Scottish High Court of Justiciary Decisons

"The standard of proof which the Crown must satisfy is a very high standard. It is proof beyond reasonable doubt. If after considering the evidence against any accused on any charge you have a reasonable doubt about the guilt of that accused on that charge, the benefit of the doubt must be given to the accused and you must acquit him. Equally, of course, if you are satisfied beyond reasonable doubt about the guilt of an accused on any charge it is your duty to find the accused guilty of that charge. What is reasonable doubt? Well, it is not some sort of airy-fairy speculative doubt. It is a doubt which is as a result of your exercising your reasoning faculties on the evidence. I suggest you look at it in this way: supposing you had a very important decision to take in your own affairs, perhaps at home, perhaps at work, something that was going to affect your future. Obviously you would sit down and you would think very carefully what you were going to do. You would weigh the pros and the cons. If having done that you still couldn't make up your mind, you were still left in doubt about what to do, I suggest that would be an example of a reasonable doubt and if you have that sort of doubt about the guilt of any accused on any charge you must acquit him."

"It is the kind of doubt that would make you hesitate and indeed stop doing something. Not just hesitate, as [counsel for the accused] said, but actually not to do something because you decided there was a reasonable doubt about the matter."

In delivering the Opinion of the Court, Lord Justice-Clerk Ross said, at p.671:

"We are satisfied that what the sheriff said in this case in relation to reasonable doubt did amount to a serious misdirection. In McKenzie v H.M. Advocate 1959 J.C. 32 at p.37 Lord Justice-Clerk Thomson stated:

'Most judges give some explanation of what is meant by a reasonable doubt generally by pointing out that a merely speculative or academic doubt is not enough. Others tell the jury that if they have a reasonable doubt on any matter of moment they must give the accused the benefit of the doubt. That is a popular way of putting it which most juries are able to understand and to apply. But as we have said the amount of elaboration and emphasis is dictated by the nature of the case and predilection of the individual judge. We add that in our view it is desirable to adhere to far as possible to the traditional formula and to avoid experiments in reformulation.'

In our experience, under present-day practice it is common for judges to direct juries that a reasonable doubt is a doubt which would cause them in the conduct of their own affairs to hesitate or pause before taking a decision. Such a direction is a sound direction, but it obviously need not be given in every case because each judge has a discretion as to how he is to direct the jury on the matter of reasonable doubt.

In the present case, however, what the sheriff did was to direct the jury that a doubt which might cause them to hesitate in making a decision in their own affairs would not amount to reasonable doubt. He directed the jury that the doubt would not constitute a reasonable doubt if it merely caused a person to hesitate in making a decision; to be a reasonable doubt it required to be a doubt which in the conduct of their own affairs would cause them to stop doing something.

We are quite satisfied that this was a serious misdirection. Here again, the sheriff has disregarded the well-established rules laid down by this court. Instead of adhering to the traditional formula, he has proceeded to give the jury directions which have had the effect of overstating what is required before a jury can hold that they have a reasonable doubt about the guilt of the accused."

"[I]t simply means a doubt of substance, in other words, a substantial doubt, the kind of doubt to which you would have regard if you were going to get married, for example, or buy a house, for example, and that doubt dissuaded you from either getting married or from buying a house...".

In delivering the Opinion of the Court, Lord Justice-General Rodger said at pp.442-443:

"In this case the sheriff did not go so far as to tell the jury that a doubt which would merely cause them to hesitate in a matter of importance would not be a reasonable doubt. The Advocate-depute sought to distinguish MacDonald on that ground. We have reached the view, however, that in substance the sheriff in this case gave the jury a similar direction. By telling the members of the jury that reasonable doubt was a doubt which would dissuade them from a course of action, he was by implication telling them that it had to be more than a doubt which would make them hesitate or pause when contemplating that course of action. According to the sheriff's direction it would have to be a doubt which would actually divert them from that course of action. In so directing the jury he overstated the test which they required to apply. Since the direction goes to the heart of the jury's decision-making, the sheriff's misdirection amounts to a miscarriage of justice."

"[T]he form of direction on reasonable doubt now complained against is one which I have given in jury trials for over thirty years. This is the first time its correctness has been questioned."

The desirability of adherence to the traditional formula, which is not that used by the trial judge, has repeatedly been emphasised in decisions of this court. In addition to the above cases, reference may also be made to Stillie v H.M. Advocate 1990 S.C.C.R. 719 and, most recently, Dickson v H.M. Advocate 2005 S.C.C.R. 344. Substantial departures from, or unnecessary elaborations of, the traditional formula are liable to generate appeals, whether with or, as in the present case, without merit.