News In Focus
1 February 2007
Leave jury directions to judges, lawyers told
Prosecution and defence lawyers have been advised by the criminal appeal court not to advise juries on points of law, especially as they often get them wrong.
The court made these comments when refusing an appeal by an accused referred to as DA, convicted of four charges of indecency against his two stepdaughters, carried out throughout the 1990s while they were under 16.
One ground of appeal was that in her address to the jury the procurator fiscal depute had made two errors when describing "reasonable doubt". She had that it was the kind of doubt that would stop you from going ahead with for example putting in an offer on a house, when the correct test is that it would make you pause before making an important decision; and she had wrongly referred to "reasonable certainty" as equivalent to reasonable doubt.
It was argued that the sheriff should have expressly corrected both points.
The court refused the appeal because the sheriff had corrected the first point, which the court thought the more obvious one, and had himself given accurate directions. As the depute fiscal had said that the jury should follow the sheriff's directions, the sheriff was entitled to consider that that was enough.
Lord Justice Clerk Gill, however, who sat with Lords Osborne and Johnston, went on to say:
"In our opinion, it would be no bad thing if those who prosecute and defend were to refrain from addressing juries unnecessarily on points of law, particularly since they so often get them wrong. Such forays into the province of the court create a serious risk of confusion and make the task of the trial judge or sheriff even more difficult.
"It would have been quite sufficient", the court continued, "if the procurator fiscal depute had told the jury that the Crown had to satisfy the standard of proof beyond reasonable doubt and had left it to the sheriff to explain to the jury what that meant."
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2007HCJAC08.html .