Crim 254, better known as the Millennium Dome Diamond Robbery, featured a sleeping Judge. The Court of Appeal stated at para 47 “no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial“.
That is, perhaps, a pretty uncontentious statement. However, it wasn’t the end of the matter – “because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial“.
The Court then went on to give two examples that fell either side of the line : “First, if a judge is inattentive, however briefly, during a defendant’s evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury.
Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings“.
In that case, the Judge was asleep for part of the speeches and some of the evidence. The Court concluded that in the circumstances of that case the conviction was not unsafe.
This was confirmed the next year in a case called Ottley.
What about a sleeping juror?
Again, it’s probably a question of what was missed, although it’s unlikely that the Court of Appeal will intervene. In Tomar  CLR 682, the Court had no difficulty in dismissing the appeal against conviction on the basis that one juror was asleep for some of the proceedings. A similar result was achieved in Barnes  EWCA Crim 2726.
In both of those cases, the Court came up with a novel argument, In the first, the fact that there were other jurors who were paying attention makes up for any difficulty and, in the second, the fact that the tired juror missed the cross-examination of the defendant means that any prejudice was felt by the Prosecution.
Judges or jurors sleeping are not to be encouraged, clearly. However, if the trial continues to a verdict, then it is unlikely that any conviction will be safe.
In this case, the jury were discharged. It is clearly an issue that the whole trial will have to be re-run. It is understood that the complainant had completed their evidence, and so it is doubly unfortunate that they will have to give their evidence again.