Decision (not) to prosecute Flashcards
Three questions to take decision
- Do we have enough evidence? (legal assessment)
- Do we want / have to? (policy assessment)
- Are there alternatives?
Legality principle
- All violations where there is enough evidence must be prosecuted
- Rationales: equality before the law, general deterrence, proper law enforcement
- Definition of public interest in substantive law (crystallization of public ineterest)
- Exceptions: conditional prosecution (conditions instead of prosecution) as de facto discretion of the prosecutor
Opportunity principle
- Prosecutor has discretion to prosecute only those cases that serve current public interest
- Ratuinales: difficult to establish equality (every case is particular), case load (not proper law enforcement), priorize current state policies
- Definition of public interest as dynamic, contemporary: substantive law in light of current affairs / procedural law more autonomous
- Supervision: Art. 12 in NL and CCP in EN
Who decides to prosecute in EN
Usually police (custody officer) who initially charges the suspect (first formal decision of prosecution and of great inportance)
When suspect is charged, then the prosecutor will decide whether to continue
If defendant not charged, prosecutor may start criminal proceedings by issuing a written charge (charging the defendant) or by requisition (informing to appear before a MC to make a plea)
Who decides to prosecute in NL and G
In NL, the PP has the exclusive power to prosecute (police only influences in the gathering of evidence and in the selection of cases)
In G, also PP
Private prosecution?
Yes in EN and G (for limited cases, and it can prosecute a case independently or act alongside the PP)
No in NL (PP exclusive power)
When is the decision taken?
- EN: early in the process / decision to charge at the police station (later in complicated cases, and plea at first appearance: plea gives the defendant a say in the proceedings against him)
- NL and G: at the end of investigations
Which corrective mechanisms exist in the NL?
- Written notice of objection to indictment by defendant (limited)
- Court may in very exceptional cases decide that decision is incompatible with the principles of fair criminal proceedings
- Art. 12: interested party feels that prosecution should consider a more severe crime (Court of Appeal may order (continuation of) prosecution)
- Minister of Justice (through general or specific instructions)
What corrective mechanisms exist in G?
- ‘In between’ procedure: fixed obligatory phase of proceedings (judge decides whether case enters trial based on a sufficient likelihood of conviction)
- Majority of cases pass this test
What corrective mechanisms exist in EN?
- No possibility to review the decision to prosecute
- Decision not to prosecute subject to review to a limited extent (if court finds that discretion was exercised dishonestly or in bad faith)
Indictment and functions
- Official document sent to the defendant
- Functions: inform the defendant of when his case will be dealth with, by which court, and for which criminal offence he has to stand trial
- Often contain main procedural rights
Which is the evidentiary test followed in EN?
Full Code Test (Threshold Test)
Are adjusments to the indictment allowed in G and NL?
Only to a limited extent:
- G: court ultimately decides the content of the indictment (possibilities to add and change charges during trial covered by complex legal provisions)
- NL: judge has no power to change or control the content / possibility to add ‘other offences committed’
Which alternatives (diversion mechanisms) exist?
- Decriminalize conduct in substantive law
- Trial avoidance
- Faster trials (not in the NL, already efficient)
Alternatives to charge a suspect in EN
- Caution: warning given by Police or PP and requires admission of guilt
- Fixed penalty notice: allows the police or PP to demand the suspect to pay a fine for some minor offences
