Comment
| Published date | 01 August 1985 |
| Date | 01 August 1985 |
| DOI | http://doi.org/10.1177/002201838504900306 |
| Subject Matter | Article |
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 the law but the jury are the sole judges of the facts (per
Lord Oaksey in Joshua v. The Queen [1955]
A.C.
121 at 130). A
number
of recent cases have been concerned with the propriety of a
trial judge usurping the function of the jury by directing a finding of
guilt on the facts or withdrawing a factual issue from the jury.
The
House of Lords in D.P.P. v. Stonehouse [1977]2 All
E.R.
909
was faced with this issue when, in the much publicised case of
attempting to obtain property by deception, the trial judge
directed the jury that there was an attempt by the accused within the
legal meaning of that word if they were satisfied that he falsely
staged his death by drowning, dishonestly intending that an
insurance claim should be made and money obtained in due course.
The
majority of the House of Lords (Lords Edmund-Davies,
Salmon and Keith of Kinkel), while accepting that it was 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 Keith of 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 has a duty to direct ajury to
acquit in a case where he considers there is no evidence which could
justify them in convicting, in the converse case where he is satisfied
that,
on the evidence, the jury would not be justified in acquitting
the accused (and indeed that it would be perverse of them to do so),
he has no power to pre-empt the jury's verdict by directing them to
convict.
In the light of the majority view in Stonehouse it followed that
there
had
been amisdirection at the trial giving a ground for appeal
under
section 2(1) of the Criminal Appeal Act 1968 (as amended).
Despite this "technical slip" (per Lord Salmon) or "purely
technical" misdirection (per Lord Keith of Kinkel), the majority
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