Testing times for the Director of Public Prosecutions

The Director of Public Prosecutions (DPP), Alison Saunders, says that juries apply a “much higher test” than prosecutors do when deciding whether to pursue a case. If that is true, it seems bizarre. More likely, it betrays a lack of logic on the part of the DPP.

The DPP’s description of the test can be heard in an interview she gave to the BBC on 11 April 2014, following the much-publicised acquittal of Nigel Evans MP. In the passage where she addresses the decision to prosecute (starting at 1 min 3 secs), the DPP said:

“We looked at all the evidence and decided there was a realistic prospect of conviction. What we have to remember is that juries apply a very different, much higher test which is: are they satisfied beyond all reasonable doubt?”

It would be deeply worrying if rape cases were prosecuted on the chance that the evidence will get stronger during the course of a trial

The DPP’s reference to a “reasonable prospect of conviction” repeats the test set out in the Code for Crown Prosecutors. So that first sentence certainly describes what the Crown Prosecution Service (CPS) says it sets out to do.

But problems arise with the next sentence. And they are problems of logic.

Let’s be clear: “a reasonable prospect of conviction” doesn’t mean “a reasonable prospect that the defendant did it” (or anything of that nature). That certainly would be a much lower test than the jury applies. And it would (or should) lead to a lot of acquittals. The phrase “a reasonable prospect of conviction” means: “a reasonable prospect that a jury will be satisfied beyond all reasonable doubt that the defendant is guilty.”

The DPP apparently believes that is a much lower test than the jury applies. Let’s examine her logic.

We have to start from the position that the prosecutors face when they take their decision. They can’t know how the evidence will play out if and when the case actually comes to trial. But they have a set of evidence before them and they must assess it.

Logically, I suggest, the test that the CPS sets for itself breaks down as follows: Does the evidence, as it currently appears to the CPS, indicate that the defendant is guilty of the charge beyond all reasonable doubt and:

  • If it does so indicate, is there a reasonable prospect that the reliability of that evidence won’t be damaged enough at trial to jeopardise the conviction?
  • If it does not so indicate, is there a reasonable prospect that the trial will play out in a way which strengthens the evidence sufficiently to compensate for its pre-trial weakness?

The first of these two limbs is actually a higher test than the jury applies. This limb requires the pre-trial evidence to support a guilty verdict and something else besides: a reasonable prospect that the evidence will survive the rigours of a trial.

The second limb of the test allows for the existing evidence to be insufficient to support a guilty verdict beyond all reasonable doubt. But it then requires a reasonable prospect that the inadequacy can be made good at trial.

I don’t know how often the CPS takes a case to trial on the second basis. They may wish to tell us. But if, as in the case of the most serious of the charges faced by Nigel Evans, the case is one of rape for which the defence is that of consent, I think it would be deeply worrying to the public if cases were prosecuted in the belief by the CPS that the prosecution’s evidence is inadequate to prove rape, but on the chance (reasonable or otherwise) that the case will get stronger during the trial.

If that is not the (conscious) attitude of the CPS, we are left solely with the first limb. And that means the CPS is tasked with applying a higher test than the jury, not the other way around. Someone should tell the DPP.