Appendix A
The Evidential Test
There should be enough evidence to provide a 'realistic prospect
of conviction' against each defendant on each charge. Consideration
should be given to what the defence case may be, and how that is
likely to affect the prosecution case.
A realistic prospect of conviction is an objective test. It
means that a jury or bench of magistrates, properly directed in
accordance with the law, is more likely than not to convict the
defendant of the charge alleged. This is a separate test from the
one that the criminal courts themselves must apply. A jury or
magistrates' court should only convict if satisfied that it is sure
of a defendant's guilt.
When deciding whether there is enough evidence to prosecute,
consideration must be given as to whether the evidence can be used
and is reliable. There will be many cases in which the evidence
does not give any cause for concern. There will also be cases in
which the evidence may not be as strong as it first appears. The
following questions should be considered:
Can the evidence be used in court?
Is it likely that the court will exclude the
evidence? There are certain legal rules that might mean that
evidence that seems relevant cannot be given at a trial. For
example, is it likely that the evidence will be excluded because of
the way in which it was gathered or because of the rule against
using hearsay as evidence? If so, is there enough other evidence
for a realistic prospect of conviction?
Is the evidence reliable?
- Is there evidence that might support or detract from the
reliability of a confession? Is the reliability affected by factors
such as the defendant's age, intelligence or level of
understanding?
- What explanation has the defendant given? Is a court likely to
find it credible in the light of the evidence as a whole? Does it
support an innocent explanation?
- If the identity of the defendant is likely to be questioned, is
the evidence about this strong enough?
- Is the witness's background likely to weaken the prosecution
case? For example, does the witness have any motive that may affect
his or her attitude to the case, or a relevant previous
conviction?
- Are there concerns over the accuracy or credibility of a
witness? Are these concerns based on evidence or simply information
with nothing to support it? Is there further evidence which the
police should be asked to seek out which may support or detract
from the account of the witness?
Evidence should not be ignored because there is uncertainty
about whether it can be used or is reliable. But should be looked
at closely when deciding if there is a realistic prospect of
conviction.
Evidence other than for prosecution
Where a matter is being dealt with other than by prosecution,
i.e. civil injunction, statutory notice, etc., these same
considerations should also be applied to any evidence.