NCJ Number
62788
Date Published
1978
Length
23 pages
Annotation
THIS PAPER CONSIDERS THE CONSTITUTIONAL IMPLICATIONS OF CHANGES IN THE SYSTEM OF CRIMINAL PROSECUTION IN ENGLAND AND WALES, ARGUING AGAINST A NATIONAL PROSECUTION SYSTEM INDEPENDENT OF THE POLICE.
Abstract
ACCORDING TO ENGLISH COMMON LAW, EVERY CITIZEN HAS THE RIGHT TO PROSECUTE AND ALL PROSECUTION IS DONE IN THE NAME OF THE KING. THIS BASIC MEDIEVAL ARRANGEMENT HAS EVOLVED INTO THE MODERN PRACTICE IN WHICH THE KING'S CENTRAL POWERS OF PUBLIC PROSECUTION ARE REPRESENTED BY THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS, AND THE POWERS DELEGATED TO THE PEOPLE AND THEIR CONSTABLES HAVE BEEN ADOPTED BY THE POLICE. WHILE THE VAST MAJORITY OF CRIMINAL PROSECUTIONS HAVE A POLICE INVOLVEMENT AT SOME STAGE, THE BASIC PRINCIPLE OF INDIVIDUAL PROSECUTION REMAINS UNALTERED. A 1970 JUSTICE REPORT RECOMMENDED THAT A NATIONAL DEPARTMENT OF PROSECUTIONS BE ESTABLISHED TO RELIEVE THE POLICE OF THEIR PROSECUTORIAL DUTIES BECAUSE POLICE PROSECUTORIAL INVOLVEMENT MAY BE BIASED AND POLICE TRAINING DOES NOT EQUIP OFFICERS FOR OBJECTIVE JUDGMENT. THE AIM OF THE PROPOSED REFORMS IS TO SEPARATE THE TWO DISTINCT FUNCTIONS OF DETECTION AND PROSECUTION. THE CRUCIAL FLAW OF THE PROPOSAL IS THAT THE RETENTION OF PRIVATE INDIVIDUALS' RIGHT TO PROSECUTE, REESTABLISHES THE SYSTEMS, WHILE EXCLUDING ONLY POLICE OFFICERS FROM THEIR BASIC CIVIL RIGHT. THE PROPOSAL INVOLVES REMOVING PROSECUTORIAL AUTHORITY FROM THE POLICE AND GIVING IT TO LAWYERS, WHO MAY BE EVEN LESS QUALIFIED TO FORMULATE COMPREHENSIVE PROSECUTION POLICY OR TO APPRECIATE ALL COMMUNITY FACTORS AND INDIVIDUAL CHARACTERISTICS OF SPECIFIC CASES. MOREOVER, CONFLICT MAY ARISE BETWEEN POLICE AND PROSECUTORS WHO APPROACH ISSUES FROM TWO DISTINCT RESPONSIBILITIES. ANOTHER DRAWBACK TO THE PROPOSAL IS POSED BY CENTRALIZING ALL PROSECUTION AUTHORITY SINCE ONE OF THE ADVANTAGES OF THE PRESENT SYSTEM IS THAT AN INCORRECT OR CORRUPT PROSECUTION DECISION TAKEN BY ONE PROSECUTING AUTHORITY CAN BE REVIEWED BY ANOTHER. A COMPARISON WITH THE PROSECUTORIAL SYSTEM IN EUROPE, BASED ON NAPOLEONIC LAW, ILLUSTRATES THAT THE BRITISH POLICE HAVE GREATER INDEPENDENCE FROM THE GOVERNMENT. FLAWS IN THE PRESENT SYSTEM SHOULD BE RESOLVED BY ATTENTION TO SPECIFICS RATHER THAN BY ATTEMPTS TO RESTRUCTURE THE SYSTEM ITSELF. A BIBLIOGRAPHY IS PROVIDED. (MRK)