Stephens [2002] EWCA Crim 1529

1. LORD JUSTICE KEENE: On 16th February 2001 at Wood Green Crown Court before His Honour Judge Winstanley, this appellant was convicted by a majority verdict of ten to two of an offence of wounding with intent and on 9th March 2001 he was sentenced to four years’ imprisonment. He now appeals against conviction by leave of the single judge. That leave was granted on one ground only, relating to the trial judge’s directions as to the standard of proof to be applied by the jury.
2. The conviction arose out of an incident in a nightclub in Enfield during which the appellant wounded a young man called James Twitchett in the face with a beer glass. That much was not in dispute. There were, however, two very different versions of how that wounding came about. The victim was with a number of friends, including one called Ralph, in the nightclub. According to the prosecution a girl had walked past and spoken to the young man Ralph. At that point the appellant allegedly ran towards Ralph and said “Stop talking to my fucking girlfriend”. James Twitchett moved between them, raised his arms and said they were not looking for trouble. The appellant then punched James Twitchett in the face with his right hand in which he held a glass. There was then a scuffle between Ralph and the appellant. A closed circuit television system in the club filmed the scuffle but did not show the assault with the glass. The Crown’s case therefore was that this was an unprovoked attack on the victim with no question of self-defence.
3. The defence case was that this appellant was at the club, not with his girlfriend but with his sister and with a friend. The appellant and the friend gave evidence at the trial that the appellant was punched and kicked to the floor by James Twitchett and his friends after an argument had arisen. And then, not realising that a beer glass was in his hand, the appellant lashed out as he got up in order to prevent further attack on him. Consequently self-defence was being raised on behalf of the appellant. It is clear that a crucial issue was whether the struggle between Ralph and the appellant took place before the wounding of James Twitchett, as the defence said, or afterwards, as the prosecution say.
4. In his summing-up the judge dealt at the outset with the burden and standard of proof which the jury should apply. He said this at page 5:
“And the standard of proof is this: before you can convict the defendant you must be satisfied so that you feel sure of his guilt. That’s the same thing as being satisfied beyond reasonable doubt of his guilt. Nothing less will do.”
5. However, the jury, after retiring, sent out a number of notes. One of them read:
“What constitutes reasonable doubt? How certain do you have to be?”
6. Before seeking to direct the jury in answer to these questions, the judge discussed the matter with counsel. There was no issue as to what the judge proposed to say in answer to the first of those questions, but after some hesitation both prosecution and defence counsel suggested that the judge should not seek to answer the second question beyond reiterating that the jury had to be sure of guilt before they could convict.
7. What the judge eventually said to the jury in response to that note was this at page 57 of the transcript:
“The first of your questions I read to remind you, and to read into the record is this: what constitutes reasonable doubt? My answer to the question is this: a reasonable doubt is the sort of doubt that might affect the mind of a person dealing with matters of importance in his own affairs.
Your second question is this: how certain do you have to be? And my answer to that question is that you do not have to be certain. You have to be sure. Which is less than being certain. Thank you.”
8. No criticism is made on behalf of the appellant of the answer to the question about reasonable doubt and indeed that answer closely follows the formulation which the Privy Council regarded in Walters [1969] AC 26 as being unobjectionable. But the answer to the second question is the main basis of this appeal, being the ground, as we say, upon which leave was granted.
9. Mr Femi-Ola on behalf of the appellant submits that in normal usage one cannot distinguish between the words “certain” and “sure”. Consequently he contends the jury may well have been confused. It is argued that the judge should have said no more than saying to the jury “You need to be satisfied so as to be sure”. Mr Femi-Ola argues that the direction given may have lowered the standard of proof which the jury should apply and he emphasises also the fact that the jury here returned their verdict only on a majority basis of 10 to 2. Emphasis is placed on behalf of the appellant on the importance of the standard of proof being got right by any judge when directing a jury.
10. For the Crown Mr Jackson has emphasised in his skeleton argument that the two answers given in response to the jury’s note should be taken together and once that is done there can be no doubt that the jury had to be sure of guilt before they could convict and there is no possibility that they were confused in this case.
11. It is clear to this court, having read the transcripts of the discussion between counsel and the judge, that the judge took his formulation of his answer to the jury’s question from the passages in Archbold which appear in the 2002 Edition at paragraph 4-384. Reference is there made to authorities indicating that the prosecution does not have to make the jury feel certain of the accused’s guilt but must satisfy them beyond reasonable doubt. The authorities cited are Miller v Minister of Pensions [1947] 2 All.E.R 372 and Bracewell, a decision of this court, reported at 68 Cr.App.R 44. After referring to the formulation by Lord Goddard CJ in Summers 36 Cr.App.R 14 at page 15, that the jury must be satisfied so that they are sure of guilt before they can convict, the learned authors of Archbold go on to say at sub-paragraph (d):
“Apart from this, it is well established that the standard of proof is less than certainty (see (a), ante). As in ordinary English ‘sure’ and ‘certain’ are virtually indistinguishable, it savours of what the late Sir Rupert Cross might have described as ‘gobbledegook’ to tell the jury that while they must be ‘sure’ they need not be ‘certain’.”
12. That is a passage relied on by Mr Femi-Ola in his short but attractive submission to us.
13. The Judicial Studies Board in its specimen direction on the standard of proof adopts Lord Goddard’s formulation, that having been approved in a number of other cases including Walters. It is now, it seems to this court, very well established that the jury should be told that they have to be satisfied so that they are sure of guilt before they can convict.
14. The two authorities referred to in Archbold dealing with certainty are upon examination perhaps not as authoritative as might at first blush appear. The point which was being made by this court in Bracewell was that the jury is not required to be satisfied with scientific certainty, a degree of certainty such that an expert witness could exclude any other possibility at all. It was therefore a very limited point being made in that case and it is one which should not be used as the basis for drawing any general distinction between being certain and being sure. The other case cited, the well-known one of Miller v Minister of Pensions was a civil case where there are indeed dicta of Mr Justice Denning (as he then was) at first instance.
15. However, it does not seem to this court to be helpful to a jury to seek to draw distinctions between being certain of guilt and being sure of guilt and in our view judges should avoid doing so. Most people would find it difficult to discern any real difference between the two. That far we accept Mr Femi-Ola’s argument. A trial judge faced with the questions put by the jury’s note in this case would be better advised simply to remind the jury that they had to be sure of guilt before they could convict, indicating, if he felt it necessary, that that was the limit of the help which he could give them.
16. However, while the judge here would have been wiser to have adopted such a course, it does not follow that this appeal should be allowed. As was emphasised in the case of Walters to which we have referred: “It is the effect of the summing-up as a whole that matters.” In the present case the judge repeatedly emphasised that the jury had to be sure of guilt before they could convict. He did so not only at the outset of his summing-up, as we have already indicated in the passage quoted earlier, but subsequently. It is unnecessary to repeat all his references to it, but they can be found in the transcript at pages 28H and again at 29B, again at page 39G and again at 47G. Moreover, he repeatedly indicated to them that if they concluded that the appellant might not have intended to cause really serious bodily harm then they should acquit. He did of course repeat again in the answer which is criticised that they had to be sure. But of some significance also to our minds is the fact that after giving the jury that answer in response to their note, he had to deal with another subsequent note from them. In so doing he again repeated the formula that they had to be sure of guilt before they could convict. Moreover, as the Crown now stresses, the jury had the benefit of the answer given as to what was meant by a reasonable doubt, an answer which is not criticised on behalf of the appellant. Nothing emerged from the jury by way of a note after they had been directed in the way now attacked to suggest that they were confused by the direction in the way which is suggested.
17. When all these matters are put together, while it might well have been wiser for the judge to have avoided drawing the distinction which he did, this court cannot see that this provides any basis for doubting the safety of the conviction. We have no doubts as to the safety of the conviction in this case and it must therefore follow that this appeal is dismissed.