In the civil case Roman Polanski is suing Vanity Fair for libel, and wishes to give evidence by video link because he fears extradition to the US if he comes to Britain. The Court of Appeal had reversed the decision of Eady J to permit him to give video evidence. The House of Lords by a majority restored the first instance decision.

A Criminal Appeal with constitutional importance: The criminal case – R v. Wang [2005] UKHL 9 – is of great importance for the common law tradition. In it the House states unequivocally that if a judge directs a jury to convict, the conviction will automatically be unsafe.

Criminal practitioners will have noticed that the House have adopted the practice, in criminal (and a few civil) cases where there was no dissent, of giving a single judgment of the whole committee. This practice was adopted in the first criminal case which Lord Bingham sat on (and chaired) in the House (R v. Forbes). Since about the beginning of 2004 the House have followed the practice in every criminal case where there was no dissent (apart from Attorney General’s Reference No. 5 of 2002). The tendency to certainty in the law which the practice promotes seems consistent with Lord Bingham’s strong advocacy for codification of the criminal law. It is to be welcomed that a decision as important as R v Wang has been given free of the ambiguity which multiple judgments can create.

The facts in R v Wang are fairly colourful, in so far as they can be reconstructed from the judgments in the Court of Appeal and the House of Lords. Mr. Wang was a Chinese asylum seeker who had his bag stolen on a train. He put his skill in martial arts to good use. He looked through the train, found the bag, apparently apprehended the man who had taken it with one hand, and with the other hand, for safety, held a Chinese sword the thief had extracted from among the clothing in the bag, always in its sheath, out of the thief's reach. A more responsible and measured way of dealing with the problem would be hard to imagine. The thief ventured to suggest that the victim had better not call the police because he, the victim, would be the one to face prosecution. The thief's instincts were right. Readers of the popular press are well aware that the police are astute at finding ways to clamp down on any citizen, let alone an asylum seeker, who takes it upon themselves stand up to an attacker or a thief. In this case the police had to resort to the rather technical charge that the victim of the crime, by carrying around a Chinese sword, needed for his Shaolin Bhuddist training, sheathed, and wrapped in clothes in a holdall, possessed a bladed article in a public place contrary to Criminal Justice Act 1989 [CJA], s.139. Whether the police also found time to charge the actual thief, we are not told.

The defendant raised the statutory defences that he had a ‘good reason’ CJA s.139(4)), alternatively a religious reason (CJA s.139(5)), for possessing the sword, and an antique knife. The judge concluded that the evidence which the defendant put forward was not capable of amounting a defence under these sections. The defendant had not disputed that he possessed a bladed article. Since the burden of proving these defences is on the defendant, the judge withdrew the defences from the jury. (The reverse burden in this section was held to be complaint with the Human Rights Act 1998 in Lynch v. DPP [2001] EWHC Admin 882 (8th November, 2001). The judge concluded that there was no remaining option for the jury, once the only possible defences had been withdrawn from them, but to convict. Accordingly, the judge directed the jury to convict. The Court of Appeal held that the judge was entitled to do so.

The jury must be left to apply to law to the facts it finds: In R. v Wang the single opinion of the whole committee states very clearly that it is the task of the jury not merely to find the facts. It is also its duty and prerogative to apply the law (as the judge explains it) to those facts. I will not attempt to summarise the judgment, which is not long, and worth reading. Suffice it to say that their Lordships pointed out that all courts, subject to revision under the Practice Statement, were bound by the majority decision in Director of Public Prosecutions v Stonehouse [1978] AC 55, which had already decided the point (although there were several occasions when it had not been followed).

The House of Lords, however, went further, and underlined the constitutional importance of the principle. Their Lordships said, in paragraph 16:

‘If there were to be a significant problem, no doubt the role of the jury would call for legislative scrutiny. As it is, however, the acquittals of such high profile defendants as Ponting, Randle and Pottle have been quite as much welcomed as resented by the public, which over many centuries has adhered tenaciously to its historic choice that decisions on the guilt of defendants charged with serious crime should rest with a jury of lay people, randomly selected, and not with professional judges. That the last word should rest with the jury remains, as Sir Patrick Devlin, writing in 1956, said (Hamlyn Lectures, pp 160, 162),

"an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just. If it does not, the jury will not be a party to its enforcement ... The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive."’

The case points up an anomaly: Admirable as the decision is, it does expose an anomaly in the modern jury trial. The House stated (paragraph 8) that they were focusing on the jury in the modern setting, which was a reference to the respective roles of judge and jury in a modern trial. In this case, the judge and jury had heard the evidence in support of the statutory defences. However, it must implicitly call into question cases where a defendant is deprived of an opportunity to put forward a defence because the judge decides before, rather than after, the jury hears the evidence, that there is nothing sufficiently plausible to put before a jury. If the jury have not heard the defence, however strained or preposterous, then the principle of leaving it to the jury to apply the law is emptied of meaning. It is difficult to see much practical difference between the judge directing the jury to convict in a case like R. v Wang, and the judge deciding that the jury should not hear the defendant's 'excuse' and the law relevant to it, but simply telling the jury that if they find the basic elements of the offence are made out they should convict.

Defendants, especially ‘political’ defendants, must be allowed to run ‘preposterous’ defences: Legally preposterous defences do tend to be raised in cases which have a political colour. I mean cases like Blake v DPP (The Times 19 January 1993) (although there, the trial was summary), in which the Reverend Clive Blake, prosecuted for Criminal Damage, said in defence that it was on the instructions of God that he had written an anti-war slogan on a concrete pillar with a felt pen. Most Crown Court judges permit defendants in political or quasi-political cases a fair amount of latitude, but not all do. A stricter judicial style was adopted by the judge in David Shayler’s case (albeit there the issue was which defences could be raised, rather than on whether there was sufficient material to raise them). The Court of Appeal and the House of Lords broadly upheld the judge’s ruling (the various judgments are available on www.bailii.org. The Lords have now stated, the key reason for permitting the jury to refuse to convict, even where that refusal is constitutionally perverse, is the constitutional protection this affords against abuse of power by the executive. Therefore, it is difficult to conceive of any case, at any rate any case with a political ‘tinge,’ in which it can be right for a judge to extinguish that constitutional protection by refusing to let the jury hear a defence which, as a trained lawyer, he finds implausible.

Dr John Birchall - Professional English, Legal English, and Common Law Training