Last week, we looked at the data on how prevalent unpublished Court of Appeal opinions are in the Court’s civil and criminal dockets. Yesterday, we looked at a related question: are published Court of Appeal opinions in civil cases reversed by the Supreme Court at a consistently higher (or lower) rate than unpublished decisions are? We showed that there is no consistent relationship between published and unpublished lower court decisions in civil cases with respect to the likelihood of reversal.
But what about criminal cases? We report the data in Table 427, and clearly, criminal cases are a different story. Criminal cases which were published at the Court of Appeal level were more often reversed than unpublished Court of Appeal cases in twenty-one of the twenty-four years since 1994.
In 1994, published decisions were reversed 44.44% of the time, while unpublished decisions were reversed in 41.18% of cases. In 1995, 75% of published decisions were reversed, but 39.02% of unpublished decisions were. In 1996, the rate for published cases was 57.14% to 35.71% for unpublished decisions. In 1997, 62.5% of published decisions were reversed; 48.15% of unpublished decisions were. In 1998, 41.67% of published decisions were reversed. One-third of unpublished decisions were. In 1999, 57.69% of published decisions were reversed. The reversal rate for unpublished decisions was 40.91%. In 2000, published decisions were reversed 46.43% of the time, while only 25.93% of unpublished decisions were reversed.
2001 was one of the few outlier years – 42.31% of published decisions were reversed and 46.88% of unpublished decisions were. In 2002, 63.41% of published decisions were reversed. The reversal rate for unpublished decisions fell slightly to 40%. In 2003, reversal rates fell on both sides to 50% for published decisions and 32.43% for unpublished decisions. In 2004, 60% of published decisions were reversed, while 32.56% of unpublished decisions were reversed. In 2005, 56% of published decisions were reversed, while only a quarter of unpublished decisions were. In 2006, 73.68% of published criminal decisions were reversed, while 38.24% of unpublished decisions were. In 2007, half of published decisions were reversed, but only 18.18% of unpublished decisions were. In 2008, 58.62% of published decisions were reversed, while the reversal rate on the unpublished side fell to 13.51%.
In 2009, 56% of published decisions were reversed, while only 19.44% of unpublished decisions were. In 2010, the reversal rate for published decisions was 50%. The reversal rate for unpublished decisions was 26.67%. In 2011, the reversal rate for published decisions was 53.33%. The reversal rate for unpublished criminal decisions was 22.22%. In 2012, the two sides converged – 43.24% of published decisions were reversed, and 42.5% of unpublished decisions were. In 2013, two-thirds of published decisions were reversed, while only 34.38% of unpublished decisions were reversed. In 2014, 57.14% of published decisions were reversed. The reversal rate for unpublished cases was 32.35%.
2015 was one of the few years where unpublished decisions were more often reversed – 54.17% for unpublished decisions, 50% for published decisions. In 2016, 61.9% of published decisions were reversed, while 51.61% of unpublished decisions were reversed. Last year, reversals among published decisions fell to 39.13%, while 47.37% of unpublished decisions were reversed.
Join us back here next Thursday as we turn our attention to a new question.
Image courtesy of Flickr by Ken Lund (no changes).