Regina v. Wang (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

A judge may never direct a jury to return a verdict of guilty. The rule applies even where the relevant facts are agreed, only one conclusion appears rational, or the defendant bears and has apparently failed to discharge a legal or evidential burden.

The judge directs the jury on the law, but the jury alone applies that law to the facts and decides guilt. A judge may express a strong opinion and may withdraw an unsupported defence. The distinct power to direct an acquittal where conviction could not lawfully be justified creates no corresponding power to direct conviction.

The appellant was convicted in the Crown Court of two offences under section 139(1) of the Criminal Justice Act 1988 after being found with a martial arts sword and knife in a public place. He relied on the statutory defences of good reason and religious reasons. The trial judge concluded that the evidence could not establish either defence and directed the jury to return guilty verdicts.

The Court of Appeal dismissed his appeal in [2003] EWCA Crim 3228. It held that a direction to convict was permissible where it was beyond sensible argument that evidence could not discharge a burden borne by the defendant. The certified question was whether, and in what circumstances, a judge may direct a jury to return a guilty verdict.

1. Appeal allowed and convictions quashed. The Appellate Committee, comprising Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Carswell, delivered a unanimous considered opinion. It answered the certified question by holding that there are no circumstances in which a judge may direct a jury to return a verdict of guilty.

2. The judge and jury perform distinct functions in a criminal trial. The judge directs the jury on the relevant law, which the jury must accept. The jury alone determines the facts, applies the law to those facts and decides whether the defendant is guilty. However inescapable the judge considers the conclusion, the verdict must remain the jury’s decision.

3. The majority decision in Director of Public Prosecutions v Stonehouse [1978] AC 55 governed the appeal. It established that the power to direct an acquittal where the evidence cannot justify conviction has no converse. A judge may express a view on the facts as strongly as the circumstances permit, but must give that view as advice rather than a binding direction.

4. The distinction drawn by the Court of Appeal between issues on which the prosecution bears the burden and issues on which the defendant bears a burden was inconsistent with Stonehouse. The rule against directing conviction applies regardless of the allocation of the burden. Earlier authorities irreconcilable with the majority reasoning in Stonehouse were no longer authoritative.

5. The rule does not prevent a judge from withdrawing a defence for which there is no supporting evidence or from declining to direct the jury on an issue not raised by the evidence. Nor does it affect the duty to direct an acquittal where no evidence could justify conviction.

6. The appellant’s intentions and the nature and extent of his religious motivation were matters requiring evaluation by the jury. Although a properly directed jury would probably have convicted, that probability could not cure the judge’s usurpation of its function. The convictions were therefore unsafe.

1. House of Lords: Allowed the appeal unanimously, quashed the convictions and held that a judge may never direct a jury to return a guilty verdict.

2. Court of Appeal (Criminal Division): In [2003] EWCA Crim 3228, dismissed the appeal. It held that the judge could direct conviction where evidence was plainly incapable of discharging a burden borne by the defendant.

3. Crown Court at Chelmsford: The judge directed the jury to return guilty verdicts on two counts under section 139(1) of the Criminal Justice Act 1988. The appellant was conditionally discharged for 12 months and the weapons were forfeited.