HAMLYN - College of Social Sciences and International Studies ...

Criminal Justice
approach and in practice it did not do so. 47 In fact, one of the
court's most experienced past members, Sir Frederick Lawton in
his evidence to the Runciman Royal Commission, said that the
reason the judges did not apply the lurking doubt test was that
they did not accept that "it was a sound way of administering
criminal justice".
The Runciman Commission said that it understood the court's
reluctance to quash a jury's verdict. However, it urged that
"where on reading the transcript and hearing argument the
Court of Appeal has a serious doubt about the verdict, it should
exercise its power to quash". 48 That, it thought, would not
undermine the system of jury trial.
Previously the Court had the power to quash a verdict if it
was "unsafe or unsatisfactory". 49 The revised formula in the
1995 Criminal Appeal Act, s. 2, now provides for the verdict to
be quashed if it is found to be "unsafe". There is no doubt that
the single word "unsafe" still allows the court to quash the
verdict on the ground that the jury got it wrong. But is the court
supposed to apply the lurking doubt test?
In moving the Second Reading of the Criminal Appeal Bill,
the Home Secretary said of s.2 that "in substance it restates the
existing practice of the Court of Appeal". 50 During the Parliamentary
debates on the Bill, Lord Taylor, the Lord Chief Justice,
assured the House of Lords that the word "unsafe" would not
result in any narrowing of the grounds of appeal. 51 Since "the
lurking doubt" test was in bad odour with the judges and was
honoured in the breach more than in the observance, this
assurance was perhaps not worth much. Personally, I agree with
Sir Frederick Lawton that the lurking doubt test is too broad. In
my view the Court should apply the test proposed by the Royal
Commission—it should quash the conviction where it has
serious doubts about the jury's decision.
But the change from the old formula of "unsafe and
unsatisfactory" to the new formula of "unsafe" raises a further
47 For the research by K. Malleson establishing the facts see her "Miscarriages of
Justice and the Accessibility of the Court of Appeal", [1991] Crim. L.R. 330;
and Review of the Appeal Process, Royal Commission on Criminal Justice,
(Research Study No. 17, 1993), pp. 23-25.
48 op. at, n. 13 above, at p. 171, para. 46.
*> Criminal Appeal Act 1968, s. 2.
50 Hansard, H.C. Vol. 256, col. 24 (March 6, 1995).
51 Hansard, H.L. Vol. 564, col. 311 (May 15, 1995).
64