The issue of lurking doubt - Essay Example

Lurking Doubt Test Appeals of an unmeritorious are only allowed by the court when it allows appeals using the lurking doubt test, so the test should be consigned to history. In law, miscarriage of justice in a court of law can usually be corrected by an appellate court if it is decided that the judge can review the evidence and give credence to luring doubt in a conviction or otherwise. From an analysis of Section 2 of CAA 1968,1 it can be deduced that the Court of Appeal is a statutory body and should not at any time go beyond its mandate of a statutory jurisdiction. However, some events indicate that the court has more power and can take into consideration some actions of the Court of Criminal Appeals. One of the residual actions that the Court of Criminal Appeals is the ability to reverse a conviction based on lurking doubt. This residual power is explained in R. v B. (2003),2 where it is stated that; “... there remains in this court a residual discretion to set aside a conviction if we feel that it is unsafe or unfair to allow it stand. This is so even when the trial process itself cannot be faulted”.3 An analysis of the statement of the court indicated above reveals that the court is saying that, even if the law dictates the court’s jurisdiction, the court can still access residual parts of its jurisdiction dictated by the statute. The issue of lurking doubt was first brought to light by Lord Widgery in Regina v Cooper (1969),4 where in the interest of criminal practice, stated that the court has, within, its powers, the right to interfere with a jury’s working even if the trial has been impeccably conducted. In Regina v Cooper (1969),5 it is evident that every issue in trial had been placed to the jury, and the court was not willing to interfere in the verdict. Lord Widgery stated that any court must realize the advantage that the jury possesses in hearing, seeing and analyzing the witnesses and material presented to them, so the court should take serious consideration before interfering in the verdict. However, until the Criminal Appeals Act (CAA) 19666 was passed, it was uncommon to find a court interfering in a jury verdict. But after the passing of CAA 1966, the court is now vested with the power of allowing an appeal against a conviction if the court feels that the jury’s verdict should be discarded on the basis that the case is unsafe or not acceptable, or does not satisfy all conditions. Lord Widgery (1969) stated that a court must leave the objective part of a case and take a subjective measure to the case analysis. The subjective measure proposed by Widgery is that the court should decide whether to let the matter rest as it is or whether they have some lurking doubt. In this case the lurking doubt is considered if it makes the court wonder if some miscarriage of justice was committed.7 This subjective test is strictly not based on the evidence received by the court; instead it is based on the general feel of the case and the personal opinion of the judge(s) of the case. The precedent set by Lord Widgery in 1966 became the lurking doubt test for the appellate court, where each member of the bench considers if the verdicts given are unsafe or unsatisfactory and then allows the conviction to pass or be quashed. The decision on whether the lurking doubt test should be consigned to history or still be used is based on the court itself and the trial jury. An analysis of different cases indicated that the test is still in use but can be arguable. From an analysis of Malleson’s () research into the use of the lurking doubt test, it is found that after Widgery’s introduction of the test in Cooper (1969),8 6 cases used the test between then and 1989. However, in 1990, of the 102 successful appeals, 6 of them included the aspect of the lurking doubt test, as compared to 14 out of 114 cases in 1992.9 In the 1992 cases, Malleson states that the 14 convictions were reversed based on the court’s opinion that the jury reached wrong decisions, despite the fact that no new evidence was introduced and the trial process was considered impeccable.10 In these cases, five courts decided that there was lurking doubt in the convictions returned by the jury. This indicates that in all cases, notwithstanding the passage of time, there is still the element of lurking doubt, and the test should not be consigned to history, instead, should get statutory recognition. A proposal by the Royal Commission indicates that the lurking doubt test should be given credence, since in some cases, the experience of the judges dictate that there might be miscarriage of justice based on the jury’s verdict. The Royal Commission proposed that there should be a redraft of Section 2 of the CAA, which in essence would give statutory recognition to the lurking doubt test. Having heard all the evidence in a case, and being concluded that there was no error of law or irregularity in the trial process, the court should still be given the power to quash a jury’s conviction based on subjective application of the case that deems the verdict unsafe or unsatisfactory. However, an analysis of the lurking doubt test reveals new insights into the criminal court system. The proposal by the Royal Commission was quashed based on insight that it would give new aspects of trials.11 It is a common factor for the court of appeal to quash convictions or verdicts based on lurking doubt, but giving the judges statutory approval to do so would mean that the case would require assent by two different branches of the legal system. This would mean criminal cases would have to be assessed by the jury in the Crown Courts and the appellate judges, who would then have the power to quash the convictions. Instead of consigning the lurking doubt test for unmeritorious appeals to history, the judicial system should find a way of investigating the events leading up to a conviction by jury. This was the proposal in a report by Kate Malleson in research conducted for the Royal Commission concerning miscarriage of justice.12 This research was based on criticism of the Court of Appeal in the way it did not consider cases of fresh that could overturn previous convictions or cases where the cases contained lurking doubt and were still convicted. This led to setting up of a Commission to investigate these cases. The use of the lurking doubt test has been doubted in some instances, and an analysis reveals that it has both positive and negative implications for appeals.13 The recommendation that the test should be consigned to history is based on the effect of the test on appeals and miscarriage of justice. However, the test should not be relegated; it should instead follow on the recommendation of the Royal Commission that the judicial system should find a way of investigating the issues leading up to convictions. The issue of the lurking doubt is based on the experience of the trial judges after the verdict by the jury. From the leading authority on the lurking doubt test, Lord Widgery, also the setter of the precedent, it is evident that the concept of lurking doubt should not be used as the only test for appeals. In R. v F. (1999),14 it was held that the lurking doubt test cannot be held applicable in appeal cases, a fact that is disputed primarily by the issues of miscarriage of justice. If the court has any doubt that the verdict of guilty presented by a jury is flawed, then it would be a miscarriage of justice if the conviction is to stand. More recently, the Court of Appeals stated that the lurking doubt notion cannot be dissolved, and that it remains a tool for the appellate court in deciding convictions. In conclusion, it can be said that the lurking doubt test is still an applicable test in appeals, and should not be abolished since it avoids miscarriage of justice. Criminal Law tenets indicate that each member of the appellate court has the jurisdiction to decide the fate of the appellant in the case, an issue that gives rise to the lurking doubt test. Consigning the test to history would override the experience of the trial and appeal judges and vest authority only on the jury in the case. This could lead to serious miscarriage of justice as indicted by the various appeals that have been successful based on a review of unfavorable verdicts. This occurs even when the trial is considered impeccable and no facts can be proven to have interfered with the case. The lurking doubt test is solely based on a subjective review of a verdict by the trial judge, a fact that gives credence to the lurking doubt test. Bibliography Criminal Appeals Act, 1968, (Section 2) Gaukroger S, Objectivity: A Very Short Introduction (Oxford University Press 2012) Gillespie A, The English Legal System (Oxford University Press 2007) Malleson K, Plotnikoff J, and Woolfson R, Review of the Appeal Process (Royal Commission on Criminal Justice 1993) Mathias D, Criminal Law Casebook: Developments in Leading Appellate Courts (Oxford University Press 2007) R v B [2003] 2 Cr App R 13 R. v. F. (W.J.), [1999] 3 S.C.R. 569 Regina v Cooper (Sean) [1969] 1 QB 267 Slapper G and Kelly D, The English Legal System (Taylor and Francis 2011) Zander M, Zander on the CCRC (The Justice Gap 2012) Read More