Majid, R v

In a criminal trial, jurors should be directed that they must be sure of guilt before convicting. A judge should avoid trying to distinguish being sure from being certain, since the distinction is likely to confuse.

An imperfect direction does not itself make a conviction unsafe. The appellate court must assess whether, in all the circumstances, there is a real risk that the jury applied a lower standard of proof. Improper cross-examination about a defendant’s choice to affirm rather than take a religious oath must likewise be considered in the context of the whole case.

The appellant was convicted at Reading Crown Court on 11 December 2008 of causing grievous bodily harm with intent and dangerous driving. The prosecution alleged that, after an altercation, he deliberately drove his car at three men and injured one of them. The appellant maintained that he was escaping from an attack and did not intend to hit anyone.

He appealed on the grounds that the judge’s directions on the standard of proof were defective and that the Crown’s cross-examination about his decision to affirm, rather than take an oath on the Qur’an, was improper. The central issue was whether those matters rendered the jury’s majority verdicts unsafe.

1. Appeal dismissed. Although leave was given to argue the complaint about the religious-oath questioning, neither that impropriety nor the directions on proof rendered the convictions unsafe.

2. The judge’s initial direction that the jury must be satisfied beyond reasonable doubt did not follow the recommended formulation that they must be sure of guilt. The jury’s question showed the risk of attempting to explain that language. The Court held that a judge should not distinguish between being sure and being certain: the distinction is likely to confuse. This was consistent with R v Alan Edwards Stephens [2002] EWCA Crim 1529.

3. Nevertheless, the jury had been told repeatedly that being satisfied beyond reasonable doubt meant being sure. They asked no further question and returned their verdicts after a relatively short interval. The Court could not conclude that they had been confused into applying a lower standard of proof.

4. The Crown’s questioning about why the appellant had affirmed rather than sworn on the Qur’an was unnecessary and improper. Such a line of cross-examination should not be pursued without good reason and without first raising it with the judge in the jury’s absence, so that the defence may object. The judge should have intervened. The Court reiterated the guidance in R v Mehrban [2001] EWCA Crim 2627.

5. Taking both defects together, the case against the appellant remained strong. There was independent eyewitness and expert evidence that his car had crossed to the wrong side of the road, and his account of leaving and driving in that direction was unconvincing. The verdicts were therefore safe.

• Court of Appeal (Criminal Division): dismissed the appeal in [2009] EWCA Crim 2563.
• Reading Crown Court: convicted the appellant on 11 December 2008 of causing grievous bodily harm with intent and dangerous driving.