Here is a multiple choice question that you should be able to answer:
How should a Crown Court Judge direct a jury on the standard of proof in a criminal trial?
A Beyond reasonable doubt that the Defendant is guilty
B Satisfied that you are sure that the Defendant is guilty
C The defendant is clearly guilty
D You should be totally sure the Defendant is guilty
If you answered A, you may be wrong. The answer now is B, satisfied you are sure the Defendant is guilty. Judges have been told to stop using 'beyond reasonable doubt' because jurors don't understand what it means and ask if they're 'satisfied that they are sure' instead. The old version still stands but judges must start with the new although many advocates still start with the old.
Do read Matthew Scott's Legal Comment Argument and Discussion in his BarristerBlogger. This sets out some of the compiled legal arguments that are swirling around.
The original phrase has been used in English courts for more than two hundred years but the Judicial Office have said: 'Judges may adapt their language to avoid difficulties some juries have with the phrase 'reasonable doubt'.'
The the latest edition of the Crown Court Compendium deals with Burden and Standard of Proof in Chapter 5.
In giving Directions, judges are told:
“8. When (as is usual) the burden of proof is on the prosecution, the jury should be directed as follows:
(1) It is for the prosecution to prove that D is guilty.
(2) To do this, the prosecution must make the jury sure that D is guilty. Nothing less will do.
(3) It follows that D does not have to prove that he/she is not guilty. If appropriate: this is so even though D has given/called evidence.”
The Compendium says that Crown Court judges may stop using the original term. It states when summing up judges must give a 'clear instruction to the jury that they have to be satisfied so that they are sure before they can convict...It is unwise to elaborate on the standard of proof, although if an advocate has referred to 'beyond reasonable doubt', the jury should be told that this means the same thing as being sure.'
The Compendium refers to a Court of Appeal case when Lord Justice Moses said: 'Any question from the jury dealing with the standard of proof is the 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.'
So if you are not clear on the current situation, you are not alone! I am sure there will be much discussion and litigation as time passes and we will keep you posted.
Mark Solon
Founder of Bond Solon and Solicitor
info@bondsolon.com
020 7549 2549
This article was first published on the 4th of May 2020.