The standard of proof in criminal trials: Peter Hitchens is right, and Lord Goddard was wrong.

There was a rather strange report by Martin Beckford in this week’s The Mail on Sunday that judges have been told to stop using the phrase “beyond reasonable doubt” in directing juries on the standard of proof required for a conviction:

“… the latest edition of the Crown Court Compendium – written by the Judicial College, which oversees judges’ training – tells members of the bench they can drop the old term completely.

It states that when summing up a trial they must give a ‘clear instruction to the jury that they have to be satisfied so that they are sure before they can convict’.”

The Crown Court Compendium, for those who have not come across it, is an invaluable guide to trial judges. It includes a number of specimen directions, which are often followed by judges, but do not have to be. It is regularly updated, not itself to change the law, but to reflect changes that have been made by statute or by the higher courts.  This is the latest guidance on the correct direction to be given on the standard of proof.

The Compendium goes on to deal with the situation when an advocate – as they well may – mentions the “reasonable doubt” standard in a closing speech (judges are advised to say that it means the same as “sure”).

Anyway, Mr Beckford’s report was enough to raise Peter Hitchens’s hackles, which admittedly seem to rise quite readily from a recumbent position.

Dismal news from the criminal justice system where – in a change of great importance – juries are no longer told they must be persuaded ‘beyond reasonable doubt’ that a defendant is guilty. They must merely be ‘sure’. These expressions do not mean the same thing. You may be ‘sure’ you want a pepperoni pizza rather than a vegan one. But the word touches a different bit of the brain from the one reached by the nagging, awkward phrase ‘beyond reasonable doubt’. There is some suggestion jurors were finding it hard to understand what ‘beyond reasonable doubt’ meant. Well, my reply to any such juror is that if you don’t know what it means, then you are not fit to sit on a jury, and should stand aside.”

Peter Hitchens

It was all rather strange not because Hitchens is wrong – in fact I think he is right – but because the report that raised his hackles is not really news. “Only convict if you are satisfied so that you are sure” has been the approved direction on the standard of proof for decades.

The predecessor of the “Crown Court Compendium” was the Crown Court Bench Book. The last (2010) edition of the Bench Book, for example, barely mentioned the “reasonable doubt” direction at all, again advising judges that they should tell juries that “the prosecution must make the jury sure.”

I have done a little research, and it turns out that the “sure” direction, far from being a modern innovation, has its origins over seventy years ago in 1949 when that distinguished Lord Chief Justice dreadful old hanging judge Lord Goddard ruled that the words “beyond reasonable doubt” were an unnecessary, indeed unsuitable, direction for a jury:i

It is right that [jurors] should be reminded in a criminal case that they must be fully satisfied of the guilt of the accused person and should not find a verdict against him unless they feel sure. That is the direction which I myself constantly give to juries when I am at assizes or at the Old Bailey. When once a Judge begins to use the words “reasonable doubt” and tries to explain what is a reasonable doubt and what is not, he is much more likely to confuse them than if he tells them in plain language: “It is the duty of the prosecution to satisfy you of the man’s guilt”.

In fact Goddard himself did not, as he claimed, constantly give any such direction to juries, and in his most notorious case he said hardly anything about the standard of proof at all.

Readers will be aware of the 1953 case of Craig and Bentley. During an attempted commercial burglary, the 16 year old Craig shot a policeman dead after his 19 year old, and unarmed, co-accused Bentley, already under arrest, shouted the ambiguous words “let him have it Chris.” Goddard, by then the Lord Chief Justice, was the trial judge. His behaviour throughout the case was marked by his usual unjust interjections, but for our purposes the high-water mark of his summing up on the burden and standard of proof were two paragraphs. The first was near the beginning:

“Now there are one or two preliminaries to which I call your attention, though it is hardly necessary. The first one is hardly necessary, because you know as well as I do that in all criminal cases it is for the prosecution to prove their case, and it is said correctly that it is not for the prisoners to prove their innocence.”

That was a correct direction on the burden of proof.

He then moved on to the standard of proof required for a conviction:

In this case the prosecution have given abundant evidence for a case calling for an answer, and although the prisoners do not have to prove their innocence, when once a case is established against them they can give evidence, and they can call witnesses, and then you have to take their evidence as part of the sum of the case. The effect of a prisoner’s evidence may be to satisfy you that he is innocent, it may be it causes you to have such doubt that you feel the case is not proved, and it may, and very often does, have a third effect: it may strengthen the evidence for the prosecution.”

As well as subtly shifting the burden onto the defendant, or rather “the prisoner,” he gave no explanation as to what “such doubt that you feel the case is not proved” might be. A slight doubt? A nagging doubt? A serious doubt? A reasonable doubt? The jurors would have been none the wiser, although they would have had little difficulty sensing Lord Goddard’s view.

The second reference was almost at the end of his summing up. Having summarised the prosecution case in great detail over several pages of transcript (peppered with descriptions of the police officers “gallantry” and “devotion to duty,” in contrast to the defendants who had shown “wickedness” in taking out “horrible” and “dreadful” weapons), he then came to Bentley’s defence, which he summarised in two sentences:

Bentley’s defence is “I didn’t know he had a gun, and I deny that I said ‘Let him have it Chris.’ I never knew he was going to shoot, and I didn’t think he would.” Against that denial (which of course is the denial of a man in grievous peril) you will consider the evidence of the three police officers who have sworn to you positively that those words were said.”

He then dealt with the all important standard of proof required before the jury could convict:

Gentlemen of the jury, I started by saying this was a terrible case. It is dreadful to think that two lads, one, at any rate, coming, and I dare say the other, from decent homes, should with arms of this sort go out in these days to carry out unlawful enterprises like warehouse-breaking and finish by shooting policemen. You have a duty to the prisoners. You will remember, I know, and realise, I know that you owe a duty to the community and if young people, but not so young—they are responsible in law—commit crimes of this sort, it is right, quite independent of any question of punishment, that they should be convicted, and if you find good ground for convicting them, it is your duty to do it if you are satisfied with the evidence for the prosecution.”

So in the most publicised case of his career Goddard gave no real direction at all on the standard of proof. As long as the jury found “good ground for convicting” and were “satisfied with the evidence for the prosecution” it was their duty to convict.

Derek Bentley

At his original appeal Bentley’s counsel, Frank Cassells, argued that the summary of his client’s defence was inadequate. Croom-Johnson J. was having none of it:

A judge in a criminal trial cannot deal with every little point; the judge in a criminal trial must be allowed a little latitude must he not?”

But as to the rest of the summing-up, Mr Cassells said he had “no complaint.” Nothing was said about the direction on the standard of proof.

Two weeks later, after his usual breakfast of fried plaice and potatoes, Albert Pierrepoint hanged Bentley in Wandsworth Gaol.

Quite how Cassells missed the point on Goddard’s standard of proof direction is impossible to know. Perhaps he saw it but took the view that his other point was better. Perhaps he simply couldn’t comprehend that the most senior criminal judge in the country could have failed to give such a basic direction. Even if he had argued it, it seems  unlikely that the Court of Appealconsisting as it did of three judges of inferior rank to Goddard – would have decided the case differently. Nevertheless, the non-direction on the standard of proof was one of several reasons why in 2001 the Court of Appeal ruled that even by the standards of his day Bentley had been deniedthe fair trial which is the birthright of every British citizen.”

Only 2 years after Bentley’s execution, Lord Goddard was asked to rule in an appeal over a conviction for dishonest receiving of stolen wool (an offence which is by no means uncommon in Yorkshire”).ii

The question was whether the trial judge’s direction to the jury, requiring them simply to be “satisfied” of guilt was sufficient: a very similar direction to that which he had given in Bentley’s trial. For rather obscure reasons Goddard implied that a case of receiving stolen wool demanded a more anxious approach to the standard of proof than that needed in a capital murder trial:

I emphasise that this is a receiving case and in a receiving case it is always more important that the onus of proof should be stressed because there are different views which may be taken of the explanation the prisoner may give.”

With that proviso in mind:

… we are saying it is desirable that something more should be said than merely telling the jury they must be “satisfied.” For these reasons the convictions, in our opinion, must be quashed.”

Over the years there have been different judicial pronouncements on whether judges should use the expression “beyond reasonable doubt,” or “sure.” In Bentley’s second appeal – unfortunately for him conducted 45 years after his execution – another Lord Chief Justice, Lord Bingham (a judge as fair as Lord Goddard was not), accepted that either the “sure” or the “reasonable doubt” direction was acceptable:

The jury must be clearly and unambiguously instructed that the burden of proving the guilt of the accused lies and lies only on the Crown, that (subject to exceptions not here relevant) there is no burden on the accused to prove anything and that if, on reviewing all the evidence, the jury are unsure of or are left in any reasonable doubt as to the guilt of the accused that doubt must be resolved in favour of the accused.”

Lord Bingham

That statement still represents the law. Both “beyond reasonable doubt” and “satisfied so that you are sure” are lawful directions. There is judicial authority that they mean the same thing,iii even though they obviously do not; it is one of those legal fictions. Advocates are free to use, and do use “beyond reasonable doubt,” although jurors are then told that it means the same as “sure.” As to which is the higher standard, really you can take your pick. Opinions differ. Mark George QC, as doughty a defender as you will come across in the criminal courts today, is with Lord Goddard, at least on this narrow issue (though I doubt they would have been ad idem on much else).

For my part I am happy to disagree with Lord Goddard and agree with Mr Hitchens. “Beyond reasonable doubt” is neither a difficult phrase to understand nor a difficult concept to apply. It is certainly no more ambiguous than “sure,” a word which is often qualified in different ways, most often by “quite” which confusingly can itself then mean either “not” or “absolutely.” “Beyond reasonable doubt” has entered into the English language in a way that some legal expressions do – “grievous bodily harm,” “murder most foul” – and the very fact that it is an expression never used outside the context of the law helps to emphasise to jurors the solemnity and importance of their decision. The dull little word “sure” does none of those things. It brings with it no weight of history. It does not conjure up Henry Fonda desperately arguing for a man’s life in the jury room, or Atticus Finch standing up to racial prejudice in Alabama. And Horace Rumpole’s famous “golden thread” peroration would end in dismal bathos if he were forced to drop “reasonable doubt.”

If I might say it is not a matter entirely for your Lordship but a matter for our common law, when London is nothing more than a memory and the Old Bailey has sunk back into the primaeval mud, my country will be remembered for three things, the British Breakfast, The Oxford Book of English Verse and the Presumption of Innocence. That is the golden thread that runs through the whole history of our criminal law. So that, if a man is murdered on the Old Kent Road no man shall be convicted if there is reasonable doubt as to his guilt.”

 

iKritz (1949) 33 Cr. App. R. 169

iiHepworth (1955) 39 Cr. App. R. 152

iiiJL [2018] EWCA Crim 621; Crim. L.R. 2018, 2, 184-187

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

13 thoughts on “The standard of proof in criminal trials: Peter Hitchens is right, and Lord Goddard was wrong.”

  1. The word sure does not in itself have a definite meaning,in that the meaning is subject to the context in which the word is used. It is dependent on who uses it as well as the circumstances. The well used expression” beyond reasonable doubt” has a number qualities which import a level of objectiveness to the question that is being asked. A the question is one of a standard that an allegation has to reach, has to have some level of objectivity rather than a variable concept which can depend on the person who making the decision,the subjective usage of the word by the individual etc. Are you sure it is the appropriate word?

  2. I’m grateful for this thoughtful article. But here’s a small point. Unlike some columnists, I continue to do quite a bit of first-hand reporting on topics that capture my interest. Martin Beckford and I worked together on the story (I very rarely write actual news copy for The Mail on Sunday) , but I initiated it, as I sometimes do. I was not responding to Martin’s story in my column, but commenting on an inquiry I had myself begun. It was I who first pursued it with the Ministry of Justice , who referred me to the Judicial Office, who pointed me to the Crown Court Compendium. I then handed over the news side to Martin. I took it up after hearing *two* totally separate references to the use of ‘sure’ instead of ‘beyond reasonable doubt’ in the space of a few days. This was completely new to me (I stopped regular court reporting when I ended my apprenticeship at the Swindon Evening Advertiser in 1976, and last attended a Crown Court trial, but without staying to the end, in 2003). More importantly, it was completely new to everyone I told about it. I think one of the definitions of news is that large numbers of people are surprised by it. I think it passes this test. People in intense, closed worlds such as the law are often quite unaware of how interesting outsiders would find developments in that world, and assume that the public knows things it doesn’t. We should all talk to each other more, and never assume that anyone knows anything. That last rule is almost a commandment.

    1. Thanks Peter. I think the fact that the people you spoke to thought the standard was “beyond reasonable doubt” actually serves to emphasise another reason for ditching “sure.” If “BRD” is so engrained in the collective consciousness then telling jurors “sure” is the test is apt to confuse. It’s always easier to work with than against the grain. If I was as religious as I think you are I would probably also try to draw some sort of analogy with the Church of England’s dire modernisations of the liturgy, although I don’t think you can blame Lord Goddard for those.

      1. It’s a good analogy. Even the non-religious might be shocked by the watering down of the confessions which Anglican congregations are nowadays supposed to make. Hard phrases such as ‘miserable offenders’ and ‘the burden of [our manifold sins and wickedness] is intolerable’ have been removed altogether. It’s all part of a general recoil from the attribution of personal responsibility to ourselves or others, and the vaguer language which must result from a vaguer morality. I am convinced that a conviction is more likely if ‘sure’ is used than ‘beyond reasonable doubt’. But perhaps people worry less about this because they suppose think modern prisons, being more sociological and rehabilitatory, are less unpleasant than the old frankly punitive ones. I am myself not at all convinced that this is the case. I think I’d be more worried about sending someone to one of our modern prisons than I would have been 50 or 60 years ago. You’re right. Lord Goddard wasn’t responsible for vandalising the Prayer Book. The chief culprit was the late Ronald Jasper CBE, sometime Dean of York.

        1. Yes, those are two wonderful phrases, and there are so many others. The prayer book is as much part of our heritage as Shakespeare and Keats and the CofE just threw it all away. Imagine translating ode to a nightingale into “accessible” English.

  3. If “sure” is acceptable, then why not “certain”? To my mind, certain is stronger than sure.

    “I’m sure you’re right” can be a polite way of saying “I disagree, but I can’t be bothered to argue. “I’m certain that you’re right” has a quite different meaning.

    BRD is in between the two. There can always be doubt: “It was just a coincidence” etc, but how reasonable is it?

    The use of “sure” seems to me to be a great weakening of the rigour needed for conviction, and I really don’t care who used it first.

  4. I was once a juror on an attempted murder trial at a regional Crown court. I was made foreman.

    I can assure you the choice of words made by the judge would have been irrelevant. I was the only juror with any education and the only idea of what was going on. I was the only one who wrote any notes and I wrote the judges direction out verbatim.

    I spent nearly the whole day in the jury room explaining again and again, in as clear and basic English as I could, what had been said in court by the barristers, witnesses and judge. It was painful. They mostly took a dislike to the defendant and that was good enough for them to convict.

    The judge had come as close to directing as to find him not guilty on account of diminished responsibility so that he could be taken to a secure mental hospital. The judge even brought us back in to re-explain this to us. It went over their heads. These were average British people, mostly employed, for whom the concepts and language being used in front of them were mostly inaccessible.

    May as well do away with the jury system and toss a coin.

    1. I am merely a law student (so my suppositions are usually wrong), but isn’t this comment an offence (albeit one extremely unlikely to gain the requisite A G’s consent for prosecution) under the Juries Act 1974, s 20D? I was under the impression that, aside from the statutory exceptions, there was a quite strong against ever disclosing what happens in the jury room, in any form.

      Once again, I assume I am wrong because we law students usually are.

      1. Thanks Elijah, that’s a good point. The relevant makes it an offence:

        “to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before a court,”

        If the jury was identifiable I would agree with you, but as it isn’t I think Mark’s in the clear. But just to be on the safe side I’ve removed his surname from his comment. I think it is actually important that people hear in general terms about how juries are performing.

        1. I very much agree that it is important to get insights into the jury room. As there are currently several mock jury trials being run as part of the tests of remote criminal cases, it would be quite useful if researchers were allowed to interview the mock jurors (who I believe are randomly chosen) and observe their deliberations. It would be a useful way to get otherwise forbidden information on the workings of the jury process.

  5. In the Vicky Price trial in 2013 the jury set out 10 questions, asking what it was meant to do next, basically calling the judicial system’s bluff. One of the questions was “What is reasonable doubt?” The judge huffed and puffed: “A reasonable doubt is a doubt which is reasonable, these are ordinary English words that the law doesn’t allow me to help you with beyond the written directions I have already given,” before dismissing the jury because of their “fundamental deficits in understanding”. Clearly, twelve ignorant peasants were not expected to ask awkward questions.

  6. I’d love to read a piece on Covid-19 and the law. Has the government overthrown Habeus Corpus : are we now living in the worst Dictatorship since Oliver Cromwell, and what is you fine and considered opinion?

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