Lurking Doubt – more than a hunch?

Court of Appeal vs Juries

Since the introduction of the Court of Criminal Appeal in 1907, there has been something of a battle between two schools of thought as to how much discretion the Court should have in quashing jury verdicts. 

On the one hand, some judges have believed that, as we operate a system of justice based on jury verdicts, we should abide by those verdicts unless there is an extremely good reason for overturning them.

The other school (and I make no apology for stating my opinion that this is the correct one) is that, while juries may work very well most of the time, occasionally, they will inevitably make mistakes and convict someone when there is really insufficient evidence to do so.

These two positions can be summed two statements:

1949, Lord Chief Justice, Lord Goddard said:

“If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this court will not set aside the verdict of guilty which has been found by a jury”.

Whereas  in 1964 a JUSTICE Committee said:

“it seems absurd and unjust that verdicts which experienced judges would have thought surprising and not supported by really adequate evidence should be allowed to stand for no other reason than that they were arrived at by a jury.”

The following year The Interdepartmental Committee on the Court of Criminal Appeal (Donovan Committee) agreed and the Criminal Appeal Act 1966 gave the power for the Court to:

…”quash a conviction where the verdict was ‘under all the circumstances of the case unsafe or unsatisfactory’ ”.

What is Lurking Doubt?

In 1968, there was a case referred to as ‘Cooper’, in which the principle of ‘Lurking Doubt’ was introduced. The judge, Lord Widgery, said:

“This is a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very reluctant indeed to intervene.

…However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. 

That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. 

This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general feel of the case as the court experiences it. “

Such a position was not universally taken by Appeal judges, some feeling that overturning a jury decision should not be taken too lightly.

Viscount Runciman, Chair of the 1993 Royal Commission on Criminal Justice

The Royal Commission on Criminal Justice of 1993, chaired by Viscount Runciman, took a more sensible approach than dismissing it out of hand, encouraging the Court of Appeal to be more ready to overturn guilty verdicts, and concluding:

“Where, however, on reading the transcript and hearing argument the Court of Appeal has a serious doubt about the verdict, it should exercise its power to quash. We do not think that quashing the jury’s verdict where the court believes it to be unsafe undermines the system of jury trial.”

Lord Chief Justice Bingham, in 2000, also qualified the “lurking doubt” and “uneasiness” terms by adding:

…“If, on consideration of all of the facts and circumstances of the case before it, the Court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.”

You can see that this stance requires more than a “gut feeling” but includes an examination of the facts of the case, including transcripts of the trial.

This is an eminently sensible approach which I firmly believe should be adopted by the Court of Appeal today.

In 2012, Lord Chief Judge said something similar but with a much more critical slant. After dismissing the more simplistic concept of “lurking doubt”:

…“it is not open to the court to set aside the verdict on the basis of some judicial hunch …”,

he admitted that the application of it:

“requires reasoned analysis the evidence… which leads to the inexorable conclusion that the verdict is unsafe”.

So, while Lord Judge seemed more dismissive of the concept of Lurking Doubt, and set a higher bar (perhaps a little too high) for the level of evidence required, he was still essentially conceding that a reasoned analysis of the evidence is required and, if deemed to be sufficient, the conviction should be quashed. He referred to research by Professor Leonard Leigh which concluded that those cases which had invoked “lurking doubt” had indeed been subject to such scrutiny. And not merely a ‘collective judicial hunch’.

One-sided Hunches

It has to be said, however, that, on the other side of the coin, collective judicial hunches are often what has caused the potential miscarriage of justice. In sexual assault cases, the requirement for corroboration has been abandoned. Now what the jury is often left with are a complainant claiming the defendant’s guilt, and a defendant protesting their innocence – one person’s word against another. In the absence of any other strong evidence either way, the jury is asked to give a verdict based on who they believe. What is this if not a collective judicial hunch? 

If the jury decide they believe the Complainant, a potentially innocent Defendant is faced having been found guilty on the basis of a collective judicial hunch on the part of an inexperienced jury, yet a Court of Appeal refusing to quash a it because the collective judicial hunch of highly experienced judges is deemed insufficient.

Conclusion – more than just a hunch

In spite of the last paragraph, it is easy to understand why the Court of Appeal might be reluctant to overturn a jury verdict on the basis of instinct alone, no matter how accurate the instinct of experienced judges may be. But that has never really been the issue; both the Runciman (Royal) Commission and Lord Bingham accepted that more would be needed, but both (and even Lord Judge) implied that the Court of Appeal should be open to accepting such evidence. 

That means allowing the Claimant and his lawyers, or the CCRC, to present evidence from the trial, together with any new evidence they have managed to gather, and submit to the Court of Appeal such anomalies that they believe make the jury verdict unsafe. 

The instincts of people experienced in their field, when examined, often have a justifiable basis. While that, on its own, may not be sufficient to quash a guilty verdict, if supported by evidence from the trial which suggests that they are right, Court of Appeal Judges should exercise their right, and their duty, to quash it.

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