Understanding judge ordered and directed acquittals in the crown court

Criminal Law Review

Volumn 1997, Issue 8, 1997, Pages 536-554

  Baldwin, John ^a  

^a UNIVERSITY OF BIRMINGHAM   (United Kingdom)

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EID: 3042922850     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (41)

1. The Judicial Statistics give details of the outcome of all prosecutions, whether initiated by the Crown Prosecution Service or by other agencies, such as Customs and Excise, the Inland Revenue and the Serious Fraud Office.
2. Table 6.10 of Judicial Statistics: Annual Report 1995 Cm. 3290 (1996).
3. The statistics made available to the writer reveal some intriguing geographical differences. While most of the variations are no more than minor annual fluctuations with no overall pattern, there are nonetheless a few striking patterns. The two most outstanding deviations are found in London (where rates of both ordered and directed acquittals were much higher than the national average in each of the three years) and in Wales (where rates of judge ordered acquittals were much lower than the national average in each year).
4. The author was himself involved in a study of such acquittals some years ago: see M. McConville and J. Baldwin, Courts, Prosecution, and Conviction (1981), pp.30-50.
5. One estimate of the annual cost of such acquittals to the CPS puts the figure at almost £6 million: see B. P. Block, C. Corbett and J. Peay, Ordered and Directed Acquittals in the Crown Court, Royal Commission on Criminal Justice, Research Study No. 15 (1993), p.1.
6. ibid. at pp.10-14.
7. Some writers have concluded that the rising number of ordered acquittals reflects badly upon the CPS, M. Zander, "What the Annual Statistics Tell Us about Pleas and Acquittals" [1991] Crim.L.R. 252-58, has argued that "whatever the impact of the CPS, at least it does not seem to have have the desired effect of reducing this category of [non-jury] acquittals" (p.256). But others see things differently: Block et al., ibid., make the point that the rise in the number of ordered acquittals "could just as well reflect the ability of the CPS to spot weak cases and get them thrown out before the beginnings of trials that would end in inevitable directed acquittals, as their inability to spot genuinely weak cases" (p. 13).
8. Some writers have concluded that the rising number of ordered acquittals reflects badly upon the CPS, M. Zander, "What the Annual Statistics Tell Us about Pleas and Acquittals" [1991] Crim.L.R. 252-58, has argued that "whatever the impact of the CPS, at least it does not seem to have have the desired effect of reducing this category of [non-jury] acquittals" (p.256). But others see things differently: Block et al., ibid., make the point that the rise in the number of ordered acquittals "could just as well reflect the ability of the CPS to spot weak cases and get them thrown out before the beginnings of trials that would end in inevitable directed acquittals, as their inability to spot genuinely weak cases" (p. 13).
9. The writer wishes to express his indebtedness to the many members of the Crown Prosecution Service who facilitated this study. In particular, the members of an advisory committee which comprised Mr P. Henderson (and his predecessor, Ms S. Grace), Mr P. Lewis, Mr A Kirkwood, Mr C. Barker, Ms R. Tattersall and Mr C. Woolley offered much assistance throughout the project. It goes without saying that the views expressed in this report are the writer's alone and are not to be attributed to the Crown Prosecution Service or any of its members who have assisted him.
10. The author read over 80 per cent of the files himself. He is extremely grateful to Mr Ben Fitzpatrick, Ms Hannah McConkey and Dr Richard Young, all of whom were colleagues in the Faculty of Law at Birmingham University at the time the research was conducted, for their assistance with reading the remainder of the files.
11. See, for example, McConville and Baldwin, op. cit. , and Block et al., op. cit.
12. See, for example, McConville and Baldwin, op. cit. , and Block et al., op. cit.
13. For a discussion of the background to the Code for Crown Prosecutors and the issues of controversy which have surrounded it, see A. Ashworth and J. Fionda, "The New Code for Crown Prosecutors: (1) Prosecution, Accountability and the Public Interest" [1994] Crim.L.R. 894-909.
14. In some cases where reviews had been conducted at different stages by two or more CPS lawyers, disagreements arose about whether the evidential sufficiency test was satisfied or not.
15. It was not possible to adopt the approach of Block et al., op. cit., who employed the services of a CPS assessor to examine files. That exercise revealed that, when compared to the CPS assessor, the researchers tended to err on the side of caution in assessing the foreseeability of acquittals, although the authors noted that the "level of agreement about foreseeably weak cases is remarkable" (p.31).
16. These proportions are considerably higher than those given by Block et al., op. cit., at pp.39-40 and pp.47-58.
17. Striving to reach an objective, dispassionate view in such cases is not made any easier by the intense pressure that comes from various interest groups who wish to see more allegations of rape, child abuse and domestic violence prosecuted in the courts. The rise of victim support organisations has also heightened awareness of the situation of victims in these and other types of offence.
18. One solution, adopted in a few of the cases in the sample, is to hold a section 6.1 (a "full" or "old style") committal in order to test the witness. But this is an expensive solution, and, since the magistrates are using a weaker standard than the reviewing lawyer - asking whether there is a prima facie case rather than a realistic prospect of conviction - it may not be particularly illuminating. See further Block et al., op. cit., at p. 15.
19. The extracts from files used in this article are cited verbatim although it has occasionally been necessary to make incidental changes in order to preserve the anonymity of cases or the individuals concerned.
20. For illustrations of the acute dilemmas that CPS lawyers face where there have been allegations of rape, see J. Gregory and S. Lees, "Attrition in Rape and Sexual Assault Cases" (1996) 36 British Journal of Criminology 1-17. See also A. Cretney and G. Davis, "Prosecuting 'Domestic' Assault" [1996] Crim.L.R. 162-74, for a discussion of the conflicts that face the prosecuting authorities in deciding whether to proceed in domestic assault cases where the victim is reluctant to offer evidence in court.
21. For illustrations of the acute dilemmas that CPS lawyers face where there have been allegations of rape, see J. Gregory and S. Lees, "Attrition in Rape and Sexual Assault Cases" (1996) 36 British Journal of Criminology 1-17. See also A. Cretney and G. Davis, "Prosecuting 'Domestic' Assault" [1996] Crim.L.R. 162-74, for a discussion of the conflicts that face the prosecuting authorities in deciding whether to proceed in domestic assault cases where the victim is reluctant to offer evidence in court.
22. See A. Sanders and R. Young, Criminal Justice (1994) who argue that prosecution lawyers "knowingly allow flimsy cases to proceed through the system" and that they are "often fully aware of weaknesses in their case but proceed in the hope that defendants will throw in their hand and plead guilty. If a defendant calls the prosecution's bluff by insisting on trial by jury, one natural response is to drop the case by offering no evidence" (p.351).
23. A small number of files even contained comments from trial judges, censuring the decision to prosecute.
24. See, for instance, L. Gelsthorpe and H. Giller, "More Justice for Juveniles: Does More Mean Better?" [1990] Crim.L.R. 153-164, and M. McConville, A. Sanders and R. Leng, The Case for the Prosecution (1991) who write: "The CPS, far from being an independent agency, is a police-dependent body, confining review to evidence-sufficiency questions, eschewing public interest criteria, utilizing the contradictory and malleable nature of the principles in the codes to further narrowly conceived objectives and, at its worst, adopting an uncritical support-the-police mandate" (p.147).
25. See, for instance, L. Gelsthorpe and H. Giller, "More Justice for Juveniles: Does More Mean Better?" [1990] Crim.L.R. 153-164, and M. McConville, A. Sanders and R. Leng, The Case for the Prosecution (1991) who write: "The CPS, far from being an independent agency, is a police-dependent body, confining review to evidence-sufficiency questions, eschewing public interest criteria, utilizing the contradictory and malleable nature of the principles in the codes to further narrowly conceived objectives and, at its worst, adopting an uncritical support-the-police mandate" (p.147).
26. A good deal has been written in recent years about ways that prosecution cases are " constructed" and how this construction reinforces police investigators' implicit "theory" of what happened: see particularly McConville et al., ibid., and A. A. S. Zuckerman, "Bias and Suggestibility: Is There an Alternative to the Right to Silence?" in (eds) D. Morgan and G. Stephenson, Suspicion and Silence: The Right to Silence in Criminal Investigations (1994), pp.117-140.
27. A good deal has been written in recent years about ways that prosecution cases are " constructed" and how this construction reinforces police investigators' implicit "theory" of what happened: see particularly McConville et al., ibid., and A. A. S. Zuckerman, "Bias and Suggestibility: Is There an Alternative to the Right to Silence?" in (eds) D. Morgan and G. Stephenson, Suspicion and Silence: The Right to Silence in Criminal Investigations (1994), pp.117-140.
28. Six of the 19 defendants in this study who elected trial in the cases that ended in non-jury acquittals were charged with thefts involving less than £100 and seven others were involved in relatively minor assault cases. The issue of defendants electing trial in such circumstances is discussed by D. Crisp and D. Moxon, Case Screening by ihe Crown Prosecution Service (1994), pp.25-26.
29. The Code for Crown Prosecutors lays down that "a prosecution is less likely to be needed if . . . the court is likely to impose a very small or nominal penalty" (para. 6.5).
30. Most of those included in the samples had considerable experience of reviewing cases. Eighty-three per cent of the CPS lawyers had been doing so for at least six years, and several had been solicitors in private practice before joining the CPS. None had fewer than three years' experience of reviewing cases. The members of the Bar interviewed were similarly experienced, and included one Q.C., another who sat part-time as an Assistant Recorder in the Crown Court, and nine others who had been barristers for over 15 years.
31. They were, for instance, similar to those expressed by DSS adjudication officers: see J. Baldwin, N. Wikeley and R. Young, Judging Social Security (1992), pp.28-64.
32. There were few indications in the files examined in this study, for instance, that the tapes of the police interview with the suspect - frequently a crucial part of the prosecution's case - had been played by a CPS lawyer. On the dangers of placing reliance upon police summaries of the tapes of interview, see J. Baldwin, "Preparing Records of Taped Interview", Royal Commission on Criminal Justice, Research Study No. 2, pp. 1-24 in The Conduct of Police Investigations (HMSO, 1992).
33. Table 6.8 of the Judicial Statistics Annual Report 1995 showed that 64 per cent of those committed for trial to the Crown Court pleaded guilty.
34. 28a The guidance on domestic violence is given in a public document: see CPS Policy for Prosecuting Cases of Domestic Violence (August 1995).
35. In two-thirds of cases in which pre-trial advice was offered by counsel, however, it took the form of concern about the limited prospects of conviction in the Crown Court.
36. The boundaries of responsibility between prosecuting counsel and the Crown Prosecution Service were examined at some length by the Farquharson Committee in its report, The Role of Prosecution Counsel (1986). There was some dissension even among the members of this small committee on a number of matters, however. The majority view was that, while counsel should be able to make decisions on all matters relating to the general conduct of the trial once a case reaches the Crown Court, "it is Prosecution Counsel's duty to read the instructions delivered to him expeditiously and to confer with those instructing him well before the commencement of the trial" (p.5).
37. Several barristers expressed concern about moves by the CPS to allocate work to sets of favoured chambers.
38. This Standard sets out the work that counsel should do prior to the trial and lays down targets for counsel to complete this work. It clearly emerged, however, in the interviews conducted with counsel that a majority attached little importance to this Standard, and a few were not even aware that it had been introduced.
39. The problems are exacerbated by "returned briefs" - the situation in which the barrister initially instructed is not the one who appears in court. Changes of counsel at a late stage are very common. In this study, in only about a quarter of cases did the same barrister appear throughout, and, in almost a fifth of all cases, four or more barristers were involved at different stages. Frequent changes of counsel seemed, however, to be only weakly related to whether or not cases ended in acquittal. Most of the CPS lawyers interviewed saw returned briefs as a serious problem, very much contributing to the frequency of judge ordered and directed acquittals. The situation was, however, viewed with equanimity (or at least seen as unavoidable) by all of the barristers interviewed.
40. On this pressure, see D. Rose, In the Name of the Law (1996), pp.114-64. Rose, a vocal critic of the CPS, refers to a "retreat from prosecution" and argues that there is an increasing tendency within the CPS to discontinue prosecutions purely for reasons of cost and administrative convenience.
41. The study of D. Crisp and D. Moxon (1994), op. cit., shows, however, that decisions to discontinue are taken predominantly in minor cases.