R v Jake Vidgen

In a sentencing trial of issue, the prosecution retains the burden of proving beyond reasonable doubt that the defendant’s account is untrue. A judge’s repeated reference to the balance of probabilities is a serious misdirection. The appellate court must examine the ruling as a whole to determine whether the judge ultimately reached the criminal standard. An express finding that the judge was “quite sure” that the defendant’s evidence did not undermine the prosecution case may demonstrate the required degree of certainty, particularly where the judge had already separately stated the balance-of-probabilities conclusion. In such circumstances, the misdirection does not necessarily invalidate the sentence.

The appellant pleaded guilty in the Crown Court at Harrow to conspiracy to rob and possession of an offensive weapon. He was sentenced to a total of five years and eight months’ imprisonment. At a subsequent trial of issue concerning his basis of plea, the judge rejected his account that he had acted under coercion and intimidation falling short of duress.

It was common ground that the judge had repeatedly applied the wrong burden and standard of proof, treating the issue as one for the balance of probabilities rather than requiring the prosecution to disprove the account beyond reasonable doubt. The appellant appealed against sentence, arguing that the judge had rejected an account which might have been true. The central issue was whether, despite the misdirection, the ruling showed that the judge was sure that the appellant’s account was untrue.

1. Appeal dismissed. The judge had made a basic and repeated error by placing the burden on the appellant and applying the balance-of-probabilities standard. The prosecution’s burden remained throughout, and the defence account had to be accepted unless the judge was sure that it was wrong.
2. The appellate court examined the ruling as a whole. The judge had rejected the appellant’s account and found that his evidence substantially undermined his credibility, but had initially expressed the conclusion in terms of the balance of probabilities.
3. The judge then stated that he was “quite sure” that the appellant’s evidence did not undermine the Crown’s case. The court treated that as language of certainty directed to the criminal standard. The reference served a distinct purpose because the judge had already stated his balance-of-probabilities conclusion. His consideration of the appellant’s opportunities to withdraw further reinforced the level of certainty expressed.
4. The critical question was therefore whether the ultimate conclusion went beyond a finding on the balance of probabilities. It did. Although the misdirection was serious and avoidable, the judge’s final finding was not affected by it, and the sentence was upheld.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. The court upheld the Crown Court judge’s rejection of the appellant’s basis of plea, notwithstanding the misdirection on the burden and standard of proof.
• Crown Court at Harrow: The appellant pleaded guilty and was sentenced to five years and eight months’ imprisonment. Following a trial of issue, the judge rejected the account of coercion and intimidation on the basis of an incorrectly applied balance-of-probabilities test.