Stephens [2002] EWCA Crim 1529
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In R v Stephens [2002] EWCA Crim 1529 the Court of Appeal (Criminal Division) dismissed an appeal against conviction for wounding with intent, holding that a judge’s answer to a jury that they did not have to be certain, only sure, was unhelpful and should be avoided, but did not render the conviction unsafe when the summing-up was read as a whole.
On 16 February 2001, at Wood Green Crown Court, the appellant was convicted by a majority of ten to two of wounding with intent, and on 9 March 2001 was sentenced to four years’ imprisonment. Leave to appeal was granted on a single ground concerning the directions on the standard of proof.
The appellant wounded a young man in the face with a beer glass in a nightclub in Enfield. The prosecution case was that the appellant ran at one of the complainant’s friends, saying “Stop talking to my fucking girlfriend”, and that when the complainant stepped between them and said they were not looking for trouble, the appellant punched him in the face with the hand holding the glass; a scuffle with the friend followed. The defence case was self-defence: the appellant said that he had been punched and kicked to the floor by the complainant and his friends and, not realising the glass was in his hand, lashed out as he got up. Whether the struggle with the friend came before or after the wounding was a central issue.
At the outset of the summing-up the judge directed the jury that they must be satisfied so that they felt sure of guilt, which was the same as being satisfied beyond reasonable doubt. The jury later asked, “What constitutes reasonable doubt? How certain do you have to be?” Counsel on both sides suggested that the judge should not attempt to answer the second question beyond repeating that the jury had to be sure. The judge answered the first question by describing a reasonable doubt as the sort of doubt that might affect the mind of a person dealing with matters of importance in his own affairs, and the second by saying: “you do not have to be certain. You have to be sure. Which is less than being certain.”
No criticism was made of the answer on reasonable doubt, which closely followed the formulation approved in Walters [1969] AC 26. The appellant argued that “certain” and “sure” cannot be distinguished in normal usage, that the jury may have been confused and the standard lowered, and relied on the majority verdict. The Crown argued that the two answers had to be read together.
The court noted that the judge had drawn on Archbold, which cited Miller v Minister of Pensions [1947] 2 All.E.R 372 and Bracewell, 68 Cr.App.R 44, for the proposition that the prosecution need not make the jury feel certain of guilt, while itself describing it as “gobbledegook” to tell a jury that they must be sure but need not be certain. It is well established, following Lord Goddard CJ in Summers 36 Cr.App.R 14 and the Judicial Studies Board specimen direction, that the jury should be told they must be satisfied so that they are sure of guilt. Bracewell made only the limited point that a jury need not have scientific certainty, and should not ground any general distinction between being certain and being sure; Miller v Minister of Pensions was a civil case. Drawing distinctions between certainty and being sure is not helpful to a jury and judges should avoid doing so. A judge faced with such a note would be better advised simply to remind the jury that they must be sure of guilt, indicating if necessary that that was the limit of the help that could be given.
It did not follow that the appeal should succeed. As Walters made clear, “It is the effect of the summing-up as a whole that matters.” The judge had repeatedly directed the jury that they must be sure before convicting, had told them to acquit if the appellant might not have intended to cause “really serious bodily harm”, repeated the need to be sure in the criticised answer itself and again in answering a later note, and had given an unobjectionable explanation of reasonable doubt. Nothing from the jury suggested confusion. The court had no doubt as to the safety of the conviction, and the appeal was dismissed.