RESOURCE MATERIAL SERIES No. 53

GROUP 2

THE ROLE OF PROSECUTION IN THE SCREENING OF CRIMINAL 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)

I. INTRODUCTION prosecution, etc. In essence, this process is sine quo non to due process of law. 1. As an introduction, a few preliminary According to Blacks Law Dictionary the issues such as the definition of screening, definition of due process of law implies “the the importance and necessity of screening right of a person affected thereby to be and who conducts screening have to be present before a court or tribunal which considered. pronounces judgement upon the question of life, liberty or property in its most A. Definition comprehensive sense.” 2. No legal definition to the phrase “case screening” is found in any of the legal B. Necessity and Importance of lexicons or any dictionaries that we Screening referred to. Hence, for the purpose of this 4. The importance and the necessity of report, the group has decided to define the having a system of case screening is word to give it a meaning that can bring manifold. First, the system will enable the forth the practical realities behind the competent authorities to properly marshal process of case screening. and vet the evidence of a case before referring it to a court of law. Consequently 3. Case screening connotes a series of the authorities will be able to keep a tab procedural steps that have to be followed on all trial cases pending before that court at different stages of a criminal case by any and to minimize the delay in disposing of body, be it an executive or a judicial such cases. Secondly, case screening is authority, to determine the fate of a important in order to meet the ends of criminal case. It is a sieving process justice. A criminal case which has not been followed by a decision as to whether to properly screened may result in having the proceed with the criminal case in a court wrong person being accused of a crime or of law or whether it should be concluded the actual culprit being discharged from by any other means such as composition, further proceedings. This would stultify discharge, nolle prosequi, suspension of

326 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE the essence of due process of law. As a 7. The intention of this report is to discuss result of case screening, the harassment “case screening” in detail. In addition, that an accused has to undergo by facing attention will also be paid to the problems frivolous or vexatious cases would be relating to case screening and we would obviated. Therefore, case screening endeavor to find practical solutions to the essentially is a device adopted to preserve problems relating to the subject. New the quality of justice in any society. Thirdly, suggestions to find safeguards to protect case screening also prevents overloading and preserve the case screening system will of the courts with trivial and unimportant also be discussed herewith. cases. This would speed up the trial process, preserving the true quality of II. SCREENING BY THE POLICE1 justice. Lastly, screening can resolve the 8. In addition to investigations, the police problems of prison overcrowding. may in some instances screens cases. C. Who Conducts Screening? A. Investigations and Screening 5. According to various procedures adopted 9. In almost every criminal justice system, by different jurisdictions of the world, the police plays a leading role in the screening is done by different authorities investigation of criminal cases. The at different stages of a case. In some respective legislation on criminal countries where cases are tried exclusively procedure lays down the police powers to by a magistrate court or a sessions court, receive reports from any aggrieved party, the police is entrusted with the powers of record statements from witnesses, visit screening. Sometimes, such screenings are scene of crime, collect exhibits, records the subject to the scrutiny of the prosecution. investigation diary, arrest, search and In some jurisdictions, the court is also summons, etc. In most countries involved in this process. For example, influenced by the civil law, the powers of where preliminary inquiry is recognized by investigation are also bestowed on the law, case screening is being done by the public prosecutors. However, the initial presiding magistrate. investigations are usually carried out by the police. 6. The role of a prosecutor in case screening is one of the most important 10. The way investigations is conducted by duties entailed to his job. From the very the police has an important effect on the inception of his career, he is required to quality of screening conducted by the master this method by properly studying police, prosecution and the court. In a all the case records and investigation screening process, the agency that conducts records submitted to him for scrutiny and screening has to review all the evidence making determination as to whether the that has been gathered throughout the matter should be tried by a court of law or investigations. An assessment of the cases whether other means of disposing the case is made based on the available evidence. should be employed. In some countries like Therefore, to a large extent, the accuracy Kenya, Malaysia and Singapore, police of screening will depend on how well the officers are employed as prosecutors. For investigations have been conducted. If the the purpose of this report, police investigations are lacking, the screening prosecutors will be considered as part of will be less accurate. the prosecution.

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B. How Screening is Done cannot obtain any further evidence to 11. There are two possible levels of supplement the earlier evidence he screening by the police. The first level is collected and that the earlier evidence at the initial stage when the first collected is too weak to substantiate the information report is received from any charge, the police may then decide to close person, particularly the victim of the crime. the case. In some countries, this applies The report is recorded in writing in the to minor offences2. book maintained by the police for this purpose and the police reviews the evidence 13. In some countries, for minor cases, the to determine whether any specific offence police will refer to the cases to court for has being disclosed. If there is an offence trial after screening. However, if the police disclosed, then the report is classified is doubtful as to whether the action of according to the specific section of the law. closing the case is a correct one or not, it However, if there is no offence, the report may also seek the advice of the public may be closed and no further action is prosecutor for direction3. In screening taken. Normally, screening at this stage cases, the police normally considers the is done by the senior officer at the police statements of witnesses and the accused, station or the officer in charge of the police the documents including the expert reports station. This form of case screening is and the investigation diary. An found in most countries. experienced officer will be able to detect whether the investigation officer has 12. The second level of screening occurs at fabricated the evidence or not. This could a later stage practiced in several countries, be done by verifying the investigation diary which are influenced by the common law of the investigation officer with that of his system. A report that discloses a specific official diary or pocket book. criminal offence is referred to the investigation officer, who will take the 14. The police in most countries influenced appropriate action to investigate the case by the civil law system such as Costa Rica, with the ultimate aim of solving it and Laos, the Philippines and Thailand, does arresting the offender. On completion of not screen cases at the second level. In the investigations, he will submit his Japan, there is a system of disposition of investigation report to his superior officers, trivial cases by the police committed by who are experienced investigators adult offenders. These offences include themselves having served many years as theft, fraud or embezzlement involving a investigators. The latter will peruse the small amount of money. Instead of report to determine whether or not there referring the case to the prosecution, the is sufficient evidence to substantiate the police will submit monthly reports. In the ingredients of the charge relating to the Republic of Korea, for offences punishable alleged offence committed by the offender. with imprisonment of less that 30 days or If there is a need to obtain further evidence a fine of less than 200,000 won, the police or when further clarification is required, may, after investigations, send the case the report is returned to the investigation directly to the court for trial. officer with the appropriate instructions to do so. If by then a suspect is under custody, C. Evidentiary Standard he may be released on police bail or 15. From the deliberation in our group produced in the court for order of remand workshop, it is found that in most countries to facilitate further investigation by the where the police decides to submit a charge police. If the investigation officer still to the court, the evidentiary standard of

328 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE proof required is “prima facie“ or or hearing by the court is observed in “reasonable prospect of securing the Ghana, Kenya, Singapore, Sri Lanka and conviction”4. Thailand. The majority of these countries conduct such proceedings to determine D. Relations with the Prosecution whether there is sufficient evidence to and The Court proceed with the trial or refer or commit 16. In general, the police maintains a good the case to the High Courts for trial. For and close relationship with the prosecution. some of these countries, the purpose is to The prosecutor is the friend and counselor determine the truth or falsehood of the of the police and will always be considered complaint against the offender. in that spirit. In addition to specific cases in which the laws requires the police to 20. The quantum of evidence to attain such report to the prosecution, all other unusual objectives differs also in these countries. cases and legal problems which present In some countries, the standard of prima difficulty and require legal advice will be facie is used, whilst in others, it is less than referred to the prosecution. The latter will the proof of beyond reasonable doubt. In willingly assist the police at all times and Kenya, Subordinate Courts conduct a at all stages of the investigation. As preliminary inquiry in murder and treason regards the courts, the role of the police in only. For Ghana, a preliminary hearing is screening cases will ensure that the courts conducted by a community tribunal are not clogged with unnecessary and consisting of a judge and two lay persons trivial cases. in cases punishable by death and in first- degree felonies. Singapore and Sri Lanka III. SCREENING BY THE COURT limit such inquires to cases that are triable by the High Court such as murder, 17. In some jurisdictions, the court screens trafficking in drugs and rape. In Thailand, cases prior to the actual hearing. However, a preliminary hearing is, in practice, in some other countries such as Cameroon, conducted only for private and not public China, Costa Rica, India, Indonesia, Japan, prosecution. Laos, Malaysia, Maldives, Nepal, Pakistan and the Republic of Korea, the court does 21. The mechanics of the proceeding also not perform such a function. Screening by vary in these countries because in some, it the court can be done in the following ways: is akin to a trial whereby the prosecution and the defense present their evidence in A. Preliminary Inquiry or Hearing support of their cause. In others, it is 18. A “Preliminary Inquiry” is a hearing summary in nature because no evidence is held prior to trial during which the state is presented by the contending parties and required to produce sufficient evidence to the court merely relies on the documents establish that there is probable cause to submitted by the police, the investigating believe that a crime has been committed officer or the prosecution. In some and that defendant committed it5. countries, a mere request to the magistrate for the transmittal of the case to the High 19. The presiding magistrate performs the Court will suffice. function of screening6. Its function is not to decide on the guilt of the defendant. Hence, a different degree of proof or quality of evidence from indictment or conviction at trial is required. Preliminary inquiry

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B. Summary Proceedings7 discussed. However, the conduct of a pre- 22. Another form of screening by the court trial conference is not mandatory because is the so-called “Summary Proceedings” it may be held only by the court when the which is practiced in Sri Lanka. These accused and his counsel agree. Should the proceedings are not actual trials. During accused opt to plead guilty to a lesser this process, the Magistrate Court offense during the pre-trial conference, the examines the complaint filed by the police, approval of the prosecutor and the victim the investigating officer or the private or offended party must also be sought complainant. It will then determine for before the court approves the same10. itself whether or not there are well-founded allegations to proceed with the trial of the D. Plea Bargaining Proceedings11 person complained of. If there is none, the 25. In Sri Lanka, there is a plea bargaining Magistrate Court will dismiss the case. system where the prosecution and the Otherwise, it will issue a summon to the defense discuss the possibility of the accused for him to answer the charge. The accused pleading guilty to a lesser offense. magistrate also drafts the charge against The approval of the court is required. the accused. However, unlike in the Philippines where the matter is discussed during the pre-trial C. Pre-trial Conference8 stage, in Sri Lanka it is taken up before or 23. In Philippines, the court conducts even during the trial where the prosecution screening by way of pre-trial conference. and defense can compromise on this aspect. This is conducted before trial to consider the possibility of a plea bargain, the IV. SCREENING BY THE stipulation of facts, the marking for PROSECUTION identification of evidence by the parties, the 26. In various legal systems, like in Costa waiver of objections to admissibility of Rica, Indonesia, Japan, Laos, Maldives and evidence and such other matters as will the Republic of Korea, public prosecutors promote a fair and expeditious trial9. monopolize public prosecution. In other words, only public prosecutors can bring 24. One of the purposes of such conference the case to the court. In China and is plea bargaining, which is the process Thailand, although public prosecutors can whereby the accused and the prosecution initiate prosecution, private prosecution by in a criminal case work out a mutually the injured party is also allowed. However, satisfactory disposition of the case subject in reality, private prosecution in those to court approval. It usually involves the countries is very limited. defendant pleading guilty to a lesser offense or to only one or some of the counts 27. It is noted that in countries influenced of a multi-count indictment in return for a by the common law system like Ghana, lighter sentence than that for the grave India, Kenya, Malaysia, Singapore and charge. It takes place when an Information Zambia, police prosecutors can prosecute (charge sheet or bill of indictment in other cases. However, they are generally limited countries) is already filed in court and the to less serious cases. While prosecuting, a accused had already been arraigned police officer is acting as the representative (reading of the Information to the accused of the Attorney General or the Director of and asking him how he pleads). If he Public Prosecution. In his capacity as a pleads not guilty, the case shall be then set prosecutor, he is subject to the directions for pre-trial conference where the of the Attorney General or the Director of possibility of plea bargaining may be Public Prosecution.

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28. Usually, in screening cases, the certainty of guilt. In Singapore, the prosecution decides whether to prosecute prosecution must be satisfied that there is based on the sufficiency of evidence. reasonable prospect of securing a Additionally, it may exercise discretion to conviction before referring the case to the withdraw the prosecution or suspend court for trial. This is more than a 50 prosecution, to do plea bargaining, or to percent possible proof of guilt12. In Costa proceed the case through summary Rica, a balance of probability of guilt or proceedings for the interest of justice. more than a 50 percent certainty of guilt According to the United Nations Guidelines obtained from the investigation is enough on the Role of Prosecutors, the prosecutors to send a case to trial. In Philippines, the must not commence and proceed with evidentiary standard for the charge prosecution if there is no basis to frame the according to the law is also probable cause charge and in setting aside cases, the which is defined roughly as a 40 to 50 prosecutors must fully appreciate the percent possibility of guilt. In Thailand, rights of the suspects and also the victims. there is no written law identifying the evidentiary standard for the charge. In A. Evidentiary Standard for practice, the prosecution normally applies Initiation of Prosecution probable cause as a standard in 29. Generally, in all countries, one of prosecution. However, such standard, in significant functions of the prosecution is practice, as opposed to the standard in the to make either a prosecution order against Philippines, accounts for more than a 70 alleged offenders or a non-prosecution percent prospect of a guilty verdict. In Sri order. It is widely accepted that an Lanka, about 10 percent of the cases are innocent person should not be tried in closed at this stage for this reason. court. Nonetheless, the evidentiary standard for initiation of a criminal trial 31. In China, Indonesia, Japan and the varies from country to country. From the Republic of Korea, the laws do not clearly analysis of the group, it was found that mention the evidentiary standard. In different terminology, such as “prima facie” practice, the standard is similar to the and “probable cause”, was used to describe court in rendering a guilty verdict, which the different evidentiary standards. is beyond a reasonable doubt. In Japan, However, the same term can be used to the percentage of cases closed by describe different standards; for example, prosecution for insufficiency of the evidence “prima facie” can mean less than a 50 was 1.2 percent in 199613. In the Republic percent chance of conviction in some of Korea, the percentage of cases closed at countries but more than a 50 percent in this stage for the same reason was 10.1 others. Therefore, to analyze the level of percent in 199414. proof, the group will endeavor to use percentages to explain the standard, which 32. The group has found that the is only an estimation. difference in the standard used can be attributed to several reasons such as social, 30. In countries like, India, Pakistan, political and cultural differences, including Kenya, Malaysia, Pakistan and Sri Lanka, the influence of the different legal systems. the evidentiary standard is prima facie. For example, one factor may be whether Nonetheless, based on the analysis of the the prosecution is vested with the powers group, it is interpreted that the standard of investigations. In Japan and the for a prima facie case in those countries Republic of Korea where a high standard varies from a 50 percent to 60 percent of proof is used, the prosecution can conduct

331 RESOURCE MATERIAL SERIES No. 53 investigations, including interviewing 35. It will include the notion of witnesses and the accused person. The “Suspension of Prosecution”, which is prosecution can, therefore, decide whether uniquely used in Japan and the Republic to proceed with the cases based on of Korea, discontinuance of prosecution as additional facts and circumstances such as practiced in some countries and nolle the veracity of the witnesses. prosequi. Consequently, the standard used is higher than in countries where prosecution is not 1. Suspension of Prosecution vested with the powers of investigations. 36. In Japan, a system known as In such instances, the prosecution cannot “Suspension of Prosecution” exists. The determine the strength of the evidence prosecution in Japan has general and vast through investigations. The only way is to discretion to decide whether to prosecute refer cases to court to have the evidence suspects. If after considering the character, tested in a trial. More cases are sent to age and situation of the offender, the court for adjudication as such. gravity of the offense, the circumstances under which the offense was committed, B. Withdrawal of Prosecution and the conditions subsequent to the 33. From our comparative study, the commission of the offense, prosecution is extent of discretionary power exercised by deemed unnecessary, the prosecution may prosecution differs from one state to decide to suspend the case. This practice another. In some countries like Costa Rica, is consistent with the “Expediency” or Laos and the Philippines, the initiation of “Opportunity” principle. The percentage criminal trial is compulsory if there exists of cases closed by the system is 30.9 percent sufficient evidence to prove that the or relatively one-third of all cases in 1996.15 offender is guilty to the court. In these countries, the prosecution does not have 37. Likewise, in the Republic of Korea, the the discretionary power to withdraw or prosecution may decide not to prosecute if discontinue the prosecution. In Indonesia, the criminal trial does not accord public the prosecution is obliged to prosecute interest or is against the public morals or regardless of whether the case is minor or order or affects national security or serious. One exception is that the Attorney important national interests after taking General of Indonesia himself can exercise into account the suspect’s age, character, the discretion not to prosecute. In practice, pattern of behavior, intelligence, this discretion is rarely exercised. circumstance, relationship to the victim, motive, and method for committing the 34. On the other hand, in various legal crime, results and circumstances after the systems, the prosecution can be withdrawn crime. In 1994, 10.8 percent of the total even if there is sufficient evidence to cases were dropped by the public proceed for trial. For the purpose of this prosecutors16. Moreover, the Republic of report, the phrase “withdrawal of Korea has two particular systems prosecution” is defined as: concerning the suspension of prosecution: Any screening process where case is a) Suspension of prosecution: withdrawn by the prosecution before Decision for juvenile filing the charges or during trial even offenders on the “Fatherly if there is sufficient evidence to prove Guidance Condition” the criminal guilt in view of the 38. Prosecution is suspended on the circumstances of the case. condition that the offender, who is under

332 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE the age of 18, is subject to the protection 2. Discontinuance of Prosecution and guidance of a member of the Crime or Non-prosecution Prevention Volunteers Committee. This is 41. In various legal systems such as China, for a period of 6 to 12 months after the Maldives, Singapore and Thailand, the decision, depending on the possibility of prosecution can withdraw prosecution even committing a crime again in the future. To if there is sufficient evidence to prove the make this decision, the prosecution will case. In other words, there is no mandatory select the person to protect the offender prosecution in those countries. However, among the members to the Crime the detailed practice relating to this process Prevention Volunteers Committee. The still differs from one country to another. prosecution then hands in a referral The number of cases in Singapore where document to the person and receives from the prosecution withdraws prosecution is that person a certificate stating that he or small. Most of them are petty or minor she has received the custody of the offender cases. Likewise, in Maldives the cases are and would bear the responsibility of limited. In Maldives, the Attorney General protecting and guiding the offender. If the can withdraw prosecution after writing to offender does not comply with the the office of the President and on his volunteer’s guidance or commits another approval. In Thailand, according to the crime, the prosecution may remand the internal regulation of the Office of the suspension of prosecution decision and Attorney General, the prosecution must prosecute the offender. refer the case to the Attorney General for further consideration as to whether b) Suspension of prosecution: prosecution should be withdrawn. Decision on the “Protection However, in Thailand, this is rarely done. and Surveillance Committee In China, non-prosecution is allowed in Guidance Condition” cases where the circumstances of offence 39. This is for adult offenders who need are minor. protection and guidance by experts for a period of 6 to 12 months, depending upon 3. Nolle Prosequi the possibility of the offenders committing 42. In some countries like Ghana, Kenya another crime in the future. The and Sri Lanka, there is power exercisable prosecution entrusts the offender to a by the Attorney General to discontinue the member of the Protection and Surveillance case from trial at any stage after Committee. The offender is subject to the indictment and before judgment which is protection and guidance of the committee. technically known as nolle prosequi. In general, it can only be exercised under the 40. The discretionary authority of the direction of the Attorney General. In these prosecution in Japan and the Republic of countries, there is no obligation for the Korea has proven to be a very useful means Attorney General to mention any reason. in the correction of criminals, the protection However, it is exercised only when the of society, alleviating the case loads of the interest of justice and state demands court and preventing the overpopulation of recourse to such action. prisons. It has been widely accepted among criminal justice agencies and the public.

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43. The grounds for discontinuance or 1. Summary Proceedings withdrawal of proceedings are varied and 46. Summary proceedings are proceedings may include the following circumstances: whereby the court will usually impose only (1) Additional evidence found later a fine on the accused as practiced in some proving the innocence of the countries such as Japan and the Republic defendant; of Korea. In such countries, the public (2) Amnesty or pardon; prosecutors have the authority to decide (3) False implication of accused person whether to proceed the case to the court by as a result of political and personal summary proceedings or not17. Through vendetta; such proceedings, ordinary trial is not (4) Adverse effects that the continuation proceeded. In summary proceedings, a of prosecution will bring on public single judge adjudicates the case based on interest in the light of changed documentary evidence. It is noteworthy situation; and that in Japan, only 4.7 percent of cases (5)Unavailability of a prosecution were tried by formal procedure whereas the witness. percentage of summary procedure was approximately 49.2 percent in 199618. C. Plea Bargaining Correspondingly, in the Republic of Korea, 44. In most countries, plea bargaining is only 7.4 percent of cases were prosecuted not practiced. However, in Malaysia, the for formal trial and 42.8 percent of cases Philippines, Singapore, Sri Lanka and was prosecuted for summary trial in 199419. Zambia, plea bargaining is an acceptable practice. In Sri Lanka and the Philippines, 2. Imposition of Fines by the plea bargaining is subject to the approval Police or Other Administrative of the court as seen from the part of Officials screening of cases by the court. On the 47. The method whereby the case is settled contrary, in Malaysia and Singapore, the outside the courtroom is applied in several prosecution has the full authority to decide countries such as China, Malaysia, on plea bargaining matters to avoid Singapore, Sri Lanka and Thailand. In prejudicing the judge. Therefore plea China, a public security organ may impose bargaining is done solely between the a penalty, that is a warning, a fine from prosecution and the defense, and it usually one to 200 yuan and detention from 1 to 15 involves negotiations for a reduced number days, for petty offences as a final of charges and or an amendment to less disposition. In Malaysia, Singapore and serious charges in exchange for the guilty Sri Lanka, for minor cases such as traffic plea. However, it should be noted that, as offences, the police or other administrative compared to the practice in the United agencies will issue a summons to the States, plea bargaining does not occur quite offender who has committed the offence. often in such countries. The offender is informed that he is being offered a composition fine. If he pays the D. Alternatives to Ordinary Trial fine within a certain period, the offense is Proceedings considered settled. Correspondingly, in 45. Besides ordinary trial proceedings, Thailand, for trivial offenses punishable there exist some other alternatives as with only with a fine and offenses follows: punishable with a maximum of one month’s imprisonment or a small fine, the police can impose fines on the offenders. In cases where the accused does not agree with the

334 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE imposed fine, the cases will be prosecuted with in court. The net effect is an increase is the court as ordinary cases. in the number of cases the court has to handle. This has overloaded the courts in E. Relation with the Police some countries. The conviction rate may 48. In most countries, the prosecution is also be lower as a less stringent standard vested with the power to require additional of proof is used in the screening process. investigation from the police before making any decision on the case. The police is 51. Excessive screening may result in obliged to follow the prosecution’s fewer cases. This means that less cases instructions regarding further are proceeded with to court for adjudication investigation to be completed. In general, as the evidentiary standard used in the the police is cooperative to such directions. screening process is very high. The net effect may be that the conviction rate is 49. In most jurisdictions, the screening unusually high. authority of the prosecution is ultimate. As a result, the police can not contest it. 52. It is important to note that these effects However, there are some exceptions in a may not be considered a problem in a few countries. For example, in Thailand, country if the people of that country do not the Chief of the Police Department can perceive it as a problem. balance the power of prosecution regarding the non-prosecution order for cases 53. For ease of discussion, the group has occurring in Metropolitan Bangkok. This divided the problems into two categories: non-prosecution order, if not issued by the general problems and specific problems. In Attorney General himself, is not final the former, all three components can be unless concurred by the Director-General affected. In the latter category, these of Police. If he disagrees with the order, problems are specific to each component. the case will finally be reviewed by the Attorney General and, therefore, his order, A. General Problems whether or not to prosecute, will be final. 54. The following are some of the general In Indonesia, if the investigator stops problems relating to screening for the investigation, he shall inform the public police, the prosecution and the court: prosecutor; likewise, if the prosecutor stops prosecution he shall inform the 1. Manpower and Management of investigator. In India, if there is a conflict Workforce of opinions between the investigating 55. In some countries such as Laos and Sri officer and the prosecution as to the Lanka, there are insufficient police officers viability of prosecution, the ultimate to handle investigations. This could be due decision whether to send a case for trial to several reasons; for example, in some lies with the police authority which is the countries, there is low motivation in the District Superintendent of Police. police force as there is a lack of incentives for officers to work. There are also V. PROBLEMS IN SCREENING problems with recruitment as not many people are interested in joining the police 50. There are several factors, which can force. Sometimes, even if the manpower is affect the screening process. Some of these sufficient, the organization of the personnel factors can cause a decrease in the number is ineffectively managed. Such problems of cases screened, resulting in an increase affecting investigations can also hamper in the number of cases that are proceeded the proper screening of cases. A result of

335 RESOURCE MATERIAL SERIES No. 53 such problems is to cause less screening. are lacking. As a consequence, there may Some countries face another related be less or inaccurate screening. problem: police officers that are already experienced in investigations are 3. Abuse of Powers transferred to another department. This 59. Perhaps the greatest problem is the can create a depletion in the pool of abuse of powers which can affect the fair competent investigating officers, which is and equitable screening of cases. This very often hard to replace. possibility exists whenever any agency is given the discretion to decide on such 56. This problem affecting the police can matters. In particular, problems such as also affect prosecution. In some countries, corruption can also disrupt the screening prosecution is viewed as a difficult job and process. In most jurisdictions, there have hence, a lot of very competent graduates been incidents where police officers and are shying away from the profession. prosecutors have been charged with Furthermore, in most jurisdictions, corruption. The prevalence of such working as a private attorney in the private incidents will vary from one country to sector yields more returns. Therefore, another, depending on factors such as some countries are experiencing a loss of whether the officers are satisfied with the bright young talents to the private sectors, salary and other incentives that their jobs resulting in an unbalance in the quality of provide. It also appears that corruption the workforce. This can affect effective and occurs quite often in offences where the accurate screening. public officers and the accused have direct dealings. There are also cases where the 2. Facilities and Support fabrication of evidence has occurred; for 57. Several developing countries face example, drugs were placed in an accused’s problems relating to technical support and bag to secure a conviction. Hence, this facilities, such as the availability of problem can result in both excessive computers. These are essential screening as well as less screening. requirements for the efficient disposition of cases, including the sieving of the B. Specific Problems evidence and correct decision-making. 60. The group has identified several Undeserving cases or cases with weak problems affecting screening. Specifically, evidence may be proceeded with in court they are: for trial due to the lack of such facilities. For example, the police or the prosecutor 1. The Police may be unable to determine the 61. The primary role of the police is to antecedents of the accused due to the lack investigate. Hence, the problems in of facilities and, therefore, be unable to screening for the police will inevitably decide properly whether to bring the case relate to the investigation process. These to court. are: 58. It is essential for the police, the a) Education prosecution and the court to be updated 62. Generally, in most countries, the with the latest legal developments, educational requirements for the whether it is case law or a new enactment recruitment of police officers into the police by the legislature. In some countries, legal organization are less stringent than the materials such as such books and prosecution. Unlike the prosecution, there periodicals are not accessible as facilities

336 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE is also no requirement that they be law (i) Inordinate Delay graduates. During investigations, the 67. Having another inquiry prior to the police officer in charge has to know the legal trial proper can cause unnecessary delay, requirements for the particular offence since the inquiry is often a duplication of which he is investigating so that important the trial itself. In Sri Lanka, the need to evidence is gathered and not missed. This conduct preliminary inquiry for some cases is especially important for the screening has caused significant delay amounting to process by the police where it has to decide about one and a half years. Hence, whether to recommend suspension of preliminary inquiry can slow down sentence as in some countries20. Without tremendously the whole judicial process. adequate training in the law, the screening process is likely to be hampered. (ii) Duplication 68. Related to the above point is that b) Political influence preliminary inquiry creates a lot of 63. The duty of the police is to maintain unnecessary work, which is a duplication law and order in the country. To ensure to the trial. This problem is compounded strong and effective command and control, by the fact that in most cases, the accused it is necessary that the police be a part of will be committed for trial in the High the executive. Hence, in most countries, Court in any case. the police is the executive arm of the government. Because of this, the likelihood (iii) Unfair advantage to the of political influence from the executive is defense higher as compared to a body that is 69. In a preliminary inquiry, the independent of the executive21. The prosecution is expected to reveal a lot of screening of cases can be affected to some information regarding the case against the extent. accused. However, the accused need not reveal his defense at that stage. In fact, in 2. The Court certain countries, he is allowed to remain 64. Similar problems that affect the police silent. Hence, there is some unfair and the prosecution may also affect the advantage to the accused. courts in screening. These will include lack of technical expertise, logistics and legal (iv) No avenue for appeal training. 70. In some countries, the decision of the judge not to refer the case for trial cannot 65. Other specific problems that affect the be appealed or reviewed. This means that role of the court in screening are as follows: the aggrieved party does not have any avenue to lodge his complaint. a) Problems relating to preliminary inquiry b) Problems relating to 66. In some countries influenced by the Summary Proceedings common law system, the courts screen 71. In Sri Lanka, the Magistrate Courts cases by preliminary inquiry. However, utilize summary proceedings as a way to there are several problems accompanying screen cases. The Magistrate Courts have the use of preliminary inquiry: to determine the appropriate charges that can be preferred against the accused based on the facts that are revealed in the proceedings. The problems relating to the use of such proceedings are:

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(i) Overloading and computer crimes. Even with the legal 72. In addition to the cases that the training prosecutors received in law school, Magistrate’s Courts have to handle, they it is impossible to be trained in every legal have to deal with cases referred to them in and non-legal field. Hence, a lack of the summary proceedings. This knowledge due to insufficient training in overburdens the courts and creates these areas may result in less screening. unnecessary delays. Although this affects both the police and the prosecution, this problem is perhaps (ii) Duplication more serious for the prosecution as it has 73. Ordinarily, in such proceedings, the a supervisory role over the police. police will assist the Magistrate’s Courts in drafting charges. The court then decides b) Investigative skills and on the charges based on these draft expertise charges. This is a duplication of the work. 78. Prosecutors in countries which have been influenced by the common law system (iii)Mere formalities are not vested with the powers of 74. The Magistrate’s Courts usually will investigation. As such, in countries such adopt the charges that have been drafted as Singapore, Sri Lanka and Thailand, the by the police. Hence, having such prosecutors can only depend on the police’s proceedings to determine the charges is in files in coming to a decision whether to fact unnecessary. prosecute or not. If the evidence of the case is not accurately reflected, this can (iv) Prejudice influence the decision-making process. In 75. If the magistrate is of the view that addition, an understanding of the the case should be proceeded with for trial, investigation process is essential to the the same magistrate will also hear the case. making of a proper and accurate decision, This means that the magistrate may be especially if the prosecution does not prejudiced by the previous knowledge of the investigate the case personally. Therefore, case. it is important for prosecutors to be familiar with the investigation process in order to 3. The Prosecution properly exercise the powers of discretion 76. The prosecution in most countries is in the screening. Being handicapped in this tasked with the responsibility of examining area may affect the screening process. the evidence gathered to support the charge. It is also involved in the screening c) Coordination with police cases to determine whether the cases 79. For the efficient disposition of cases by should be proceeded with in court for trial. the prosecution, the prosecutors have to The problems relating to this screening maintain a close working relationship with process are as follows: the police to ensure proper coordination. This is especially important in countries a) Knowledge in other fields where the powers of investigation are only 77. With an increase in the sophistication vested in the police and not the prosecution. of the crimes being committed, the In some counties, investigation papers are prosecution very often are expected to often not sent on time to the prosecutor’s screen cases which are very complex in office. If there is insufficient time to screen, nature. Some of these cases may require the prosecutors can either suspend the case very specialized fields of knowledge such or conduct a cursory examination of the as money laundering, international crimes evidence before sending the file for

338 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE prosecution in court. This can result in both For example, a high-ranking political figure an increase or decrease in screening. is charged for a crime and pressure may Having mentioned that there should be a be put on the prosecutor to discontinue the close liaison between the police and the case. This problem can affect any prosecution, there can also be problems if jurisdiction regardless of whether the both these agencies become to familiar with country practices withdrawal of each other. Too much familiarity may cause prosecution or not. The prosecution may a lack of objectivity in the role of the be pressured to continue or discontinue the prosecution in supervising the case on the basis of insufficiency of evidence investigations and screening conducted by or withdrawal of prosecution. Such the police. external influences can either cause an increase or decrease in the number of cases d) Problems relating to the being screened. extent of discretionary powers f) Police prosecutors 80. Although prosecution has to possess 83. In some countries, police prosecutors some discretion to screen cases, the issue are law graduates. However, in some other is the degree. The problem is that the more jurisdictions, they are not. For the latter, extensive discretion, the easier it is for this may cause problems as screening a errant prosecutors to abuse their case to determine whether there is discretion. The number of cases screened sufficiency of evidence requires a good may either be increased or decreased in knowledge of the law. In some such a situation. jurisdictions, the promotion of police prosecutors depends on the police force. As 81. On the other hand, having a system of a result, the exercise of their discretion compulsory prosecution also poses some could be unconsciously hampered in favor problems. In such a system, cases are of the police. As a consequence, there will referred to courts even if there are very either be an increase or decrease in the strong mitigating factors to warrant the amount of screening conducted by the cases to be dealt with differently; for prosecution. example, the accused is a first offender, the gravity of the offence is not serious or the g) Problems relating to private accused expresses remorse over his prosecution misdeed. As a result, for some countries, 84. In countries such as Indonesia, Japan the courts are clogged with cases that are and the Republic of Korea, the prosecution trivial. Hence, precious court time, which monopolizes prosecution; i.e., only could have been used more productively, is prosecutors can bring a criminal case to the wasted in dealing with these cases. In courts. On the other hand, in some addition, the prisons are overcrowded as a jurisdictions such as Kenya, Singapore and result. Thailand, there is a system of private prosecution. In these proceedings, the e) Political influence injured parties bring criminal cases to the 82. Prosecution in most countries is part courts themselves. In some countries, of the executive branch of the government. private prosecution is restricted to certain Therefore, like the police, the prosecution offences, primarily those that violate can be influenced by political pressure not private rights, such as defamation or petty to prosecute even if there is sufficient bodily injuries. Elsewhere, the right of evidence against the accused or vice versa. private prosecution may be exercised only

339 RESOURCE MATERIAL SERIES No. 53 when the prosecution waives prosecution 88. The other specific safeguards and in a case due lack of public interest or recommendations are as follows: insufficiency of evidence. In such cases where the prosecution has little or no A. The Police actual control over the proceedings, 89. There are several ways to provide screenings are lacking as compared to cases safeguards for screening by the police. where the prosecution undertakes the prosecution on its own. There may be less 1. Supervision by the Prosecution screening. 90. In several countries, the prosecution has a supervisory role over the police. The VI. SAFEGUARDS AND police can refer the case to the prosecution RECOMMENDATIONS if the police wants to seek the advice of the prosecutors regarding difficult points of 85. From the above analysis, it is clear that law. Sometimes, advice as regards further some of these problems are common to all investigations is sought. In some three components of the criminal justice jurisdictions like Maldives and Singapore, system. These are: if the police wants to withdraw any case, (1) lack of requisite knowledge and the case has to be referred to the qualifications; prosecution for concurrence. Therefore, for (2)lack of technical facilities and screening by the police, the prosecution can support; and act as a check. This can further enhance (3) manpower and personnel problems the screening process. 86. For lack of knowledge and 2. Improved Co-ordination with qualifications, there could be improvement the Prosecution in training in the required fields. The 91. The primary responsibility of the police qualifications of recruitment either to the is to investigate and to gather evidence for police force or prosecution can also be prosecution. One of the primary roles of increased. Facilities can also be improved. the prosecution is to examine these For example, in some countries where the evidence to determine whether prosecution use of computers is highly encouraged, should be proceeded. For effective latest case updates can be obtained very screening, the prosecution and the police easily with the use of advanced search tools should maintain close ties with each other. in computers. Manpower and personnel issues can be resolved by proper 3. Limit the Powers of Police in management of the workforce and Screening Cases increasing productivity. 92. In order to prevent possible abuses, there are two recommendations considered 87. For problems in relation to external by the members of group. One of the influence and abuse of powers, one recommendations is to abolish the powers important safeguard is having honorable of the police in screening cases22. The police officers of high integrity. Hence, there is a in such a case has to refer all cases to the need to consider these factors during the prosecution for the prosecutors to decide recruitment process. Regular ethics whether to proceed with the case. This is courses could also be conducted as part of done in several countries like Costa Rica, the continuous legal training of the police Maldives and Thailand, where only the and the prosecution. prosecutors have the power of screening. The other recommendation is to limit the

340 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE powers of the police in screening cases to appeal procedures are available for cases some less serious offences. This has been that are not referred to the court for trial. cone in some countries such as Malaysia. 3. Abolition of Screening by B. The Court Magistrates in Summary 93. The opinion of the majority of the group Proceedings is that the court should conduct the 96. In Sri Lanka, there is a move to abolish screening of cases. Screening by the court the power of the magistrate to screen cases should not be abolished as it serves as an by way of summary proceedings. Another additional safeguard to the screening prosecutorial body coming under the conducted by the police and the supervision of the Attorney General will be prosecution23. However, the group vested with this power. This body will recommends enhancing the present comprise law graduates. screening proceedings. The safeguards and recommendations are: C. The Prosecution 1. Powers of Investigations 1. Preliminary Inquiry 97. In order to resolve the problems of the 94. From the foregoing, it is clear that lack of investigative skills on the part of there are problems relating to preliminary the prosecution, the prosecution could be inquiry. However, there are also some vested with the powers of investigation as advantages in that it can provide a sieve in Japan and the Republic of Korea. in screening undeserving cases. It also Alternatively, the prosecution could be serves as an additional check by the courts allowed to investigate in some special on the prosecution and the police. cases. This is the position of China and Therefore, in order to overcome some of Indonesia. This will enhance the ability of these problems, some members of the group the prosecutors in screening cases as they recommend improvements to the existing can gain invaluable experience by procedures; for example, disallow cross- understanding the investigation process. examination at the stage of the preliminary They can also supervise the legality of the inquiry which is to be reserved for the investigations more effectively. In addition, proper trial. Preliminary inquiry can also if the prosecutor personally investigates, be restricted to complicated or he need not depend merely on the files of controversial cases where re-screening is the investigating officer to come to a required. Other members are of the view decision. Hence, the screening by the that the preliminary inquiry should be prosecution is more accurate. abolished24. This has been done in Malaysia. It is noted that in Sri Lanka, 2. Security of Tenure preliminary inquiry was abolished but 98. As mentioned before, the prosecution revived again subsequently. The reasons to some extent is part of the executive arm are perhaps peculiar to the circumstances of the government. However, in the of the county. execution of its duties, it has to uphold the rule of law and protect the public interest. 2. Appeal and Judicial Review In order to ensure that the office of the 95. As a means of check on the powers of prosecution is independent, one the courts to screen cases, there should be recommendation is to provide security of some provisions in law to allow for appeal tenure for the prosecutors. Having security and review to a higher court or body by the of tenure means that prosecutors will have aggrieved party. For example, in Thailand, no fear in the exercise of the powers of

341 RESOURCE MATERIAL SERIES No. 53 screening. The office of the Attorney consists of lay persons25. After the General can be protected by having it Committee receives the application, it will entrenched in the constitution. This has examine the case and return a verdict. If been done in countries such as Singapore. the Committee rules that the non- Other than constitutional protection, the prosecution is not proper, the prosecution removal process could be made more has to reconsider its original position. In difficult by legislation or regulations. In the Republic of Korea, a constitutional Japan, prosecutors can only be removed petition may be made to the Constitutional under the following circumstances: Court if the decision of the prosecution (1) voluntary resignation; amounts to a violation of fundamental (2) reaching retirement age; rights. In the Philippines, the appeal is (3) found unsuitable for the position by made directly to the Secretary of Justice the Public Prosecutors Qualifications as to the propriety of non-prosecution. If Examinations Committee; and the decision of non-prosecution amounts to (4) disciplinary action. an abuse of discretion, the aggrieved party can file a complaint to a Tanodbayan who 99. In the Republic of Korea, prosecutors can sanction an erring public official. In can be removed from office through an China, there exists a Standing Committee impeachment process initiated before the of the People’s Congress which can review Constitutional Court or upon conviction of cases if a complaint is made to the a crime punishable with imprisonment. In Committee. A system of a slightly different the Philippines, the removal of the public nature but similar in effect exists in the prosecutors rests with the President. United States. A “Grand Jury,” which However, in practice, they are not usually consists of lay persons representing the removed. In Thailand, public prosecutors community, decides whether a person usually hold office until they reach their should be indicted after listening to the retirement age of sixty. They can be evidence as presented by the prosecution. removed by the Public Prosecutor One of the functions of this system is to Commission. serve as a check on the prosecution’s discretionary power. 3. Checks and Control 100. To prevent possible abuses during the b) Media scrutiny screening of cases, there is a need to have 102. The media plays a significant role in some checks and control. There are two modern criminal justice administration. In types of checks. One is external and the reporting news about crimes, the media can other is internal. External checks on the create public interest and awareness which prosecution can include the following: in turn serves as a check on the prosecution in the exercise of its discretion. Hence, as a) Check by an independent a result of media scrutiny, the prosecution body is accountable to the public in its decision- 101. Abuses in the screening process could making process. In addition, in Thailand, be taken up to an independent body that when there is a non-prosecution decision, serves like an ombudsman. There are the Attorney General as a policy will make several examples in various countries. In available the reasons for non-prosecution Japan, if the prosecutor decides not to to the media. This will ensure prosecute and the victim is not satisfied transparency. The group also holds the with this decision, the latter can appeal to view that the media can protect the the Prosecution Review Committee, which independence of the prosecution. However,

342 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE there is a need to prevent senior prosecutors in discontinuing cases. sensationalisation by the media. The Dissatisfied complainants can also appeal media should be responsible in its reporting to a competent High Public Prosecutor’s of cases. In this respect, there are laws in Office or to the Attorney General for review. some countries where the newspapers are In Japan, the public prosecutor generally prevented to report the names of the has to seek the approval of the senior public victims of sexual offences. prosecutor on whether to proceed with prosecution or not. If the aggrieved party c) Interdepartmental is still not satisfied, there is an additional consultation check of appeal to a higher supervisory 103. Periodic interdepartmental authority in the organizational structure. consultation should be conducted among In the Republic of Korea, if the decision of the institutions in the criminal justice non-prosecution by the District Public administration. The aim is to develop Prosecutor’s Office is not satisfactory, there policies and guidelines to minimize or can be an appeal to the High Public eliminate interference or destruction as Prosecutor’s Office. There can also be a well as to monitor and evaluate the further appeal to the Supreme Public implementation of such policies and Prosecutor’s Office. This system of appeal guidelines. is similar to the appeal in courts. An appeal to the Constitutional Court is also possible d) Judicial action as a final resort. In China, the non- 104. Another possible means of controlling prosecution order made by the People’s the use of discretion is to utilize judicial Procuratorate is delivered to the public proceedings. In Japan and the Republic of security organ, which can review the Korea, the codes of criminal procedure decision. provide that if a prosecutor declines to prosecute an offender for an offence (ii) Code of ethics relating to the abuse of official power or 107. Drawing up a set of ethics (code or for a violation against a citizen by a law regulation) for the prosecution stipulating enforcement officer, the complainant can the standards expected of the prosecution request the court to re-examine the case in the performance of its duties with the and commit it for formal trial. If such necessary sanctions for its implementation request is granted, a private lawyer will is highly recommended. Senior officers be appointed by the court to exercise the within the department can administer the prosecutor’s function. sanctions.

e) Internal checks 4. Enhance the Discretion to 105. Internal checks can include the Withdraw Prosecution following: 108. As discussed previously, it appears that if there is a system of withdrawal of (i) Check by higher prosecution, there is a greater chance for authority abuse. For example, in coming to a decision 106. In most jurisdictions, there exist some to withdraw prosecution even if there is form of internal control. Within the sufficient evidence, it may be difficult to prosecution, there can be checks by understand the reasons why the case was superior officers. In Singapore and the withdrawn. This means that the Philippines, junior officers are required to prosecution can consider factors not obtain the concurrence and approval of relevant. The group, however, does not

343 RESOURCE MATERIAL SERIES No. 53 recommend abolition of withdrawal of prosecutors be accompanied with reasons. prosecution for the following reasons: The reasons should be documented so that (1) Sometimes, bringing a case to court if need be, the basis of withdrawal of for prosecution may not be the best prosecution can be made known to the solution in the view of the victim or any other interested party. This circumstances of the case. These are will ensure transparency and minor offences or offences relating to accountability in the decision-making young offenders. Withdrawing process. prosecution in these cases could give a chance to the offender to reform and 5. Police Prosecutors reintegrate into society; 110. In some countries where police (2) Without withdrawal of prosecution, prosecutors are not law graduates, there all cases except those with weak or are steps to slowly reduce the number of no evidence are referred to court. police prosecutors. This to achieve 100 This would include minor cases such percent legally trained prosecutors. as the theft of small items of Additionally, it will also enhance the insignificant value. This will control of the prosecution. However, the overload the court with unnecessary group also recognizes the importance of the and trivial cases. In addition, this institution of police prosecutors in some will increase the time frame for jurisdictions and the need to preserve it. hearing cases; and For these countries, it is recommended that (3) Having a system of withdrawal of in order to further enhance screening, prosecution can prevent the police prosecutors should receive sufficient overcrowding of prisons. Before legal training, especially if they are not law suspension of prosecution was graduates. The office of the police introduced in 1884 in Japan, the prosecution should also be independent prisons were overcrowded and a great from the police so that the discharge of its amount of financial burden was duty is not faltered by loyalty issues. caused to the government. This problem was resolved with the 6. Private Prosecution introduction of this system. 111. The group is of the view that the system of private prosecution should be 109. From the above analysis, it is clear retained for two reasons. First, it can that the benefits outweigh the possible resolve the manpower problems affecting abuses. In Costa Rica where withdrawal the prosecution. Secondly, private of prosecution is currently not practiced, a prosecution can be considered a safeguard; new legislation providing for suspension of for example, when public prosecution is prosecution will be in force in the near refused, the injured party can institute future26. In any case, abolishing private prosecution. To resolve the withdrawal of prosecution may not prevent problems of private prosecution, it is these abuses completely. The prosecution, recommended that some improvements be if corrupt, can have the case withdrawn on made to the existing system. For example, the basis of no evidence even if there is in in Thailand, all private prosecutions have fact sufficient evidence to proceed with the to be screened by a preliminary inquiry. In trial. Hence, the group is of the view that such a case, the court can provide the the practice of withdrawal of prosecution screening which is lacking. should continue with the additional safeguard that all decisions of the

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VII. CONCLUSION statement to undermine the importance of having the police and the court also 112. As discussed in this paper, case involved in case screenings at different screening is a practice sine quo non to stages of a criminal case. After all, for building up an effective criminal justice screening, the most important component system in any society. It essentially helps parts of the criminal justice system are the to reduce the workload of a criminal court police, the prosecution and the court. and consequently, prevents delay in the disposition of cases. The foregoing chapters 113. The final part of this report is devoted have discussed, inter alia, the need and the to consider the various problems and importance of having a proper screening safeguards relating to case screening. In system, which authority should be vested considering the nature of the problems with the power to carry out screening in a relating to screening, what is easily criminal case and a comparative analysis discernible is that the problems in of the different systems of screenings. It is screening could be due to various reasons. indubitable that the prosecution in many Sometimes, these reasons are peculiar to a countries plays a very vital role in case society. For instance, manpower problems, screening. The prosecution is acting as a problems relating to lack of technical quasi-judicial entity, operating at an facilities, etc. could be directly attributable intermediate position between the to the economic and social conditions of executive and the courts. The prosecution each society. In the circumstances, any with a proper legal background can decide move to eliminate these problems should best what cases should be brought for trial. be considered in the backdrop of the At the same time, the prosecution is in the economic development of a society. best position to decide what cases should be withheld from adjudication by the 114. However, some other major ethical courts. Since the prosecution has a direct and moral problems also have serious responsibility to a trial court, he is expected impact on case screening. For instance, the to carry out the screening carefully. That non-availability of constitutional helps to save criticism and humiliation for safeguards providing an independent bringing frivolous cases for trial. At the position to the authorities involved in case same time, in the eye of the public, he will screening and the possibility of having be able to preserve his professional some room for political or extraneous integrity. Moreover, this will help to keep influences on case screening authorities, a firm tab on the cases pending for trial etc. are viewed as serious problems by the before a court. Case load will be lessened. group. It is the consensus of the group that Public funds will not be wasted. these problems can be resolved by making Government’s coffer will not be a firm joint commitment by a society to overburdened. The prisons will not be fight these social evils. One effective way overcrowded. Consequently, justice will of achieving this goal will be by introducing not only be done but seen to be done. firm legal safeguards and entrenched Hence, it is the consensus of the group that clauses to the constitution to protect and the power of the prosecution in case nurture the case screening authorities. It screenings should be strengthened to is important to acknowledge sincerely these enable the prosecution to discharge its problems are not stemming out of basic duties more professionally, objectively, social problems. Therefore, we believe that legally and independently. However, this each society and all governments should should not be misapprehended as a find out the safeguards and

345 RESOURCE MATERIAL SERIES No. 53 recommendations to make it possible. 9 Please refer to, Rule 118, section 1 of These matters are discussed in the paper. the Rules on Criminal Procedure— Of course, they are neither perfect nor Philippines, which reads as follows: consummate the whole issue fully. “Pre-trial when proper—To expedite the However, we hope that they may be of some trial, where the accused and counsel help to find some realistic measures agree, the court shall conduct a pre-trial establish effective criminal justice systems conference on the matters enumerated in the global village. in section 2 hereof, without impairing the rights of the accused”. Further, ENDNOTES Rule 118, section 2, reads as follows: “Pre-trial conference; subjects—The 1 In this report, the word “Police” refers pre-trial conference shall consider the to police officers only, excluding police following: prosecutors. (a) Plea bargaining; 2 In some countries, all serious cases are (b) Stipulator of facts; referred to the public prosecutor for his (c) Marking for identification of evidence advice and approval to withdraw of the parties; prosecution. This means that the (d) Waiver of objections to admissibility Prosecution screens the case. of evidence; and 3 According to our definition, if the (e) Such other matters as will promote a prosecution’s concurrence is needed to fair and expeditious trial. withdraw prosecution, screening is done 10 Rule 116, section 2, reads as follows: by the prosecution. “Plea of guilt to as lesser offence—The 4 The group has found that even if the accused, with the consent of the same term is used in different countries, offended party and the fiscal, may be the standard is not the same. Please allowed by the trial court to plead guilty refer to discussion under the topic: to a lesser offence, regardless of whether Evidential Standard for Initiation of or not it is necessarily included in the Prosecution under Screening by the crime charged or is cognizable by a court Prosecution. of lesser jurisdiction than the trial court. 5 Definition in Black’s Legal Dictionary, No amendment of the complaint or 5th Edition. information is necessary. A conviction 6 In Costa Rica and France, an examining under this plea shall be equivalent to a judge plays a role in screening. This conviction of the offence charged for function is similar to the role of the purposed of double jeopardy.” presiding magistrate conducting 11Please note that phrase “Plea preliminary inquiry. Bargaining Proceedings” used in this 7 Please note that the phrase “Summary context refers to the procedures adopted Proceedings” used in this context refers by Sri Lankan courts to screen cases. to the procedures adopted by Sri The meaning may be different from the Lankan courts to screen cases. It is usual attached to it. different from the usual summary 12In Singapore, the meaning of proceedings as in Japan as it is “reasonable prospect” is similar to the commonly known. standard of “prima facie” used in Sri 8 Please note that the phrase “Pre-trial Lanka. Conference” used in this context refers to the procedures adopted by Philippine courts to screen cases.

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13 This number represents the percentage 19 This number represents the percentage of all cases the prosecution disposed of, of all cases the prosecution disposed of, including cases relating to offenses such including the offenses such as traffic as traffic professional negligence and professional negligence and road traffic road traffic violations. Please see, “The violations. Please see, “The White Annual Report of Statistics on Paper on Crime, 1995 of Korea” Prosecution for 1996 of Japan” (Research and Training Institute of the (Research and Training Institute of the Ministry of Justice). Ministry of Justice). 20 For example, in Singapore, the police 14 This number represents the percentage usually states its views as to whether of all cases the prosecution disposed of, the cases should be suspended or including the offenses such as traffic proceeded with. professional negligence and road traffic 21 For example, the judiciary is an violations. Please see, “The White independent organ. Paper on Crime, 1995 of Korea” 22 According to our paper, this refers to the (Research and Training Institute of the second stage of screening by the police. Ministry of Justice). The first part of the screening should 15 This number represents the percentage not be abolished. of all cases the prosecution disposed of, 23 In Costa Rica, there is a move to abolish including cases relating to offenses such screening conducted by the courts. as traffic professional negligence and 24 In France and Costa Rica, the road traffic violations. Please see, “The examining judge also acts like an Annual Report of Statistics on investigative agency during screening. Prosecution for 1996 of Japan” Such a procedure in Costa Rica will be (Research and Training Institute of the abolished. Ministry of Justice). 25 All non-prosecution decisions can be 16 This number represents the percentage appealed to the Prosecution Review of all cases the prosecution disposed of, Committee. including the offenses such as traffic 26 The new law is found in Articles 25 to professional negligence and road traffic 29, Law No. 7594 of the Criminal violations. Please see, “The White Procedure Code. Paper on Crime, 1995 of Korea” (Research and Training Institute of the Ministry of Justice). 17 In Japan, the defendant’s consent is required. Otherwise, the prosecution cannot utilize the summary proceedings. 18 This number represents the percentage of all cases the prosecution disposed of, including cases relating to offenses such as traffic professional negligence and road traffic violations. Please see, “The Annual Report of Statistics on Prosecution for 1996 of Japan” (Research and Training Institute of the Ministry of Justice).

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