What a prosecutor is: the role, the systems, the public interest and independence

Crime is treated in most legal systems as a wrong against the community as well as against the victim. The state therefore takes responsibility for deciding whether to pursue it, and the person who does that is the prosecutor. The prosecutor is part of the justice system and holds a public office.

• The client is the public, not the police, the victim, the government of the day or a particular office.
• The duty is to justice. A prosecutor should present the case fairly and firmly, and should not seek a conviction at any price. A conviction that is wrong is a failure, not a win.
• The prosecutor is a gatekeeper. Many cases are stopped, reduced or diverted at the prosecutor’s desk, because the evidence is weak or because prosecution is not in the public interest.
• The prosecutor owes duties to the court, to the suspect and defendant (fairness and disclosure), to victims and witnesses (respect, information and protection) and to the public (confidence in the system).
• The prosecutor is not the defendant’s lawyer and not the victim’s lawyer. Victims have a voice, in many systems growing, but the prosecutor decides the case on the public’s behalf.

Systems are often called adversarial (common-law countries) or inquisitorial (many civil-law countries). Real systems are mixtures, and every country has its own variations. The labels are a starting point.

• In some countries the prosecutor belongs to the judiciary (as a ‘magistrate’) and enjoys judicial-style independence. In others the prosecutor is a civil servant under a ministry.
• Some systems have both public and private prosecution, with limited private routes in some places.
• Some have specialised prosecutors for corruption, organised crime, terrorism, financial crime or children.
• International prosecutors work in courts dealing with genocide, war crimes and crimes against humanity, applying yet another mix of procedures.

The practical lesson is to learn the shape of your own system first: who investigates, who decides to charge, who runs the trial and where the prosecutor sits.

Systems differ in how far the prosecutor has a choice.

• Both exist for good reasons. Legality protects equality before the law and resists political interference. Opportunity recognises that not every offence deserves a prosecution and that resources are limited.
• Discretion needs guidance: published codes, criteria and supervision, so that like cases are treated alike and decisions can be explained.
• Discretion is not whim. A prosecutor must record reasons for important decisions and be ready to explain them to a supervisor, and in some systems to a court or victim.
• Most modern systems blend them, with alternatives to prosecution (cautions, conditional discharges, settlements, diversion) for minor or first offences.

Prosecutors decide whether to take the power of the state to a person’s liberty and reputation. For that reason, most systems say that those decisions must be made free of improper pressure from politicians, the media, the police, the victim, friends or the prosecutor’s own advantage.

• Independence is not isolation. Prosecutors work within a hierarchy, in many places under a chief prosecutor and sometimes under a minister, and are accountable for how they use power.
• Accountability for policy is not control of cases. In many systems the government may set broad policy or priorities but may not direct a decision in an individual case, or may do so only in a transparent, recorded way.
• Pressure comes in forms: public outrage, a powerful suspect, a colleague who is a friend, a victim’s family, a senior who wants a result and the prosecutor’s own wish to win.
• The practical protections are written criteria for decisions, recorded reasons, review by a second prosecutor, rules about conflicts of interest and protections against dismissal for refusing improper instructions.
• An independent prosecutor can still be wrong. Independence is meant to ensure that decisions are made on the right grounds, not that they are always right.

1. Report and investigation: a crime is reported or discovered. The police, and in some systems the prosecutor or an investigating judge, gather evidence.
2. Arrest, detention and early decisions: whether to arrest, hold, release on conditions or issue a summons. The prosecutor may advise or approve.
3. The charging decision: the prosecutor reviews the file and decides to charge, to ask for more inquiries, to use an alternative or to stop. See Module 3.
4. Pre-trial: charges are formally laid, bail and conditions are decided, disclosure takes place and the case is prepared. See Module 4.
5. Plea and trial: the defendant pleads guilty or the case goes to trial, in front of a judge, a panel or a jury. See Module 5.
6. Sentence: the court decides the sentence, with submissions from both sides and, in some systems, from the victim.
7. Appeal and afterwards: a challenge to the verdict or sentence, and sometimes later review. The prosecutor may appeal, respond to an appeal or decide not to resist.

A prosecutor rarely handles one case in isolation: at any moment there are files at every stage. See Module 6.

1. Who investigates crime here, and what is the prosecutor’s role during the investigation?
2. Who decides to charge, on what test, and can the decision be reviewed?
3. Is prosecution mandatory or discretionary, and what alternatives exist?
4. Where does the prosecutor sit: in the judiciary, in a ministry or in an independent body?
5. How is independence protected, and how are prosecutors held to account?
6. What role does the victim have, and what rights do suspects and defendants have?
7. What are the rules on disclosure, bargaining and juries?
8. How do people become prosecutors here, and what is the career like? See Module 7.
9. Where can I watch or read? Public hearings, annual reports of the prosecution service and published codes teach a great deal.