Prosecution Compares with World Rate
(Published in the Mail & Guardian, 22 August 2003)
The release of a Law Commission paper on conviction rates dominated South
African news headlines recently and has caused further consternation about
the functioning of the country’s criminal-justice system.
The study tracked more than 15 000 cases initiated in 1997 and 1998 for a
period of two years. It found that only 6% of serious violent crimes tracked
resulted in a conviction within the study period.
Internationally, however, only a minority of cases reported ever make it
to court, far fewer result in a conviction. The extent of this “sieve effect”,
where weak cases are filtered out at various stages of the investigation and
prosecution varies between countries. But everywhere, substantially more cases
come into the system than leave at the other end.
During the course of investigation, many cases will be determined to be something
other than what they appeared at the time of reporting, and some will turn
out not to be criminal matters at all. Even in cases where a suspect is identified
and charged, it sometimes turns out that the accused is innocent of wrongdoing.
For this reason no one would want a 100% conviction rate and there are no countries
where most of the cases reported to the police wind up in court.
But we do want to ensure that the criminal-justice system diligently applies
itself to the cases that come before it. This requires the use of some form
of performance measurement, usually the calculation of “detection rates” to
measure the success of investigations and “conviction rates” to
measure the success of trials.
International comparisons between “success rates” in criminal
investigations and in prosecutions are difficult because of variations in definitions.
Most jurisdictions tally some sort of “detection rate” or “arrest
rate” as a performance measurement for police detectives, but this indicator
is generated in many different ways.
For example, if a case is withdrawn because the victim refuses to cooperate,
should this case be counted as a police success or failure? Where an arrest
is made on the street by a uniformed police member for possession of drugs,
should this be counted as a “detected” case? What if the case is
cleared up by the confession of an offender incarcerated for something else?
Different jurisdictions answer these questions in different ways.
In order for a crime to be deemed “detected” in England and Wales
a suspect must be identified and notified of the investigation; there must
be sufficient evidence to charge the suspect with a crime; the suspect must
have, in fact, been charged or there must be one of a number of clearly specified
reasons why a charge should not be brought.
In contrast the South African definition of crime detection allows the inclusion
of three kinds of cases: cases referred to court after identification of a
chargeable suspect; cases affirmatively determined by the police to be without
merit; cases withdrawn at the request of the victim with the approval of the
prosecutor before charging a suspect.
In England and Wales in 2001/02, 5 527 082 crimes were reported to the police,
of which 1 291 396 were “detected” under the above definition,
resulting in a detection rate of 23%.
This is comparable to the rate at which cases were referred to court (a stricter
definition of detection) in the Law Commission research, which suggests South
Africa is performing well in this area.
In 2000 the South African Police Service (SAPS) recorded 2 575 617 serious
cases of which 609 928 were referred to court — also a 23% success
rate.
Thus, while it is frightening to think that three-quarters of crimes recorded
by the police never make it to court, this phenomenon is not unique to South
Africa. Indeed, insofar as the comparison is valid, it appears that South African
detectives are doing well by international standards.
Keeping definitional caveats in mind, comparisons of individual crime types
yield a mixed picture. South Africa appears to have performed poorly in murder
investigations in 2001/02, with a reported detection rate of 25%, compared
with the British claim of 87%.
However, the British police only had 886 cases to deal with in the past financial
year, compared with more than 21 000 confronted by the SAPS.
With regard to the rape of women, on the other hand, England and Wales recorded
9 008 incidents and detected 3 723 (41%), a rate that is less than the 49%
claimed by the SAPS, despite the fact that the South African police had more
than five times as many incoming incidents to handle.
Thus, just as in England and Wales, crime detection rates in South Africa
vary considerably according to crime type. Definitional issues make direct
comparisons difficult, but it does not appear that South African detection
rates are egregiously poor by comparison with the British, with the possible
exception of murder.
This is remarkable given the incredible differences in development and resources
between the two countries. South African murder detectives deal with caseloads
that would be unthinkable in the United Kingdom.
And there are many factors that impede the participation of the South African
public in seeing their cases through to the end, such as the inability of poorer
South Africans to absorb the costs involved in multiple court appearances.
Most completed cases that make it to court fall into one of three main categories:
cases withdrawn before the plea, convictions and acquittals. In the Law Commission
research, nearly half of completed cases were withdrawn by the prosecutor before
the plea. This phenomenon is also reflected in the statistics kept by the National
Prosecuting Authority (NPA).
Unfortunately, the reasons for these withdrawals remain unknown. Since police
cooperation is essential from the inception of the case until its final disposition,
it is impossible to assign responsibility for these lost cases to the prosecution
alone.
Of the cases where the defendant was asked to plea, 81% resulted in a conviction
in 2001 and 82% resulted in a conviction in 2002. But these totals include
district court cases, which deal with lesser offences. Looking strictly at
the regional courts, which deal with more serious offences, two-thirds of the
cases for which a plea was entered in 2001 and 2002 resulted in a conviction.
This stands in contrast to the cases tracked by the Law Commission, where
nearly as many cases resulted in acquittals as convictions. Of course, the
NPA figures are calculated on an annual basis, not by the case-tracking system
used by the Law Commission.
In addition, it might be possible that the sample used by the Law Commission,
which only included eight police areas, is not representative of the nation
as a whole, or that the definitions of case disposition categories may differ.
The Law Commission report focused on violent crimes, and the NPA figures include
all crime types.
With the exception of murder, South African conviction rates do not seem to
be out of kilter with those of more developed countries. In addition, despite
increasing caseloads, the number and share of withdrawn cases have declined,
and the number of convictions have gone up.
Of course, the fact that we are not alone in this situation is little comfort
for those hoping to see an offender brought to book. With only six chances
in 100 of seeing a violent criminal locked behind bars, some may argue that
pressing a charge is unlikely to be worth the effort.
It is important to keep in mind, however, that the criminal justice process
is supposed to act like a sieve. Many cases recorded by the police turn out
to be baseless or simply insoluble based on the available evidence, regardless
of the competency of the investigation.
Lack of confidence in the system creates a vicious cycle where complainant
apathy causes cases to be lost, which in turn generates more complainant apathy.
For this cycle to be broken, complainants need to see the big picture and participate
out of a sense of civic duty, not a personal drive for vengeance.
Of course, it is also incumbent on the criminal-justice system to make this
participation as simple as possible. Compelling victims and witnesses to attend
court multiple times without result is a sure formula for reducing the willingness
of the public to come forward.
In the end, it will require the joint commitment of the South African public
and the state to reverse the momentum of disillusion and reclaim the right
to a safe society.
Ted Leggett is a senior researcher for the Institute for
Security Studies.
