Judgments -

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    14.  The majority opinions of the House in Stonehouse have been faithfully followed in such later decisions as R v Thompson [1984] 1 WLR 962, R v Challinor (1984) 80 Cr App R 253, R v Gordon (Note) (1987) 92 Cr App R 50, R v Gent (1989) 89 Cr App R 247; and R v Kelleher [2003] EWCA Crim 3525, the last of these cases being heard and decided by the Court of Appeal very shortly before the judgment now under appeal and containing, in the judgment of Mantell LJ, a very lucid and accurate exposition of the law. R v Hill and Hall (1988) 89 Cr App R 74 is not easy to reconcile with the majority opinions. If in those cases there was in truth no evidence of lawful excuse which the jury could be asked to consider, the trial judges were entitled to withdraw that issue from the jury. But the relevant conclusion appears to have been (p 77)

    "that the causative relationship between the acts which [the defendant] intended to perform and the alleged protection was so tenuous, so nebulous, that the acts could not be said to be done to protect viewed objectively."

    Like the issue of proximity in Stonehouse, this was a question to be left to the jury, however predictable the outcome might reasonably be thought to be. In any event, the juries should not have been directed to convict, as they evidently were (p 81).

    15.  In contending for the limited exceptions specified in para 2 above, Mr Perry was able to rely on the powerful support of Lord Justice Auld (Review of the Criminal Courts of England and Wales: Report, 2001, paras 99-108, pp 173-176), and on a formidable body of academic literature including Professor Glanville Williams, The Proof of Guilt, 3rd ed, (1963), pp 261-262, Professor Griew [1972] Crim LR 204 and [1989] Crim LR 768 and Professor McConville [1973] Crim LR 164. He drew attention to the question posed by Professor Glanville Williams (op. cit,, p 262):

    "If we really wish juries to give untrue verdicts, why do we require them to be sworn?"

    Mr Perry advanced a number of reasons why the power of juries to return untrue or perverse verdicts of not guilty should be constrained to the limited extent which he contended for. This, he said, involved no objectionable erosion of the jury's role. It would not undermine public confidence in the jury, but would instead enhance it, by eliminating the risk of obviously unjust acquittals where the victim of the crime was for any reason the subject of public hostility, perhaps on grounds of race, ethnic origin, religion or sexual propensity. Denial of the right to direct conviction might, indeed, encourage prosecutors to frame charges not offering the option of jury trial, or encourage the legislature to provide that new offences should be triable only summarily for fear that juries might not convict. It was for Parliament to enact the law, and not for juries to resist the enforcement of laws duly enacted. There was no need to provide a safeguard against judicial tyranny.

    16.  The answer to Professor Glanville Williams' question is of course that we wish juries to give true and not untrue verdicts, and that is why we require them to be sworn. It is obviously true, as Professor Glanville Williams went on to point out, that in some countries a jury system has proved to be inoperable. But in England and Wales it has been possible to assume, in the light of experience and with a large measure of confidence, that jurors will almost invariably approach their important task with a degree of conscientiousness commensurate with what is at stake and a ready willingness to do their best to follow the trial judge's directions. If there were to be a significant problem, no doubt the role of the jury would call for legislative scrutiny. As it is, however, the acquittals of such high profile defendants as Ponting, Randle and Pottle have been quite as much welcomed as resented by the public, which over many centuries has adhered tenaciously to its historic choice that decisions on the guilt of defendants charged with serious crime should rest with a jury of lay people, randomly selected, and not with professional judges. That the last word should rest with the jury remains, as Sir Patrick Devlin, writing in 1956, said (Hamlyn Lectures, pp 160, 162),

    "an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just. If it does not, the jury will not be a party to its enforcement …. The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive."

    Mr Perry did not invite the House to depart from its decision in Stonehouse. In our opinion it covers this case. We are not persuaded by the policy considerations advanced by Mr Perry that that decision should be revised.

    17.  Had the learned judge left the present case to the jury and directed them in the ordinary way, it seems very likely that they would have convicted. There could then have been no effective appeal. As it is, the Court of Appeal's judgment highlights the dangers of judicial intervention. It may well have been "very far from clear" what the appellant's intentions were. The nature and extent of the appellant's religious motivation had been the subject of evidence. The appellant's evidence of not wanting to leave the weapons at home with no one to look after them may well have given rise to nuances (to adopt the language of Lord Keith in Stonehouse) not recognised by the judicial mind. These were pre-eminently matters for evaluation by the jury. Belief that the jury would probably, and rightly, have convicted does not in our judgment entitle us to consider this conviction to be other than unsafe when there were matters which could and should have been the subject of their consideration.

    18.  We would accordingly allow the appeal, quash the appellant's conviction and answer the certified question by saying that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty.


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