Prosecution: Comparative Aspects

In the United States, prosecution—except for the federal system—is organized locally; prosecutors are elected or appointed, frequently on the basis of political preference. By contrast, in Europe the prosecutorial corps is typically structured hierarchically on a nationwide or statewide basis. Prosecutors have the status of civil servants but lack judicial independence. Ultimate responsibility for the selection and appointment of prosecutors resides in a government-level official, usually the minister of justice. Appointment and advancement of local prosecutors are largely independent of political considerations and are based on performance in examinations and on merit in service. Young lawyers usually begin their prosecutorial career soon after completing their legal training, which includes some practical experience as an intern in a criminal court and/or prosecutor's office. Many prosecutors follow the prosecutorial career pattern until retirement. On the Continent, it is quite unusual for a prosecutor to become a private attorney, a law teacher, or a full-time politician.

According to legal theory, the prosecutorial function belongs to the executive branch of government. It is thus the minister of justice who is ultimately responsible for the organization of criminal prosecution. The minister also has the authority (rarely used) to issue general as well as specific instructions to prosecution personnel.

In marked contrast to American prosecutors, their continental counterparts display a strong affinity with the judiciary. They share attitudes and perceptions, and prosecutors see themselves more as detached officers of the law than as partisan advocates. In some countries, it is even customary for a career prosecutor to serve as a judge for a few years, and for a judge who aspires to higher office to do a stint as a prosecutor.

The proximity between the offices of judge and prosecutor in Europe has deep historical roots. In the traditional inquisitorial process, which prevailed on the Continent until the nineteenth century, the judge was responsible for investigating a criminal case as well as for deciding on the guilt or innocence of the defendant. He was thus called upon to determine the sufficiency of his own inquiry. The obvious conflict inherent in that dual role called for a separation of functions. In post-Revolutionary France, the procurator, who had since the Middle Ages represented the fiscal interests of the Crown, was entrusted with the prosecution of crime, thus leaving the trial judge to be a neutral arbiter. In the 1840s, this model spread from France to other European countries. The public prosecutor, who remained the sovereign's servant (and therefore continued to be regarded with due suspicion by many liberals), was created from the rib of the judge.

Several characteristics of the Continental prosecutor can be explained as part of that judicial heritage. In some countries, criminal procedure codes expressly require prosecutors to collect and consider exonerating as well as incriminating evidence (Strafprozessordnung 1960 in der Kundmachung der Wiederverlautbarung vom 9. Dezember 1975, Bundesgesetzblatt für die Republik Österreich 1975, stück 211 [Austrian StPO], para. 3; Strafprozessordnung vom 7. Januar 1975, Bundesgesetzblatt 1975 I, p. 129 [German StPO], para. 160, 2; Codice di procedura penale de 22 settembre 1988, Decreto del Presidente della Repubblica n. 447 [Italian CPP], art. 358), and under the French code the public prosecutor is described as a public officer who sees to it that justice is done (Code de procedure penale, Loi n. 57–1426 du 31 décembre 1957 [French CPP], art. 31). If it turns out in the course of the trial that the evidence does not support a conviction, the prosecutor is expected to withdraw charges or to ask the court to acquit the defendant. The prosecutor can (but rarely does) even file an appeal on behalf of the defendant if he regards a conviction or a sentence as unjustified (Austrian StPO, para. 282, 1; German StPO, para. 296, 2). The spirit of objectivity makes it easy for the continental prosecutor to assume a quasi-judicial role in pretrial proceedings (Brants and Field, pp. 144–145 [on Dutch prosecutors]; Frase, pp. 613–615: Goldstein and Marcus, pp. 249–250). Austrian and German prosecutors even assume the function of a judge in imposing noncriminal sanctions in return for refraining from pressing charges (see Austrian StPO, paras. 90a–90m; German StPO, para. 153a).

The English system differs strongly from the Continental approach. In theory, at least, any citizen can bring criminal charges (s. 6 (1) Prosecution of Offences Act 1985). In practice, however, it is the police who investigate the bulk of crime and initiate the prosecution by charging the suspect. At that stage, the case is turned over to the Crown Prosecution Service who determine whether to go forward with the prosecution or to refrain from pursuing it further. The Crown Prosecution Service, which was introduced in 1986, bases its decisions on an independent evaluation of the evidence as well as on policy considerations. With respect to the former, prosecutors are limited to reviewing the written materials presented by the police; they do not themselves talk with victims or interrogate witnesses or the defendant (see Ashworth, pp. 160–172). The Crown Prosecutors' discretion in determining the public interest in prosecution is guided by paragraphs 6.4 and 6.5 of the Code for Crown Prosecutors, which offers two sets of legitimate considerations, one pointing toward prosecution, the other indicating a lack of public interest. Examples of factors suggesting nonprosecution are the lack of serious harm caused by the offense, a long delay since its commission, the old age or bad health of the defendant, and the fact that the offender has put right the loss or harm that was caused. As a rule, however, the Crown Prosecution Service go forward with the prosecution whenever there appears to be sufficient evidence to convict (Fionda, p. 24). Because the police will already have weeded out many cases that do not merit criminal sanction or can be resolved by merely cautioning the suspect, and because police files will reflect the police's assessment of the remaining cases as serious (see Brants and Field, pp. 140–143), public interest considerations do not frequently move the Crown Prosecution Service to drop convictable cases. In 1998–1999, the Crown Prosecution Service discontinued 12 percent of prosecutions in Magistrates' Court; in a further substantial percentage of cases, the prosecution did not offer any evidence, thus bringing about a directed acquittal of the accused (Ashworth, pp. 175–176; Sprack, p. 61).

Although the police, in conjunction with the Crown Prosecution Service, are responsible for prosecuting the majority of English cases, about one-quarter of prosecutions are brought by other agencies or by private individuals. The Inland Revenue Department, for example, investigates and prosecutes cases of tax fraud, and the Department of Health and Social Security prosecutes fraudulent benefit claims (see Lidstone, Hogg, and Sutcliffe, pp. 34–94). Prosecutions by individuals are rare except in cases of common assault. When a private individual brings a case before the criminal court, the Crown Prosecution Service can at any time take over the prosecution, either in order to go forward with it or to discontinue it (ss. 6 (2), 23 Prosecution of Offences Act 1985). The private complainant has no legal recourse against such action (Sprack, p. 62).