Friday, 10 May 2019

Notable cases (1) - Woolmington

John Sankey 1866-1948
In 1935, Reginald Woolmington (W) was tried for the murder, in December 1934, of his wife (Violet).  His trial was held at the Somerset Assizes in Taunton on 23 January 1935 but, after only one hour and twenty-five minutes, the jury was unable to agree.  In those days a jury had to be unanimous and majority verdicts were not introduced until the Juries Act 1974.  Mr Woolmington (W) then faced a second trial at Bristol Assizes (Mr Justice Swift and a jury) on 14 February.  He was convicted and sentenced to death.  The death penalty for murder lasted until the Murder (Abolition of the Death Penalty) Act 1965.

One remarkable feature of the case is the short timescale of less than 2 months from the alleged murder to trial and sentence.  Timescales today are usually very much longer.  For instance,
Vincent Tabak was arrested on 20 January 2011 for the December 2010 murder in Bristol of Joanna Yeates.  In May 2011, he pleaded guilty to manslaughter but his trial, at the Crown Court in Bristol, for the murder did not take place until early October.  On 28 October the jury delivered its guilty verdict - a majority of 10 to 2.

Woolmington appealed to the Court of Criminal Appeal.  That court was created by the Criminal Appeal Act 1907 following the notorious Adolf Beck case and was replaced from 1 October 1966 by the Court of Appeal (Criminal Division).

At his appeal, W argued that the trial judge had misdirected the jury by telling them that in the circumstances of the case he was presumed in law to be guilty of the murder unless he could satisfy the jury that his wife's death was due to an accident.  His appeal was dismissed.  The Court said “it may be that it might have been better” had the judge told the jury that if they entertained reasonable doubt whether they could accept his explanation they should either acquit him altogether or convict him of manslaughter only but the court relied on the so-called "proviso" in the Criminal Appeal Act, 1907 s4(1).  This stated that “that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.”

The Attorney-General of the day (Sir Thomas Inskip) gave his fiat (permission) for an appeal to the House of Lords. The need for this fiat was abolished by the Administration of Justice Act 1960.

The facts:

W was 21½ years old. His wife was 17½ years old in December 1934.  They had known each other for some time and married in August 1934.  Their baby was born on 14 October.   In November 1934, after "some quarrelling", Mrs W left to live at her mother's house.  W was anxious to get her to return but she would not do so.   During the night of 9 December, he brooded over and deliberated upon the position.  On 10 December 1934 he went to see his wife at her mother's home in Milborne Port.  A neighbour testified that she heard and could recognise the voice of W saying something to the effect of "are you coming back home?"  The neighbour did not hear the reply but subsequently heard a gun shot and subsequently she saw W cycling away.

W's evidence was that he went on 10 December to his work as a farm labourer.  He conceived the idea of taking an old shot gun (normally kept at the farm) to where his wife was staying.  The gun was just to frighten her into coming back to live with him and he would tell her that he would commit suicide if she did not return.  He sawed off the shot gun barrels, discarded the sawn off pieces, and loaded the gun.  He attached wire flex to the gun so that he could suspend it from his shoulder underneath his coat and he then went to see his wife and asked her whether she was returning.  She replied that she was going into service.

The subsequent events are described in the Law Report -

"He then, so he says, threatened he would shoot himself, and went on to show her the gun and brought it across his waist, when it somehow went off and his wife fell down and he went out of the house. He told the jury that it was an accident, that it was a pure accident; that whilst he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off and he was doing nothing unlawful, nothing wrong, and this was a pure accident."

He was arrested the same day and at interview he reportedly said - “I want to say nothing, except I done it, and they can do what they like with me. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back. That's all.”

It is not reported whether he had received any legal advice or representation for the interview.  Most probably in those pre-legal aid days he did not.

Trial judge summing up:

The judge told the jury that it had been law "for all time since we had law" that - "In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him: for the law will presume the fact to have been founded in malice until the contrary appeareth.’   [Note: That passage is to be found in Foster's Crown Law 1762].

The judge also said that the Crown had to satisfy the jury that Mrs W died at W's hands and they had to prove that beyond any reasonable doubt.  It was then for W to show that "there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing that it was a pure accident.”

Court of Criminal Appeal:

The court agreed with the trial judge's statement of the law and relied on the proviso to dismiss the appeal.  It appears that there was considerable legal authority at the time to support the trial judge's direction to the jury.

House of Lords:

The House had the advantage of "a prolonged and exhaustive inquiry dealing with the matter in debate from the earliest times, an advantage which was not shared by either of the Courts below."  The House was referred to legal propositions dating as far back as the reign of King Canute (994–1035).

The House noted Foster's Crown Law 1762 and stated that although Sir Michael Foster was a "distinguished judge" it had to be remembered that for this purpose he was to be regarded as a text-book writer and that he had not laid down the doctrine in any case before him.

The passage cited to the jury by Swift J appeared in Russell on Crime 8th Ed (1923), Stephen's Digest 7th Ed (1926), Halsbury's Laws 2nd Ed (1933) and in Archbold 29th Ed (1934).   Where it had been proved that a person's death was cause by another then the law presumed that the act was murder unless the contrary appeared from the evidence.  The onus was upon such person when accused to show that his act did not amount to murder.

BUT was this a correct statement of the law?  The House examined the authorities and reached the famous conclusion that -

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 subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No 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.

The House was then asked to apply the proviso.  There was ample statutory jurisdiction to do so and the legislation made no distinction between a capital case and any other case.  Nevertheless, the House declined to do so.  "We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion."

The appeal was allowed and W's conviction quashed.  He was released three days before his scheduled execution date.

Whether W actually shot his wife with intent to kill or cause grievous bodily harm is something we may speculate about.  It is not inconceivable that he did but the key point was that it was for the Crown to prove the elements of murder and not for W to show that it was an accident.   An accidental firing of the gun was a clear possibility and the burden remained on the Crown to show that it was not the case. 


a) Today, the Court of Appeal’s powers to dispose of an appeal are mainly set out in the Criminal Appeal Act 1968 (as amended by the Criminal Appeal Act 1995).  The test is whether the conviction is "unsafe" and the proviso was abolished by the 1995 Act.

b) In recent times it has become the tendency to speak in terms a jury being "sure" rather than using the term "beyond a reasonable doubt."   In Jackson v Minister of Pensions, Denning J (as he then was) explained the phrase "reasonable doubt" by saying -

“Proof beyond reasonable doubt does not mean proof beyond shadow of doubt.  The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice if the evidence is so strong against a man as to leave only a remote possibility in his favour..... the case is proved beyond reasonable doubt but nothing short of that will suffice.” 

c) The "golden thread" established by Woolmington's case is one of the most valuable assets of citizenship in a free society.  Nevertheless, it is not an absolute principle.  Three points can be briefly noted:

1. If insanity is raised as a defence then the defendant bears the legal burden of proving it.

2. The principle must give way if a statute places the burden on the defendant to prove certain issues.

3.  Since the Human Rights Act 1998, any reverse burden provision is open to challenge on the basis of possible incompatibility with Article 6(2) of the European Convention on Human Rights.


When it was announced that his conviction was quashed, contemporary newspaper reports indicate that Woolmington simply stood there stupified, unable to understand what was happening. It was only when it was repeated to him for the third time that his conviction had been quashed that he appeared to understand that he had been reprieved.   After he recovered from his ordeal Woolmington moved to Jersey where he had previously worked picking potatoes and, it appears, lived in "quiet obscurity."

Viscount Sankey LC

Woolmington v Director of Public Prosecutions [1935] AC 462.  Viscount Sankey LC, Lord Hewart LCJ, Lords Atkin, Tomlin and Wright.

Postscript - Canada:

A notable Privy Council case involving Viscount Sankey was Edwards v Canada in which Sankey put forward the "living tree" doctrine for interpretation of the Canadian Constitution.

"The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention."

Edwards v Canada [1930] AC 124 - decided by the Judicial Committee of the Privy Council.   Also known as "the Persons Case" it established that women were "persons" under the British North America Act (Canada's early Constitution) and were eligible to sit in the Senate of Canada.

Appeals from Canada to the Judicial Committee of the Privy Council ended in 1933 for criminal cases and for other cases in 1949.

The idea of a constitution being a "living tree" has resonance today with the "living instrument" doctrine developed by the European Court of Human Rights in connection with interpretation of the European Convention on Human Rights.  See also the speech by Lady Hale -

Lady Hale at Barnard's Inn Reading 2011 (PDF)
Beanstalk or Living Instrument? How tall can the ECHR grow?
16 Jun 2011

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