NOTES OF CASES
| Published date | 01 March 1956 |
| Date | 01 March 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00355.x |
NOTES
OF
CASES
THE
NEED
TO
DIRECT
ON
BURDEN
OF
PROOF
Tm
traditional direction to the jury
in
criminal trids-“The
prosecution must satisfy you beyond reasonable doubt ”-had
this
to commend
it:
in a few words, the jury were told (a) where lay
the burden of proof (“The prosecution must satisfy you”) and
(b) that the burden was a heavy one
(“
beyond reasonable doubt
’,).
In
the case of
Summers,’
Lord Goddard
C.J.
deprecated the use
of thc
“
reasonable doubt
yy
formula and suggested instead that
juries be told to convict only
if
the evidence
“
satisfies them
so
that they can feel sure
”
or
simply that they must
“
be satisfied.”
So
far as the first of these two suggestions is concerned, there
is
little
room
for objection, for both elements
of
onus
(“
satisfies
”)
and quantum
(“
so
that they feel sure
,,)
are maintained,
if
on
a slightly less favourable note for the prisoner.’ The second
suggestion, however-merely
(‘
be satisfied ”-seems clearly inade-
quate:
“
satisfied
)’
can refer either to burden
or
quantum, but
it
cannot clearly refer to both. One element of the full direction may
be lost-if it refers to burden, there
is
no
direction
on
standard of
proof;
if
to quantum, not only is there
no
direction
on
burden,
but the word fails to indicate the special standard required in
criminal trials.
A
series of cases followed
Summers
which clearly reflected the
uncertainty produced by this decision.s
In
the latest of these,
Hepworth
and
Fearnley
[1955]
2
Q.B.
600,
the Court of Criminal
Appeal quashed the conviction
of
two men for receiving after a
trial in which the judge had merely directed the jury that they
had to “be satisfied” of the elements constituting the offence.
The Court of Criminal Appeal held that for an offence such
as
this, receiving,
‘‘
be satisfied
’)
alone was not enough.
In giving the judgment of the court, Lord Goddard, while
stating that he might have misled courts by what he said in
Summers,
nonetheless adhered to his opinion regarding
‘‘
reasonable
doubt.” However, later in his judgment, the Lord Chief Justice
apparently restored the traditional formula to favour when he said
:
“One would be
on
safe ground
if
one said
in
a criminal case
.to
a jury
‘
You must be satisfied beyond reasonable doubt.’
”
Lord
Goddard continued
:
“
One could also say-‘ you, the jury, must
be completely satisfied
’
or
better still
‘
you must feel sure of the
prisoner’s guilt.’
)’
1
(1952)
30
Cr.App.R. 14.
a
See Glanvillc Williams, “The Direction to the
Jury
on
Burden of
Proof”
[l956] Crim.L.R.
464.
3
See cases collected in article referred
to
in
note
2.
194
Mmcn
1966
NOTES
OF
CASES
195
What then of ‘&be satisfied
yy
simpliciter?
Although its use
resulted in the quashing of convictions in this appeal,
it
seems
that
it
may be a proper direction
in
some cases, despite the fore-
going and other criticisms.
&&It
may be,” said Lord Goddard,
“that,
in
some cases, the word ‘satis5ed’ is enough.”
It
is
submitted with respect that, quite apart from any other grounds
of invalidity, a direction which may be proper
in
some cases only,
which cases are unspecified and probably unpredictable
on
any
a
priori
principles, is valueless in the criminal law.
To
the further
objection that the direction “be satisfied” only lays down the
same standard of proof as in a civil case, the
Lord
Chief Justice
replied:
“I
confess that
I
have had some di5culty in under-
standing how there
are
or
can be two standards.” But that there
are
two standards seems clearly to be the law in view of decisions
in
the House of LordsY4
Privy
CouncilY6
Court
of Criminal Appeal
and almost every other reported decision touching
on
the matter.
While it is clear that the validity
of
any direction to a
jury
should not depend upon t.he ritual use of set expressions
or
words,8
nonetheless words of a particular mould are required
in
order to
convey to the
jury
those rules generally understood
to
be basic
tenets of English criminal law.
It
is surely preferable to use well-
tried expressions which impress those rules
on
the mind of the
jury than scarch after others which may
or
may not do
so.
The
(‘
beyond reasonable doubt
)’
formula as traditionally used does
at least. stress both requirements of onus and quantum and its
readmission into the fold is to be welcomed
O;
the same value does
not, nnfortimately, attach to “be satisfied,” and
it
would be safer
to avoid any reliance upon
it.
Another aspect of the decision in
Hepworth
calls for comment.
It
has already been indicated that the trial judge failed to give
any dircction that the onus of proof was
on
the prosecution.
Dealing with this, Lord Goddard used expressions which are
obviously open to the construction that
it
may not be necessary
in
every case to direct the jury
on
the prosecution’s burden.
‘&
It
is
always
de&rablel0
that a jury should be told that the burden of
proof is
on
the prosecution.”
((.
. .
it
is
desirable
lo
that they
should be told that
it
is for the prosecution to prove their case.
It
is
also
most
desirable
lo
that emphasis should be laid upon that
in a receiving case.
In
such a case,
it
is
generally desirable,*O
although there may be circumstances in the particular case which
(Then followed the usual direction
in
receiving cascs.)
would not render
it
necessary, to remind the jury first
. . .
YY
Prestorr.
Jonca
v.
PieatonJones
[l96l]
A.C.
391.
Sodemun
v.
R.
[1936]
2
All
E.R.
38.
Carr-Briant
(1943)
%l
Cr.App.R.
76;
Cohen
[1951]
2
T.L.R.
402,
at-p.
404.
See exceptions mentioned in
Glenville
Williama’
article,
supra.
Krilz
[1950] 1
K.B.
t3?
and
Ncproorth,
p.
2?3.
After having been
finally
eetabliehed
in
Mann’ni
[1949]
A.C.
1,
per
Viecoiint
Simon.
lo
itdlC.8.
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