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.
