The acquittal of Michael Le Vell has reminded us, as though it were necessary, that not all rape suspects are guilty. But however terrible his ordeal has been, the fact that he has been acquitted certainly does not mean the CPS was wrong to bring the case to court.
There are, nevertheless legitimate questions to be asked about how decisions to prosecute cases of this sort should be taken.
According to the CPS Code for Prosecutors no prosecution should take place unless there is a “realistic prospect of conviction.” If there is no such prospect “the case must not proceed no matter how serious or sensitive it may be”. Quite right too.
But one person’s“realistic prospect of conviction” is another person’s hopeless case. According to the CPS “a realistic prospect of conviction” means the situation in which “an objective impartial and reasonable jury … is more likely than not to convict the defendant.” On the face of it this seems clear enough: if the chances are that a jury will not convict, the case should not be pursued. The CPS has access to plenty of experienced lawyers. They not only know the law very well, they will also have a “gut instinct” for what a jury is likely to believe.
In fact, however, matters are not so simple. The CPS has made it clear that it does not believe in what it calls a “bookmaker’s” approach to applying this test. The key lies in the phrase “an objective impartial and reasonable jury.” Prosecutors are told not to try to guess the result as a bookmaker might, and to ignore their own views as to what a real jury would do. Instead, as Alison Saunders, the DPP in waiting, put it last year:
“… even though past experience might tell a prosecutor that juries can be unwilling to convict in cases where, for example, there has been a lengthy delay in reporting the offence … [that sort of] prejudice against complainants should be ignored for the purposes of deciding whether or not there is a realistic prospect of conviction. In other words the prosecutor should proceed on the basis of a notional jury which is wholly unaffected by any myths or stereotypes of the type which, sadly, still have a degree of prevalence in some quarters.”
Now, according to Ms Saunders: “instead of asking what is the likelihood of conviction we should ask ourselves, what would be the merits of a prosecution.”
The result is that prosecutions can be brought even when everyone involved expects them to fail. It exposes the CPS to criticism for making decisions on grounds that have more to do with social engineering than with law.
In Mr Le Vell’s case one of the features of the evidence was the delay by the complainant in reporting her complaints. The CPS regards the view that “if she didn’t complain immediately it wasn’t rape” as one of 10 “societal myths” about rape. For this reason Alison Levitt QC, who authorised the prosecution, is unlikely to have given it much weight when making her decision. For all we know she might have expected the prosecution to fail for that reason, yet still have felt that there was a realistic chance of a conviction with a “notional” jury.
Whatever criticisms may be made of individual decisions, the statistics do not suggest that the CPS is routinely bringing hopeless cases to court. A 2010 Home Office study found that juries actually convict slightly more readily of rape than of other cases of serious violence.
(This post was first published in The Times on 12th September 2013)