the role of prosecution in the screening of criminal …€¦ · investigation of criminal cases....

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RESOURCE MATERIAL SERIES No. 53

I. INTRODUCTION

1. As an introduction, a few preliminaryissues such as the definition of screening,the importance and necessity of screeningand who conducts screening have to beconsidered.

A. Definition2. No legal definition to the phrase “casescreening” is found in any of the legallexicons or any dictionaries that wereferred to. Hence, for the purpose of thisreport, the group has decided to define theword to give it a meaning that can bringforth the practical realities behind theprocess of case screening.

3. Case screening connotes a series ofprocedural steps that have to be followedat different stages of a criminal case by anybody, be it an executive or a judicialauthority, to determine the fate of acriminal case. It is a sieving processfollowed by a decision as to whether toproceed with the criminal case in a courtof law or whether it should be concludedby any other means such as composition,discharge, nolle prosequi, suspension of

prosecution, etc. In essence, this processis sine quo non to due process of law.According to Blacks Law Dictionary thedefinition of due process of law implies “theright of a person affected thereby to bepresent before a court or tribunal whichpronounces judgement upon the questionof life, liberty or property in its mostcomprehensive sense.”

B. Necessity and Importance ofScreening

4. The importance and the necessity ofhaving a system of case screening ismanifold. First, the system will enable thecompetent authorities to properly marshaland vet the evidence of a case beforereferring it to a court of law. Consequentlythe authorities will be able to keep a tabon all trial cases pending before that courtand to minimize the delay in disposing ofsuch cases. Secondly, case screening isimportant in order to meet the ends ofjustice. A criminal case which has not beenproperly screened may result in having thewrong person being accused of a crime orthe actual culprit being discharged fromfurther proceedings. This would stultify

GROUP 2

THE ROLE OF PROSECUTION IN THE SCREENING OFCRIMINAL CASES

Chairperson Mr. Suhada Kalyana Gamalath (Sri Lanka)Co-Chairperson Mr. Hiroki Yamanishi (Japan)Rapporteurs Mr. Winston Cheng Howe Ming (Singapore)

Mr. Abdul Razak Bin Haji Mohamad Hassan (Malaysia)Mr. Menrado Vall Corpuz (Philippines)Ms. Somjai Kesornsiricharoen (Thailand)

Members Ms. Patricia Cordero Vargas (Costa Rica)Mr. Yoshitaka Izumi (Japan)Mr. Hideki Kurashige (Japan)Mr. Yasuo Nakazawa (Japan)Ms. Lithnarong Pholsena (Laos)

Adviser Professor Tomoko Akane (UNAFEI)

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107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

the essence of due process of law. As aresult of case screening, the harassmentthat an accused has to undergo by facingfrivolous or vexatious cases would beobviated. Therefore, case screeningessentially is a device adopted to preservethe quality of justice in any society. Thirdly,case screening also prevents overloadingof the courts with trivial and unimportantcases. This would speed up the trialprocess, preserving the true quality ofjustice. Lastly, screening can resolve theproblems of prison overcrowding.

C. Who Conducts Screening?5. According to various procedures adoptedby different jurisdictions of the world,screening is done by different authoritiesat different stages of a case. In somecountries where cases are tried exclusivelyby a magistrate court or a sessions court,the police is entrusted with the powers ofscreening. Sometimes, such screenings aresubject to the scrutiny of the prosecution.In some jurisdictions, the court is alsoinvolved in this process. For example,where preliminary inquiry is recognized bylaw, case screening is being done by thepresiding magistrate.

6. The role of a prosecutor in casescreening is one of the most importantduties entailed to his job. From the veryinception of his career, he is required tomaster this method by properly studyingall the case records and investigationrecords submitted to him for scrutiny andmaking determination as to whether thematter should be tried by a court of law orwhether other means of disposing the caseshould be employed. In some countries likeKenya, Malaysia and Singapore, policeofficers are employed as prosecutors. Forthe purpose of this report, policeprosecutors will be considered as part ofthe prosecution.

7. The intention of this report is to discuss“case screening” in detail. In addition,attention will also be paid to the problemsrelating to case screening and we wouldendeavor to find practical solutions to theproblems relating to the subject. Newsuggestions to find safeguards to protectand preserve the case screening system willalso be discussed herewith.

II. SCREENING BY THE POLICE1

8. In addition to investigations, the policemay in some instances screens cases.

A. Investigations and Screening9. In almost every criminal justice system,the police plays a leading role in theinvestigation of criminal cases. Therespective legislation on criminalprocedure lays down the police powers toreceive reports from any aggrieved party,record statements from witnesses, visitscene of crime, collect exhibits, records theinvestigation diary, arrest, search andsummons, etc. In most countriesinfluenced by the civil law, the powers ofinvestigation are also bestowed on thepublic prosecutors. However, the initialinvestigations are usually carried out bythe police.

10. The way investigations is conducted bythe police has an important effect on thequality of screening conducted by thepolice, prosecution and the court. In ascreening process, the agency that conductsscreening has to review all the evidencethat has been gathered throughout theinvestigations. An assessment of the casesis made based on the available evidence.Therefore, to a large extent, the accuracyof screening will depend on how well theinvestigations have been conducted. If theinvestigations are lacking, the screeningwill be less accurate.

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B. How Screening is Done11. There are two possible levels ofscreening by the police. The first level isat the initial stage when the firstinformation report is received from anyperson, particularly the victim of the crime.The report is recorded in writing in thebook maintained by the police for thispurpose and the police reviews the evidenceto determine whether any specific offencehas being disclosed. If there is an offencedisclosed, then the report is classifiedaccording to the specific section of the law.However, if there is no offence, the reportmay be closed and no further action istaken. Normally, screening at this stageis done by the senior officer at the policestation or the officer in charge of the policestation. This form of case screening isfound in most countries.

12. The second level of screening occurs ata later stage practiced in several countries,which are influenced by the common lawsystem. A report that discloses a specificcriminal offence is referred to theinvestigation officer, who will take theappropriate action to investigate the casewith the ultimate aim of solving it andarresting the offender. On completion ofthe investigations, he will submit hisinvestigation report to his superior officers,who are experienced investigatorsthemselves having served many years asinvestigators. The latter will peruse thereport to determine whether or not thereis sufficient evidence to substantiate theingredients of the charge relating to thealleged offence committed by the offender.If there is a need to obtain further evidenceor when further clarification is required,the report is returned to the investigationofficer with the appropriate instructions todo so. If by then a suspect is under custody,he may be released on police bail orproduced in the court for order of remandto facilitate further investigation by thepolice. If the investigation officer still

cannot obtain any further evidence tosupplement the earlier evidence hecollected and that the earlier evidencecollected is too weak to substantiate thecharge, the police may then decide to closethe case. In some countries, this appliesto minor offences2.

13. In some countries, for minor cases, thepolice will refer to the cases to court fortrial after screening. However, if the policeis doubtful as to whether the action ofclosing the case is a correct one or not, itmay also seek the advice of the publicprosecutor for direction3. In screeningcases, the police normally considers thestatements of witnesses and the accused,the documents including the expert reportsand the invest igat ion diary. Anexperienced officer will be able to detectwhether the investigation officer hasfabricated the evidence or not. This couldbe done by verifying the investigation diaryof the investigation officer with that of hisofficial diary or pocket book.

14. The police in most countries influencedby the civil law system such as Costa Rica,Laos, the Philippines and Thailand, doesnot screen cases at the second level. InJapan, there is a system of disposition oftrivial cases by the police committed byadult offenders. These offences includetheft, fraud or embezzlement involving asmall amount of money. Instead ofreferring the case to the prosecution, thepolice will submit monthly reports. In theRepublic of Korea, for offences punishablewith imprisonment of less that 30 days ora fine of less than 200,000 won, the policemay, after investigations, send the casedirectly to the court for trial.

C. Evidentiary Standard15. From the deliberation in our groupworkshop, it is found that in most countrieswhere the police decides to submit a chargeto the court, the evidentiary standard of

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proof required is “prima facie“ or“reasonable prospect of securing theconviction”4.

D. Relations with the Prosecutionand The Court

16. In general, the police maintains a goodand close relationship with the prosecution.The prosecutor is the friend and counselorof the police and will always be consideredin that spirit. In addition to specific casesin which the laws requires the police toreport to the prosecution, all other unusualcases and legal problems which presentdifficulty and require legal advice will bereferred to the prosecution. The latter willwillingly assist the police at all times andat all stages of the investigation. Asregards the courts, the role of the police inscreening cases will ensure that the courtsare not clogged with unnecessary andtrivial cases.

III. SCREENING BY THE COURT

17. In some jurisdictions, the court screenscases prior to the actual hearing. However,in some other countries such as Cameroon,China, Costa Rica, India, Indonesia, Japan,Laos, Malaysia, Maldives, Nepal, Pakistanand the Republic of Korea, the court doesnot perform such a function. Screening bythe court can be done in the following ways:

A. Preliminary Inquiry or Hearing18. A “Preliminary Inquiry” is a hearingheld prior to trial during which the state isrequired to produce sufficient evidence toestablish that there is probable cause tobelieve that a crime has been committedand that defendant committed it5.

19. The presiding magistrate performs thefunction of screening6. Its function is notto decide on the guilt of the defendant.Hence, a different degree of proof or qualityof evidence from indictment or convictionat trial is required. Preliminary inquiry

or hearing by the court is observed inGhana, Kenya, Singapore, Sri Lanka andThailand. The majority of these countriesconduct such proceedings to determinewhether there is sufficient evidence toproceed with the trial or refer or committhe case to the High Courts for trial. Forsome of these countries, the purpose is todetermine the truth or falsehood of thecomplaint against the offender.

20. The quantum of evidence to attain suchobjectives differs also in these countries.In some countries, the standard of primafacie is used, whilst in others, it is less thanthe proof of beyond reasonable doubt. InKenya, Subordinate Courts conduct apreliminary inquiry in murder and treasononly. For Ghana, a preliminary hearing isconducted by a community tribunalconsisting of a judge and two lay personsin cases punishable by death and in first-degree felonies. Singapore and Sri Lankalimit such inquires to cases that are triableby the High Court such as murder,trafficking in drugs and rape. In Thailand,a preliminary hearing is, in practice,conducted only for private and not publicprosecution.

21. The mechanics of the proceeding alsovary in these countries because in some, itis akin to a trial whereby the prosecutionand the defense present their evidence insupport of their cause. In others, it issummary in nature because no evidence ispresented by the contending parties andthe court merely relies on the documentssubmitted by the police, the investigatingofficer or the prosecution. In somecountries, a mere request to the magistratefor the transmittal of the case to the HighCourt will suffice.

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B. Summary Proceedings7

22. Another form of screening by the courtis the so-called “Summary Proceedings”which is practiced in Sri Lanka. Theseproceedings are not actual trials. Duringthis process, the Magistrate Courtexamines the complaint filed by the police,the investigating officer or the privatecomplainant. It will then determine foritself whether or not there are well-foundedallegations to proceed with the trial of theperson complained of. If there is none, theMagistrate Court will dismiss the case.Otherwise, it will issue a summon to theaccused for him to answer the charge. Themagistrate also drafts the charge againstthe accused.

C. Pre-trial Conference8

23. In Philippines, the court conductsscreening by way of pre-trial conference.This is conducted before trial to considerthe possibility of a plea bargain, thestipulation of facts, the marking foridentification of evidence by the parties, thewaiver of objections to admissibility ofevidence and such other matters as willpromote a fair and expeditious trial9.

24. One of the purposes of such conferenceis plea bargaining, which is the processwhereby the accused and the prosecutionin a criminal case work out a mutuallysatisfactory disposition of the case subjectto court approval. It usually involves thedefendant pleading guilty to a lesseroffense or to only one or some of the countsof a multi-count indictment in return for alighter sentence than that for the gravecharge. It takes place when an Information(charge sheet or bill of indictment in othercountries) is already filed in court and theaccused had already been arraigned(reading of the Information to the accusedand asking him how he pleads). If hepleads not guilty, the case shall be then setfor pre-trial conference where thepossibility of plea bargaining may be

discussed. However, the conduct of a pre-trial conference is not mandatory becauseit may be held only by the court when theaccused and his counsel agree. Should theaccused opt to plead guilty to a lesseroffense during the pre-trial conference, theapproval of the prosecutor and the victimor offended party must also be soughtbefore the court approves the same10.

D. Plea Bargaining Proceedings11

25. In Sri Lanka, there is a plea bargainingsystem where the prosecution and thedefense discuss the possibility of theaccused pleading guilty to a lesser offense.The approval of the court is required.However, unlike in the Philippines wherethe matter is discussed during the pre-trialstage, in Sri Lanka it is taken up before oreven during the trial where the prosecutionand defense can compromise on this aspect.

IV. SCREENING BY THEPROSECUTION

26. In various legal systems, like in CostaRica, Indonesia, Japan, Laos, Maldives andthe Republic of Korea, public prosecutorsmonopolize public prosecution. In otherwords, only public prosecutors can bringthe case to the court. In China andThailand, although public prosecutors caninitiate prosecution, private prosecution bythe injured party is also allowed. However,in reality, private prosecution in thosecountries is very limited.

27. It is noted that in countries influencedby the common law system like Ghana,India, Kenya, Malaysia, Singapore andZambia, police prosecutors can prosecutecases. However, they are generally limitedto less serious cases. While prosecuting, apolice officer is acting as the representativeof the Attorney General or the Director ofPublic Prosecution. In his capacity as aprosecutor, he is subject to the directionsof the Attorney General or the Director ofPublic Prosecution.

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28. Usually, in screening cases, theprosecution decides whether to prosecutebased on the sufficiency of evidence.Additionally, it may exercise discretion towithdraw the prosecution or suspendprosecution, to do plea bargaining, or toproceed the case through summaryproceedings for the interest of justice.According to the United Nations Guidelineson the Role of Prosecutors, the prosecutorsmust not commence and proceed withprosecution if there is no basis to frame thecharge and in setting aside cases, theprosecutors must fully appreciate therights of the suspects and also the victims.

A. Evidentiary Standard forInitiation of Prosecution

29. Generally, in all countries, one ofsignificant functions of the prosecution isto make either a prosecution order againstalleged offenders or a non-prosecutionorder. It is widely accepted that aninnocent person should not be tried incourt. Nonetheless, the evidentiarystandard for initiation of a criminal trialvaries from country to country. From theanalysis of the group, it was found thatdifferent terminology, such as “prima facie”and “probable cause”, was used to describethe different evidentiary standards.However, the same term can be used todescribe different standards; for example,“prima facie” can mean less than a 50percent chance of conviction in somecountries but more than a 50 percent inothers. Therefore, to analyze the level ofproof, the group will endeavor to usepercentages to explain the standard, whichis only an estimation.

30. In countries like, India, Pakistan,Kenya, Malaysia, Pakistan and Sri Lanka,the evidentiary standard is prima facie.Nonetheless, based on the analysis of thegroup, it is interpreted that the standardfor a prima facie case in those countriesvaries from a 50 percent to 60 percent

certainty of guilt. In Singapore, theprosecution must be satisfied that there isreasonable prospect of securing aconviction before referring the case to thecourt for trial. This is more than a 50percent possible proof of guilt12. In CostaRica, a balance of probability of guilt ormore than a 50 percent certainty of guiltobtained from the investigation is enoughto send a case to trial. In Philippines, theevidentiary standard for the chargeaccording to the law is also probable causewhich is defined roughly as a 40 to 50percent possibility of guilt. In Thailand,there is no written law identifying theevidentiary standard for the charge. Inpractice, the prosecution normally appliesprobable cause as a standard inprosecution. However, such standard, inpractice, as opposed to the standard in thePhilippines, accounts for more than a 70percent prospect of a guilty verdict. In SriLanka, about 10 percent of the cases areclosed at this stage for this reason.

31. In China, Indonesia, Japan and theRepublic of Korea, the laws do not clearlymention the evidentiary standard. Inpractice, the standard is similar to thecourt in rendering a guilty verdict, whichis beyond a reasonable doubt. In Japan,the percentage of cases closed byprosecution for insufficiency of the evidencewas 1.2 percent in 199613. In the Republicof Korea, the percentage of cases closed atthis stage for the same reason was 10.1percent in 199414.

32. The group has found that thedifference in the standard used can beattributed to several reasons such as social,political and cultural differences, includingthe influence of the different legal systems.For example, one factor may be whetherthe prosecution is vested with the powersof investigations. In Japan and theRepublic of Korea where a high standardof proof is used, the prosecution can conduct

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investigations, including interviewingwitnesses and the accused person. Theprosecution can, therefore, decide whetherto proceed with the cases based onadditional facts and circumstances such ast h e v e r a c i t y o f t h e w i t n e s s e s .Consequently, the standard used is higherthan in countries where prosecution is notvested with the powers of investigations.In such instances, the prosecution cannotdetermine the strength of the evidencethrough investigations. The only way is torefer cases to court to have the evidencetested in a trial. More cases are sent tocourt for adjudication as such.

B. Withdrawal of Prosecution33. From our comparative study, theextent of discretionary power exercised byprosecution differs from one state toanother. In some countries like Costa Rica,Laos and the Philippines, the initiation ofcriminal trial is compulsory if there existssufficient evidence to prove that theoffender is guilty to the court. In thesecountries, the prosecution does not havethe discretionary power to withdraw ordiscontinue the prosecution. In Indonesia,the prosecution is obliged to prosecuteregardless of whether the case is minor orserious. One exception is that the AttorneyGeneral of Indonesia himself can exercisethe discretion not to prosecute. In practice,this discretion is rarely exercised.

34. On the other hand, in various legalsystems, the prosecution can be withdrawneven if there is sufficient evidence toproceed for trial. For the purpose of thisreport, the phrase “withdrawal ofprosecution” is defined as:

Any screening process where case iswithdrawn by the prosecution beforefiling the charges or during trial evenif there is sufficient evidence to provethe criminal guilt in view of thecircumstances of the case.

35. It wi l l inc lude the not ion o f“Suspension of Prosecution”, which isuniquely used in Japan and the Republicof Korea, discontinuance of prosecution aspracticed in some countries and nolleprosequi.

1. Suspension of Prosecution36. In Japan, a system known as“Suspension of Prosecution” exists. Theprosecution in Japan has general and vastdiscretion to decide whether to prosecutesuspects. If after considering the character,age and situation of the offender, thegravity of the offense, the circumstancesunder which the offense was committed,and the conditions subsequent to thecommission of the offense, prosecution isdeemed unnecessary, the prosecution maydecide to suspend the case. This practiceis consistent with the “Expediency” or“Opportunity” principle. The percentageof cases closed by the system is 30.9 percentor relatively one-third of all cases in 1996.15

37. Likewise, in the Republic of Korea, theprosecution may decide not to prosecute ifthe criminal trial does not accord publicinterest or is against the public morals ororder or affects national security orimportant national interests after takinginto account the suspect’s age, character,pattern of behavior, intel l igence,circumstance, relationship to the victim,motive, and method for committing thecrime, results and circumstances after thecrime. In 1994, 10.8 percent of the totalcases were dropped by the publicprosecutors16. Moreover, the Republic ofKorea has two particular systemsconcerning the suspension of prosecution:

a) Suspension of prosecution:Decision for juvenileoffenders on the “FatherlyGuidance Condition”

38. Prosecution is suspended on thecondition that the offender, who is under

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the age of 18, is subject to the protectionand guidance of a member of the CrimePrevention Volunteers Committee. This isfor a period of 6 to 12 months after thedecision, depending on the possibility ofcommitting a crime again in the future. Tomake this decision, the prosecution willselect the person to protect the offenderamong the members to the CrimePrevention Volunteers Committee. Theprosecution then hands in a referraldocument to the person and receives fromthat person a certificate stating that he orshe has received the custody of the offenderand would bear the responsibility ofprotecting and guiding the offender. If theoffender does not comply with thevolunteer’s guidance or commits anothercrime, the prosecution may remand thesuspension of prosecution decision andprosecute the offender.

b) Suspension of prosecution:Decision on the “Protectionand Surveillance CommitteeGuidance Condition”

39. This is for adult offenders who needprotection and guidance by experts for aperiod of 6 to 12 months, depending uponthe possibility of the offenders committinganother crime in the future. Theprosecution entrusts the offender to amember of the Protection and SurveillanceCommittee. The offender is subject to theprotection and guidance of the committee.

40. The discretionary authority of theprosecution in Japan and the Republic ofKorea has proven to be a very useful meansin the correction of criminals, the protectionof society, alleviating the case loads of thecourt and preventing the overpopulation ofprisons. It has been widely accepted amongcriminal justice agencies and the public.

2. Discontinuance of Prosecutionor Non-prosecution

41. In various legal systems such as China,Maldives, Singapore and Thailand, theprosecution can withdraw prosecution evenif there is sufficient evidence to prove thecase. In other words, there is no mandatoryprosecution in those countries. However,the detailed practice relating to this processstill differs from one country to another.The number of cases in Singapore wherethe prosecution withdraws prosecution issmall. Most of them are petty or minorcases. Likewise, in Maldives the cases arelimited. In Maldives, the Attorney Generalcan withdraw prosecution after writing tothe office of the President and on hisapproval. In Thailand, according to theinternal regulation of the Office of theAttorney General, the prosecution mustrefer the case to the Attorney General forfurther consideration as to whetherprosecution should be withdrawn.However, in Thailand, this is rarely done.In China, non-prosecution is allowed incases where the circumstances of offenceare minor.

3. Nolle Prosequi42. In some countries like Ghana, Kenyaand Sri Lanka, there is power exercisableby the Attorney General to discontinue thecase from trial at any stage afterindictment and before judgment which istechnically known as nolle prosequi. Ingeneral, it can only be exercised under thedirection of the Attorney General. In thesecountries, there is no obligation for theAttorney General to mention any reason.However, it is exercised only when theinterest of justice and state demandsrecourse to such action.

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43. The grounds for discontinuance orwithdrawal of proceedings are varied andmay include the following circumstances:

(1) Additional evidence found laterproving the innocence of thedefendant;

(2) Amnesty or pardon;(3) False implication of accused person

as a result of political and personalvendetta;

(4) Adverse effects that the continuationof prosecution will bring on publicinterest in the light of changedsituation; and

(5) Unavailability of a prosecutionwitness.

C. Plea Bargaining44. In most countries, plea bargaining isnot practiced. However, in Malaysia, thePhilippines, Singapore, Sri Lanka andZambia, plea bargaining is an acceptablepractice. In Sri Lanka and the Philippines,plea bargaining is subject to the approvalof the court as seen from the part ofscreening of cases by the court. On thecontrary, in Malaysia and Singapore, theprosecution has the full authority to decideon plea bargaining matters to avoidprejudicing the judge. Therefore pleabargaining is done solely between theprosecution and the defense, and it usuallyinvolves negotiations for a reduced numberof charges and or an amendment to lessserious charges in exchange for the guiltyplea. However, it should be noted that, ascompared to the practice in the UnitedStates, plea bargaining does not occur quiteoften in such countries.

D. Alternatives to Ordinary TrialProceedings

45. Besides ordinary trial proceedings,there exist some other alternatives asfollows:

1. Summary Proceedings46. Summary proceedings are proceedingswhereby the court will usually impose onlya fine on the accused as practiced in somecountries such as Japan and the Republicof Korea. In such countries, the publicprosecutors have the authority to decidewhether to proceed the case to the court bysummary proceedings or not17. Throughsuch proceedings, ordinary trial is notproceeded. In summary proceedings, asingle judge adjudicates the case based ondocumentary evidence. It is noteworthythat in Japan, only 4.7 percent of caseswere tried by formal procedure whereas thepercentage of summary procedure wasapproximately 49.2 percent in 199618.Correspondingly, in the Republic of Korea,only 7.4 percent of cases were prosecutedfor formal trial and 42.8 percent of caseswas prosecuted for summary trial in 199419.

2. Imposition of Fines by thePolice or Other AdministrativeOfficials

47. The method whereby the case is settledoutside the courtroom is applied in severalcountries such as China, Malaysia,Singapore, Sri Lanka and Thailand. InChina, a public security organ may imposea penalty, that is a warning, a fine fromone to 200 yuan and detention from 1 to 15days, for petty offences as a finaldisposition. In Malaysia, Singapore andSri Lanka, for minor cases such as trafficoffences, the police or other administrativeagencies will issue a summons to theoffender who has committed the offence.The offender is informed that he is beingoffered a composition fine. If he pays thefine within a certain period, the offense isconsidered settled. Correspondingly, inThailand, for trivial offenses punishablewith only with a fine and offensespunishable with a maximum of one month’simprisonment or a small fine, the police canimpose fines on the offenders. In caseswhere the accused does not agree with the

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imposed fine, the cases will be prosecutedis the court as ordinary cases.

E. Relation with the Police48. In most countries, the prosecution isvested with the power to require additionalinvestigation from the police before makingany decision on the case. The police isobliged to follow the prosecution’si n s t r u c t i o n s r e g a r d i n g f u r t h e rinvestigation to be completed. In general,the police is cooperative to such directions.

49. In most jurisdictions, the screeningauthority of the prosecution is ultimate. Asa result, the police can not contest it.However, there are some exceptions in afew countries. For example, in Thailand,the Chief of the Police Department canbalance the power of prosecution regardingthe non-prosecution order for casesoccurring in Metropolitan Bangkok. Thisnon-prosecution order, if not issued by theAttorney General himself, is not finalunless concurred by the Director-Generalof Police. If he disagrees with the order,the case will finally be reviewed by theAttorney General and, therefore, his order,whether or not to prosecute, will be final.In Indonesia, if the investigator stopsinvestigation, he shall inform the publicprosecutor; likewise, if the prosecutor stopsprosecut ion he sha l l in form theinvestigator. In India, if there is a conflictof opinions between the investigatingofficer and the prosecution as to theviability of prosecution, the ultimatedecision whether to send a case for triallies with the police authority which is theDistrict Superintendent of Police.

V. PROBLEMS IN SCREENING

50. There are several factors, which canaffect the screening process. Some of thesefactors can cause a decrease in the numberof cases screened, resulting in an increasein the number of cases that are proceeded

with in court. The net effect is an increasein the number of cases the court has tohandle. This has overloaded the courts insome countries. The conviction rate mayalso be lower as a less stringent standardof proof is used in the screening process.

51. Excessive screening may result infewer cases. This means that less casesare proceeded with to court for adjudicationas the evidentiary standard used in thescreening process is very high. The neteffect may be that the conviction rate isunusually high.

52. It is important to note that these effectsmay not be considered a problem in acountry if the people of that country do notperceive it as a problem.

53. For ease of discussion, the group hasdivided the problems into two categories:general problems and specific problems. Inthe former, all three components can beaffected. In the latter category, theseproblems are specific to each component.

A. General Problems54. The following are some of the generalproblems relating to screening for thepolice, the prosecution and the court:

1. Manpower and Management ofWorkforce

55. In some countries such as Laos and SriLanka, there are insufficient police officersto handle investigations. This could be dueto several reasons; for example, in somecountries, there is low motivation in thepolice force as there is a lack of incentivesfor officers to work. There are alsoproblems with recruitment as not manypeople are interested in joining the policeforce. Sometimes, even if the manpower issufficient, the organization of the personnelis ineffectively managed. Such problemsaffecting investigations can also hamperthe proper screening of cases. A result of

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such problems is to cause less screening.Some countries face another relatedproblem: police officers that are alreadyexperienced in investigations aretransferred to another department. Thiscan create a depletion in the pool ofcompetent investigating officers, which isvery often hard to replace.

56. This problem affecting the police canalso affect prosecution. In some countries,prosecution is viewed as a difficult job andhence, a lot of very competent graduatesare shying away from the profession.Furthermore, in most jurisdictions,working as a private attorney in the privatesector yields more returns. Therefore,some countries are experiencing a loss ofbright young talents to the private sectors,resulting in an unbalance in the quality ofthe workforce. This can affect effective andaccurate screening.

2. Facilities and Support57. Several developing countries faceproblems relating to technical support andfacilities, such as the availability ofcomputers . These are essent ia lrequirements for the efficient dispositionof cases, including the sieving of theevidence and correct decision-making.Undeserving cases or cases with weakevidence may be proceeded with in courtfor trial due to the lack of such facilities.For example, the police or the prosecutormay be unable to determine theantecedents of the accused due to the lackof facilities and, therefore, be unable todecide properly whether to bring the caseto court.

58. It is essential for the police, theprosecution and the court to be updatedwith the latest legal developments,whether it is case law or a new enactmentby the legislature. In some countries, legalmaterials such as such books andperiodicals are not accessible as facilities

are lacking. As a consequence, there maybe less or inaccurate screening.

3. Abuse of Powers59. Perhaps the greatest problem is theabuse of powers which can affect the fairand equitable screening of cases. Thispossibility exists whenever any agency isgiven the discretion to decide on suchmatters. In particular, problems such ascorruption can also disrupt the screeningprocess. In most jurisdictions, there havebeen incidents where police officers andprosecutors have been charged withcorruption. The prevalence of suchincidents will vary from one country toanother, depending on factors such aswhether the officers are satisfied with thesalary and other incentives that their jobsprovide. It also appears that corruptionoccurs quite often in offences where thepublic officers and the accused have directdealings. There are also cases where thefabrication of evidence has occurred; forexample, drugs were placed in an accused’sbag to secure a conviction. Hence, thisproblem can result in both excessivescreening as well as less screening.

B. Specific Problems

60. The group has identified severalproblems affecting screening. Specifically,they are:

1. The Police61. The primary role of the police is toinvestigate. Hence, the problems inscreening for the police will inevitablyrelate to the investigation process. Theseare:

a) Education62. Generally, in most countries, theeducational requirements for therecruitment of police officers into the policeorganization are less stringent than theprosecution. Unlike the prosecution, there

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is also no requirement that they be lawgraduates. During investigations, thepolice officer in charge has to know the legalrequirements for the particular offencewhich he is investigating so that importantevidence is gathered and not missed. Thisis especially important for the screeningprocess by the police where it has to decidewhether to recommend suspension ofsentence as in some countries20. Withoutadequate training in the law, the screeningprocess is likely to be hampered.

b) Political influence63. The duty of the police is to maintainlaw and order in the country. To ensurestrong and effective command and control,it is necessary that the police be a part ofthe executive. Hence, in most countries,the police is the executive arm of thegovernment. Because of this, the likelihoodof political influence from the executive ishigher as compared to a body that isindependent of the executive21. Thescreening of cases can be affected to someextent.

2. The Court64. Similar problems that affect the policeand the prosecution may also affect thecourts in screening. These will include lackof technical expertise, logistics and legaltraining.

65. Other specific problems that affect therole of the court in screening are as follows:

a) Problems relating topreliminary inquiry

66. In some countries influenced by thecommon law system, the courts screencases by preliminary inquiry. However,there are several problems accompanyingthe use of preliminary inquiry:

(i) Inordinate Delay67. Having another inquiry prior to thetrial proper can cause unnecessary delay,since the inquiry is often a duplication ofthe trial itself. In Sri Lanka, the need toconduct preliminary inquiry for some caseshas caused significant delay amounting toabout one and a half years. Hence,preliminary inquiry can slow downtremendously the whole judicial process.

(ii) Duplication68. Related to the above point is thatpreliminary inquiry creates a lot ofunnecessary work, which is a duplicationto the trial. This problem is compoundedby the fact that in most cases, the accusedwill be committed for trial in the HighCourt in any case.

(iii) Unfair advantage to thedefense

69. In a preliminary inquiry, theprosecution is expected to reveal a lot ofinformation regarding the case against theaccused. However, the accused need notreveal his defense at that stage. In fact, incertain countries, he is allowed to remainsilent. Hence, there is some unfairadvantage to the accused.

(iv)No avenue for appeal70. In some countries, the decision of thejudge not to refer the case for trial cannotbe appealed or reviewed. This means thatthe aggrieved party does not have anyavenue to lodge his complaint.

b) Problems relating toSummary Proceedings

71. In Sri Lanka, the Magistrate Courtsutilize summary proceedings as a way toscreen cases. The Magistrate Courts haveto determine the appropriate charges thatcan be preferred against the accused basedon the facts that are revealed in theproceedings. The problems relating to theuse of such proceedings are:

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(i) Overloading72. In addition to the cases that theMagistrate’s Courts have to handle, theyhave to deal with cases referred to them inthe summary proceedings . Thisoverburdens the courts and createsunnecessary delays.

(ii) Duplication73. Ordinarily, in such proceedings, thepolice will assist the Magistrate’s Courtsin drafting charges. The court then decideson the charges based on these draftcharges. This is a duplication of the work.

(iii)Mere formalities74. The Magistrate’s Courts usually willadopt the charges that have been draftedby the police. Hence, having suchproceedings to determine the charges is infact unnecessary.

(iv)Prejudice75. If the magistrate is of the view thatthe case should be proceeded with for trial,the same magistrate will also hear the case.This means that the magistrate may beprejudiced by the previous knowledge of thecase.

3. The Prosecution76. The prosecution in most countries istasked with the responsibility of examiningthe evidence gathered to support thecharge. It is also involved in the screeningcases to determine whether the casesshould be proceeded with in court for trial.The problems relating to this screeningprocess are as follows:

a) Knowledge in other fields77. With an increase in the sophisticationof the crimes being committed, theprosecution very often are expected toscreen cases which are very complex innature. Some of these cases may requirevery specialized fields of knowledge suchas money laundering, international crimes

and computer crimes. Even with the legaltraining prosecutors received in law school,it is impossible to be trained in every legaland non-legal field. Hence, a lack ofknowledge due to insufficient training inthese areas may result in less screening.Although this affects both the police andthe prosecution, this problem is perhapsmore serious for the prosecution as it hasa supervisory role over the police.

b) Investigative skills andexpertise

78. Prosecutors in countries which havebeen influenced by the common law systemare not vested with the powers ofinvestigation. As such, in countries suchas Singapore, Sri Lanka and Thailand, theprosecutors can only depend on the police’sfiles in coming to a decision whether toprosecute or not. If the evidence of the caseis not accurately reflected, this caninfluence the decision-making process. Inaddition, an understanding of theinvestigation process is essential to themaking of a proper and accurate decision,especially if the prosecution does notinvestigate the case personally. Therefore,it is important for prosecutors to be familiarwith the investigation process in order toproperly exercise the powers of discretionin the screening. Being handicapped in thisarea may affect the screening process.

c) Coordination with police79. For the efficient disposition of cases bythe prosecution, the prosecutors have tomaintain a close working relationship withthe police to ensure proper coordination.This is especially important in countrieswhere the powers of investigation are onlyvested in the police and not the prosecution.In some counties, investigation papers areoften not sent on time to the prosecutor’soffice. If there is insufficient time to screen,the prosecutors can either suspend the caseor conduct a cursory examination of theevidence before sending the file for

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prosecution in court. This can result in bothan increase or decrease in screening.Having mentioned that there should be aclose liaison between the police and theprosecution, there can also be problems ifboth these agencies become to familiar witheach other. Too much familiarity may causea lack of objectivity in the role of thep r o s e c u t i o n i n s u p e r v i s i n g t h einvestigations and screening conducted bythe police.

d) Problems relating to theextent of discretionarypowers

80. Although prosecution has to possesssome discretion to screen cases, the issueis the degree. The problem is that the moreextensive discretion, the easier it is forerrant prosecutors to abuse theirdiscretion. The number of cases screenedmay either be increased or decreased insuch a situation.

81. On the other hand, having a system ofcompulsory prosecution also poses someproblems. In such a system, cases arereferred to courts even if there are verystrong mitigating factors to warrant thecases to be dealt with differently; forexample, the accused is a first offender, thegravity of the offence is not serious or theaccused expresses remorse over hismisdeed. As a result, for some countries,the courts are clogged with cases that aretrivial. Hence, precious court time, whichcould have been used more productively, iswasted in dealing with these cases. Inaddition, the prisons are overcrowded as aresult.

e) Political influence82. Prosecution in most countries is part

of the executive branch of the government.Therefore, like the police, the prosecutioncan be influenced by political pressure notto prosecute even if there is sufficientevidence against the accused or vice versa.

For example, a high-ranking political figureis charged for a crime and pressure maybe put on the prosecutor to discontinue thecase. This problem can affect anyjurisdiction regardless of whether thecountry prac t i ces wi thdrawal o fprosecution or not. The prosecution maybe pressured to continue or discontinue thecase on the basis of insufficiency of evidenceor withdrawal of prosecution. Suchexternal influences can either cause anincrease or decrease in the number of casesbeing screened.

f) Police prosecutors83. In some countries, police prosecutorsare law graduates. However, in some otherjurisdictions, they are not. For the latter,this may cause problems as screening acase to determine whether there issufficiency of evidence requires a goodknowledge o f the law. In somejurisdictions, the promotion of policeprosecutors depends on the police force. Asa result, the exercise of their discretioncould be unconsciously hampered in favorof the police. As a consequence, there willeither be an increase or decrease in theamount of screening conducted by theprosecution.

g) Problems relating to privateprosecution

84. In countries such as Indonesia, Japanand the Republic of Korea, the prosecutionmonopolizes prosecution; i.e., onlyprosecutors can bring a criminal case to thecourts. On the other hand, in somejurisdictions such as Kenya, Singapore andThailand, there is a system of privateprosecution. In these proceedings, theinjured parties bring criminal cases to thecourts themselves. In some countries,private prosecution is restricted to certainoffences, primarily those that violateprivate rights, such as defamation or pettybodily injuries. Elsewhere, the right ofprivate prosecution may be exercised only

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when the prosecution waives prosecutionin a case due lack of public interest orinsufficiency of evidence. In such caseswhere the prosecution has little or noactual control over the proceedings,screenings are lacking as compared to caseswhere the prosecution undertakes theprosecution on its own. There may be lessscreening.

VI. SAFEGUARDS ANDRECOMMENDATIONS

85. From the above analysis, it is clear thatsome of these problems are common to allthree components of the criminal justicesystem. These are:

(1) lack of requisite knowledge andqualifications;

(2) lack of technical facilities andsupport; and

(3) manpower and personnel problems

8 6 . F o r l a c k o f k n o w l e d g e a n dqualifications, there could be improvementin training in the required fields. Thequalifications of recruitment either to thepolice force or prosecution can also beincreased. Facilities can also be improved.For example, in some countries where theuse of computers is highly encouraged,latest case updates can be obtained veryeasily with the use of advanced search toolsin computers. Manpower and personnelissues can be resolved by propermanagement of the workforce andincreasing productivity.

87. For problems in relation to externalinfluence and abuse of powers, oneimportant safeguard is having honorableofficers of high integrity. Hence, there is aneed to consider these factors during therecruitment process. Regular ethicscourses could also be conducted as part ofthe continuous legal training of the policeand the prosecution.

88. The other specific safeguards andrecommendations are as follows:

A. The Police89. There are several ways to providesafeguards for screening by the police.

1. Supervision by the Prosecution90. In several countries, the prosecutionhas a supervisory role over the police. Thepolice can refer the case to the prosecutionif the police wants to seek the advice of theprosecutors regarding difficult points oflaw. Sometimes, advice as regards furtherinvestigations is sought. In somejurisdictions like Maldives and Singapore,if the police wants to withdraw any case,the case has to be referred to theprosecution for concurrence. Therefore, forscreening by the police, the prosecution canact as a check. This can further enhancethe screening process.

2. Improved Co-ordination withthe Prosecution

91. The primary responsibility of the policeis to investigate and to gather evidence forprosecution. One of the primary roles ofthe prosecution is to examine theseevidence to determine whether prosecutionshould be proceeded. For effectivescreening, the prosecution and the policeshould maintain close ties with each other.

3. Limit the Powers of Police inScreening Cases

92. In order to prevent possible abuses,there are two recommendations consideredby the members of group. One of therecommendations is to abolish the powersof the police in screening cases22. The policein such a case has to refer all cases to theprosecution for the prosecutors to decidewhether to proceed with the case. This isdone in several countries like Costa Rica,Maldives and Thailand, where only theprosecutors have the power of screening.The other recommendation is to limit the

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powers of the police in screening cases tosome less serious offences. This has beencone in some countries such as Malaysia.

B. The Court93. The opinion of the majority of the groupis that the court should conduct thescreening of cases. Screening by the courtshould not be abolished as it serves as anadditional safeguard to the screeningconducted by the po l i ce and theprosecution23. However, the grouprecommends enhancing the presentscreening proceedings. The safeguards andrecommendations are:

1. Preliminary Inquiry94. From the foregoing, it is clear thatthere are problems relating to preliminaryinquiry. However, there are also someadvantages in that it can provide a sievein screening undeserving cases. It alsoserves as an additional check by the courtson the prosecution and the police.Therefore, in order to overcome some ofthese problems, some members of the grouprecommend improvements to the existingprocedures; for example, disallow cross-examination at the stage of the preliminaryinquiry which is to be reserved for theproper trial. Preliminary inquiry can alsob e r e s t r i c t e d t o c o m p l i c a t e d o rcontroversial cases where re-screening isrequired. Other members are of the viewthat the preliminary inquiry should beabolished24. This has been done inMalaysia. It is noted that in Sri Lanka,preliminary inquiry was abolished butrevived again subsequently. The reasonsare perhaps peculiar to the circumstancesof the county.

2. Appeal and Judicial Review95. As a means of check on the powers ofthe courts to screen cases, there should besome provisions in law to allow for appealand review to a higher court or body by theaggrieved party. For example, in Thailand,

appeal procedures are available for casesthat are not referred to the court for trial.

3. Abolition of Screening byMagistrates in SummaryProceedings

96. In Sri Lanka, there is a move to abolishthe power of the magistrate to screen casesby way of summary proceedings. Anotherprosecutorial body coming under thesupervision of the Attorney General will bevested with this power. This body willcomprise law graduates.

C. The Prosecution1. Powers of Investigations

97. In order to resolve the problems of thelack of investigative skills on the part ofthe prosecution, the prosecution could bevested with the powers of investigation asin Japan and the Republic of Korea.Alternatively, the prosecution could beallowed to investigate in some specialcases. This is the position of China andIndonesia. This will enhance the ability ofthe prosecutors in screening cases as theycan gain invaluable experience byunderstanding the investigation process.They can also supervise the legality of theinvestigations more effectively. In addition,if the prosecutor personally investigates,he need not depend merely on the files ofthe investigating officer to come to adecision. Hence, the screening by theprosecution is more accurate.

2. Security of Tenure98. As mentioned before, the prosecutionto some extent is part of the executive armof the government. However, in theexecution of its duties, it has to uphold therule of law and protect the public interest.In order to ensure that the office of theprosecut ion i s independent , onerecommendation is to provide security oftenure for the prosecutors. Having securityof tenure means that prosecutors will haveno fear in the exercise of the powers of

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screening. The office of the AttorneyGeneral can be protected by having itentrenched in the constitution. This hasbeen done in countries such as Singapore.Other than constitutional protection, theremoval process could be made moredifficult by legislation or regulations. InJapan, prosecutors can only be removedunder the following circumstances:

(1) voluntary resignation;(2) reaching retirement age;(3) found unsuitable for the position by

the Public Prosecutors QualificationsExaminations Committee; and

(4) disciplinary action.

99. In the Republic of Korea, prosecutorscan be removed from office through animpeachment process initiated before theConstitutional Court or upon conviction ofa crime punishable with imprisonment. Inthe Philippines, the removal of the publicprosecutors rests with the President.However, in practice, they are not usuallyremoved. In Thailand, public prosecutorsusually hold office until they reach theirretirement age of sixty. They can beremoved by the Public ProsecutorCommission.

3. Checks and Control100. To prevent possible abuses during thescreening of cases, there is a need to havesome checks and control. There are twotypes of checks. One is external and theother is internal. External checks on theprosecution can include the following:

a) Check by an independentbody

101. Abuses in the screening process couldbe taken up to an independent body thatserves like an ombudsman. There areseveral examples in various countries. InJapan, if the prosecutor decides not toprosecute and the victim is not satisfiedwith this decision, the latter can appeal tothe Prosecution Review Committee, which

consists of lay persons25. After theCommittee receives the application, it willexamine the case and return a verdict. Ifthe Committee rules that the non-prosecution is not proper, the prosecutionhas to reconsider its original position. Inthe Republic of Korea, a constitutionalpetition may be made to the ConstitutionalCourt if the decision of the prosecutionamounts to a violation of fundamentalrights. In the Philippines, the appeal ismade directly to the Secretary of Justiceas to the propriety of non-prosecution. Ifthe decision of non-prosecution amounts toan abuse of discretion, the aggrieved partycan file a complaint to a Tanodbayan whocan sanction an erring public official. InChina, there exists a Standing Committeeof the People’s Congress which can reviewcases if a complaint is made to theCommittee. A system of a slightly differentnature but similar in effect exists in theUnited States. A “Grand Jury,” whichconsists of lay persons representing thecommunity, decides whether a personshould be indicted after listening to theevidence as presented by the prosecution.One of the functions of this system is toserve as a check on the prosecution’sdiscretionary power.

b) Media scrutiny102. The media plays a significant role inmodern criminal justice administration. Inreporting news about crimes, the media cancreate public interest and awareness whichin turn serves as a check on the prosecutionin the exercise of its discretion. Hence, asa result of media scrutiny, the prosecutionis accountable to the public in its decision-making process. In addition, in Thailand,when there is a non-prosecution decision,the Attorney General as a policy will makeavailable the reasons for non-prosecutionto the media . Th is wi l l ensuretransparency. The group also holds theview that the media can protect theindependence of the prosecution. However,

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t h e r e i s a n e e d t o p r e v e n tsensationalisation by the media. Themedia should be responsible in its reportingof cases. In this respect, there are laws insome countries where the newspapers areprevented to report the names of thevictims of sexual offences.

c) Interdepartmentalconsultation

103 . Per iod i c in terdepartmenta lconsultation should be conducted amongthe institutions in the criminal justiceadministration. The aim is to developpolicies and guidelines to minimize oreliminate interference or destruction aswell as to monitor and evaluate theimplementation of such policies andguidelines.

d) Judicial action104. Another possible means of controllingthe use of discretion is to utilize judicialproceedings. In Japan and the Republic ofKorea, the codes of criminal procedureprovide that if a prosecutor declines toprosecute an offender for an offencerelating to the abuse of official power orfor a violation against a citizen by a lawenforcement officer, the complainant canrequest the court to re-examine the caseand commit it for formal trial. If suchrequest is granted, a private lawyer willbe appointed by the court to exercise theprosecutor’s function.

e) Internal checks105. Internal checks can include thefollowing:

(i) Check by higherauthority

106. In most jurisdictions, there exist someform of internal control. Within theprosecution, there can be checks bysuperior officers. In Singapore and thePhilippines, junior officers are required toobtain the concurrence and approval of

senior prosecutors in discontinuing cases.Dissatisfied complainants can also appealto a competent High Public Prosecutor’sOffice or to the Attorney General for review.In Japan, the public prosecutor generallyhas to seek the approval of the senior publicprosecutor on whether to proceed withprosecution or not. If the aggrieved partyis still not satisfied, there is an additionalcheck of appeal to a higher supervisoryauthority in the organizational structure.In the Republic of Korea, if the decision ofnon-prosecution by the District PublicProsecutor’s Office is not satisfactory, therecan be an appeal to the High PublicProsecutor’s Office. There can also be afurther appeal to the Supreme PublicProsecutor’s Office. This system of appealis similar to the appeal in courts. An appealto the Constitutional Court is also possibleas a final resort. In China, the non-prosecution order made by the People’sProcuratorate is delivered to the publicsecurity organ, which can review thedecision.

(ii) Code of ethics107. Drawing up a set of ethics (code orregulation) for the prosecution stipulatingthe standards expected of the prosecutionin the performance of its duties with thenecessary sanctions for its implementationis highly recommended. Senior officerswithin the department can administer thesanctions.

4. Enhance the Discretion toWithdraw Prosecution

108. As discussed previously, it appearsthat if there is a system of withdrawal ofprosecution, there is a greater chance forabuse. For example, in coming to a decisionto withdraw prosecution even if there issufficient evidence, it may be difficult tounderstand the reasons why the case waswithdrawn. This means that theprosecution can consider factors notrelevant. The group, however, does not

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recommend abolition of withdrawal ofprosecution for the following reasons:

(1) Sometimes, bringing a case to courtfor prosecution may not be the bestso lu t i on in the v i ew o f thecircumstances of the case. These areminor offences or offences relating toyoung offenders. Withdrawingprosecution in these cases could givea chance to the offender to reform andreintegrate into society;

(2) Without withdrawal of prosecution,all cases except those with weak orno evidence are referred to court.This would include minor cases suchas the theft of small items ofinsignificant value. This willoverload the court with unnecessaryand trivial cases. In addition, thiswill increase the time frame forhearing cases; and

(3) Having a system of withdrawal ofprosecut ion can prevent theovercrowding of prisons. Beforesuspension of prosecution wasintroduced in 1884 in Japan, theprisons were overcrowded and a greatamount of financial burden wascaused to the government. Thisproblem was resolved with theintroduction of this system.

109. From the above analysis, it is clearthat the benefits outweigh the possibleabuses. In Costa Rica where withdrawalof prosecution is currently not practiced, anew legislation providing for suspension ofprosecution will be in force in the nearfuture26. In any case, abolishingwithdrawal of prosecution may not preventthese abuses completely. The prosecution,if corrupt, can have the case withdrawn onthe basis of no evidence even if there is infact sufficient evidence to proceed with thetrial. Hence, the group is of the view thatthe practice of withdrawal of prosecutionshould continue with the additionalsafeguard that all decisions of the

prosecutors be accompanied with reasons.The reasons should be documented so thatif need be, the basis of withdrawal ofprosecution can be made known to thevictim or any other interested party. Thisw i l l e n s u r e t r a n s p a r e n c y a n daccountability in the decision-makingprocess.

5. Police Prosecutors110. In some countries where policeprosecutors are not law graduates, thereare steps to slowly reduce the number ofpolice prosecutors. This to achieve 100percent legally trained prosecutors.Additionally, it will also enhance thecontrol of the prosecution. However, thegroup also recognizes the importance of theinstitution of police prosecutors in somejurisdictions and the need to preserve it.For these countries, it is recommended thatin order to further enhance screening,police prosecutors should receive sufficientlegal training, especially if they are not lawgraduates. The office of the policeprosecution should also be independentfrom the police so that the discharge of itsduty is not faltered by loyalty issues.

6. Private Prosecution111. The group is of the view that thesystem of private prosecution should beretained for two reasons. First, it canresolve the manpower problems affectingthe prosecution. Secondly, privateprosecution can be considered a safeguard;for example, when public prosecution isrefused, the injured party can instituteprivate prosecution. To resolve theproblems of private prosecution, it isrecommended that some improvements bemade to the existing system. For example,in Thailand, all private prosecutions haveto be screened by a preliminary inquiry. Insuch a case, the court can provide thescreening which is lacking.

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VII. CONCLUSION

112. As discussed in this paper, casescreening is a practice sine quo non tobuilding up an effective criminal justicesystem in any society. It essentially helpsto reduce the workload of a criminal courtand consequently, prevents delay in thedisposition of cases. The foregoing chaptershave discussed, inter alia, the need and theimportance of having a proper screeningsystem, which authority should be vestedwith the power to carry out screening in acriminal case and a comparative analysisof the different systems of screenings. It isindubitable that the prosecution in manycountries plays a very vital role in casescreening. The prosecution is acting as aquasi-judicial entity, operating at anintermediate position between theexecutive and the courts. The prosecutionwith a proper legal background can decidebest what cases should be brought for trial.At the same time, the prosecution is in thebest position to decide what cases shouldbe withheld from adjudication by thecourts. Since the prosecution has a directresponsibility to a trial court, he is expectedto carry out the screening carefully. Thathelps to save criticism and humiliation forbringing frivolous cases for trial. At thesame time, in the eye of the public, he willbe able to preserve his professionalintegrity. Moreover, this will help to keepa firm tab on the cases pending for trialbefore a court. Case load will be lessened.Publ ic funds wi l l not be wasted.Government ’s co f f e r w i l l no t beoverburdened. The prisons will not beovercrowded. Consequently, justice willnot only be done but seen to be done.Hence, it is the consensus of the group thatthe power of the prosecution in casescreenings should be strengthened toenable the prosecution to discharge itsduties more professionally, objectively,legally and independently. However, thisshould not be misapprehended as a

statement to undermine the importance ofhaving the police and the court alsoinvolved in case screenings at differentstages of a criminal case. After all, forscreening, the most important componentparts of the criminal justice system are thepolice, the prosecution and the court.

113. The final part of this report is devotedto consider the various problems andsafeguards relating to case screening. Inconsidering the nature of the problemsrelating to screening, what is easilydiscernible is that the problems inscreening could be due to various reasons.Sometimes, these reasons are peculiar to asociety. For instance, manpower problems,problems relating to lack of technicalfacilities, etc. could be directly attributableto the economic and social conditions ofeach society. In the circumstances, anymove to eliminate these problems shouldbe considered in the backdrop of theeconomic development of a society.

114. However, some other major ethicaland moral problems also have seriousimpact on case screening. For instance, thenon-avai labi l i ty of constitutionalsafeguards providing an independentposition to the authorities involved in casescreening and the possibility of havingsome room for political or extraneousinfluences on case screening authorities,etc. are viewed as serious problems by thegroup. It is the consensus of the group thatthese problems can be resolved by makinga firm joint commitment by a society tofight these social evils. One effective wayof achieving this goal will be by introducingfirm legal safeguards and entrenchedclauses to the constitution to protect andnurture the case screening authorities. Itis important to acknowledge sincerely theseproblems are not stemming out of basicsocial problems. Therefore, we believe thateach society and all governments shouldf i n d o u t t h e s a f e g u a r d s a n d

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recommendations to make it possible.These matters are discussed in the paper.Of course, they are neither perfect norconsummate the whole issue fully.However, we hope that they may be of somehelp to find some realistic measuresestablish effective criminal justice systemsin the global village.

ENDNOTES

1 In this report, the word “Police” refersto police officers only, excluding policeprosecutors.

2 In some countries, all serious cases arereferred to the public prosecutor for hisadvice and approval to withdrawprosecution. This means that theProsecution screens the case.

3 According to our definition, if theprosecution’s concurrence is needed towithdraw prosecution, screening is doneby the prosecution.

4 The group has found that even if thesame term is used in different countries,the standard is not the same. Pleaserefer to discussion under the topic:Evidential Standard for Initiation ofProsecution under Screening by theProsecution.

5 Definition in Black’s Legal Dictionary,5th Edition.

6 In Costa Rica and France, an examiningjudge plays a role in screening. Thisfunction is similar to the role of thepresiding magistrate conductingpreliminary inquiry.

7 Please note that the phrase “SummaryProceedings” used in this context refersto the procedures adopted by SriLankan courts to screen cases. It isdifferent from the usual summaryproceedings as in Japan as it iscommonly known.

8 Please note that the phrase “Pre-trialConference” used in this context refersto the procedures adopted by Philippinecourts to screen cases.

9 Please refer to, Rule 118, section 1 ofthe Rules on Criminal Procedure—Philippines, which reads as follows:“Pre-trial when proper—To expedite thetrial, where the accused and counselagree, the court shall conduct a pre-trialconference on the matters enumeratedin section 2 hereof, without impairingthe rights of the accused”. Further,Rule 118, section 2, reads as follows:“Pre-trial conference; subjects—Thepre-trial conference shall consider thefollowing:(a) Plea bargaining;(b) Stipulator of facts;(c) Marking for identification of evidence

of the parties;(d) Waiver of objections to admissibility

of evidence; and(e) Such other matters as will promote a

fair and expeditious trial.10 Rule 116, section 2, reads as follows:

“Plea of guilt to as lesser offence—Theaccused, with the consent of theoffended party and the fiscal, may beallowed by the trial court to plead guiltyto a lesser offence, regardless of whetheror not it is necessarily included in thecrime charged or is cognizable by a courtof lesser jurisdiction than the trial court.No amendment of the complaint orinformation is necessary. A convictionunder this plea shall be equivalent to aconviction of the offence charged forpurposed of double jeopardy.”

11 Please note that phrase “PleaBargaining Proceedings” used in thiscontext refers to the procedures adoptedby Sri Lankan courts to screen cases.The meaning may be different from theusual attached to it.

12 In S ingapore , the meaning o f“reasonable prospect” is similar to thestandard of “prima facie” used in SriLanka.

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13 This number represents the percentageof all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statist ics onProsecution for 1996 of Japan”(Research and Training Institute of theMinistry of Justice).

14 This number represents the percentageof all cases the prosecution disposed of,including the offenses such as trafficprofessional negligence and road trafficviolations. Please see, “The WhitePaper on Crime, 1995 of Korea”(Research and Training Institute of theMinistry of Justice).



17 In Japan, the defendant’s consent isrequired. Otherwise, the prosecutionc a n n o t u t i l i z e t h e s u m m a r yproceedings.



20 For example, in Singapore, the policeusually states its views as to whetherthe cases should be suspended orproceeded with.

21 For example, the judiciary is anindependent organ.

22 According to our paper, this refers to thesecond stage of screening by the police.The first part of the screening shouldnot be abolished.

23 In Costa Rica, there is a move to abolishscreening conducted by the courts.

24 In France and Costa Rica, theexamining judge also acts like aninvestigative agency during screening.Such a procedure in Costa Rica will beabolished.

25 All non-prosecution decisions can beappealed to the Prosecution ReviewCommittee.

26 The new law is found in Articles 25 to29, Law No. 7594 of the CriminalProcedure Code.

the role of prosecution in the screening of criminal …€¦ · investigation of criminal cases....

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