Publication of Prosecutorial Guidelines

Publishing prosecutorial guidelines: promise, risk and reality

Prosecutorial discretion and the publication of prosecutorial guidelines have been in the limelight these last few months, both in news stories and in commentaries, online and in print. The call has been made on a number of occasions for the publication of prosecutorial guidelines, ostensibly on the grounds of transparency and accountability. One apparent spark has been the perception that there has been unequal treatment of persons who face different charges for what appears, sometimes from news reports, to be the same criminal act.

However, the arguments and commentaries ignore the differences that exist, even between separate accused persons in the same case. Each case, and each accused, is rarely exactly the same as another.

Differences in cases

There are often differences, of varying degrees of relevance. In assessing each case, the prosecution must balance consistency against making sure that the action taken is appropriate for the specific accused person in that specific situation. Sometimes leniency may be called for because of the youth of the accused, or immaturity of mind, or prior good conduct. Sometimes the presence of all of such factors may be outweighed by the need to deter similar criminal conduct. Thus, different persons involved in a single case may need to be treated differently. One person may have less culpability because he did less of the criminal act than another. Or profited less. Or had a cleaner record. Only some of these differences would be apparent in the grounds of decision in a case. Still less likely would these differences see the light of day in the limited space of a newspaper report. Without such details, published guidelines would not be of assistance to those who seek to understand how prosecutorial decisions are arrived at.

Scrutiny of the prosecution

But aside from the fact that the push for publication of guidelines rests on examples that in reality involve different circumstances or facts, it is argued as well that publication is needed to ensure transparency and accountability.

It is claimed that transparency requires that decisions of the Public Prosecutor should be subject to scrutiny. In reality, where the decision is to prosecute, scrutiny of the prosecution already takes place in the form of a hearing before the court. The conviction and sentencing of an accused person are determined by the court, not the prosecutor. The commencement of a prosecution does entail consequences for a person who is accused of an offence, even if he is acquitted. But such consequences would arise in any legal system, and can be minimised only by a trial conducted as efficiently and fairly as possible.

As for a victim or his family dissatisfied with the decision of the Public Prosecutor, the publishing of guidelines cannot ultimately assist them either. Whether the evidence uncovered is sufficient to secure a conviction cannot be determined by the publication of guidelines. Furthermore, the interest of the victim or his family is only one of several that need to be considered by the Public Prosecutor in his decision. Any published guideline cannot again provide a comprehensive checklist against which the prosecution’s decision can be measured.

Neither should guidelines be there for the guidance of those who would commit crimes, to know when and to what extent they will be prosecuted. Those who contend they are innocent will not have need of the guidelines: They will fight the case. Rather, such guidelines are sought by those who have committed some offence and seek to bargain their way to secure the least painful outcome for themselves. A person who makes a calculated decision to commit a crime cannot be allowed to benefit from published guidelines: That would be perverse.

Furthermore, the factors relevant to the exercise of discretion are not a hidden secret, accessible only to prosecutors. They are readily discerned by lawyers with a modicum of experience in criminal matters. Even lay persons are able to identify some factors. This is clear in the representations we receive daily from both.

Satellite litigation

What will happen in reality is that published guidelines will simply be invoked by those unhappy with prosecutorial decisions. Challenges will be mounted against decisions– several such attempts have been made, which were fortunately rejected by the courts. The publication of guidelines, with whatever supposed caveats or limitations, will only spur growth in such litigation, which is ultimately not concerned with the guilt or innocence of the accused, but only with procedural points.

An increase in this additional, satellite litigation will mean that court proceedings are often delayed, creating a burden on the court system and all persons involved in the process. We can see cases of such satellite litigation in other jurisdictions.

Successful attempts have been made to compel the publication of specific guidelines, even though general guidance has been made public.

Litigants have also used prosecutorial guidelines to challenge decisions in specific cases, leading to the quashing of the prosecution’s decision to proceed or not proceed.

The instinctive reaction in the face of such risks is to publish guidelines that are so general that they cannot be the basis of a complaint in a specific case. But they would then likely be so broad that they give little or no guidance for a particular set of facts. These guidelines would then serve no practical purpose. Likewise, if they are too precise, they may operate to overly circumscribe the prosecutorial discretion, and obstruct the ability to cater to cases where there is a basis to treat the accused more leniently or more harshly.

Accountability

As for accountability, it is inappropriate to conflate it with the issue of publication of guidelines.

The Public Prosecutor is appointed under the Constitution, with protections laid down as to his removal. The Constitution confers upon him the independent exercise of prosecutorial discretion, which he and his officers guard jealously. That discretion is exercised on the basis of the sufficiency of evidence, and consideration of what is in the public interest.

Public interest does not and cannot mean either popular desire, or the popular vote, or the wishes of government agencies. It is a shorthand way of referring to what is in the broader interest of the country: The concerns or fears of the public, as well as policies on enforcement and security are relevant considerations, but are not exhaustive or determinative.

Publishing guidelines cannot thus be the basis of a check on the Public Prosecutor’s powers. The Public Prosecutor’s decisions are indeed subject to scrutiny since, as the Court of Appeal has laid down, a prosecutorial decision can be quashed by the court if it is shown to have been made in bad faith or it is unconstitutional.

Quashing his decisions on other grounds would not be legitimate because the decision whether to prosecute or otherwise is multi-faceted and requires a balancing of the different factors. Ultimately though, the guarantee of the proper discharge of functions of high constitutional positions cannot just be in the form of legal challenges. Litigation does not shed as clear a light that its practitioners often contend. It can in some instances lead only to distraction and gridlock.

What is important to note is that prosecutorial discretion is exercised carefully and deliberately.

Each day, decisions on prosecution are weighed and made. Our internal guidelines provide a framework for decision-making and consistency, listing out common factors and the approach to be taken, but leaving sufficient flexibility to be lenient to those who merit it, and sterner to those who deserve it.

Almost all decisions are reviewed by at least one other, more senior, officer. Many decisions are considered by the Public Prosecutor himself. Decisions are also reviewed at various times, and in response to representations by the accused person, his counsel, Members of Parliament, the victim, or the victim’s family.

We aim to continue to improve the way we carry out our duties on behalf of the Public Prosecutor.

The publishing of prosecutorial guidelines will not, in current circumstances, give any such improvement.

In our view, in current circumstances, the call for the publication of guidelines is misguided: we remain to be convinced that publication will bring benefit. We will, as we have on other issues, review our position in the light of new facts when they arise. We will act not by way of an impressionistic reaction based on incomplete information, but with full and deliberate consideration of all the relevant factors. But we do understand that there may be a desire to understand in some detail our decisions in certain cases. As we have noted before, we may issue statements to explain our position in a specific case, and to address misconceptions that may arise in such a case about the law and the legal process.

On a broader front, we are exploring ways to foster greater understanding of the criminal law and criminal procedure, without running the risks that at present will accompany the publishing of prosecution guidelines.

We will be organising a Prosecution Week, possibly later this year, to explain the role of the prosecution and criminal law; we will also be explaining more about criminal processes on our website.

One of the first topics will be on sentencing, and the prosecution’s role in that process. These efforts will, we hope, facilitate a better understanding of what we do and why we do it.