Another day, another celebrity acquittal. To read the newspapers one would think these are the only trials involving historic sexual offences which have concluded this week. They are not. Looking at the headlines one would think these cases set some sort of precedent by which allegations against mere mortals will be judged. They do not. The simple fact is that the non-celebrity cases which have also concluded this week will have resulted in some acquittals and some convictions. Such is the nature of jury trials.
I am quite confident that the acquittals do not automatically mean the CPS got the decision to prosecute wrong. An acquittal is not evidence of the CPS having taken a bad decision and nor is it a case they have “lost”. A defendant is tried not by lawyers, not by judges but by a jury. They hear the evidence and they return the verdict.
The CPS have two factors to consider when instigating a prosecution. Is there a realistic prospect of conviction? Is a prosecution in the public interest? The first question is not a matter of whether the jury will convict. It is an assessment of the evidence and whether it is sufficient that a jury could convict. Not a fanciful “could convict” but a realistic “could convict”. The CPS should not bring a case which is an obvious loser but nor are they constrained to only bring sure fire winners. I am yet to do a trial whereby both sides do not have some points to make about the strengths and weaknesses of the respective cases. So no defendant enters a trial whereby he does not at least stand the risk of being convicted and no advocate defending someone is left at the end of it all simply shrugging her shoulders with nothing to say to the jury. What the CPS are doing in this stage of the test is weighing whether the evidence makes out the ingredients of a criminal offence and whether such evidence is broadly credible and not significantly undermined. That does not mean that the state of the evidence is perfect but it seldom is.
A matter of some significance in these cases is that they went to the jury. The Judge did not intervene nor did they accede to a submission of no case to answer. That means that there was sufficient evidence of the offence for the case to carry on. To a limited extent this could include some scrutiny of the credibility of the witnesses. Having said that there are some cases that the CPS can justify weeding out on the basis of undermining material that would still get beyond this stage.
The next stage of the test, “the public interest” test, is the more nebulous concept. It does not mean that the general public have some voyeuristic interest in seeing a trial happen and therefore the case should be prosecuted. It is about whether the general good of society, including things such as the cost to the public purse, demands that the prosecution should be brought. And that is where the fact of a conviction does not demonstrate that the CPS have taken the correct decision in certain cases.
Take the Iceland Food case involving the men taking thrown away food from the skip in the enclosed yard. One could imagine the prosecution securing a conviction in that case on its facts. Yet that does not mean the decision to prosecute was correct as it was not in the public interest. A small change to the facts, a journalist in a garden going through the bins of a celebrity in the hope of finding a story, would potentially produce a different view on public interest.
The finest exposition of the public interest test was given by Lord Shawcross, former Attorney-General, when he said “it has never been the rule in this country – and I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.” We have that added layer of public interest which allows decisions to be influenced by humanity and by common sense.
There is a debate to be had about the prosecution of historic sex cases. The furore surrounding celebrities does little to add to that debate. Do the CPS always get it right? Certainly not. Do these high profile acquittals prove that? Not necessarily.