No, the standard of proof has not been changed

Peter Hitchens and the Mail on Sunday claim that a core principle of our legal system has been changed without debate – they are wrong

Artillery Row

“A little learning is a dangerous thing,” wrote Pope. A little legal learning may be more dangerous still.

“Judges have been told to drop the phrase ‘beyond reasonable doubt’ over concerns that jurors do not understand it,” the Mail on Sunday reported. “Instead, official guidance for the judiciary is to tell jurors that they must be ‘satisfied so that they are sure’ a defendant is guilty.”

Peter Hitchens, in the same newspaper, described this as “a change of great importance”.

It is, in fact, no change at all.  As far as the judges are concerned, “beyond reasonable doubt” and “sure” refer to the same standard of proof.

The Mail’s source was a guidebook for trial judges called the Crown Court Compendium, published on behalf of the senior judiciary in 2016 and recently updated. Part one runs to more than 500 pages.

The section on burden and standard of proof has not changed since a previous edition published in June 2018. And the reference to the jury being “sure” can be found in earlier guidance published in 2010.

As a direction to juries, “beyond reasonable doubt” is much older: it was approved by senior judges in 1935. But the word “sure” has a long pedigree too.

Giving judgment in a case called Kritz, the former lord chief justice Lord Goddard said a jury should be reminded “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”.

He went on: “That is the direction which I myself constantly give to juries. When once a judge begins to use the words ‘reasonable doubt’ and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language: ‘It is the duty of the prosecution to satisfy you of the prisoner’s guilt.’” There was no need to say “beyond reasonable doubt”.

That case was decided as long ago as 1949. For at least the last decade, judges have preferred “sure” to “beyond reasonable doubt” for the reasons given by Goddard. If an advocate uses “beyond reasonable doubt” in addressing jurors, judges must tell the jury that it means the same thing as being sure.

But what does “sure” mean? Occasionally, judges have tried to be helpful — using phrases like “reasonably sure”, “pretty sure”, “pretty certain” and “sure, which is less than certain”. Bad idea: appeal courts have disapproved. But judges have got away with “You, the jury must be completely satisfied” or “You must feel sure of the prisoner’s guilt”.

Are we wise to expect juries to understand distinctions that judges cannot easily express? Geoffrey Robertson QC argues that defendants could be better off if they could choose trial by judge alone — as they can in parts of his native Australia.

As he knows, many criminal cases in England and Wales are tried by district judges sitting alone or by benches of lay magistrates. In middle-ranking cases, defendants may be able to choose between trial in the magistrates’ court and trial by jury. For the most serious cases, though, jury trial is effectively mandatory if the defendant pleads not guilty.

The renowned jurist Sir Louis Blom-Cooper QC, who died in 2018, used to argue for trial by judge alone — in some cases at least. But most judges I know support trial by jury for the reasons Robertson attributes to the late Lord Hutchinson of Lullington QC: that scrapping juries would be the first step to abolishing a trial system that people know instinctively is worth keeping, despite the attraction to politicians of “cheaper, speedier and more rational justice”.

Our appeal courts should certainly be more willing overturn a jury’s verdict, as the High Court of Australia did when it cleared Cardinal Pell of child sexual abuse this month. But now is not the time to interfere with jury trials — or indeed to suggest that anyone else is doing so.

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