JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036
Citation: JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036
Rule of thumb: Do prosecution services take conviction rates into account before prosecuting people? Yes, prosecution services are not expected to prosecute people unless there is a high chance of prosecution because it is seen as a waste of public money otherwise.
Judgment:
‘17. The appellant relied on the evidence of Dr Dillon and Dr Sheehan who gave oral evidence, transcripts of evidence Professor Cohen had given to a Congressional Committee in the United States and two other witnesses who gave written evidence on Chinese law. The relevant area of dispute was on the use to which Articles 7 and 10 are put and the likelihood of their being used in the case of the appellant. 18. The tribunal was satisfied that Professor Fu was a careful and reliable witness with much greater practical knowledge and database access than the other witnesses. He had researched the Chinese databases with care and they were satisfied they could rely on his evidence. They added: "we were particularly struck by his dismissive reaction to snakehead kidnappings in general as rather ordinary crimes of which there were very many, not especially interesting to the authorities. That is not the western perception but given the significant people-trafficking industry out of China (Fujian in particular) the Chinese view is different. If there were a re-prosecution, Professor Fu considered that the assistance of the British authorities would be required for evidence, given that they were expected to produce a conviction rate in excess of 90%. If investigated, torture could not be ruled out and the penalty would be incarceration (laogai) not laojiao." 19. The main thrust of Mr Mackenzie's argument is that the tribunal misinterpreted or misunderstood Professor Fu's evidence. Professor Fu's opinion he submitted about the appellant's crime, was based on an error of fact. His written assessment of the likelihood of re-prosecution was on the basis that the offence was inchoate i.e. an attempt or a conspiracy or incitement to commit the offence falling short of the actual commission of the offence. However, it seems to me that the tribunal was well aware of this error (para 161) and the professor dealt with it in his oral evidence after he was more fully apprised of the facts. The tribunal said at para 174 that he considered a completed kidnap would require more serious punishment and would be more likely to be investigated. The more serious the crime, in his opinion, the more likely it became that the authorities would take an interest in the appellant. However he considered that the police would still have difficulty in obtaining the information they needed to mount a prosecution, and they would be reluctant to engage in such a complex process (which would include obtaining properly certified copies of the witness statements, the evidence in the case, the record of the prosecution and the judgement), especially as a conviction rate of over 90% was expected’.
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