A criminal conviction for a serious crime can rip a citizen from society for a long time. The fallout can be devastating. Families are torn apart. Children are often traumatized. The impact of incarceration may be generational. The damage to reputation is irreparable in the digital age where the online memory never forgets. The stakes are high.

1. Introduction

When deciding guilt and innocence, we should strive collectively to get it right. A critical question for judges and juries is how sure they must be in their own hearts and minds that their decisions are sound. Until recently, the answer across the commonwealth was that they have to be satisfied “beyond a reasonable doubt.” Last year, however, the United Kingdom broke with over two hundred years of common law and abandoned this language in jury instructions. As reported here, it was apparently thought to be too confusing. Jurors are now told they need to be “satisfied so that they are sure.”

The abandonment of the “beyond a reasonable doubt” standard is particularly interesting when viewed in light of the historical origins of the phrase and its roots in Woolmington v DPP, the case that led to its widespread use. Its heavy use in the Canadian context begs the question: Does the language provide meaningful guidance to juries on how to grapple with the questions before them or are they left in a state of hopeless confusion?

2. The Standard of Persuasion

The key question in any trial is whether the state has proven its case. Everyone charged is presumed innocent until that presumption is rebutted by relevant and admissible evidence. In Canada, the standard of persuasion for guilt in criminal offences is proof beyond a reasonable doubt. This phrase originated in England and has been in use in the common law for over two hundred years.

3. Medieval Origins of the Reasonable Doubt Standard

In his book, The Origins of Reasonable Doubt: Theoretical Roots of the Criminal Trial, Professor James Whitman of Yale University explained that the reasonable doubt standard was originally designed to facilitate, rather than impede, convictions. As he stated here, in medieval times judging was seen as a “spiritually dangerous business” and “[a]ny sinful misstep committed by a judge in the course of judging ‘built him a mansion in Hell’.” Cases involving blood punishments, such as mutilation or execution, were particularly dangerous. To convict while in a state of doubt was considered a mortal sin. A judge in doubt should refuse to judge lest his own salvation be compromised. The phrase “beyond a reasonable doubt,” which developed in England in the mid-1780s, was meant to assure jurors that their souls were safe if they convicted.

4. Reginald Woolmington (Accidentally?) Shoots His Wife

While the reasonable doubt standard has been present in the common law since the 1780s, it was not consistently applied in the jurisprudence until the 1935 case of Woolmington v DPP.

In August of 1925, 21-year-old Reginald Woolmington, a farm hand in Derbyshire, England, married 17-year-old Violet Smith. In mid-October, she had a baby. Shortly after, there was “some quarrelling between them” and Violet went home to live with her mother. Reginald was not pleased. After a sleepless night of brooding, he settled on a plan. He would frighten her into obedience by threatening to shoot himself (p 463).

According to Reginald’s testimony at trial, he took one of his employer’s guns from a barn and sawed off the barrel. He carried it home in his overcoat pocket (which he usually used for carrying rabbits) and suspended it from his shoulder with some wire. Thus armed, he road his bike to his mother in law’s house where he confronted Violet and asked her if she would come home. She told him she planned to go into service. He threatened to shoot himself if she would not come home. He pulled the gun out to show her, and it went off. Violet was shot through the heart. Reginald rode his bike home and was later arrested. This note was found in his coat:

“Good bye all.
It is agonies to carry on any longer. I have kept true hoping she would return this is the only way out. They ruined me and I’ll have my revenge. May God forgive me for doing this but it’s the Best thing. Ask Jess to call for the money paid on motor bike (Wed.). Her mother is no good on this earth but have no more cartridges only 2 one for her and one for me. I am of a sound mind now. Forgive me for all the trouble caused.
Good bye
ALL
I love Violet with all my heart
Reg.”

When he was charged, Reginald stated, “I was to say nothing, except I done it, and they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back, that’s all.”

Reginald was tried twice. At both trials he testified that the shooting was an accident. Much was made of whether the note was written before or after Violet’s death. The jury was hung at the first trial but he was convicted after the second, and sentenced to death.

On appeal to the Court of Criminal Appeal it was argued that the trial judge misdirected the jury on the burden of proof. The trial judge had told the jury that once the Crown had satisfied them Violet had “died at the prisoner’s hands”, it was up to the accused to prove the shooting was “pure accident” (p 473). The Court of Criminal Appeal held there was precedent for the judge’s instruction and the appeal was dismissed.

Counsel for Woolmington submitted the case to the Attorney General for review on the grounds that it raised a legal point “of exceptional urgency”. (The Times, 25 March 1935, p 4) The Attorney General, Sir Thomas Inskip (who went on to become Lord Chief Justice of England), referred the case for further appeal to the House of Lords.

The issue in the House of Lords was whether the Crown had to prove “malicious intent” to establish murder. In a landmark ruling, the House of Lords confirmed there is no obligation for an accused to prove his innocence. If there is a reasonable doubt as to intent, the accused is entitled to an acquittal. This famous phrase from the judgment became etched in legal history: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt […].” The House of Lords went on to confirm that “[n]o matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” (pp 481-482.)

The conviction was overturned, the baby was put up for adoption and, according to Wikipedia, Reginald moved to Jersey where he had once worked picking potatoes. He lived a quiet life and may or may not have died in World War II (paras 12-13). The statement of law in Woolmington was adopted across the commonwealth and in the United States. For examples of Canadian cases, see: Taylor v The King and R v Appleby.

5. The U.K. Abandons the Reasonable Doubt Instruction

In the United Kingdom, the Judicial College is responsible for training and educating the judiciary. The College publishes a Crown Court Compendium which is a two volume set containing guidance and direction for trial courts. Similar to the Canadian Model Jury Instructions, Part 1 deals with jury and trial management, and summing up. Part 2 deals with sentencing. “Summing up” is the equivalent of what Canadian courts call the “final instructions” or “the charge to the jury.” It is an instruction that occurs at the end of a trial before the jury is sequestered for deliberations. Generally speaking, it consists of a review of the pertinent evidence, a summary of the positions of the parties and an explanation of the law relevant to deciding guilt or innocence. The instructions are read to the jurors by the trial judge and this process can take anywhere from hours to days, depending on the complexity of the case.

In an updated version of the compendium released in December of 2019, trial judges in the United Kingdom were directed to stop using the phrase “beyond a reasonable doubt” to describe the standard of proof. According to the compendium, all that is required “is a clear instruction to the jury that they have to be satisfied so that they are sure before they can convict.” It warns judges that it is “unwise to elaborate on the standard of proof” and if one of the lawyers has used the phrase beyond a reasonable doubt in their submissions, the jury should be told that it “means the same thing as being sure.” Should juries have any questions about the standard of proof, those questions are to be “answered as shortly as possible.” Ultimately, jurors are to be told that if they are “sure” someone is guilty, they must convict. If they are “not sure” they must acquit. (See §5.2, pp 99-100.)

6. Beyond a Reasonable Doubt in Canada

The standard of proof beyond a reasonable doubt is a pillar of the Canadian justice system. It is applied without exception in all criminal cases. The Canadian National Judicial Institute publishes model jury instructions that contain the following model instructions on reasonable doubt:

A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. You must not find [the accused] guilty unless you are sure s/he is guilty. Even if you believe that [the accused] is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to [the accused] and find him/her not guilty because the Crown has failed to satisfy you of his/her guilt beyond a reasonable doubt. (paras 4-5.)

7. Conclusion

Passing judgment on another human being is a matter of conscience. The manner in which the act of judging is performed reflects the humanity (or lack thereof) of the community as a whole. While modern judges and juries are perhaps less concerned about eternal damnation, the risks and consequences of wrongful convictions remain high. Whatever language is used, how “sure” is sure enough to condemn a fellow citizen to the stigma and punishment of a conviction will remain a question that judges and juries must answer for themselves. They have to live with their decisions. Although jury deliberations are kept secret in Canada, one need only catch the eye of a juror to see how seriously they take their work. They know the stakes; they ought to be trusted.