Comment
| Published date | 01 August 1985 |
| Date | 01 August 1985 |
| DOI | http://doi.org/10.1177/002201838504900306 |
COMMENT
MISDIRECTIONS AND APPLICA
nON
OF
THE
PROVISO
As between judge and juryin a criminal trial, the principle generally
applicable to the distribution of functions is that it is for the judge to
direct on thelaw but thejury are the sole judges of thefacts (per
Lord Oaksey in Joshua v. The Queen [1955]
A.C.
121 at130). A
number
of recent cases have been concerned with the propriety of a
trial judge usurping the function of the jury by directing a findingof
guilt on the facts or withdrawing a factual issue fromthe jury.
The
House of Lords in D.P.P. v. Stonehouse [1977]2 All
E.R.
909
was faced withthis issue when, in themuchpublicised case of
attempting to obtain property by deception, the trial judge
directed the jury that there was an attempt by theaccused within the
legal meaning of that word if theyweresatisfied that he falsely
staged his death by drowning, dishonestly intending that an
insurance claim should be made andmoney obtained in duecourse.
The
majority of the House of Lords (Lords Edmund-Davies,
Salmon and Keithof Kinkel), while accepting that itwas quite
proper
for the judge to direct on the legal meaning of attempt, held
that it was wrong to state that proof of certain facts established the
attempt
charged. In the words of Lord Keithof Kinkel, "
...
the
application of the law to the facts is a matter for the jury and not for
the
judge".
Lord Salmon adopted asomewhat more fundamental
view in declaring that while a judge hasa duty todirect ajury to
acquit in a casewhere he considers there is no evidence which could
justify them in convicting, in the converse case where heis satisfied
that,
on the evidence, the jury would notbe justified in acquitting
the accused (and indeed that it would beperverse of them to do so),
he has no power to pre-empt the jury's verdict by directing them to
convict.
In thelight of the majority view in Stonehouse it followedthat
there
had
been amisdirection at thetrialgiving a ground for appeal
under
section 2(1) oftheCriminal Appeal Act1968 (as amended).
Despite this "technical slip" (per Lord Salmon) or "purely
technical" misdirection (per Lord Keith of Kinkel), the majority
267
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