Regina v Wang

The House of Lords held that a trial judge has no power to direct a jury to return a verdict of guilty. The judge must leave to the jury the application of the law to factual findings even where the judge considers that any other conclusion would be perverse. The judgment recognises the established converse duty of the judge to direct an acquittal where there is no evidence upon which a jury could properly convict, and that a judge may withdraw from the jury an issue unsupported by any evidence. The decision considered and applied section 139(1), (4) and (5)(b) of the Criminal Justice Act 1988, emphasising that the allocation of evidential or legal burdens does not empower the judge to pre-empt the jury's verdict.

Background and facts. The appellant was charged under section 139(1) of the Criminal Justice Act 1988 with having in a public place an article with a blade or point (two counts), one referring to a curved martial arts sword and the other to a small knife. Possession on the day was undisputed. The appellant gave evidence that he was a Buddhist practising Shaolin martial art; the sword and knife were among the weapons he trained with and he said he carried them to practise and because there was no one to look after them where he was staying.

Procedural posture. At the conclusion of the defence case the trial judge directed the jury to return guilty verdicts. The Court of Appeal ([2003] EWCA Crim 3228) rejected the appellant's appeal and accepted that in some cases a direction to convict may be appropriate where a defence burden lay on the defendant and he had failed to discharge it. The case was certified by the Court of Appeal as raising the question, "In what circumstances, if any, is a judge entitled to direct a jury to return a verdict of guilty?" and came to the House of Lords.

Issues.

• Whether a judge may direct a jury to return a verdict of guilty in any circumstances.
• The extent to which the allocation of burden of proof or the absence of a triable defence permits judicial direction to convict.

Reasoning and decision. The House reviewed authority including Woolmington v Director of Public Prosecutions, Joshua v The Queen, Chandler v Director of Public Prosecutions and Director of Public Prosecutions v Stonehouse. The majority in Stonehouse, which the House reaffirmed, establishes that while a judge must direct an acquittal if there is no evidence to justify conviction, there is no converse power to direct conviction: the jury alone determine whether proved facts establish the offence. The House rejected policy arguments for limited exceptions and held that even where the defendant bears an evidential burden (for example under section 139(4) and (5)(b) CJA 1988), possible nuances in the evidence are for the jury's evaluation. Accordingly the appellant's conviction was quashed as unsafe.

Remedy. The appeal was allowed and the convictions were quashed.

Appeal allowed. The House of Lords held that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty. Although a judge must direct an acquittal where there is no evidence upon which a jury could properly convict and may withdraw an unsupported defence from the jury, he cannot pre-empt the jury's exclusive role by directing conviction; this applies even where the defendant bears the burden of adducing evidence under statutory defences (for example section 139(4) and (5)(b) Criminal Justice Act 1988). The appellant's convictions were quashed as unsafe.

Trial in the Crown Court at Chelmsford (Judge Pearson and jury); appeal to the Court of Appeal (Criminal Division) refused [2003] EWCA Crim 3228; further appeal to the House of Lords allowed [2005] UKHL 9.