Power and Decision to Prosecute

Power to Prosecute
Power to Prosecute

The power to prosecute is usually defined by statute and in some cases, the Constitution of the country. The law usually defines the agency or office which is responsible for criminal prosecution. It further defines the extent and limits of that power.  The law also defines the delegation of that power to other agencies and/or individuals. Some examples are the power to:

  • institute criminal proceedings against any person.
  • prosecute criminal proceedings.
  • take over criminal proceedings instituted by another person.
  • terminate criminal proceedings before judgement.
  • select charges, alter charges, add charges and drop charges.

Powers are limited by:

  • Geographic jurisdiction – the power to prosecute may be defined for a particular area only.
  • Court – the power to prosecute may be specific to a particular court.  This may also be specific to a particular level of court e.g. magistrates court or high court.
  • Law – the power to prosecute may be limited to prosecution of crimes defined in a specific law only.
Decision to Prosecute

Power to ProsecuteThe decision to prosecute or not to prosecute is very important for the Prosecutor.  It also impacts on the defendant, the victim, the witnesses and society generally. An erroneous decision to prosecute or not to prosecute can weaken the confidence of the community in the criminal justice system. The decision to prosecute is therefore not an easy one or an obvious one.  It must receive careful consideration by the Prosecutor and be made objectively.

1. Evidential Test

Before a prosecutor decides to prosecute a case, he must be satisfied that the evidence is strong enough to sustain the charge. In determining whether or not the evidence is strong the Prosecutor examines whether the evidence is admissible and reliable.  He also examines whether there is sufficient evidence to demonstrate that the suspect committed the crime.  The prosecutor further looks at whether there is a reasonable chance of conviction based on the available evidence.

The Prosecutor must therefore review all the evidence brought before him and consider any conflicts in the evidence given by witnesses.  He must also determine whether there is any independent evidence to support witness testimonies.  The prosecutor further looks at the reliability and and credibility of witnesses and the availability of the witnesses to testify in court.  He also has to review the legality and veracity of the evidence before him.

2. Public Interest Test

Power to ProsecuteAfter carrying out the evidential test, the Prosecutor must then subject the case to the public interest test. Here, the Prosecutor must determine whether or not it will be in the public interest to prosecute a particular case. Often the public interest will be clear but in some cases there will be public interest factors both for and against prosecution. There are many factors which have to be considered in deciding whether a prosecution is in the public interest. These include:

  • The nature of the offense;
  • The seriousness of the offense;
  • The personal circumstances of the offender and the victim;
  • The antecedents of the offender;
  • The age of the offender and the victim;
  • The interests of the victim;
  • The interests of the community;
  • The impact of the crime;
  • Possible improper motives of a victim or witness;
  • Possible deterrent value of prosecution;
  • Undue hardship caused to the offender;
  • The risk of the offender committing the offence again;
  • Excessive cost of prosecution in relation to the seriousness of the offense;
  • The probability of conviction;
  • The alternatives to prosecution (if any);
  • Recommendations of the law enforcement agency involved; and
  • Any mitigating circumstances.

Author: DidiWamukoya

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