Constructing the Case for the Prosecution

Abstract

One of the central paradoxes of the Anglo-American criminal justice system is that courts in virtually all criminal cases are able to reach a verdict (usually guilty) without any apparent reasonable doubt, despite the elusiveness and complexity of'truth' and 'reality'. Doreen McBarnet has argued that the key to this conjuring trick is the adversary system. Each side argues its own side of its case, and no one need try - or is even allowed - to re-create the totality of 'what happened': search for truth is replaced by a contest between caricatures. Advocacy is not by definition about 'truth' or 'reality', or a quest for them, but about arguing a case.'1 McBarnet was primarily concerned to show how the courts come to be routinely satisfied by the prosecution case. She shows that convictions are not produced in defiance of the duty to prove cases beyond reasonable doubt, but nor does the high level of conviction necessarily indicate that prosecution cases are generally more 'truthful' or 'accurate' than defence cases. Convictions, in contested cases at least, are generally strong prosecution cases, but strength is a product of pre-trial criminal procedure. Although McBarnet opens up the legal framework she does not discuss police processes: how the police produce their 'biased constructs', whether they do so routinely, nor how prosecutors are persuaded to present them to the courts. The generalisability of her analysis has to be taken on trust, which is problematic now that the Prosecution of Offences Act 1985 has been implemented in England and Wales. From 1 October 1986 an Crown Prosecution Service (headed by the Director of Public Prosecutions) has been responsible for virtually all police prosecutions. In order to promote consistency and fairness and to reduce the proportion of cases pursued despite lack of sufficient evidence, the White Paper that preceded the Act insisted that police control of prosecutions be broken by introducing an independent prosecution system.2 The government also presented the Crown Prosecution Service as an important counter-balance to the increased police

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