Reed Smith Client Alerts

Here’s some information that may shock certain sections of the media: Not everyone charged with a crime will be, or should be, found guilty. Even people with a case to answer on paper can still, quite properly, be acquitted.

In August 2015 Tom Hayes, a banker, was convicted by a jury of fraud in connection with rigging LIBOR submissions. But over the last two days six brokers accused of conspiring with him were acquitted by a different jury. This sort of thing happens sometimes, and it doesn’t point to much more than the truism that different cases can have different outcomes.

OK, but surely the loss of a big case like this must be a “setback” for the Serious Fraud Office (Financial Times), a “blow” (Telegraph), or perhaps even a “large blow” (Guardian). Well maybe it is, but, if it is, it really shouldn’t be. More shocking news: Even the best prosecutors can lose cases, and an acquittal doesn’t always mean that the original decision to prosecute was a mistake. Although defence lawyers were critical of the SFO in this case (and I make no comment on whether this was fair) the prosecution will at least have cleared the “no case to answer” hurdle.

I think journalists often exaggerate the effects of these cases and apply liberal doses of hindsight to their analysis because they feel every case must be seen as part of a trend or an identifiable bigger picture. This sort of ‘triumph/crisis’ mode of reporting badly over-simplifies debates about policy. It could even damage the effective administration of justice, as I hope I can briefly explain.

The criminal justice system contains checks and balances in an attempt, not always successful, to ensure fairness. The state has enormous power to gather information, freeze assets and detain anyone within the jurisdiction for questioning. But the ultimate burden of proof of guilt is on the Crown and the standard of proof is a high one. Police and prosecutors have wide powers to obtain evidence but they must make it all available to the defendant1, and must generally protect the defendant’s right to due process.

The ancient principle was that prosecutors are “ministers of justice and [should not] struggle for a conviction2. It holds true today, with the Privy Council recently making clear that: “It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime3.

This principle is reflected in the statement released by the Director of the SFO on the broker cases yesterday. He accepted that the jury was not convinced of the Crown’s case but added, “Nobody could sensibly suggest that these charges should not have been brought and considered by a jury”. The Director was reminding us that the SFO’s job is not to prosecute only those cases where conviction is a certainty but, in suitable cases, to put relevant facts before a jury so that it can decide on guilt or otherwise. So an acquittal might or might not be evidence of errors by the prosecution, but it isn’t necessarily a setback for the whole agency unless the facts point to some wider systemic failing.

It’s important that the prosecutor’s role as minister of justice is properly understood. Prosecutors must be accountable. But they should not be made to feel that their career, or the fate of their whole organisation, will turn on the jury’s verdict in a specific case. A ‘convict at all costs’ mentality would rapidly lead to a blurring, if not elimination, of the distinction between ends and means. It would undermine professionalism and create fertile ground for abuse.

Summarising complex court proceedings against deadlines isn’t easy. But, to bowdlerise Kipling, not every result is either a triumph or a disaster. Neither must it be part of an important trend or even a leading indicator.

The SFO4 will, we must hope, take most headlines with a pinch of salt, keep calm and carry on. Carry on doing what? The most important thing a prosecutor, or anyone who wields power can do: consider each case on its own merits.

  1. Subject to very limited exceptions under the principle of public interest immunity.
  2. R v Puddick (1865) 4 F&F 497.
  3. Randall v The Queen [2002] 1 WLR 2237, quoting Randall J of the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 263.
  4. For which I do not hold any particular brief, see, for example,


Client Alert 2016-033