Modern Law Review - January 1979 - Manchester - Judicial Notice and Personal Knowledge

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JUDICIAL NOTICE AND PERSONAL KNOWLEDGE
ITis a fundamental concept of the law of evidence that proof must
be adduced in order to establish the existence of a fact. There are,
however, a number of ways in which facts can be established by
means other than formal proof, One such way is via the doctrine of
judicial notice.
According to Lord Sumner in Commonwealth Shipping Represen-
tative v. P. & 0. Branch Services,’ “ judicial notice refers to facts
which a judge can be called upon to receive and act upon either
from his general knowledge of them or from inquiries to be made
by himself for his own information from sources to which it is
proper for him to refer.” These facts can thus be ones of which the
judge has either actual or acquired knowledge, and they are usually
refered to as “ notorious facts ” on account of their being common
knowledge either throughout the country or within the locality of
the court.
The concept of judicial notice is, then, that the judge can make
use of his general knowledge where some fact has to be established
and take notice of the existence of that fact without requiring it to
be formally proved. In fact, it is evident that judges frequently do
make use of their general knowledge. Indeed, as Thayer2 quite
rightly points out, “ in conducting a process of judicial reasoning,
as of other reasoning not a step can be taken without assuming some-
thing which has not been proved.” However, neither judge nor jury
can make use of their personal knowledge.
This rule with regard to the use of personal knowledge, .although
long established for judges: is, for juries, of relatively recent origin.
For centuries, juries freely used their private knowledge in arriving
at their verdict, and, indeed, it was regarded as their duty to do so.
In the second edition, published in 1735, of the anonymous Law of
E ~ i d e n c e it
, ~was stated in Bushell’s Cases that as far as the jury
were concerned, “ the law supposeth them to have knowledge of and
capacity to try the Matter in Issue (and so they must), though no
evidence were given on either side in court; but to this the Judge is
a Stranger; i.e. he cannot Judge without Evidence, though the Jury
may.”
The first reported case establishing the rule that juries are not
1 [1923] A.C. 191, 212.
a A Preliminary Treatise on Evidence (1898), p. 219.
3 With regard to the position of the judge having personal knowledge of a man’s
guilt or innocence, “the Judge ought not to decide accordlng t o his own free
will . ..
he is obilged to proceed not In accordance with private knowledge, but in
accordance with public knowledge, which depends on witnesses ”: Joannes Baptlsta
Corradus’s Responsa Cosuum Conscienliae, p. 269, published in Perugia in 1596.
See generally “ The Conscience of the Court ” (1932) 48 L.Q.R. 506.
4 This was the earliest English treatlse on the subject, published originally in 1717.
0 (1670) Vaugh. 135.
22
14682230, 1979, 1, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1979.tb01507.x, Wiley Online Library on [21/01/2023]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License
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
district where he is very familiar with labour conditions, may

use his own knowledge as to the probable wages, probable
employment for like work, and conditions of labour. it would ..
be a denial of justice to require these facts to be continually
proved.” l a
Although the concept of taking judicial notice of notorious local
matters was becoming accepted, the ambit of the concept, and what
limitations, if any, that ought to be imposed on it, remained un-
certain. An attempt in this direction to impose stringent limitations
was made by Romer L.J. in Owens v. LIay Main Collieries.’n where
his Lordship was of the opinion that a judge could make use of his
local knowledge for estimating the value of evidence given, but
could not substitute that knowledge for evidence if evidence was
available.” This is to suggest that personal knowledge of notorious
local facts can only be used if there is no evidence of those facts
available. The effect of this would be to severely limit the operation
of the concept, if indeed not to render it almost redundant.
A year later, however, the matter was considered again, this time
by Lord Buckmaster in Keurze v. Mount Vernon Colliery,16 when
considering whether an arbitrator was entitled to use his own knowl-
edge of local conditions and the average wage of miners employed
in the district, in making an award to the family of a deceased
miner : “ I think that. properly applied, and within reasonable limits,
he was entitled to use it. To hold otherwise would involve that a
number of witnesses would have to be called in order to bring under
judicial notice by legal proof facts within the common knowledge of
10 (1912) 6 B.W.C.C. 331; (1912) 106 L.T. 769.
11 (1912) 6 B.W.C.C. 331, 333; (1912) 106 L.T. 769,770.
12 [1925] 1 K.B. 399, 419.
13 (1932) 25 B.W.C.C. 573.
14 He was certainly opposed lo allowing this: “ I emphatically dissent from the
.”
proposition
15 [1933] A.C. 309.
everyone in the district.” lo No reference was made to Romer L.J.’s
view in Owens. The rationale of the limitation imposed by Lord
Buckmaster is clearly that it is necessary in the interests of
e~pediency.~’
These two attempts at considering the ambit of the principle had
only been obiter, and other decisions had tended to apply the
principle arbitrarily without regard to any limits. For example, in
Mothersdale v. Cleveland Bridge & Engineering Co.le the Court of
Appeal had simply held that a county court judge was entitled to
use his knowledge of the state of the labour market in Durham in
deciding that the reason the appellant could not find employment
was only partially due to his incapacity through an industrial acci-
dent, and not wholly or mainly so. Similarly, in Blades v. Wool Ex-
change & General Investments Ltd.,‘9 the Court of Appeal had held
that a county court judge could use his local knowledge to decide
that an office cleaner earning 18 shillings a week, and who had
contracted dermatitis, could still earn the same amount even though
she was more limited in the type of work that she could now do.
Again, however, no recourse was had to the limits within which this
principle operated.
It was not until the Court of Appeal decision in Reynolds v.
Llanelly Associated Tinplate CO.~Othat the matter was considered
in any detail, and some authoritative ruling obtained. Here Lord
Greene M.R., delivering the main judgment, followed the dictum
of Lord Buckmaster in Keane, yet expressly refrained from profer-
ring any opinion on Romer L.J.’s view in Owens. However, the
views of Lord Buckmaster and Romer L.J. are considerably at
variance with each other, and supporting the former almost neces-
sarily amounts to disapproval of the latter. The effect of the
decision in Reynolds, therefore, is that personal knowledge of
notorious local matters can be used if properly applied and used
within reasonable limits.
This undoubtedly is a flexible test, which, as Lord Greene M.R.
recognised, “ leaves the function of this court rather vague.’’ 21 As
Asquith L.J. also pointed out in the same case, ‘‘ the authorities
have not attempted, nor, perhaps, is it possible to lay down a formula
defining with precision the limits within which the county court judge
.
may . . rely on his personal knowledge of local conditions.” 22
There have been a number of subsequent decisions where the
Divisional Court has held that magistrates have properly applied
I6 119331 A.C. 309, 317.
See also Lord Warrington at p. 337: “.. . to exclude the judge’s knowledge and
cxperlence would be a positive misfortune as tending to increase expense and delay.”
I * (1930) 99 L.J.K.B. 261.
19 (1937) 30 B.W.C.C. 395.
2 0 119481 1 All E.R. 140.
2 1 [19481 1 All E.R. 140, 143.
2 2 Ibid. at p. 145.
their local knowledge within reasonable limits.la A leading decision
is Zngrarn v. Perciv~l,*~ where it was held by the Divisional Court
that " it has always been recognised that justices may and should-
after all, they are local justices-take into consideration matters
which they know of their own knowledge, and particularly matters
in regard to the locality," per Lord Parker C.J.2s The decision
recognises the right of magistrates to use their local knowledge, and
it is also well-settled on the authority of Reynolds that an arbitrator
may use his local knowledge. Is this, however, the extent to which
the rule allowing judicial notice to be taken of notorious local
facts applies? Is it limited to local knowledge of local magistrates
and arbitrators? What is the position of the judge, or the jury (or
indeed some other tribunal)? Can they take notice of such facts?
It is submitted that, in accordance with the increasing scope of the
doctrine of judicial notice that the judges, juries and other tribunals
should be able to take notice of such facts.
Possible support for the view that the jury may be able to take
notice of such facts can be found in R. v. BIick.2e Here a juror
passed a note $tothe judge informing him of his (the juror's) know-
ledge of a particular locality, which was a2 variance with the defen-
dant's testimony-the accused had alleged that he was in the locality
where the robbery with which he was charged was committed due
to a visit to a public lavatory, but the juror knew that the lavatory
was closed at the material time. The judge, on being informed of
this, then allowed the Crown to call evidence in rebuttal, and this
was upheld by the Court of Criminal Appeal on the ground that it
was admissible to rebut an alibi. The decision can perhaps be seen as
justifying the use by a juror of his personal knowledge of a
notorious local fact, though this was not actually the basis upon
which the decision was upheld on appeal. Even if the decision could be
so interpreted, however, it is to say the least doubtful whether this
was in foct personal knowledge of a notorious local fact. Surely this
was not notorious but particular knowledge, especially as apparently
this seemed to be the knowledge of one juror only.
Further possible support can be obtained from the judgment of
Lord Widgery C.J. in Wetherall v. Harrison.*l Here his Lordship
held that a magistrate could use his personal knowledge, because
magistrates, like jurymen, are not trained to exclude their personal
knowledge. This could be read so as to support the view that, as
23 e.g. Johnstone v. Hmvklns [1959] Cr1m.L.R. 459 (knowledge of the layout of
a road in the area in deciding whcther the accused was guilty of dangerous driving),
Clilt v. Long [1961] Crim.L.R. 121 (knowledge whether a car park was public or
private in deciding whether the accused was driving In a public place while under
the lnfluenw of drlnk); Ingram v. Percival [1968] 3 All E.R. 657 (knowledge of
local tidal waters in deciding whether the accused had dxed a net in tidal waters
for taking salmon and migratory trout); Borfhwick v. Vickers 119731 Cr1m.L.R. 317
(knowledge of local geogiaphy in deciding whether the accused had used an
overloaded vehicle on a public road).
2 4 [1968] 3 A11 E.R. 657. 26 [1968] 3 All E.R. 657, 659.
1 6 (1966) 50 Cr.App.R. 280. *' [I9761 1 All E.R. 241; [1976] 2 W.L.R. 168.
magistrates can use their personal knowledge, and jurymen are like
magistrates in that they are not trained to exclude such knowledge,
so jurymen can also use their personal knowledge. This, however,
would be at best obiter. There is nothing in the judgment which
expressly suggests that the position is the same for juries in this
respect; this can only be drawn by inference and it is quite possible
that the Lord Chief Justice was not suggesting this.
Thus a number of questions remain unanswered regarding the
extent to which judicial notice can be taken of notorious local
facts. Whatever that extent might be, however, the principle that
judicial notice can only be taken of matters of common knowledge,
whether in relation to the whole country or a particular locality, and
not of particular knowledge, is clear. The application of the principle,
unhappily, has not been so clear, for it is not always easy to draw a
distinction between common and particular knowledge. The point
is succinctly put by WigmoreP8: " Where to draw the line between
knowledge by notoriety and knowledge by personal observation may
sometimes be difficult, but the principle is plain." That plain princi-
ples do not always make for easy applications is highlighted by the
decision in R. v. Field JJ., ex parte A grocer had been
charged with selling adulterated cocoa and the point in issue was
whether cocoa must necessarily contain a quantity of foreign in-
gredients. Admiral Field, the chairman of the petty sessions, and
two other justices used personal knowledge they had acquired in
the Navy (that cocoa did contain foreign ingredients) in arriving at
their decision, and their use of this knowledge was upheld by the
Divisional Court. In the course of upholding the decision, Wills J.
said : " no one, in determining a case of this kind, can discard his
own particular knowledge of a subject of this kind. I might as well
be asked to decide a question as to the sufficiency of an Alpine rope
without bringing my personal knowledge into play." Jo It is a matter
of conjecture in what kinds of cases one cannot discard one's own
knowledge, and so be justified in using it, and it is submitted that
his Lordship's words cannot be regarded as laying down any state-
ment of principle. It is further submitted that the decision must be
regarded as falling very close to the dividing line, if indeed not on
the wrong side of it. Surely this was not a matter of general notoriety
or something which could be put beyond dispute by reference to
appropriate sources of information.
Similarly the decision in R. v. B l i ~ k , ~the
' facts of which have
already been considered, seems to be a case where particular rather
than general knowledge was used. Again, in R. v. Jones82judicial
notice was taken of the fad ltlhat the Alcotest @80 device was an
approved type of breathalyser, but surely this could hardly be
28 Wigmore, 9 Evidence, para. 2569 ( a k i t e d by the Appellate Division of the
South African Supreme Court In R . v. Tuger [I9441 A.D. 339, 344.
*R (1895) 64 L.J.M.C. 158. so (1895) 64 L.J.M.C. 158, 160.
3 1 (1966) 50 Cr.App.R. 280. a1 [19691 3 All E.R. 1559.
described as a matter of common knowledge, for how many people
would be aware of this? The latest case on this topic, Wetherall v.
Harrison,88is yet a further illustration. Here the accused was charged
with failing without reasonable cause to provide a laboratory test
specimen contrary to section 9 (3), Road TrafRc Act 1972, and the
point in issue was whether he had reasonable excuse. His contention
was that he could not provide a specimen as he had “ a sort of fit,”
and the Crown’s contention was that he was simulating a fit. One
of the justices was a doctor, and the bench had regard to his pro-
fessional opinion of the accused’s reactions and behaviour accord-
ing to the evidence in arriving at their verdict of acquittal. The
prosecutor appealed by way of case stated to the Divisional Court
contending that the justices had acted wrongly in law. The Divi-
sional Court dismissed the appeal and held that it was not improper
to use such specialised knowledge, provided it was to explain the
evidence and not to be a substitute for it.
The use of such specialised knowledge clearly falls outside the
limits within which an arbitrator or a judge can use his personal
knowledge, as laid down by the Court of Appeal in Reynolds v.
Llanelly Associated Tinplafe C O . , ~but ~ the court distinguished
Reynolds on the ground that, per Lord Widgery C.J., “ I do not
think that the position of a justice of the peace is the same, in this
regard, as the position of a trained judge.”*‘ The reason for this,
his Lordship thought, was that justices, unlike judges, were not
trained to exclude certain factors when considering a problem and
were more like jurymen in this respect, nor could a serious restriction
on a justice’s use of his own or a colleague’s knowledge really be
enforced.
It is submitted that there is no authority for the proposition that,
with regard to the use of personal knowledge, the position should
be different for laymen than lawyers. It is true that it will certainly
be easier for a lawyer to exclude his personal knowledge than for
a layman, and it is probable that in any event laymen will use their
own knowledge in a number of instances, but it would surely be
illogical to justify the use of that knowledge on this basis. It is
therefore submitted that no distinction should be drawn between
laymen and lawyers in this respect, and that the same principles
should apply to both. The rule in Reynolds, that personal knowledge
of notorious local matters can be used if properly applied and
within reasonable limits, is the correct approach to be adopted. It is
impossible to lay down any more precise limits, and the court must
have regard to the facts of each individual case in deciding whether
the use of such knowledge is proper and within reasonable limits.
COLINMANCHESTER*
-
33 [1976] 1 All E.R. 241; [I9761 2 W.L.R. 168.
34 [1948] 1 All E.R. 140.
8 5 [I9761 1 All E.R. 241, 243; 119761 2 W.L.R. 168, 172.
* Lecturer in Law at the University of Birmingham.

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14682230, 1979, 1, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1979.tb01507.x, Wiley Online Library on [21/01/2023]. See the Terms and Conditions (https://onlinelibrary.wiley.

district where he is very familiar with labour conditions, may

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