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Statement On R v Katharine Gun

UK Crown Prosecution Service
Thursday 26th February 2004
Press Release 108/04

Senior Treasury Counsel prosecuting this case gave advice, with which the Director of Public Prosecutions fully concurred, that there was no longer a realistic prospect of convicting Katharine Gun.

As has been commented upon there was, in this case, a clear prima facie breach of section 1 of the Official Secrets Act 1989.

The evidential deficiency related to the prosecution's inability, within the current statutory framework, to disprove the defence of necessity to be raised on the particular facts of this case.

This determination by the prosecution had nothing to do with any advice given by the Attorney General to Government in connection with the legality of the Iraq war. It was also a determination made by the prosecution in advance of the defence request for disclosure which came on 24 February 2004.

The Attorney General was consulted and concurred.

But the decision to offer no further evidence was one made by the Crown Prosecution Service as an independent prosecuting authority. It was a decision taken solely on legal grounds and in accordance with the Code for Crown Prosecutors, free from any political interference.

Notes to Editors

Extract from the Code for Crown Prosecutors

The Code Tests

4.1 There are two stages in the decision to prosecute. The first stage is the evidential test. If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be. If the case does meet the evidential test, Crown Prosecutors must decide if a prosecution is needed in the public interest.

4.2 The second stage is the public interest test. The Crown Prosecution Service will only start or continue with a prosecution when the case has passed both tests.

The Evidential Test

5.1 Crown Prosecutors must be satisfied that there is enough evidence to provide 'a realistic prospect of conviction' against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

5.2 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A jury or magistrates' court should only convict if satisfied so that it is sure of a defendant's guilt.

5.3 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears.

Media enquiries to CPS Press Office on 020 7710 8079.

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