The question to consider in criminal appeals is whether the lurking doubt principle actually exists?
In a recent Judgment R v Pope (2012) EWCA Crim 2241 the Court of Appeal confirmed that the so-called ‘lurking doubt principle’, previously employed to quash a conviction where no criticism could be made of the summing up or any procedural requirements of a fair trial, but where the court was still left feeling uneasy about a possible miscarriage of justice, still survives.
At first blush, this appears to acknowledge the fact that there are times when a jury simply does get a decision wrong and that the principle protects a defendant in such cases.
It has always been acknowledged that it is an extremely difficult ground to argue as classically illustrated by the words of Lord Justice Widgery in R. v. Cooper 53 Cr.App.R. 82 when he said that Cooper’s was "a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. ...”
However looking at the Judgment in R v Pope closer, the court made it clear that a lurking doubt conclusion would only be reached in the most exceptional circumstances and only after a reasoned analysis of the evidence or the trial process or both.
It could be said that in essence this means that such an argument will hardly ever be successful.
Consequently the already difficult position has now become virtually impossible in respect of this ground , as one eminent barrister stated: “RIP lurking doubt”!
By criminal appeals solicitor and partner, Correna Platt