1. Woolmington's trials

In this first substantive section, we will explore Woolmington's trial and retrial. This will be necessary for two reasons. First, it will allow us to see how the law of reverse burdens was understood and applied before Viscount Sankey's judgment was handed down in the House of Lords. Secondly, it will allow us to see how, from the very start, Reginald Woolmington became a celebrity figure during his trial for murdering his wife. This cultural and increasingly political context is essential for understanding how the case ever even ended up at the House of Lords. It is an important part of the history, which is necessarily overlooked by an exclusively doctrinal or principled exploration of the case.

Woolmington was immediately treated with great interest by the local press, and his two trials were widely reported on even before they gained significance as the backdrop to a famous appellate case. Very little of this coverage focused on the nature of the gendered violence the defendant stood accused of.Footnote ¹⁴ And as we shall see, the press's treatment of Woolmington may have ultimately saved him his life. Already at his first magistrates’ court hearing, there were hints of the local prominence the case would soon acquire. According to one report, ‘Pouring rain kept all but a few idle spectators from the precincts of the court, and inside not more than a dozen spectators listened to the brief proceedings’.Footnote ¹⁵ At Woolmington's second appearance before the magistrates, where there is no mention of rain, the court was full:

Woolmington was repeatedly presented as a charismatic figure. Unlike in the national papers, which initially reported the case in a straightforward manner,Footnote ¹⁷ various local newspapers immediately focused on his brown suit, athletic build, and calm demeanour.Footnote ¹⁸

During his first trial at the assizes, held at Taunton, Woolmington claimed for the first time that the gun that had killed his wife had gone off by accident. On this account, ‘the gun was accidentally discharged when he took it from underneath his overcoat where he had it concealed. As far as he was aware, he did not touch the trigger’.Footnote ¹⁹ This claim was apparently not directly challenged. In subsequent correspondence with the Home Office, the Director of Public Prosecutions explained that this defence had come as a surprise, and expert evidence had had to be commissioned between this trial and the subsequent retrial at the Bristol assizes which would form the basis of the Lords’ famous appellate decision.Footnote ²⁰ By the time this second trial was heard, expert evidence was able to be adduced by the prosecution – and it was not seriously contradicted by the defence – to the effect that the gun was not in perfect condition, but was unlikely to have gone off by accident.

Returning to the initial trial at Taunton, once Woolmington had offered his unexpected defence, Finlay J had to direct the jury of menFootnote ²¹ on its significance. Specifically, was it for Woolmington to prove the accident, or was it for the prosecution to rebut his claim? Who had the burden of proving this aspect of Woolmington's guilt? As we shall see, Finlay's direction here was quite different to the one subsequently given by Swift J at Bristol. Whether this was because of different judicial temperaments or philosophies, or simply because Woolmington's defence was not one the judge had had time to prepare for, is difficult to tell. Nonetheless, this first judge explained:

Woolmington's counsel would later argue that this was the correct formulation. Once the defendant had raised a doubt, it was for the prosecution to dispel that doubt, and it was not for the defendant to fully prove the defence.

When the jury were unable to agree after 65 minutes, Finlay J took them at their word that further deliberation would be meaningless. It was not unheard of for an assize judge to seek an immediate retrial at the same place, in the same session;Footnote ²³ but this did not seem right to this judge, in this context. The following day, Finlay J was able to confirm the retrial would be heard at Bristol, and that he would not be involved: ‘for obvious reasons it is better that the same judge should not undertake the same trial, and I will ask Mr Justice Swift to take the case at Bristol’.Footnote ²⁴

Swift had, as an advocate, developed a reputation for presenting simple and persuasive arguments to his juries. As a judge, he had also gained a reputation for giving his juries a clear steer. As his biographer put it in 1939: ‘he always made up his mind about a case, and was never satisfied to leave it to the twelve jurors, indifferent which way they found’.Footnote ²⁵ In this particular trial, Swift's directive approach led him to advise his jury (again, of men only)Footnote ²⁶ that they should convict Woolmington unless he had proved that the gun had discharged by accident. The relevant passage was as follows:

Once the prosecution had proved that Woolmington had caused his wife's death, he must be found guilty of murder unless he could prove his defence. This was a clearly very different direction to the one that had been given by Finlay J at Taunton a few weeks earlier.Footnote ²⁸

This second jury convicted Woolmington of murder. He appealed, and was eventually released on the basis that Swift J had misdirected the jury. A large part of the remainder of this paper is about situating the events leading up to the famous decision of the House of Lords within a context that helps us to better understand this decision and the things that made it possible. There are few such contexts more obviously important than the pre-existing doctrine; and it is to this doctrine that we shall turn next, before we eventually start looking at the appeals themselves.

2. The law before Woolmington

Woolmington raised both doctrinal and principled questions. In addressing these questions, I will start to make out my wider argument that the decision in Woolmington is better understood as an attempt to universalise an existing principle that already existed in another part of the criminal law, rather than as an attempt to set out a fundamental procedural protection for defendants. There are two concurrent areas of the criminal law which need to be explored in order to make out the claim that the Woolmington decision simply extended a pre-existing principle. The first is a shifting attitude towards ‘malice’ in the law of homicide, and the aspects of a murder charge that were understood to require proof.Footnote ²⁹ Second, and perhaps more surprising, is the law relating to the receipt of stolen goods. This second area of doctrine, I argue, made the decisive shift towards a presumption of innocence decades before the law of murder, and ultimately before the criminal law more generally. We shall see that this earlier use of the rule against reverse burdens was more likely to offer a fundamental procedural protection – a rule that if broken was likely to produce an unsafe trial – than we can see in later cases applying the more universal Woolmington principle.

The significance that the law of receiving had in laying the groundwork for the more famous principle in Woolmington was well understood by the lawyers in the case. While Viscount Sankey did not expressly state that he was being informed by these developments, only naming the receiving cases rather than mentioning that they all came from this other area of criminal law, three of the twelve cases cited in his judgment concerned receiving. Counsel for Woolmington also relied in their successful argument at the Lords on another five receiving cases. And in their argument at the Court of Criminal Appeal, they underlined the possibility that the law on burdens in receiving trials ought to be applied to the law of homicide. This pre-history of property offences is not something which is, to my knowledge, explored in any detail in the literature on Woolmington.Footnote ³⁰ But its significance as part of the doctrinal backdrop to the decision underlines that an important part of what was going on this case was the universalising of a series of ideas that could already be found elsewhere.

But before we turn to property offences, what was the state of the law regarding reverse burdens in trials for murder? The classic statement here came from the high court judge Sir Michael Foster's 1762 treatise on criminal law. Foster had provided that:

This was subsequently confirmed in the 1837 case of Greenacre.Footnote ³² As Viscount Sankey would go on to explain in his decision in Woolmington, Foster and Greenacre were together the standard authorities on reverse burdens regarding defences to murder.Footnote ³³

Farmer suggests that these homicide authorities should be understood as part of an earlier altercation-based model of criminal trials,Footnote ³⁴ which preceded our notions of adversarialism. Even though the rule set out by Foster may have developed out of an older model of justice, which expected defendants to actively (and personally) fight back,Footnote ³⁵ it survived well into the newer model in which everyone except the lawyers and the witnesses were effectively rendered silent.Footnote ³⁶ As late as 1922, Russell on Crime provided that ‘[a]s a general rule, all homicide is presumed to be malicious, and murder, until the contrary appears, from circumstances of alleviation, excuse, or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and jury’.Footnote ³⁷ By the 1920s, as we shall see below, it is in truth possible to discern some judicial retreat even in homicide trials from the principle Foster had set out in 1762. But the turn against reverse burdens had developed earlier, and more decisively, in cases involving receiving stolen goods.

Wigmore, writing from an American perspective in 1905, had complained of the ‘troublesome and fruitless’Footnote ³⁸ debate caused by the longstanding principle, derived from English law, that a person charged with receiving stolen goods only had to have possession proved against her. The defendant would then be found guilty unless she could show she did not know the goods were stolen. Wigmore cited with approval the 1902 decision in State v Brady, which had held that while a defendant in such circumstances does have to offer some evidence, it is not right to describe her as having the burden of proving her own innocence.Footnote ³⁹ This decision was expressly drawn on by the English Court of Criminal Appeal in its 1909 decision in Stoddart, establishing that in a case involving an allegedly fraudulent football lottery ‘the jury should have been told that if they accepted the explanation given by and on behalf of Stoddart, or if that explanation raised in their minds a reasonable doubt as to his guilt, they should acquit him, as the onus of proof still lay upon the prosecution’.Footnote ⁴⁰

This principle, not yet set out in anything like the poetic terms of the Woolmington decision, and as yet leaving homicide laws untouched, was next adopted in the law of receiving, with the 1914 decision in Schama and Abramovitch taking its lead from the earlier American jurisprudence.Footnote ⁴¹ Here, the Old Bailey Commissioner had directed his jury that the defendants were required to ‘explain how it came that they were dealing with these stolen goods, and to give an explanation that will satisfy twelve reasonable men’.Footnote ⁴² But the Court of Criminal Appeal countered that

This decision was made by a panel involving Avory and Atkin JJ, who in the Woolmington appeals would find themselves on different sides. This was not yet a principle which could be confidently applied throughout the criminal law.

It was also not a principle that was consistently applied at first instance, even in trials for receiving. The habit of reversing the burden was a difficult one to shake, with the Court of Criminal Appeal having to reaffirm the principle at least four times over the next half decade.Footnote ⁴⁴ In one such case, even Crown counsel on appeal conceded that the Recorder had ‘clearly’ failed to engage with Schama and Abramovitch.Footnote ⁴⁵ In another, the Old Bailey Commissioner had attempted to resolve his confusion between what we would regard as evidentiary and legal burdens by stating in court that ‘I suppose the phrase “the burden shifts” is too strong, but it is a nice distinction which I do not understand. Well, the burden never shifts, but it does’.Footnote ⁴⁶ By the end of the decade, the Court was regularly finding receiving convictions reached in the absence of a Schama and Abramovitch direction to be unsafe. In this sense, the rule could be regarded as something fundamental: a minimum procedural protection for a defendant seeking to make use of this particular defence. But while the idea was settling into a fundamental principle in the Court of Criminal Appeal, it was at the same time struggling to take hold in the practice of the lower courts. Textbooks, too, did not always grasp the significance of these doctrinal developments. As late as 1922, one textbook still ignored Schama altogether, giving the old principle as good law and simply citing a case from 1803 as authority.Footnote ⁴⁷

How, if at all, did these developments inform the Law Lords’ work before 1935? Two years before Woolmington was decided, the judges of the House of Lords – sitting in their imperial capacity as the Judicial Committee of the Privy Council – had made it clear that they were content with these general developments in the Court of Criminal Appeal regarding the burden of proof. In Lawrence v The King, the Attorney General Sir Thomas Inskip (whose views on these matters will be important for us later on) had argued that an improper reverse burden direction was fixed by Crown and defence counsel advising the jury that the prosecution had the burden of proof. There was nothing fundamental about this particular procedural protection, and any breach of the principle could simply be worked around. Lord Atkin disagreed, holding not only that a jury must be adequately directed that the prosecution has the burden of proof, but also that a judge failing to do so will inevitably produce ‘a substantial miscarriage of justice … unless it can be predicated that properly directed the jury must have returned the same verdict’.Footnote ⁴⁸ In the context of property offences at least, a judicially imposed reverse burden would virtually automatically create an unfair trial. Again, there was an argument to be had here that what was developing was a fundamental principle, in the sense of a minimum procedural protection for a defendant seeking to rely on one of these defences.

The law of homicide was much slower to incorporate this principle. In his 1913 decision in Davies, for example, Lawrence J held that the defendant did not have to prove his defence in a trial for a gunshot wound to a gamekeeper's shoulder. Slightly frustratingly for our purposes, Lawrence ignored Crown counsel's argument that this would create an illogical tension with the law of murder, where the defendant would be expected to prove his defence.Footnote ⁴⁹ The possibility of a reverse burden would therefore depend on whether the gamekeeper survived, rather than any difference in the defendant's conduct. Two years later, in Hopper, it was held that the jury in a murder trial should have also been directed on manslaughter in circumstances where ‘there was some evidence [for the defence] – we say no more than that’.Footnote ⁵⁰ This suggests the defendant need not prove her defence, but only had to offer some evidence. In our legal language, this is an evidential, and not a full legal burden. By 1915, the Court of Criminal Appeal had started to hint that the eighteenth century rule in Foster may need to give way. But compared to its judgments elsewhere, its rulings on reverse burdens in homicide trials were noticeably more tentative.

By the time Woolmington was decided, then, the appellate courts had made clear their commitment to a general idea that the prosecution had the burden of proof. But it was well established, and confirmed as late as 1910, that this would not apply to insanity defences for example;Footnote ⁵¹ and there was little indication beyond a hint in Hopper that any of this might be used to undermine the centuries-old rule set out by Foster. The underlying concepts were there for the Woolmington decision, but it was still far from clear that we were about to be given a universalising principle like Viscount Sankey's ‘golden thread’. So how exactly did we get there?

3. The Court of Criminal Appeal

The early stages of the Woolmington appeal, as opposed to the judgment of the House of Lords, have not previously been discussed in the literature. But it is my contention that they are vital for helping us to understand how exactly it was that Viscount Sankey's landmark judgment came about, and how it was that it took the form it did.

The Woolmington trial and appeal existed in two parallel settings, both as a series of legal decisions and as a moment in popular culture. Woolmington was convicted at Bristol on 14 February, and by 20 February his mother, Maria, had sent the Home Office a petition, signed by over 7,000 people, asking for mercy for her son.Footnote ⁵² At this stage the campaign appears to have been limited to the area in which the Woolmingtons had lived, with a preliminary letter sent on 19 February describing the petition as coming ‘from the countryside where my boy lived’.Footnote ⁵³ Two days later, the magistrate that Woolmington had initially appeared before also wrote to the Home Office requesting leniency, and referring both to the Taunton jury's disagreement, and to his sense of the general feeling within the local community.Footnote ⁵⁴ By 2 March, an article on Woolmington's case had appeared in the populist John Bull magazine, arguing that retrials must never take place in murder trials unless the prosecution had substantial new evidence: in the absence of such new evidence, any retrial necessarily undermined the idea that a prisoner's guilt must be proved beyond reasonable doubt.Footnote ⁵⁵ In a little over two weeks, Woolmington's celebrity, and the popularity of his cause, had started to shift from the local to the national.

When Woolmington's lawyer, JD Casswell, put in his notice of appeal, he was quickly called in for a lunch with Swift J. Recalling the events a quarter of a century later, Casswell remembered feeling ‘a little apprehensive’,Footnote ⁵⁶ but Swift's biographer insists that the judge was fairly good-natured about the situation.Footnote ⁵⁷ Casswell, for his part, appears to have approached the series of appeals motivated by a sense of principle. Fay's 1939 account and Casswell's 1961 recollections both claim the barrister had long had his doubts about the settled law.Footnote ⁵⁸ This doubt was enough for him to pursue the case at one point even independently of any solicitors’ instructions. And as we have already seen, there was by this stage a clear shift on the level of principle regarding the legitimacy of reverse burdens. But this shift had never before been definitively represented in the law of murder.

Avory J, who gave the judgment of the Court of Criminal Appeal, was widely regarded as the judge with the greatest expertise in criminal law.Footnote ⁵⁹ He was described in Swift's biography as ‘that doyen of criminal judges’;Footnote ⁶⁰ and one of Avory's biographers stated ‘Horace Avory, perhaps more than any other figure in English legal history, represented the lay conception of the perfect legal machine, just, impartial and a little inhuman’.Footnote ⁶¹ According to the same author, the Chief Justice Lord Hewart had once described him as ‘a legal encyclopædia’.Footnote ⁶² Casswell was less impressed by the judge, recalling 25 years later that Avory

And in fact Avory had himself authored the section in Halsbury's Laws of England which gave substantially the same account of the law as that which was provided in Archbold.Footnote ⁶⁴ Avory's temperament, and settled view, were both against extending the law on reverse burdens from property offences to murder.

But whatever their principled views, the doctrine posed clear problems both for Casswell and for Avory. For Casswell, it was clear that the rule stated in Foster was the law, in the sense of being the rule consistently applied by the courts. Swift himself had previously had directions along the lines he had given in Woolmington upheld by the Court of Criminal Appeal (in fact, as recently as 1927, nobody in one such appeal had even thought it worthwhile to pause on the legitimacy of this part of his direction).Footnote ⁶⁵ Nonetheless, Avory must have been aware that the decisions of the courts were increasingly hostile to reverse burdens. Indeed, he had been one of the judges in Schama and Abramovitch. Frankly, a judgment either for or against Swift's direction at Bristol was possible at this stage, given the principles and rules then available.

How, then, did Caswell seek to persuade this pro-prosecution encyclopedia? His first argument was that the Court should hear additional evidence regarding the gun. No evidence had been offered on this point at Taunton, and at Bristol the defence had not seriously objected to the prosecution evidence. This evidence had provided that the gun was not in excellent condition, and was perhaps a little sensitive, but was essentially safe. The prosecution had only advised Casswell they would be calling this evidence two days before the trial, and so, he now argued, he had not had adequate time to prepare a response.Footnote ⁶⁶ Now he sought to adduce new expert evidence suggesting that the gun was completely unsafe. This expert, an international shooting champion, had contacted Casswell immediately after the trial, on seeing reports of the other expert's evidence. The new expert was present in the vicinity of the court, but having briefly conferred the three judges concluded it would not be appropriate for them to hear from him.Footnote ⁶⁷ The Court of Criminal Appeal was not an appropriate venue for reopening questions of fact; although the Lords would subsequently have a look at the gun (in the absence of any expert guidance) before reaching their decision.

Casswell's main doctrinal argument was that Swift had misdirected his jury. Rather than directing that Woolmington had to prove his defence, he should instead have directed that there was a rebuttable presumption of malice. Once Woolmington had adequately raised his defence, the burden should have reverted to the prosecuton to prove his guilt beyond reasonable doubt. Casswell drew in his argument on Stoddart, Schama and Abramovitch, Aubrey, Grinberg, and Hagan.Footnote ⁶⁸ These cases, as we have already seen, are suggestive of a growing judicial unease regarding reverse burdens, but were restricted at this stage to property offences. Casswell sought to justify the leap to murder by pointing to the relative stakes: ‘If that is the law, where the liberty of the subject only is involved, it cannot be otherwise where the life of the subject is involved’.Footnote ⁶⁹ He also argued that the question of what a properly directed jury would have done was not a hypothetical one: that the correctly directed jury at Taunton had been unable to conclude that Woolmington was guilty.Footnote ⁷⁰ Of course this jury had not had the benefit of the expert testimony regarding the gun. In truth, it seems that failures of disclosure on both sides had made the facts about the gun difficult to ascertain, with neither side ever really having had an opportunity to mount a satisfying courtroom response to the other side's claims.

JG Trapnell KC, responding for the Crown, sought first to argue that Swift's direction had not truly imposed a reverse burden. The judges understandably met this point with some scepticism.Footnote ⁷¹ Trapnell next developed an intricate argument for conceptual differences between property offences and trials for murder. He argued that intent required positive proof in trials for receiving, and it therefore made sense to require the prosecution to prove it; but in trials for murder intent would be presumed, and therefore it made sense to require a defendant to disprove that presumption.Footnote ⁷² Finally, Trapnell pointed to the fact there were significant differences between the two trials, notably the absence of the expert evidence at Taunton, meaning the Court could not rely on the first jury's verdict when considering the consequences of a differently worded direction.Footnote ⁷³

Giving the judgment of the Court, Avory J started by explaining (‘in his dry, crackling voice’)Footnote ⁷⁴ that the first verdict must be disregarded, as it was impossible to know why the jurors had been unable to agree.Footnote ⁷⁵ He next suggested ‘[i]t may have been better’ if Swift J had directed the jury in the way Casswell had wanted.Footnote ⁷⁶ At the same time, Swift's direction had been in accordance with the settled doctrine, supported by ‘ample authority’.Footnote ⁷⁷ This represented a clear tension. But this tension was sidestepped by the judge, who noted that the Criminal Appeal Act required the Court to only uphold an appeal if they believed a ‘substantial miscarriage of justice has actually occurred’.Footnote ⁷⁸ Having surveyed the evidence, Avory concluded that ‘even if any such warning had been given to the Jury about a reasonable doubt which is said to have been omitted, they must in the circumstances of this case have inevitably come to the conclusion that the Prisoner was guilty of the crime of murder’.Footnote ⁷⁹

In other words, even if there was a rule against reverse burdens in the context of a murder trial, it was not a fundamental principle: whether a conviction was actually unsafe would depend on the wider circumstances of the trial. This, of course, was the argument that the Attorney General had made, and the Privy Council had rejected, two years earlier in the context of a property offence. Avory concluded that the Court did not have to decide whether the reverse burdens principle that had been developing for decades in the context of property offences also applied in trials for murder, as the result for this defendant would have been the same either way. This conclusion echoed the preference for the certainty of a jury's verdict over the precision of well worked doctrine that had long been a feature of appellate decisions in English criminal law.Footnote ⁸⁰

4. The House of Lords

Woolmington's trials were from the outset the subject of great local interest. Five days after the Bristol trial, Maria Woolmington had sent the Home Office a seven-thousand strong petition for mercy from the countryside near Milborne Port.Footnote ⁸¹ Six weeks later, as the Lords heard the case, she presented a petition signed by another seven thousand people, this time from Bristol.Footnote ⁸² Meanwhile, ER Pursey, an international clay pigeon shooter who the Court of Criminal Appeal had refused to hear from, had written to the Home Office, setting out his view that the gun was ‘most definitely unsafe, and it would be very inaccurate to describe it as reasonably safe. It is in fact a gun in such condition that if it got into the hands of a gunsmith he would never let it leave his premises again’.Footnote ⁸³ The DPP privately conceded the strength of this evidence.Footnote ⁸⁴ The Illustrated Police News reported that, on realising his evidence would never be heard in court, Pursey set off to collect signatures in his home town of Bristol.Footnote ⁸⁵ By this time members of the public from further afield had also started to lobby the Home Office for mercy for Woolmington.Footnote ⁸⁶

In order for a case to proceed from the Court of Criminal Appeal to the House of Lords, the Attorney General's authorisation was required. We have met the Attorney General, Sir Thomas Inskip, once before in this paper. In Lawrence, decided two years before Woolmington, Inskip had conceded that the prosecution had the burden of proof, but argued that directions failing to advise the jury of this jurisprudential principle would not necessarily be appealable. Inskip was not on the face of it a committed proponent of reverse burdens. It was also unusual for the Lords to hear murder appeals, and The Times observed they had never previously upheld an appeal against a murder conviction.Footnote ⁸⁷ Finally, Inskip's own advisers were clear that Woolmington's case was hopeless:

The best Inskip's adviser could offer was that there was a vague principle against reverse burdens; and that in 1910 the Court of Criminal Appeal had had regard to an earlier jury's disagreement in an appeal concerning a retrial.Footnote ⁸⁹

So if Inskip's advisers were clear with him that Woolmington's case could not succeed, and if Inskip himself was unconcerned about the principled sanctity of the burden of proof, how exactly did the case reach the Lords? Why was it that Inskip's advisers framed their memo in terms of ‘justifying’ his decision that the appeal should go ahead? One factor was doubtless Woolmington's lawyer, Casswell, who insisted on meeting Inskip to discuss the case, despite the fact the appeal was over and he was therefore no longer being instructed by solicitors.Footnote ⁹⁰ I have been unable to find any description of their conversation, but perhaps Casswell was simply very persuasive. More likely, I would suggest, is the growing public support for Woolmington at Bristol. Inskip was born and had grown up in the city. He had between 1918 and 1929 been one of the city's three MPs.Footnote ⁹¹ His half-brother had been the city's Lord Mayor in 1931.Footnote ⁹² It seems unlikely that the growing public pressure in the city, as evidenced by the seven-thousand strong petition being gathered as he made his decision, did not form part of his highly improbable decision to send the case to the Lords.

Setting out their cases in the Lords, Casswell (now working with TJ O'Connor after the Lord Chancellor's insistence that there should be a KC on each side)Footnote ⁹³ and Trapnell did not drastically change their arguments from the ones offered at the Court of Criminal Appeal a little under a month earlier. O'Connor's central claim was both that the burden of proof never normally shifted to the defendant, and that, contrary to what Avory J had decided at the Court of Criminal Appeal, any misdirection on this point was sufficient to ensure that ‘the rest of his summing-up was vitiated’.Footnote ⁹⁴ The presumption of innocence was both a universalisable, and a fundamental principle. Trapnell, meanwhile, contended that the law as set out by Foster and applied by Swift was correct,Footnote ⁹⁵ and that even if it wasn't then no jury could have failed to convict Woolmington on the evidence submitted.Footnote ⁹⁶ No mention was made by either side about the expert evidence (although the Lords did take a look at the gun).Footnote ⁹⁷ These arguments were heard across 4 and 5 April, and Viscount Sankey immediately announced that the appeal would succeed. His reasons would be provided some seven weeks later.

Early in his judgment, Sankey asked whether the statement of the law in Foster's treatise was correct. Not whether it was still valid, but simply ‘Is that statement correct law?’Footnote ⁹⁸ The first part of Sankey's answer to that question was to note that the Court of Criminal Appeal was not established until 1907: while the judges had previously considered matters of criminal law, these earlier discussions either engaged with issues that could be distinguished from the matters under consideration here, or failed to secure for the law of evidence very much more than a ‘fluid condition’.Footnote ⁹⁹ There were also important questions about the accuracy of the reporting in the various nominate reports, drawn up before the advent of professional law reporting.Footnote ¹⁰⁰ The creation of a permanent criminal appeal court lent decisions after 1907 if not more authority, at least more systematic rigour. This way of setting up the question meant, of course, that the line of cases beginning in Stoddart in 1909 had a weight that cases such as Greenacre, decided almost a century earlier, could not have, even though the former concerned property offences and the latter concerned homicide. This was a shrewd way of establishing that the principles found in the modern receiving cases, rather than the principles found in the older murder authorities, had the greater practical significance.

Having explained that the earlier doctrine on murder was of dubious significance compared to the recent property offences doctrine, Sankey next went on to consider the recent work of the Court of Criminal Appeal, starting with Stoddart, which had directly, reliably, authoritatively engaged with questions of the burden of proof. These authorities relating to property offences, having been carefully set up as the only authorities that were really available, inevitably led to the conclusion that Swift J's direction at the Bristol assizes had been wrong.

But did this matter? The principle against reverse burdens was universalisable, because there were no valid authorities other than those supporting the principle, but would a breach of this principle necessarily produce a miscarriage of justice? Here, Sankey was less clear, concluding ‘[w]e cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion’.Footnote ¹⁰¹ This was less the establishment of a clear test, and more a rebuttal to Avory J's use of the word ‘inevitable’ at the Court of Criminal Appeal. But as we shall see in the next section, Woolmington was immediately understood as offering very little by way of procedural protection to a defendant.

One striking aspect of the judgment in the House of Lords is that there was in fact only one judgment, with the Lord Chancellor's reasoning simply being assented to by his colleagues. As we shall see later on, this unity was at best only apparent, with one judge taking to the pages of the Sunday Times only a few days later to offer a very different account of what had happened in the case. But despite the low numbers of criminal cases that it heard during this period, it can be seen that it was not unusual for the Lords to give a unitary judgment in this sort of case. In its seven reported decisions concerning English criminal law during the interwar period, the Lords delivered a unitary judgment on four occasions,Footnote ¹⁰² with this judgment being delivered by the Lord Chancellor – as it was here – three times. Separate judgments were only given in order to demonstrate disagreement, with all or all but one Law Lord on the panel giving a full judgment either when there was a dissentient,Footnote ¹⁰³ or where a particularly complex question of statutory interpretation was involved.Footnote ¹⁰⁴ Generally speaking, the House of Lords wanted in its criminal decisions to project certainty, with any minor disagreements ordinarily being smoothed out in public.

But what did that certainty entail? The principle against reverse burdens was now understood as a universal principle, rather than one derived from an application of an academic critique of the American law of evidence to English property offences. But there were exceptions built into the judgment. Sankey allowed that a defendant would still have to prove a defence of insanity, in part because the extrajudicial, Victorian M'Naghten principles had been confirmed and explained in a 1910 decision of the Court of Criminal Appeal.Footnote ¹⁰⁵ And he briefly endorsed the concession made by Woolmington's lawyers that reverse burdens would be possible when created by statute.Footnote ¹⁰⁶ But what he did not do is conclude that any judicial failure to properly direct on the burden on proof would necessarily lead to a miscarriage of justice. No attempt could be made to whittle down the broad principle, but what the judgment ultimately did was limited to confirming the principle's breadth. Finally, the case was not creating new law, because it was impossible to find an authoritative statement on reverse burdens in homicide cases prior to 1907. If you thought Woolmington changed the law, you must have been confused about what the word ‘law’ meant.

5. Contemporary understandings of the Woolmington decision

Woolmington continued to be presented as an attractive, sympathetic figure.Footnote ¹⁰⁷ On being freed, he stayed in London to have a photoshoot for the Daily Express.Footnote ¹⁰⁸ The following afternoon, he travelled back to his hometown, where he was greeted by crowds.Footnote ¹⁰⁹ The press also sought statements from Violet Woolmington's family. Her brother-in-law told reporters his family was ‘trying to forget’.Footnote ¹¹⁰ Violet Woolmington's mother obviously continued to feel grief at the death of her daughter,Footnote ¹¹¹ and now also at the loss of her grandson, who she had been caring for for five months, and who had now been taken to a home in London until Reginald Woolmington felt able to care for him.Footnote ¹¹² But the family of Violet Woolmington were minor figures in the reporting, with much more interest placed on the freed man's hope to be in films,Footnote ¹¹³ or the offer he received to appear in live performances.Footnote ¹¹⁴ In 1936, the Daily Mirror reported that Woolmington's parents had persuaded him to turn down offers to become a professional boxer, and that he had instead taken a job as an electrician in Lincoln, under an assumed name. Violet Woolmington's mother was not reunited with her grandson, who had by this stage been adopted.Footnote ¹¹⁵

Woolmington was always going to be jurisprudentially significant. But the judges in the Lords also worked hard to try to ensure its wider cultural significance. Beyond the famous poetry of Viscount Sankey's ‘golden thread’, the Chief Justice, Lord Hewart, also took steps to try to ensure the Woolmington decision might enter into the public consciousness. Hewart had observed the usual practice of the Lords ordinarily giving a single judgment in criminal cases. But Hewart, the former Guardian journalist,Footnote ¹¹⁶ decided the best way to draw out the decision's nuances – and to underline its significance – was to follow the House of Lords’ judgment on the Thursday with an article in the Sunday Times three days later. In his article, Hewart emphasised that the Woolmington decision had in fact changed the law, and sought to explain why it was that he and his colleagues had decided to do so. His decision to publish this article was not universally popular, however. Inskip, for example, privately described the article as ‘Very inconvenient’,Footnote ¹¹⁷ and two years later Hewart still complained of the critics who had ‘made a grievance that a certain judge should have explained out of court a certain point of criminal law’.Footnote ¹¹⁸

Hewart's article, which has really to be set within a context of the judge's delight in grandstanding,Footnote ¹¹⁹ explained that at the start of the week there had been three exceptions to the general principle that the prosecution proves guilt: defences to murder, insanity, and ‘a little group of statutory exceptions’. This had now changed, as one of the three exceptions had ‘perished’.Footnote ¹²⁰ For the most part, Hewart's article was simply an accessible account of the issues explored in Woolmington. But he concluded by underlining that the decision did constitute a clear change in the law, quoting with approval the following words of the jurist Henry Maine:

This, no doubt, is the passage that Inskip had found ‘inconvenient’.

The Woolmington decision had an immediate impact as the expression of an abstract idea. The legal press praised the decision for favouring underlying principles over longstanding doctrine.Footnote ¹²² American and English commentators noted that the case showed how quickly established doctrine can be undone.Footnote ¹²³ In Australia, Sankey's judgment had ‘greater eloquence than historical accuracy’,Footnote ¹²⁴ but set out a humane principle which should be further developed so as to include the law on insanity.Footnote ¹²⁵ Comparative lawyers, meanwhile, expressed their hope that the Woolmington principle might be extended into colonial legal codes which still contained the old formula.Footnote ¹²⁶ Judges also occasionally saw Woolmington as the start of a discussion about high-level principles. One lawyer drew on the case both judicially and extra-judicially as part of his more general thinking about the relationship between burdens and standards of proof.Footnote ¹²⁷ Similarly, in Carr-Briant, where the Court of Criminal Appeal faced conflicting authorities on the burden an accused must bear when faced with a statutory reverse burden, it was held that the logic of the Woolmington principle required the defendant to have something less than a criminal burden.Footnote ¹²⁸ Woolmington was immediately understood as expressing important points of principle.

But how was the case received within the courts in its more immediate doctrinal setting, in the first few years after 1935? Tracing things through for the first decade, until the end of 1945, I have found two occasions where Woolmington was used as a simple homicide decision, rather than a source of any great principle.Footnote ¹²⁹ In five cases, counsel are reported as drawing on Woolmington, but then the judgment of the court declines to engage with it directly.Footnote ¹³⁰ We have already seen that there were suggestions in some places that the Woolmington decision should have gone further, also placing the legal burden on the prosecution in the context of the insanity defence, for example. Smith points out that even after Woolmington defendants were still expected to prove the common law defences of self-defence and of duress.Footnote ¹³¹ Beyond this, there was also the question of how significant the case actually was, when it only referred to reverse burdens created at common law. By 1946, the Law Journal noted that Woolmington was not a case with very much to say about the growing number of reverse burdens created by statute.Footnote ¹³² And I have only found two cases to the end of 1945 where a direction was found to have breached the Woolmington principle in ways that actually mattered to the outcome of an appeal.Footnote ¹³³

The one way in which Woolmington was engaged with doctrinally regarded the question of how s 4 of the 1907 Act should be interpreted. When Sankey had talked of another jury ‘inevitably’ reaching the same conclusion even if properly directed, had he meant that almost all breaches of the Woolmington principle would result in a quashed conviction? As early as 1936, Lord Hewart held that the absence of a Woolmington direction was unimportant where the jury would have convicted anyway. Woolmington was ‘a case to which far too much importance had been attached’.Footnote ¹³⁴ Also in 1936, the Privy Council twice decided that breaches of the Woolmington principle did not require a conviction to be quashed.Footnote ¹³⁵ Five years later, in Mancini, the House of Lords explained that a Woolmington direction would not be required in every case.Footnote ¹³⁶ In 1944, the Court of Criminal Appeal (subsequently confirmed by the Lords)Footnote ¹³⁷ added that s 4 had since 1909 meant that a conviction would only be overturned if a jury could have ‘reasonably’ voted to acquit.Footnote ¹³⁸ This was not changed by Woolmington.Footnote ¹³⁹ The Woolmington principle was therefore not fundamental: a judge who failed to direct his jury accordingly would probably not thereby create a miscarriage of justice. This was a change from how the principle had been understood in its earlier, more narrow doctrinal setting as part of the law of receiving stolen goods.