Thread by @BarristerSecret

In what is looking spookily like a tandem publicity campaign for the paperback release of #FakeLaw, the Mail on Sunday offers a classic from Chapter 7.

The Burden and Standard of Proof in criminal cases.

Or Why A Not Guilty Verdict Does Not Mean A Complainant Has Lied

[THREAD]

Lavinia Nourse was acquitted by a jury last week of serious criminal charges relating to child sexual abuse.

Amanda Platell’s thesis is that this acquittal proves that the Crown Prosecution Service were wrong to prosecute.

Let’s start with the basics.

When deciding whether to charge a criminal allegation, the CPS apply a two-stage test.

1) Is there a realistic prospect of conviction based on the evidence?

2) If so, is it in the public interest to prosecute?

Yes to both = a prosecution.

Now a “realistic prospect of conviction” is not the same as “a guarantee of conviction”. Or even “highly likely to result in conviction”. It means a court is “more likely than not” to convict.

This is very different to the test that a jury applies at trial. At trial, a jury has to decide whether it is *sure* that the prosecution has proved guilt (“beyond reasonable doubt” as it used to be called).

The distinction is important.

We wouldn’t want the CPS charging only cases that they were sure would result in conviction. Because that would filter out many strong and meritorious cases, and would mean the CPS was usurping the function of the jury.

It follows from this that acquittals are a sign of a justice system working.

That’s not to say that cases are wrongly charged. They are. More often than they should be.

But an acquittal alone does not prove that a case “should never have been charged”.

Nor does “not guilty” mean “innocent”.

It means “not guilty”. Because we don’t ask juries for reasons, we don’t know what they thought. They could have thought a defendant was most likely guilty, but couldn’t be *sure*.

Again, an acquittal alone tells us very little.

We certainly can’t infer from a not guilty verdict that a jury “believed” a defendant or were sure that a complainant was lying. “Not guilty” covers a spectrum from “sure of innocence” to “only marginally short of being sure of guilt”. We never know where a verdict sits.

Which brings us to Amanda Platell. Who didn’t, it seems, hear the evidence at trial, but as a friend of Lady Nourse concludes from the verdict that “a blind man could see [these] were false allegations”, and that the CPS were wrong to bring the case.

Unsubstantiated ignorance.

I, like Platell, was not at trial and didn’t hear the evidence. It could well have been a weak prosecution case (although the fact that the judge didn’t remove it from the jury suggests there was at least a case to answer).

But that conclusion cannot be drawn from the verdict.

The CPS have nothing to be ashamed about. They did not “fall for such awful lies”. Their case did not “collapse”. They prosecuted a case which appeared to satisfy the objective prosecutors’ code and where a jury, having heard the evidence, could not be sure of guilt.

Platell is right about one thing however. It is a scandal that Lady Nourse has incurred irrecoverable debts defending herself at trial.

This is because the political party that Platell worked for changed the law governing legal aid and defendants’ costs.

Previously, anybody accused of a serious offence in the Crown Court qualified for legal aid (repayable upon conviction if you could afford to). It was a fair and sensible system.

Enter Chris Grayling.

Chris Grayling and his colleagues - including members of the current government - removed legal aid, introducing a stringent means test. This forced many people to pay privately for legal representation.

The kicker? If acquitted, you cannot recover your private legal fees.

This #InnocenceTax means that people - many wholly innocent - bankrupt themselves defending themselves from criminal allegations.

As I set out in my documentary for Channel 4 News last year:

And there is absolutely no political desire to do anything about this. No campaign, no public outcry.

Because we have been told, falsely, that the problem with legal aid is that it is a bottomless pit. We have been fed myths and lies. And distracted from the truth.

https://twitter.com/barristersecret/status/1395457754073124875

This - politicians, media and commentators distracting the public from the real problems in the justice system with lies, myths and scare stories - is what I expose in #FakeLaw.

It’s out in paperback this Thursday 27 May 2021.

Don’t let them lie to you. amazon.co.uk/Fake-Law-Truth…