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Critical Analysis of the '50% Rule' in Criminal Prosecutions, Study notes of Criminal Justice

University of BrightonCriminal Justice

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.

What you will learn

  • What are the limitations of the '50% rule'?
  • What is the '50% rule' in criminal prosecutions?
  • What are the arguments for modifying the '50% rule'?

Typology: Study notes

2021/2022

Uploaded on 09/12/2022

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www.newlawjournal.co.uk | 16 July 2021 17
Criminal LEGAL UPDATE
© iStockphoto/Tero Vesalainen
revealed in a new spaper interview t hat the
question his office wou ld ask in deciding if
there was su fficient evidence to prosecute
was whether it was mor e likely that the
accused would be conv icted 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, ‘Riot, corr uption, obscenity. . .how
I decide when to prosecute ’, The Times, 11
May, 1981). He also described t he public
interest test for pr oceeding and rejected t he
bringing of pr osecutions ‘merely to clea r
the air or to be see n to be doing something’
if the evident ial threshold was not pas sed.
The standa rd was adopted by the Attorney-
General in g uidance issued to the police
nationall y in 1983.
Code for Crown Prosecutors
Hethering ton was still DPP when the C PS
was establishe d in 1985 and he saw to it that
the fift y per cent rule was wr itten into the
Code for Crown Pr osecutors issued under
s 10(5) of the Prosecution of Offen ces Act
1985. The rule is now contai ned in the first
of a two-sta ge review process requi red
by the ‘Full C ode Test,’ the second stage
of which is consider ation of whether a
prosecution is i n the public interest. (In some
cases, public inter est can trump ev idential
sufficiency e ven before the first stage r eview
is complete.)
realistic prospect of conviction
In its origi nal code formulation, the quest ion
whether a jur y would be more likely than not
basis of the th reshold test in the context of
prosecutions ge nerally, not merely in relation
to rape indic tments.
The original practice
Until the early 1980s t he general practice
where a person was c harged by police
with an offenc e was that a case would be
prosecuted th rough to trial if the pap ers
disclosed ad missible credible evidence of
the crime a nd the defendant as perpe trator.
In some cases, t he evidence might be
deemed simply too weak or te nuous to
warrant a t rial. However, in many cases
the police purs ued weak cases for reasons
of policy, for example to demonst rate that
the authorities we re maintaining a v igilant
stance agai nst a particula r kind of crime.
A very well-k nown study conducted by
the Oxford Uni versity Penal Resear ch Unit
(PRU) reveale d that ‘policy prosecut ions’
accounted for the acquit tals of a substantia l
proportion of the s ample of cases scrutin ised
by the resear chers (McCabe, S and Pu rves, R,
‘The Jur y at Work: A study of a series of jury
trials i n which the defendant was acqu itted’,
Oxford: Basil Bl ackwell for the Oxford
University Pe nal Research Unit, 1972).
inception of the Fifty Per Cent rule
The Oxford PRU st udy was the catalyst
for change and i n 1982 Sir Thomas
Hethering ton, who had been appointed
Director of Publ ic Prosecutions in 1977,
The ‘Rape Review’ publi shed by
the Mini stry of Justice last mont h
reveals that the ever-declining
proportion of re ported rapes to
charges ha s dropped from an alre ady low
13% in 2015-16 to a paltry 3% in 2019-20.
In fact, the ‘ rape justice gap’ has been a
problematic featur e of our criminal jus tice
system for many y ears. The causes are
undoubtedly complex but we would sugge st
that one signi ficant factor in part icular is
the unsati sfactory state of the statutor y
evidentia l threshold test to be applied by
Crown Pros ecutors in determini ng whether
or not cases should proc eed.
The Rape Rev iew, and the outcome earlier
in the year of t he case brought by the End
Violence Again st Women Coalition for a
judicial rev iew of the Crown Prosec ution
Service (CPS) pol icy on prosecuting rape (R
(On the application of End Violence Against
Women Coalition) v Di rector of Public
Prosecutions [2021] EWCA Civ 350, 15
March, apply ing R (FB) v DPP [2009] EWHC
106 (Admin)) together present a timely
opportun ity to examine the f undamental
David Wolchover & anthony Heaton-armstrong argue the
evidential threshold test for prosecution has had its day
It’s time to
modify the
CPS ‘50
per cent’
threshold test
IN BRIEF
fSuggest s the statutory evide ntial threshold
test is a significa nt factor in the low percentage
of reported rape s that result in charges bei ng
brought, as well as havi ng an adverse impact
on the decision to p rosecute other types of
crimes.
pf2

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Download Critical Analysis of the '50% Rule' in Criminal Prosecutions and more Study notes Criminal Justice in PDF only on Docsity!

www.newlawjournal.co.uk | 16 July 2021 Criminal LEGAL UPDATE 17

© iStockphoto/Tero Vesalainen

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, ‘Riot, corruption, obscenity.. .how I decide when to prosecute’, The Times , 11 May, 1981). He also described the public interest test for proceeding and rejected the bringing of prosecutions ‘merely to clear the air or to be seen to be doing something’ if the evidential threshold was not passed. The standard was adopted by the Attorney- General in guidance issued to the police nationally in 1983.

Code for Crown Prosecutors

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

  1. The rule is now contained in the first of a two-stage review process required by the ‘Full Code Test,’ the second stage of which is consideration of whether a prosecution is in the public interest. (In some cases, public interest can trump evidential sufficiency even before the first stage review is complete.)

realistic prospect of conviction

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.

The original practice

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 ‘policy prosecutions’ accounted for the acquittals of a substantial proportion of the sample of cases scrutinised by the researchers (McCabe, S and Purves, R, ‘The Jury at Work: A study of a series of jury trials in which the defendant was acquitted’, Oxford: Basil Blackwell for the Oxford University Penal Research Unit, 1972).

inception of the Fifty Per Cent rule

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,

T

he ‘Rape Review’ 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 ‘rape justice gap’ 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

It’s time to

modify the

CPS ‘

per cent’

threshold test

IN BRIEF

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.

18 LEGAL UPDATE Criminal 16 July 2021 | www.newlawjournal.co.uk

to convict was expressed as a construct of whether there was a ‘reasonable prospect of conviction’. The adjective ‘reasonable’ was ill- chosen since on its natural meaning it plainly did not equate to ‘more likely than not’. 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 ‘reasonable’ by the word ‘realistic’. But the new epithet was no more philologically apt than the one it replaced. Neither term is synonymous with ‘more likely than not’ and any material difference is obscure; they both boil down to a ‘good’ or ‘fair’ chance and that may very well be less than evens-on. Indeed, one might very well stand a ‘good chance’ 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 £10m on the national lottery is so remote as to be worthy of the epithet ‘fat chance’, 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.

merits v bookies

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 ‘on the merits’, scrutinising the facts objectively and eschewing prejudice and stereotypical assumptions. In proclaiming that cardinal principal in R (FB) v DPP , Toulson LJ said: ‘If the Crown prosecutor were to apply a purely predictive approach based on past experience of similar cases (the bookmaker’s approach), he might well feel unable to conclude that a jury was more likely than not to convict the defendant.... On the alternative ‘merits based’ approach, the question whether the evidential test was satisfied would not depend on statistical guesswork’. 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 bookmaker’s approach because it involved taking account of the past ‘form’ 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 steed’s 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 bookmaker’s approach would be entirely artificial and arbitrary and it is little wonder that the court deprecated it.

inherent deficiency of 50% test

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, ‘Rape and the Prosecution Threshold,’ 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, ‘merits’, 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 counsel’s 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 bookmaker’s approach is unlawful, Crown Prosecutors remain irredeemably saddled with nothing better to work on than the punter’s 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 not—but only just more likely—to 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 ‘tenuous’ ( R v Galbraith (1981) 73 C App R 124.).

a workable compromise

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 ‘realistic’ 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.