England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 12th October 2009

1. LORD JUSTICE MOSES: Experienced judges are accustomed in their courts to fashion their directions to a jury according to their experience and judgment of the jury in front of them and of the facts of the case. This flexibility is to be encouraged.
2. They must find it tiresome to be told from time to time, both by the Judicial Studies Board and by this court that there are certain golden rules and words they must use in giving their directions to the jury. But, in some respects and in particular in relation to the burden and standard of proof, those words were the product of the experience of other judges and of this court, designed to avoid the very difficulty which arose during the trial at Reading Crown Court, culminating in the conviction of this appellant on the 11th December 2008.
3. He was convicted of causing grievous bodily harm with intent and dangerous driving by a majority of 10 to 2, the allegation being that, after a quarrel with three young men, he got into his car, drove towards them and aimed it at them, causing the injuries which led to the conviction.
4. The point of the appeal relates to the judge's summing-up as to the standard of proof.
5. But it is necessary to explain what the case was about, so that we can reach a conclusion, which is ultimately the only important conclusion, namely to answer the question whether the verdicts of the jury were in all the circumstances unsafe.
6. The collision between this appellant's car and one of three young men took place in the early hours of 25th December 2006 in Maidenhead. There was an altercation between the three young men, who were clearly drunk and this appellant who was a man of 29 and of good character.
7. One of the neighbours, a Melinda Carter, amongst others, had seen the altercation between, as she observed it, five men. She saw the appellant go into a house and shut the door. The three men then walked away. Some three minutes later the appellant came out of the house. The witness too saw there were two female members of what appeared to be his family and she was under the impression that they did not want him to leave. But this appellant did leave, got into his car and started driving towards a level crossing, shown in the photographs in Harrow Lane.
8. By that time the three young men were walking away. She saw the appellant swerve onto the wrong side of the road, once past the level crossing and she then heard a loud bang. The bang was the collision between this appellant and one of the young men.
9. She was not the only witness. There was evidence from an expert examiner, a police officer, who was able to identify the point of impact on the wrong side of the road. Also, far less persuasively, of course, there was evidence from two of the three men, the one who suffered four fractures, a dislocated shoulder and had to have his head stapled but fortunately it appears, with at least we are not told of any grave long-term harm and another of his companions who was himself very drunk. He wrongly, as Mr Tomlinson pointed out on behalf of the appellant, said that the car had mounted the kerb. It had not.
10. The appellant blamed the original incident on one of the three, saying that he had thrown a brick or stone which had hit the bonnet of his car. He said he was very frightened and he drove off. He had, he said, swerved onto the wrong side of the road to avoid one of the men who was on his nearside. He had not driven onto the pavement. He had not aimed his car at any of them and he had not intended to hit anyone but had merely been trying to escape to save his own life. There was thus a simple factual issue for the jury to resolve.
11. Matters, however, in the directions to the jury appear to have gone wrong when the judge directed the jury that the standard they must apply before they find guilt was:

"You must be satisfied of guilt beyond all reasonable doubt."

The judge, as he was to make clear during the course of argument, adopts that way of directing the jury as to the standard of proof and pointed out to counsel, during the argument that had never been the subject matter of appeal. But it is now, because that direction, not only does not comply with the Judicial Studies Board standard direction but led to the very problem that the Judicial Studies Board direction is designed to avoid. Judges are advised by the Judicial Studies Board, as they have been for many years, to direct the jury that before they can return a verdict of guilty, they must be sure that the defendant is guilty.

12. The direction appears to have lead to a question from the jury, which read:

"Q. If the evidence supports possible but very unlikely scenarios, which themselves would lead to a 'not guilty' verdict, does this exclude a 'beyond reasonable doubt' conclusion. There are concerns over how to interpret 'beyond reasonable doubt' - does this need to exclude all possible scenarios associated with 'not guilty'?"

Any question from the jury dealing with the standard of proof is one that most judges dread. To have to define what is meant by "reasonable doubt" or what is meant by "being sure" requires an answer difficult to articulate and likely to confuse. No doubt that is why the Judicial Studies Board seeks to avoid it in the direction they give to judges. The judge on receiving that question and debating it with counsel, said that he did not understand altogether what the jury meant. It seems to us that it is plain that the jury were asking what type of possibilities might be excluded from the road to their conclusion. The question, we suggest, could have been answered simply by telling the jury to exclude any fanciful possibility and act only on those which were realistic. But the judge chose not to do so and entered into a debate with Mr Tomlinson, as to the propriety, on the one hand, of a direction that the jury should be sure, as opposed as to a direction that they should be satisfied beyond a reasonable doubt.

13. The discussion continued, by reference to what the editors say in Archbold and led to the judge finally agreeing that he would tell the jury that "satisfied beyond a reasonable doubt" meant the same as "sure".
14. The jury were then recalled and the judge advised them when giving a majority verdict direction, as follows:

"We have had further discussions about your question and both counsel are at one in asking me to add what I said before in relation to the other meaning of 'beyond any reasonable doubt'.

Juries are often directed by the judge during the course of the summing-up that they have to be satisfied of guilt so that they are sure of guilt. I chose not to give that direction but to give you the direction that you must be satisfied beyond any reasonable doubt. I think the three of us agreed that those two directions, satisfied so that you are sure and satisfied beyond any reasonable doubt, mean the same but I am asked to tell you and direct you that you have to be satisfied so that you are sure in the sense of being satisfied beyond any reasonable doubt of guilt before you can find the defendant guilty because 'sure' is easier to understand perhaps than 'being satisfied beyond any reasonable doubt.'.

But the two mean the same. 'Sure' and 'satisfied beyond any reasonable doubt' mean the same.

The prosecution do not have to prove the case so that you are certain of guilt and the reason I do not usually at all direct juries that they have to be sure of guilt is because, to my mind, juries can then become confused and think that 'sure' is the same as 'certain'. So I prefer to direct juries that they are to be satisfied beyond any reasonable doubt which is the same as being satisfied so that you are sure.

So I do not know whether that helps or whether that is more confusing but I hope that it is of further assistance."

The jury then retired again and returned with their majority verdicts just after 2.15, the directions having been given during the lunch adjournment at 1.17.

15. Mr Tomlinson, in submissions notable for their cogency as well as their moderation and brevity, says that that direction was itself defective in two respects. He seemed to be attributing blame to counsel for the fact that he was having to give the direction in the terms he did. I think if Mr Tomlinson will forgive me, he places too much weight on the word "I think". It is plain that the judge was being astute to direct them as he repeated on many occasions, that being satisfied beyond a reasonable doubt meant the same as being sure. We reject that criticism.
16. There is, however, more merit in the challenge to the distinction that the judge drew between being sure and being certain. This is not a direction that a judge should give to the jury. It is likely only to confuse and it is difficult for anyone to articulate, in a clear and helpful manner, the difference between being sure and the difference between being certain. The distinction should therefore be avoided.
17. If authority is required for so obvious a proposition, then it is to be found in the decision of this court in R v Alan Edwards Stephens [2002] EWCA Crim 1529, particularly at paragraphs 14 and 15 in the judgment of Keene LJ. But as in that case, the jury asked no further questions returned after not a lengthy period and, in our judgment, cannot be said to have been so confused as to apply a lower standard of proof than that which the law requires in order to give moral authority to the verdicts. Accordingly, we reject that ground of appeal.
18. We turn then to the other criticism which is that during the course of cross-examination and at the end of the cross-examination, counsel for the Crown asked a question designed to challenge whether the defendant regarded himself as bound to tell the truth by virtue of having affirmed and not sworn upon the Quoran. He put to him he was a religious practising Muslim and then asked him why he did not take the oath on the holy book. This was not only an unnecessary line of cross-examination, but in our view was improper. It placed both the defendant and his counsel in a difficult and unnecessary position. If questions are asked by a prosecutor by way of cross-examination that are unnecessary and unfairly undermined the defendant, defence counsel is put in the difficult position of having to stand up and intervene, which to a jury untutored in the cut and thrust of a trial makes it look as though defence counsel is seeking to rescue his client from an adverse position. Mr Tomlinson felt bound to intervene and what made the matter worse was that the judge then took up the point and asked himself why he had not taken the oath on the holy book.
19. The matter, after a number of questions was then resolved, sensibly at Mr Tomlinson's instigation, by his client then taking the oath on the holy book, and swearing what he had said was true. The judge fairly tried to cure the position which in one sense he had exacerbated by dealing with the point, in his summing-up, aligning it to the fact that he was a man of good character. But the point should never have arisen. This was, in circumstances to which we will come, a strong case and therefore it was quite unnecessary to delve into these matters. This court has had occasion already to remind counsel and judges not to go down this path unless there is good reason and certainly not without clearing the matter before the judge in the absence of the jury, so that the defence may have a proper opportunity to object and the judge a proper opportunity to prevent any such unnecessary line of cross-examination. The point is made clearly by this court in R v Mehrban [2002] 1 Cr App R(S) 40, [2001] EWCA Crim 2627. The judge should have intervened as seen as Mr Sank on behalf of the prosecution, started down this path, without having necessitated Mr Tomlinson to intervene. We give leave to argue this point. But we have to consider this point together with the way the judge directed the jury as to the standard of proof, in the context of the facts as a whole, we have already remarked this was a strong case. So it was. There was independent evidence, both of the witnesses we have identified and expert evidence to show that this appellant had crossed over onto the wrong side of the road. But the evidence did not stop there. There was no good reason as to why he had left but a short time after the altercation in which he said he had feared for his life and which had led him to go into the house. As we have said, shortly after he left the house, not only did he leave this house but he then drove in a direction, he said, towards his wife's house, a direction which was a longer way round and which could not be explained by his reference to the destination. In those circumstances, we do not think that such defects as there were in relation both to the cross-examination prosecuting counsel pursued, followed by the judge's questioning and in the directions to the standard of proof the verdicts are rendered unsafe. In those circumstances, the appeal will be dismissed.