§ Mrs. Knight
asked the Attorney-General whether he is now in a position to reach a decision with regard to referring the judgment in R. v. Arthur to the Court of Appeal.
§ The Attorney-General
The trial of Dr. Leonard Arthur attracted a great deal of public attention and I am well aware that the concern and anxiety felt by many people has not diminished following the jury's verdict. I have received representations from many quarters asking that I exercise my powers under section 36 of the Criminal Justice Act 1972 by referring to the Court of Appeal (Criminal Division) one or more points of law arising from the trial.
I must stress, by repetition, that any such reference must be of a point of law, not of fact; and it must have arisen during the trial itself. I cannot, therefore, seek the opinion of the Court of Appeal on points of law that did not so arise, no matter how vexing they might be, nor no matter how central some people might think they are to the general discussion. Neither can I make a reference in respect of disputed questions of fact, nor in respect of the way in which a judge has presented, or failed to present, the facts of the case to the jury in his summing up.
It is well known that the prosecution has no right of appeal from the verdict of a jury in the Crown court. It is, perhaps, easy, although wholly misconceived, for some people to construe section 36 as constituting such a right. Parliament was so concerned that the section should not be seen as a remedy for wrongful acquittals that it insisted that the acquitted person should have the right to the protection of anonymity in a reference.
For a reference to be justified it is necessary to go further than to show that the judge's summing up may contain mistakes of law, for I am confident that the section should only be used when a reference would enable the Court of Appeal to give help to those concerned in the administration of justice. It follows from this that, if I am satisfied that there is no ambiguity in the law, that the 349W courts will not be left in a state of uncertainty as a result of the legal argument or directions in a particular case, it would not be proper for me to refer the matter to the Court of Appeal.
I have studied carefully the transcript of the learned judge's summing up in Dr. Arthur's case; I have studied carefully the various arguments that have been put to me from different sources; and I have discussed the matter in detail with the Director of Public Prosecutions and also with counsel who prosecuted. I am satisfied that there is no point of law arising from the trial on which I need to seek the opinion of the Court of Appeal.
I am mindful of the desire of many people to understand clearly what the legal position is in relation to cases such as gave rise to the prosecution of Dr. Arthur. I therefore say that I am satisfied that the law relating to murder and attempted murder is the same now as it was before the trial; that it is the same irrespective of the age of the victim; and that it is the same irrespective of the wishes of the parents or any other person having a duty of care to the victim. I am also satisfied that a person who has a duty of care may be guilty of murder or attempted murder by omitting to fulfil that duty, as much as by committing any positive act.