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The '50% rule' in criminal prosecutions, which requires prosecutors to believe there is a realistic prospect of conviction before proceeding. The article explores the origins of this rule, its limitations, and the arguments for its modification. The document also touches upon the impact of the rule on rape prosecutions and the role of juries in assessing evidence.
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revealed in a newspaper interview that the question his office would ask in deciding if there was sufficient evidence to prosecute was whether it was more likely that the accused would be convicted than acquitted; in other words, as he put it, whether there was more than a 50% chance of a guilty verdict (Marcel Berlins and Charles Douglas- Home, âRiot, corruption, obscenity.. .how I decide when to prosecuteâ, The Times , 11 May, 1981). He also described the public interest test for proceeding and rejected the bringing of prosecutions âmerely to clear the air or to be seen to be doing somethingâ if the evidential threshold was not passed. The standard was adopted by the Attorney- General in guidance issued to the police nationally in 1983.
Hetherington was still DPP when the CPS was established in 1985 and he saw to it that the fifty per cent rule was written into the Code for Crown Prosecutors issued under s 10(5) of the Prosecution of Offences Act
In its original code formulation, the question whether a jury would be more likely than not
basis of the threshold test in the context of prosecutions generally, not merely in relation to rape indictments.
Until the early 1980s the general practice where a person was charged by police with an offence was that a case would be prosecuted through to trial if the papers disclosed admissible credible evidence of the crime and the defendant as perpetrator. In some cases, the evidence might be deemed simply too weak or tenuous to warrant a trial. However, in many cases the police pursued weak cases for reasons of policy, for example to demonstrate that the authorities were maintaining a vigilant stance against a particular kind of crime. A very well-known study conducted by the Oxford University Penal Research Unit (PRU) revealed that âpolicy prosecutionsâ accounted for the acquittals of a substantial proportion of the sample of cases scrutinised by the researchers (McCabe, S and Purves, R, âThe Jury at Work: A study of a series of jury trials in which the defendant was acquittedâ, Oxford: Basil Blackwell for the Oxford University Penal Research Unit, 1972).
The Oxford PRU study was the catalyst for change and in 1982 Sir Thomas Hetherington, who had been appointed Director of Public Prosecutions in 1977,
he âRape Reviewâ published by the Ministry of Justice last month reveals that the ever-declining proportion of reported rapes to charges has dropped from an already low 13% in 2015-16 to a paltry 3% in 2019-20. In fact, the ârape justice gapâ has been a problematic feature of our criminal justice system for many years. The causes are undoubtedly complex but we would suggest that one significant factor in particular is the unsatisfactory state of the statutory evidential threshold test to be applied by Crown Prosecutors in determining whether or not cases should proceed. The Rape Review, and the outcome earlier in the year of the case brought by the End Violence Against Women Coalition for a judicial review of the Crown Prosecution Service (CPS) policy on prosecuting rape ( R (On the application of End Violence Against Women Coalition) v Director of Public Prosecutions [2021] EWCA Civ 350, 15 March, applying R (FB) v DPP [2009] EWHC 106 (Admin)) together present a timely opportunity to examine the fundamental
David Wolchover & anthony Heaton-armstrong argue the evidential threshold test for prosecution has had its day
fSuggests the statutory evidential threshold test is a significant factor in the low percentage of reported rapes that result in charges being brought, as well as having an adverse impact on the decision to prosecute other types of crimes.
to convict was expressed as a construct of whether there was a âreasonable prospect of convictionâ. The adjective âreasonableâ was ill- chosen since on its natural meaning it plainly did not equate to âmore likely than notâ. In ordinary language the chance of success may be described as reasonable if it transcends a slight, slender, remote or insignificant possibility. It was the perception of this linguistic anachronism which led to replacement of âreasonableâ by the word ârealisticâ. But the new epithet was no more philologically apt than the one it replaced. Neither term is synonymous with âmore likely than notâ and any material difference is obscure; they both boil down to a âgoodâ or âfairâ chance and that may very well be less than evens-on. Indeed, one might very well stand a âgood chanceâ of winning on the Derby at five-to- one odds and it would not be unrealistic to hope that such a bet might pay off. By contrast, the prospect of winning ÂŁ10m on the national lottery is so remote as to be worthy of the epithet âfat chanceâ, although that hardly puts off millions of punters from their weekly flutter, with the chance of a win being infinitesimally greater than that of not placing a bet.
In determining whether, for the purposes of the decision to prosecute, a conviction is more likely than not to be obtained, prosecutors must assume that a jury will approach the evidence rationally âon the meritsâ, scrutinising the facts objectively and eschewing prejudice and stereotypical assumptions. In proclaiming that cardinal principal in R (FB) v DPP , Toulson LJ said: âIf the Crown prosecutor were to apply a purely predictive approach based on past experience of similar cases (the bookmakerâs approach), he might well feel unable to conclude that a jury was more likely than not to convict the defendant.... On the alternative âmerits basedâ approach, the question whether the evidential test was satisfied would not depend on statistical guessworkâ. What this meant was that Crown Prosecutors had to avoid laying odds based on the predicted approach of a notional jury made up of ordinary people with all their collective foibles, prejudices, misapprehensions and intellectual limitations. The court referred to this as the bookmakerâs approach because it involved taking account of the past âformâ of juries in general, that is to say consideration of how juries in some sort of historic collective sense had tended to approach their deliberations in particular categories of offence. This of course contrasts with what professional bookmakers actually do, which is to assess
the odds on a particular horse by reference to that steedâs racing history. Whereas bookies have a keen interest in tackling that exercise with precision it is difficult to see how prosecutors can conceivably form any reliable idea as to patterns of past jury decision-making in particular offences. The bookmakerâs approach would be entirely artificial and arbitrary and it is little wonder that the court deprecated it.
The more-likely-than-not-to-convict, test is inherently problematical. It has previously been argued that across the broad spectrum of criminal prosecutions there will be a very large number of cases of middling evidential strength in which the prospects of a conviction or of an acquittal will be roughly on a par with no obvious predictability one way or another (Wolchover, D and Heaton- Armstrong, A, âRape and the Prosecution Threshold,â Criminal Law and Justice Weekly , July 12, 19 and 26, 2014, Vol 178 JPN 424, 439 and 459, and postscript). In other words, even where it is assumed that the jury will assess the evidence on a purely objective, âmeritsâ, basis the evidence collected by the police when pitched against the defence case (as disclosed in a police interview or set out in the defence statement) will be neither so strong nor so weak as to make it realistically feasible to predict the outcome. The most experienced barristers will find it impossible to make such a prognosis and many crown prosecutors conducting a review will not be the most seasoned of advocates. Indeed, many will have little or no Crown Court trial experience at all and no benefit of in-house oversight or counselâs opinion. (Practitioners at the Bar know how often Crown Prosecutors with little or no such experience will flatly disregard the advice of experienced trial counsel, who will often be tendering advice to drop a case against their own private financial interests). The evidential threshold assessment in most of these average strength cases is therefore unlikely to amount to anything other than guesswork, in particular because the reviewing lawyer cannot know how the case will unfold at trial. Although the bookmakerâs approach is unlawful, Crown Prosecutors remain irredeemably saddled with nothing better to work on than the punterâs approach. While the rule of thumb may understandably enough have been adopted as a fiscal expedient, it remains wholly artificial. In their nature cases of medium strength can go either way but the predictive test nonetheless imposes on reviewing prosecutors the invidious burden of trying to predict the objectively unpredictable on a fine balance of probabilities. Prosecutors are obliged to move
on to the second stage of the Full Code Test if they consider that a jury is more likely than notâbut only just more likelyâto convict. Of course, it may be that what many experienced prosecutors actually do in practice is to avoid the artificiality of fine- balancing and instead to halt prosecutions if in their view there is no more than a slight preponderance of probability of conviction. It is only where they consider that a jury is significantly more likely than not to convict that they will move on to the second stage. This could be made the actual standard but the potential objection is that it would preclude many trials where the prospect of a conviction is about evens or where an acquittal is slightly more likely than a conviction. The difficult burden which Crown Prosecutors bear in weighing up the odds on a conviction may be contrasted with the comparatively easy task of trial judges who are required to withdraw cases from the jury if the evidence before them is âtenuousâ ( R v Galbraith (1981) 73 C App R 124.).
A workable revision of the Full Code Test could permit trials to go forward in those cases of middling strength which can quite reasonably be predicted to go either way. This would avoid the artificial cut-off which currently precludes the trial of viable prosecutions which Crown Prosecutors deem to fall marginally on the likelihood of acquittal side. The new standard would require second stage consideration of those cases in which acquittal is judged to be slightly more likely than conviction, but which could nonetheless easily result in a conviction. Conversely the new threshold would preclude trials under an amended version of the Full Code Test where an acquittal was judged to be significantly more likely than a conviction. Putting it another way there would be no trial if the Crown Prosecutor considers that a jury would be significantly less likely to convict than to acquit. The use of the epithet ârealisticâ could be eliminated from the equation as superfluous and distracting. It is to be hoped that this formulation of wording is not so cumbersome as to be incomprehensible to Crown Prosecutors but rather conveys the clear intention of allowing all viable prosecutions of median strength to be considered for trial, subject to the second, public interest, consideration. NLJ
David Wolchover is a barrister at Ridgeway Chambers. He has been in practice for 50 years. Anthony Heaton-Armstrong retired from criminal practice at the criminal bar in 2019 after a long career.