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Evidential Test

Definition

The threshold question that asks whether there is sufficient admissible evidence to give a realistic or reasonable prospect of conviction. It is the first gate through which a case must pass before a public interest assessment is made.

Question asked
Is there sufficient admissible evidence for a realistic prospect of conviction
Order
First gate, applied before the public interest test
Applies to
Prosecutorial charging decisions
Outcome if failed
Case does not proceed regardless of public interest

Common questions

What happens if a case passes the evidential test but fails the public interest test?+

The case can still be discontinued even though the evidence is sufficient, because prosecutors weigh whether proceeding serves the public interest, considering factors such as the offence's seriousness, the suspect's circumstances, and the harm caused.

Is the evidential test the same as the standard used at trial?+

No. The evidential test asks whether a realistic or reasonable prospect of conviction exists, a lower threshold applied by the prosecutor when deciding whether to charge. The trial itself applies the higher standard of proof beyond reasonable doubt.

Related terms

Case Attrition
The cumulative reduction in the number of criminal matters as they pass from offence committed through reporting, recording, charging, and trial to...
Courtroom Workgroup
The informal cooperative relationship among judges, prosecutors, and defence lawyers who regularly interact in the same court. First described by James Eisenstein...
Nolle Prosequi
A formal decision by the prosecution to discontinue proceedings against a defendant, often recorded as an entry in the court record. It...
Plea Bargain
An agreement between prosecution and defence in which the defendant pleads guilty, typically in exchange for a reduced charge, a sentencing concession,...
Prosecutorial Discretion
The power of a public prosecutor to decide whether to charge a suspect, what charges to bring, and on what terms to...

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