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Modern Law Review - January 1979 - Manchester - Judicial Notice and Personal Knowledge
Modern Law Review - January 1979 - Manchester - Judicial Notice and Personal Knowledge
22
Jan. 19791 JUDICIAL NOTICE AND PERSONAL KNOWLEDGE 23
entitled to use their personal knowledge seems to be R. V. Sutton
in 1816.O In this case, for the purposes of deciding whether the
accused was guilty of publishing a malicious and seditious libel, it
was necessary to establish that outrages had been committed in
Nottingham. It was alleged that the trial judge had allowed the
jurors to have recourse to their personal knowledge as to whether
any of the acts had been committed in Nottingham. The Court of
King’s Bench held that the judge had not directed them that they
were entitled to use their personal knowledge as evidence, “ but only
that it might make the proof more satisfactory to their minds,” per
Lord Ellenborough C.J.‘ It is implicit from the decision that had the
judge so directed them, the court would have held the evidence
inadmissible, and the court thus recognised, impliedly if not ex-
pressly, that the jury were not entitled to have recourse to their
personal knowledge.
The principle was first expressly applied, some 20 years later, in
R. v. Rosser.8 Here it was held that, where it was essential to prove
the particular value of an article, the jury may use their general
knowledge which any man can bring to the subject, but if any of
the jurors has a particular knowledge on the subject, arising from
his being in the trade, he ought to be sworn and examined as a
witness. The report of the case is very brief and no mention is
made of Sutton by way of authority for this proposition. The
principle, thus established, was followed in subsequent cases. So, for
example, in R. v. Ernest Jones,* on an indictment for making a
seditious speech at a public meeting, we find Lord Denman, the
Lord Chief Justice, telling the jury that they should take into account
what they knew of the state of the country and of society generally
at that time when the language was used, in deciding whether it was
seditious, but that they could not take into consideration, without
proof of them, particular facts attending the public meeting at which
the words were spoken.
The principle laid down, then, allows a judge or jury to make use
of their general knowledge, but not their personal knowledge. The
meaning of “ general knowledge ” in this context initially seemed to
have encompassed only knowledge which was common to the whole
community-the court in Rosser referred to general knowledge
“ which my man can bring to the subjwt,” while in Ernest Jones it
was what the jury knew of the state of the country and of society
generally (which, presumably, would be what was known universally
throughout the country). Thus it would seem that, in its initial
development, the principle only allowed judicial notice to be taken
of matters which were common knowledge throughout the country,
6 (1816) 4 M. & S. 532. This, according to Pike, Hist. Crime ii 368-369, is the
first formal dcclaratlon oP the rule in our reports.
(1816) 4 M. & S. 532, 542.
* (1836) 7 C. & P. 648.
9 Cent. Criminal Court 1841 M.S.
24 THE MODERN LAW REVIEW [Vol. 42
and not, it is submitted, of matters which were common knowledge
within the locality of the court. It seems to have been a later
extension whereby notorious local matters were regarded as matters
of general knowledge.
One of the earliest cases where this extension was applied and
accepted was Roberts and Ruthven v. Hull,lo where the Court of
Appeal held that an arbitrator, in determining the amount of wages
a workman could earn at light work, could use his local knowledge
of the rate of wages for the type of work in question that could be
earned in the area. In the words of Cozens-Hardy M.R.,“the
arbitrator was entitled to act on his general knowledge of the
labour market and the conditions of the trade and so on.” *l These
sentiments were reiterated by Scrutton L.J. in Peurt v. Bolckow,
Vaughan & Co.:
“ the county court judge, acting as an arbitrator and sitting in a