Prosecutor

What is a Prosecutor?

A prosecutor is the legal representative of the prosecution in states with either the adversarial system or inquisitorial system. They are typically lawyers who possess a law degree and are recognized as suitable legal professionals by the court. Their role is to represent the state or government in criminal trials against defendants, individuals accused of breaking the law.

The Role of Prosecutors

In most Commonwealth Nations, the head of the prosecuting authority is known as the director of public prosecutions (DPP) and is appointed, not elected. In Australia, prosecutors come in distinct species: police sergeants with a traineeship handle minor criminal cases, while Crown Prosecutors represent the state or Commonwealth in serious criminal cases.

Prosecution Landscape in England and Wales

The prosecution landscape in England and Wales is highly varied. The CPS prosecutes on behalf of the Crown and takes forward police investigations. The Director of Public Prosecutions (DPP) plays an administrative role but does not take cases to court. Crown Prosecutors are lawyers who research, advise, prepare cases, and sometimes present them in court.

Other bodies like the Serious Fraud Office and Service Prosecuting Authority can also bring prosecutions independently. These agencies follow their own prosecution policies alongside the Code of Crown Prosecutors. The CPS has a strict code of conduct governing how cases are charged and trials conducted. Deciding to charge a suspect starts the prosecution process, which must meet the Full Code Test with two stages: the Threshold Test is used in urgent cases but must be reapplied at the earliest opportunity.

Consents Required for Prosecutions

In practice, certain types of consent may be required. The range of offences which require consent is wide; a list can be found at Annex 1 of Consents to Prosecute. In England and Wales, there is a statutorily protected common law right for any person to institute a private prosecution under section 6(1) of the Prosecution of Offenders Act 1985.

Some organizations regularly use private prosecutions on a large scale to achieve an institutional goal. For example, the Royal Society for the Prevention of Cruelty to Animals (RSPCA) prosecutes most cases under the Animal Welfare Act 2006. The Post Office also undertook a wide array of private prosecutions against postmasters, leading to a subsequent scandal in which these prosecutions have widely come to be seen as a miscarriage of justice.

When Should the CPS Take Over?

The CPS advise that another prosecuting authority should probably conduct a case if any of the following factors apply: the police did not conduct the majority of the investigation; the police were only involved in overseeing a search, effecting an arrest or assisting other investigators in the conduct of an interview; the other authority is in possession of all the main exhibits; and someone other than a police officer is named on the charge sheet as the person accepting the charge or as the officer in the case.

In New Zealand, most crimes are prosecuted by Police Prosecutors, while the most serious crimes are outsourced to Crown prosecutors. In Scotland, all prosecutions are carried out by Procurators Fiscal and Advocates Depute on behalf of the Lord Advocate, who can direct investigations by Police Scotland.

United States: Election of Prosecutors

In the United States, citizens elect prosecutors. The director of a prosecution office is known by any of several names depending on the jurisdiction, most commonly district attorney. They are responsible for presenting cases against individuals or corporations suspected of breaking the law and direct investigations, guide sentencing, and participate in grand jury proceedings.

Prosecutors in Civil Law Jurisdictions

In civil law jurisdictions, prosecutors are typically civil servants with a university degree in law and additional training. In some countries like France and Italy, they are classed as judges. They can request further investigation, present the case at trial to either the bench or the jury, suggest advisory sentencing guidelines, and have several administrative duties.

Prosecutors in Brazil

In Brazil, public prosecutors form an autonomous body with three ranks: Federal Prosecutors, Circuit Prosecutors, and Associate Federal Prosecutors General. The Prosecutor General tries cases before the Brazilian Supreme Court. State prosecutors practice in lower courts and appellate courts, while military prosecutors have a similar career path.

Prosecutors in France

In France, the Office of the Prosecutor includes a Chief Prosecutor who initiates preliminary investigations and assigns an examining judge to lead formal judicial investigations. The prosecutor plays a supervisory role, defining the scope of crimes being examined by judges and law enforcement forces.

Prosecutors in Germany

In Germany, the Staatsanwalt is a life-tenured public official who heads pre-trial criminal investigations and represents the government in criminal courts. They have the professional responsibility not to withhold exculpatory information.

Prosecutors in Italy

In Italy, prosecutors officiate as custos legis, responsible for ensuring justice is carried out. They are obligated to initiate preliminary investigations once they are informed of a criminal act.

Prosecutors in Japan and Poland

In Japan, public prosecutors have considerable powers of investigation and prosecution. In Poland, the Prokurator Generalny is the chief of the National Public Prosecutor’s Office and the highest-ranking prosecutor office. The structure consists of four levels: Prokuratura Krajowa (National Public Prosecutor’s Office), regional offices, district offices, and a total of 11 provincial offices.

Prosecutors in South Korea

In South Korea, prosecutors are public officials responsible for conducting crime investigations directly or indirectly. They have power to prohibit defendants from leaving the country via an ‘international hold.’

Sweden and China

In Sweden, public prosecutors work out of the Swedish Prosecution Authority and direct police investigations of serious crimes. They can decide arrests and charges on behalf of the public. In the People’s Republic of China, the Public Procurator has duties including supervising law enforcement, conducting criminal investigations, and prosecuting on behalf of the State.

Private Prosecutions

The role of prosecutors extends beyond government agencies; private prosecution is available in some common law systems. In early England, victims could hire a private attorney to prosecute crimes. In Colonial America, public officials dominated the prosecution system, but privately funded prosecutors were significant in the state criminal justice system.

From the adversarial system to the inquisitorial, prosecutors play a pivotal role in ensuring justice is served. Whether it’s through government agencies or private entities, their work is crucial in upholding the law and protecting society.