ABSTRACT
Moreover, leaving these matters to the jury has the advantage of avoiding unnecessary and futile legal niceties, something that had led to the reform of the law in the first place.44 The debate, as to which of these views is the better one, is not likely to be resolved; perhaps, after all, the search for certainty in the criminal law is a futile one. As Lord Macmillan put it, in Read v Lyons: ‘Your Lordships are not called upon to rationalise the law of England.’45 If the second of the views put forward above is accepted, however, it must be on the clear understanding that one particular consequence will follow. If these matters are to be treated as questions of fact and left to the jury, then substantial obstacles will face the defendant who wishes to mount an appeal against a conviction. The appellate courts have traditionally refused to overturn jury determinations on the facts. This is illustrated by the case of Brutus v Cozens.46 The House of Lords
refused to interfere with a finding of the magistrates that the defendant’s conduct did not constitute insulting behaviour likely to occasion a breach of the peace, under the Public Order Act 1936, on the basis that the magistrates had made a finding of fact which was beyond the scope of appellate review.47
