TrustHLT/LaCour huggingface dataset:
GR1 (Government): The courts, in considering the test, have described it in simple terms as requiring a prosecutor to ask whether, on balance, the evidence is sufficient to merit a conviction, taking into account what he knows about the defense case.
GR1 (Government): The test is clearly, therefore, not a bookmaker's test or an arbitrary mathematical threshold.
GR1 (Government): The CPS guidelines make that clear.
GR1 (Government): The test means what it says.
GR1 (Government): Taking all the evidence in the round, there must be a realistic prospect that the jury would convict.
GR1 (Government): In the government's observations, we set out how this test is applied throughout the common law world and some other countries and how it was carefully reviewed by the attorney general in 2003 following public consultation.
GR1 (Government): The attorney general specifically considered the possibility of a lower evidential test, and he noted that in the public response to the consultation paper which formed the basis for his review, there was little, if any, support for such an approach.
GR1 (Government): He rejected the suggestion of a lower test as unfair and incompatible with a consistent application of the principles of justice.
GR1 (Government): We invite you to review that material during your deliberations and give due weight, when applying the margin of appreciation, to the careful and principled consideration which the matter has been given.
GR1 (Government): If the applicant's argument is right and realistic prospect of conviction does not meet the requirements of Article II, it follows that Article II requires a charge of murder to be brought where there's no realistic prospect of a conviction, simply because the defendant is a police officer.
GR1 (Government): But it cannot be right for weak cases to be charged simply because they involve the police.
GR1 (Government): There's nothing in Article II to prevent a state from applying an evidential test when taking a decision on criminal charges.
GR1 (Government): The government submits that a test which prevail throughout the common law world and which has been previously reviewed and imposes only the modest requirement that there is a realistic prospect of conviction fully complies with the Article II investigative obligation.
GR1 (Government): There is no absolute obligation to prosecute every person who causes death, police officer or not.
GR1 (Government): The state obligation is to put in place an adequate legal framework and to prosecute inappropriate cases.
GR1 (Government): In arguing for a lower threshold, the applicant places great weight on what's called the Galbraith test.
GR1 (Government): This is a test which a judge applies at the end of the evidence in a criminal trial when deciding to leave the case to the jury for them to give a verdict.
GR1 (Government): In taking this decision, the judge considers whether the evidence is such that the jury properly directed could convict.
GR1 (Government): This is a low test, even lower than the modest requirement of realistic prospect of conviction.
GR1 (Government): The applicant argues it's illogical to have a higher test when deciding whether to bring a prosecution.
GR1 (Government): And she points out that it means that some prosecutions will not be brought, where if they had been, a judge would have left them to the jury.
GR1 (Government): This is theoretically possible, but in practice, rare.
GR1 (Government): But it's important to bear in mind that the present case doesn't fall into that category.
GR1 (Government): This is because, as I've explained, the High Court judge, who presided over the inquest and heard all the evidence, applied the Galbraith test and ruled that the verdict of unlawful killing could not be left to the jury.
GR1 (Government): So that is the answer to the point, as it applies to the facts of the case.
GR1 (Government): But the government would make a more general point.
GR1 (Government): We'd submit there's no illogicality in having a higher evidential threshold at the start of the prosecution than at the end of the case.
GR1 (Government): And the reason for that is that in a criminal trial in England, the jury has been historically the primary source of decision making.
GR1 (Government): So it is a fundamental constitutional principle that the facts in a criminal trial are decided by a jury made up of randomly selected members of the public.
GR1 (Government): And this underlines the need for a thorough, independent review of prosecutions before they are started.
GR1 (Government): Because once started, there is a presumption they will go through to the end.
GR1 (Government): Can I turn then finally to their complaint about self-defense and the content of the substantive law?
Dean Spielmann (JudgeP): I'm sorry, we have a problem with the interpretation, so we have to sort this out.
Dean Spielmann (JudgeP): Okay.
Dean Spielmann (JudgeP): Miss Montgomery, you can continue.
GR1 (Government): So I was turning to deal with self-defense and the principle that applies under English law.
GR1 (Government): The police have no special power to use force.
GR1 (Government): They are known as citizens in uniform who traditionally don't even carry weapons.
GR1 (Government): Nowadays, there are specially trained officers who can be authorized to carry guns, but their carrying weapons gives them no special power to use them.
GR1 (Government): They must justify their use of force in exactly the same way as any other member of the public.
GR1 (Government): If anything, a higher standard of justification may be required, as this court found in the admissibility decision in Bennett.
GR1 (Government): The government submits that the subjection of police officers, even when engaged in counterterrorism operations, to the ordinary law of the land, demonstrates a powerful commitment to the values which underpin Article 2.
GR1 (Government): In any criminal trial, a police officer would have to bring themselves within the scope of legal justification and show that they used no more force than was strictly necessary and proportionate.
GR1 (Government): Otherwise, they would, like anyone else, be guilty of murder.
GR1 (Government): And the necessity and proportionality of the force they used is judged objectively.
GR1 (Government): The question is, on what facts should the use of force be judged?
GR1 (Government): Should they be the facts, as the defendant believed them to be, or the facts as they actually were?
GR1 (Government): What of the defendant who makes an honest mistake?
GR1 (Government): And that takes us to the heart of a long-running philosophical debate in criminal law.
GR1 (Government): The government's considered that in detail, so I can deal with it in summary.
GR1 (Government): English criminal law holds to the principle of subjectivism, which accords primacy to an individual's own state of mind at the time of the prohibited conduct.
GR1 (Government): Central to this is the belief principle, which judges a defendant according only to what he believed he was doing or risking.
GR1 (Government): This belief principle we submit is compatible with Article 2.
GR1 (Government): It means, in practice, that a person will be criminally liable for causing death, only where he's aware that in the circumstances, it is not necessary to use force in defense.
GR1 (Government): There's no suggestion in the court's consistent case law, McCann, Andronico, Giuliani, and Gaggio, and Italy most recently, that the defendant's honest belief must be supported by objectively established facts.
GR1 (Government): The court's case law requires that the belief must be based on something that provides a ground for the belief.
GR1 (Government): But an honest belief may be held for good reasons, even if objectively, another person might consider the belief to be irrational or based on faulty perceptions.
GR1 (Government): Nor does English law turn a blind eye to the unreasonableness of a belief.
GR1 (Government): If a belief is unreasonable, that will be an important factor when the CPS and the court decide whether or not the defendant may genuinely and honestly have held that belief.
GR1 (Government): And that principle is now embodied in statute.
GR1 (Government): But the law stops short of allowing, for example, the officers who killed Mr. de Menezes
GR1 (Government): to be tried for a murder on the basis of facts that they were not themselves aware of.
GR1 (Government): The government submit that this is a legitimate position and compatible with Article 2.
GR1 (Government): We also ask the court to note that evidence as to belief is not required in a case of gross negligence manslaughter, another extremely serious offense.
GR1 (Government): That is judged entirely objectively.
GR1 (Government): And the existence of the offense may be taken into account when considering deaths caused by the police.
GR1 (Government): The CPS considered that offense, as well as the offense of murder in this case.
GR1 (Government): And the applicant has not challenged the conclusion upheld by the court that there was insufficient evidence.
GR1 (Government): So by way of conclusion, we accept that this is a tragic case.
GR1 (Government): But there was no evidence, even on a prima facie basis, that would have justified the prosecution of any of the individuals concerned.
GR1 (Government): The proposal that the evidential test used by prosecutors should be changed would not have made any difference to the decisions that were made.
GR1 (Government): A change is therefore not justified on the facts of this case.
GR1 (Government): Any change would also mean that United Kingdom would be forced to prosecute cases, even when they are more likely than not to fail.
GR1 (Government): This cannot be necessary in order to satisfy Article 2.
GR1 (Government): The suggested changes to self-defense are also unnecessary.
GR1 (Government): The reasonableness of a law enforcement officer's belief is always relevant in a criminal case in deciding whether that belief was honestly held.
GR1 (Government): If the belief was honest but unreasonable, the officer remains liable to prosecution for gross negligence manslaughter, as well as under the civil law and for disciplinary proceedings.
GR1 (Government): Any change in the law would subvert the carefully developed law on self-defense that is used in the United Kingdom and throughout much of the common law world.
GR1 (Government): More importantly, perhaps most importantly, the proposal for change would have far-reaching and counterproductive effects.
GR1 (Government): If officers are liable to face prosecution, even when their use of force is legitimate based on their honest beliefs at the time, it would have a chilling effect on the willingness of officers to carry out essential duties where they may be required to react in the heat of a moment to avert danger to life.
GR1 (Government): The court should not impose this burden on law enforcement officers, where it may have profoundly detrimental effects on their ability to act in defense of their own lives, and more importantly, the lives of others.
Dean Spielmann (JudgeP): Thank you very much, Ms Montgomery. I call Mr Southey.
AP1 (Applicant): nation states possess the most draconian power, the power to kill.
AP1 (Applicant): However, if society is to tolerate the use of that power, there must be accountability.
AP1 (Applicant): In particular, people must have confidence that state agents who abuse that power will be held to account.
AP1 (Applicant): There are good reasons why state agents must be held to account.
AP1 (Applicant): Firstly, if agents believe they will not be held to account, standards will slip.
AP1 (Applicant): Secondly, if the public don't believe that agents are held to account, the rule of law will be undermined.
AP1 (Applicant): There will be a feeling that different standards apply to state agents.
AP1 (Applicant): That's the context in which this application must be viewed.
AP1 (Applicant): This is a case in which an entirely innocent man was deliberately shot by the agents of the state.
AP1 (Applicant): The factual background set out in the written submissions makes it clear that there are good reasons to be concerned about the legitimacy of the shooting.
AP1 (Applicant): You've heard more about that this morning from Ms. Montgomery.
AP1 (Applicant): The government accepts, in essence, that there were systemic organizational failures, but no individual has been prosecuted.
AP1 (Applicant): There was a prosecution of the Metropolitan Police as an organization, as you've heard.
AP1 (Applicant): However, that's different to an individual being prosecuted, because no individual has been held to account.
AP1 (Applicant): Even the commissioner of the police was not required to attend the trial in relation to health and safety.
AP1 (Applicant): In addition, I should add, the jury in the health and safety case was specifically directed that it should not consider the legality of the killing.
AP1 (Applicant): As a consequence, for example, the shooters and the passengers on the train where the killing took place did not give evidence at that trial.
AP1 (Applicant): Now, the background I've described, it's accepted, is not necessarily a violation of the Convention.
AP1 (Applicant): Our argument has never been that there must always be a prosecution.
AP1 (Applicant): As I will return to, our argument is and has always been there must be a prosecution where there is sufficient evidence.
AP1 (Applicant): However, the background that I've described in our submission is important, because it's a matter that means that close scrutiny is required of this application to ensure that the investigation hasn't allowed those who are guilty to escape.
AP1 (Applicant): I should add one other point about the need for scrutiny in light of a point made by the Equality and Human Rights Commission at paragraph 32 of its written submissions.
AP1 (Applicant): That is the fact that there has been no successful prosecution in England and Wales of a police officer involved in a shooting, even in cases in which a jury has delivered a verdict of unlawful killing at an inquest, since 1990.
AP1 (Applicant): And we argue that also calls into question the system in the United Kingdom.
AP1 (Applicant): Now, as I've already made clear to some extent, I should emphasise it's accepted that the obligations imposed by Article 2 do not require a particular result.
AP1 (Applicant): However, they do require a rigorous investigation.
AP1 (Applicant): And that's essentially what this case is about.
AP1 (Applicant): It's about whether the approach to the investigation has been sufficiently rigorous.
AP1 (Applicant): We will argue it's not been, in part because the test applied by the prosecution service means that there may have been no prosecution, despite there being sufficient evidence to permit a conviction.
AP1 (Applicant): Having started by putting the case in context, what I plan to do is address the following issues.
AP1 (Applicant): Firstly, I will argue that the test applied by the prosecution service is too high because it fails to ensure accountability.
AP1 (Applicant): People who would have been convicted avoid liability by not being prosecuted.
AP1 (Applicant): Secondly, I'll argue that the court that reviewed the prosecution decision compounded the problem by applying an inadequate standard of review.
AP1 (Applicant): Thirdly, I'll argue that the coroner's decision that there was insufficient evidence to justify a finding of unlawful killing does not undermine our arguments.
AP1 (Applicant): In part, that's because of the law applied in England and Wales in relation to self-defence.
AP1 (Applicant): Indeed, I'll argue that that law on its own is not compatible with Article 2.
AP1 (Applicant): And finally, I'll address very briefly the issue of disciplinary proceedings, given that the court has raised that.
AP1 (Applicant): In addressing those issues, there's clearly insufficient time to address the detail of the case law.
AP1 (Applicant): We have set that out at some length in the written pleadings.
AP1 (Applicant): However, we can supply any case law if needed.
AP1 (Applicant): Turning first to the test applied by the prosecution should explain first why we say that's significant.
AP1 (Applicant): There appears to be no dispute between the parties that Article 2 requires accountability.
AP1 (Applicant): Our basic complaint is that the prosecution test does not necessarily result in accountability.
AP1 (Applicant): That is because, and I don't think there's any real dispute about this, there can be cases where there is no prosecution of state agents, where there's sufficient evidence to result in a conviction.
AP1 (Applicant): Now, to make good that submission, I need to turn to the detail of the prosecution test.
AP1 (Applicant): There is very little dispute about the test to be applied.
AP1 (Applicant): However, in light of the dispute about the significance, what I'm going to do is go into some detail about the test applied by a judge when determining whether the case should be dismissed, and compare and the test applied by the prosecution service.
AP1 (Applicant): In doing that, I should make one point clear.
AP1 (Applicant): There is no dispute that unmeritorious cases should not result in a trial.
AP1 (Applicant): However, as I've already indicated, our basic dispute complaint is that the threshold applied by the prosecution service is higher than that applied by a trial judge, and as a result means that cases don't go to trial, even where there is sufficient evidence.
AP1 (Applicant): Now, under domestic law, the trial judge does protect defendants against prosecutions that lack merit.
AP1 (Applicant): Domestic law doesn't permit a jury to convict where there's insufficient evidence to properly convict.
AP1 (Applicant): That is what the trial judge does.
AP1 (Applicant): He withdraws cases from a jury where there is insufficient evidence.
AP1 (Applicant): The test, as the government accepts, is that set out in Galbraith.
AP1 (Applicant): The judge reviews the evidence to ensure there's sufficient evidence to permit a conviction.
AP1 (Applicant): It doesn't merely look at whether there's no evidence.
AP1 (Applicant): As the judgment in Galbraith makes clear, what the judge does, and I quote, where there is some evidence, but it's of a tenuous character, for example, because of inherent weaknesses or vagueness, or because it's inconsistent with other evidence, the judge can stop the case if they come to the conclusion, and I quote again, that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it.
AP1 (Applicant): We can supply that authority if needed.
AP1 (Applicant): What that quote demonstrates is that there is an assessment of the quality of the evidence.
AP1 (Applicant): The case is halted if the evidence is so tenuous that it couldn't justify a conviction.
AP1 (Applicant): However, what the judge doesn't do is assess the credibility of oral evidence and where the jury could base a conviction on it.
AP1 (Applicant): There's good reason for that.
AP1 (Applicant): Domestic law has decided that credibility is best assessed by a jury.
AP1 (Applicant): Now, that's not surprising.
AP1 (Applicant): The assessment of credibility, we all know, is difficult, so it makes sense to bring together a number of ordinary people who use their disparate experiences to assess credibility.
AP1 (Applicant): All that demonstrates that there is a protection against unmeritorious cases going before a jury.
AP1 (Applicant): However, the test that's applied by the trial judge is one that leaves it for the jury to assess credibility.
AP1 (Applicant): The problem is that the prosecution service apply a significantly different test.
AP1 (Applicant): There is an important point I should make about that test.
AP1 (Applicant): The government talks about the test being whether there's a realistic prospect of conviction.
AP1 (Applicant): However, the government also accepts, in the detail of its written submissions, for example, paragraph 46, that that test is given a special meaning.
AP1 (Applicant): It requires a prosecutor to conclude that a conviction is more likely than not.
AP1 (Applicant): That means that there are cases that are not prosecuted because a conviction is possible, but less likely than a finding of guilt.
AP1 (Applicant): That doesn't appear to be disputed.
AP1 (Applicant): Indeed, paragraph 46, for example, of the government's written submissions, cite the policy document that my learned friend referred to this morning, stating that one shouldn't talk about percentages.
AP1 (Applicant): But that same document talks about it being reasonable to refer to the test as being whether a conviction is more likely than not.
AP1 (Applicant): Ultimately, the decision of the United Kingdom Supreme Court in Gujra, which is set out at paragraph 25 of the applicant's written submissions, makes it clear that the test is whether a prosecute...
AP1 (Applicant): that whether the odds of a prosecution are better than evens.
AP1 (Applicant): To explain, that is an English betting phrase that means that the prospects are greater than 50%.
AP1 (Applicant): The consequence of a requirement that the prospects of success must be greater than 50% are clear.
AP1 (Applicant): There will be cases where there's no prosecution, despite the fact that a trial judge would be required to permit the jury to determine guilt, and the defendant could be convicted.
AP1 (Applicant): The case would go to the jury because there's sufficient evidence to permit the jury to convict.
AP1 (Applicant): However, the application of the test means that the jury never gets to consider the case.
AP1 (Applicant): A case, for example, with a 30% prospects of success will not be prosecuted.
AP1 (Applicant): That's despite the fact there will still be a significant prospect of success and sufficient evidence to justify a conviction, because if there was insufficient evidence, there would be zero prospect of success.
AP1 (Applicant): It's also, despite the fact that there are obvious problems assessing how a jury will react to oral evidence.
AP1 (Applicant): I repeat, the key point about this test is it means there will be cases where a person is not convicted, despite the fact that the person could have been convicted if the case had proceeded to trial.
AP1 (Applicant): Now, the government argues that it should enjoy a wide margin of appreciation in this context.
AP1 (Applicant): That's not accepted in light of the importance of holding the state to account.
AP1 (Applicant): But more importantly, it's not accepted that there are states that apply such a high threshold.
AP1 (Applicant): Paragraph 36 of the applicants' written submissions sets out the approach in a range of states.
AP1 (Applicant): The key feature of these submissions is that they demonstrate that the UK applies a particular definition of a reasonable prospect of conviction.
AP1 (Applicant): That definition requires a conviction to be more likely than not.
AP1 (Applicant): Other states who refer to a reasonable prospect of success apply it as meaning merely that there is sufficient evidence to support a conviction.
AP1 (Applicant): Now, in the time, I can't go into greater detail.
AP1 (Applicant): However, I would ask the court to consider that aspect of the written submissions particularly carefully.
AP1 (Applicant): Now, the importance of the filter applied by the prosecution service is clear when one considers a case such as this.
AP1 (Applicant): A key issue in a case like this is whether the shooter held a genuine belief that the use of force was justified.
AP1 (Applicant): The assessment of that issue requires an assessment of the shooter's credibility.
AP1 (Applicant): However, it's difficult to see how it can be reliably conducted by a lawyer reviewing written statements.
AP1 (Applicant): How can a lawyer determine the conclusions that a jury will reach after the jury has heard cross-examination?
AP1 (Applicant): However, there will be no prosecution if the lawyer decides the prospects of success are less than 50%.