OPINION: Dropping of case against Jew-baiters was suspect

When video imagery of the “hate convoy” travelling towards Golders Green went viral last year, it was widely assumed that the brazen Jew-baiting on show was graphic enough to assure swift justice. But, last week, the Crown Prosecution Service (CPS) declared, in its wisdom, that the evidence was insufficient.

Speaking to this newspaper, Nick Price, head of the CPS special crime and counter-terrorism division, explained that the “captured footage” was inadequate to prove in court that one of the two charged men was in the car at the time or that the other had participated in the obnoxious conduct.

By way of “clarification”, the CPS lamely declared it had “explored all options.” Yet those who practice regularly in the criminal courts will be puzzled as to why it took an unconscionable 18 months plus to drop what should have been a relatively straightforward case.

The Community Security Trust (CST) conceded that it “understand[s] the legal reasons” for not proceeding, but complained that the criminal justice system had failed in its core task. Yet if the legal reasons are sound, how can the system have failed? The CST didn’t say, but there is actually a ready explanation – one that goes to the root of the fundamental test the CPS is required to apply in all cases.

Its “full code test,” as the rule is called, requires crown prosecutors to allow a case to proceed only if (a) they consider that a jury applying notionally objective criteria in assessing the evidence would be more likely than not to convict, and (b) only then if it is in the public interest to continue.

Interestingly, Mike Freer, my own MP, avowed that even if the evidence did not meet the basic threshold test “sometimes we should take a chance and let a jury decide”. His instinct was dead on. And it is for that reason that over a number of years I have been calling for a change in the rule to reflect Mike’s sentiment.

Only two months after the ‘hate convoy’ made its sickening way along Finchley Road, I explained in a New Law Journal article how a simple tweaking of the threshold test would alter the whole landscape, particularly in the context of the shockingly low number of rape prosecutions.

Over the broad spectrum of criminal cases involving named suspects, the evidence will be of medium-range strength such that a trial outcome can go either way. But the threshold test involves a wholly artificial exercise in guessing the likely tilt on a fine balance. Countless cases that could well succeed fall by the wayside when they might otherwise easily have ended in an entirely respectable conviction. A far better test would prevent a trial from going forward if a conviction were considered significantly less likely than an acquittal. The “50 per cent rule” is arbitrary and worthless. We sent a copy of our article to Max Hill KC, the director of public prosecutions, calling upon him to change the rule, a discretionary power he enjoys.

There was no response, even to a chaser. They just do not want to know.

In fact, it is doubtful if the evidence was as insufficient as the CPS made out. In over half a century of practice at the criminal bar, I have defended in countless trials where the evidence of identification was primarily based on video imagery of indifferent quality. Nowadays enhancement technology can work wonders. And, as for proven presence in a car, it will often be sufficient in itself to establish complicity in an offence committed by fellow occupants during the journey. The CPS decision is highly suspect.