A deficit of understanding - how prevalent is this?

[mercia]

I think we are being asked not to comment on the specifics of this case.

oops

sorry

[french frank]

No comment other than fact on this case, please.

Actually, the Guardian doesn't say 'don't comment'. You can't comment as comments are not open . But you see how easy it is to comment on high profile cases - or quote comments!

[Pabmusic]

That she signed the form is a simple question of fact. But I don't see that deciding whether "marital coercion" was involved is, for the jury, a question of fact at all...

It is, actually, but 'fact' and 'law' are used in very specific ways. This is one of the very rare defences that is for the defendant to prove. That is not usually the case. Usually it is for the prosecution to prove a criminal case beyond reasonable doubt, but there are certain cases where the defence has the burden of proof, not on reasonable doubt, but on the balance of probabilities.

The jury's discussions should have taken this sort of course:

1. Are we satisfied beyond a reasonable doubt that the defendant did the various acts? If no, then Not Guilty: if yes, then -

2. Are we satisfied on the balance of probabilities that she did the acts while under 'marital coercion' (as defined by the judge)? If yes, then Not Guilty; if no, then -

3. Are we satisfied beyond a reasonable doubt that she did the acts knowing or believing it was wrong to do them (ie: with the degree of intent that the judge explained in his summing-up)? If yes, then Guilty; if no, then Not Guilty.

The judge should explain what could amount to marital coercion (question of law); the jury decide whether these facts amount to marital coercion as explained by the judge.

[Julien Sorel]

This is one of the very rare defences that is for the defendant to prove. That is not usually the case. Usually it is for the prosecution to prove a criminal case beyond reasonable doubt, but there are certain cases where the defence has the burden of proof, not on reasonable doubt, but on the balance of probabilities.

Questions from deficient of understanding jury:

6. Can we infer anything from the fact that the defence did not bring witnesses from the time of the offence such as au pair, neighbours?

7. Does the defendant have an obligation to present a defence?

Response from surplus of understanding Mr Justice Sweeney:

To these two questions Mr Justice Sweeney told the jurors: "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all."

He added: "You must not as I have now emphasised many times, speculate about what other witnesses will have not been called might have said or draw any inferences from their absence."

Notice that, as reported, he answers a very different question from the one the jury asked (question 7).

Barbirollians appeared to say that the question marital coercion yes or no? was a simple one of 'fact'. I don't think it is; I'm sure 'fact' and 'law' are indeed used in specific ways, but I wasn't disputing that .

(I ... speculate that Mr Justice Sweeney didn't say "what other witnesses will have not been called might have said" although I can well believe he asked the jury to ask themselves "was will overborne?"

[Pabmusic]

Questions from deficient of understanding jury:

6. Can we infer anything from the fact that the defence did not bring witnesses from the time of the offence such as au pair, neighbours?

7. Does the defendant have an obligation to present a defence?

Response from surplus of understanding Mr Justice Sweeney:

To these two questions Mr Justice Sweeney told the jurors: "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all."

He added: "You must not as I have now emphasised many times, speculate about what other witnesses will have not been called might have said or draw any inferences from their absence."

Notice that, as reported, he answers a very different question from the one the jury asked (question 7).

Barbirollians appeared to say that the question marital coercion yes or no? was a simple one of 'fact'. I don't think it is; I'm sure 'fact' and 'law' are indeed used in specific ways, but I wasn't disputing that .

(I ... speculate that Mr Justice Sweeney didn't say "what other witnesses will have not been called might have said" although I can well believe he asked the jury to ask themselves "was will overborne?"

The Criminal Justice Act 1925, s. 47 says:

Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

This makes it clear that the burden is on the defence - "it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband".

I was not in court, but Sweeney's "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all" is a good summation of the thrust of the case. However, I hope he added something about the reversed burden of proof on the specific question of marital coercion. It sounds to me like bad reporting of a complicated bit of law.

[french frank]

In one sense, I suppose 'marital coercion' is an accusation against a co-defendant who may admit the main (joint) offence while denying this as a separate one.

[jean]

Not necessarily, as by the time the case came to court there was no co-defendent.

[french frank]

Not necessarily, as by the time the case came to court there was no co-defendent.

Then, to rephrase, one is not required to prove anything about the charge against one. Making an accusation against someone else (coercing someone to commit a crime), surely should carry the burden of proof?

[jean]

...Sweeney's "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all" is a good summation of the thrust of the case.

How can it be, if the only point at issue is whether there has been marital coercion or not?

However, I hope he added something about the reversed burden of proof on the specific question of marital coercion. It sounds to me like bad reporting of a complicated bit of law.

Could the reporting have been so bad that direction was given on this crucial point and it was not reported?

[Julien Sorel]

Sweeney's "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all" is a good summation of the thrust of the case. However, I hope he added something about the reversed burden of proof on the specific question of marital coercion. It sounds to me like bad reporting of a complicated bit of law.

Well there's the rub . Were Sweeney's words overborne by reportorial inaccuracy? Were the jury's questions accurately reported?

I don't see why it's a good summation of the thrust of this specific case - it applies to all cases in UK law doesn't it (unlike some systems where the defendant has to prove her innocence)? It wasn't what the jury asked (as reported) but if he did go on to say something about reversed burden of proof then to the question asked by the jury "Does the defendant have an obligation to present a defence?" the answer should have been ... yes? Maybe? Sort of? At any rate it doesn't seem a question that shows a deficit of understanding; it strikes me as a good question, asked for a sensible and serious reason.

At a tangent: I hope Mr Justice Sweeney's high manner (as reported) and so many people queuing up to say 'honestly what a bunch of idiots. Dumbing down in education' etc. doesn't deter future juries from asking judges for clarification. Better ask a stupid question than make a stupid mistake, IMO.

[Julien Sorel]

In one sense, I suppose 'marital coercion' is an accusation against a co-defendant who may admit the main (joint) offence while denying this as a separate one.

Could Chris Huhne have been called as a witness?

[Pabmusic]

Then, to rephrase, one is not required to prove anything about the charge against one. making an accusation against someone else, surely should carry the burden of proof?

Yes, but it's simpler than that. The law assumes that a person intends the natural consequences of voluntary acts, and says the prosecution must prove such intent beyond a reasonable doubt. Everyone is presumed to be able to shoulder criminal responsibility. It is when you get into the realms of claims that would invalidate the normal rule that the reverse burden of proof arises. So if I say, "I cannot form the necessary intent because I suffer from a psychiatric disorder" I have to prove that on the balance of probabilities. I don't have to prove anything else about the case - that's still for the prosecution.

[Pabmusic]

Could Chris Huhne have been called as a witness?

Yes.

[Julien Sorel]

Yes.

That would of have been a laugh .

[amateur51]

I do hope this all gets sorted out before we get equal marriage