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The Relationship of the Prosecution with the Police and Investigative Responsibility

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The Relationship of the Prosecution with the Police and Investigative Responsibility 107THREPORTS INTERNATIONAL OF THE TRAINING COURSE COURSE REPORTS OF THE COURSE GROUP 1 THE RELATIONSHIP OF THE PROSECUTION WITH THE POLICE AND INVESTIGATIVE RESPONSIBILITY Chairperson Mr. Zafar Ahmad Farooqi (Pakistan) Co-Chairperson Mr. Takahiro Saito (Japan) Rapporteurs Mr. Winfred Ansah-Akrofi (Ghana) Mr. Ersyiwo Zaimaru (Indonesia) Mr. Alex Mwachishi Chilufya (Zambia) Members Mr. Guan Fujin (China) Ms. Mariko Suzuki (Japan) Mr. Toshiaki Takahashi (Japan) Mr. Hiroyasu Ito (Japan) Mr. Lee, Yong-Hoon (Republic of Korea) Adviser Deputy Director Masahiro Tauchi (UNAFEI) I. INTRODUCTION II. USE OF TERMS This special report is the product of an For purposes of this report, the following intense group workshop called upon to terms shall be construed as hereunder: examine and discuss the relationship “PROSECUTOR”: Any person appointed between investigation and prosecution as or designated under the law as a public it pertains to the nineteen countries prosecutor or one who acts as such on represented on the course. To realize this behalf of the state and whose powers and objective, it was necessary in each case to functions include, inter alia, the following: look at the police; to what extent, if at all, (a)the power of control over the prosecutors get involved in investigations; presentation of a case before court; the practical problems faced by and investigators, police and prosecutors alike; (b)the power of control over the the role played by public prosecutors in continuance or discontinuance of overcoming the drawbacks and problems prosecution. faced by investigators; and, recommending possible avenues of circumventing existing “POLICE”: Any organization with and perceived hurdles in the way of personnel appointed under the law and qualitative and effective investigation and exercising the power and function of a law prosecution of crime and its offenders. The enforcement officer to maintain law and countries under review were conveniently order in the country. This report focuses divided into two principal jurisdictions, on the function of the police as an namely: investigator. (1) countries in which only the police has investigative authority, and “INVESTIGATOR”: Any person who (2) countries in which the police and detects crime and discovers offenders public prosecutors are vested with through the exercise of legal powers. investigative authority. 307 RESOURCE MATERIAL SERIES No. 53 III. CLASSIFICATION: and any other material evidence considered RELATION OF THE PUBLIC necessary to be collected by the judicial PROSECUTOR AND THE POLICE police. Once this is satisfied, the prosecutor delivers the dossier to the trial judge. Nations have different institutions Similarly, in offenses punishable with which conduct investigations. In some more than three years’ imprisonment, a countries such as Costa Rica, Ghana, India, police officer on receipt of a complaint Kenya, Malaysia, Maldives, Nepal, hands over the investigation file to the Pakistan, Singapore, Sri Lanka, Thailand prosecutor. The prosecutor then draws up and Zambia, the authority to investigate a “formal instruction requirement” which, lies with the police. In Cameroon, China, together with the case file, he submits to Indonesia, Japan, Laos, the Philippines the examining judge. The latter effectively and the Republic of Korea, the role of takes over the case and conducts the investigation lies with both the police and necessary investigation. With the help of the prosecution. the judicial police, the collection of evidence such as witness and suspect statements, A. Countries in Which Only The ordering the production and inspection of Police Has Investigative public and private documents, and making Authority available results or reports of forensic 1. Costa Rica laboratory tests, is done by the examining judge. The prosecutor only controls the a) Organizational structure of labor of the examining judge by way of the police and the appeal to the Appeal Court if he does not prosecution agree with the proceedings followed by the Police: The investigative authority is the examining judge. After this, the dossier is judicial police, which is under the General handed over to the prosecutor for Director. The judicial police is under the prosecution. supervision of the Internal Affairs Office. When a crime which is punishable by a fine 2. Ghana or less than three years’ imprisonment is reported to the police, all investigation a) Organizational structure of thereof is conducted by the police. Upon the police and the conclusion of such investigation, the police prosecution submits the results of investigation to the Police: The investigation of all crime is prosecutor. the responsibility of the police. This power Prosecution: Public prosecutors belong to derives from the Police Service Act No. 350/ the Public Ministry under the supervision 70. The police falls under the Ministry of of the Prosecutor General. Only public Interior. The police powers of investigation prosecutors can institute criminal include the power to arrest with or without proceedings before the court. a warrant, as per section 10(1) of the CPC Act 30/60 and the power to search with or b) Role of prosecutors in police without a warrant. The police is also investigations empowered to grant bail to suspects. When a police investigator submits to the Suspects who can not be granted bail prosecutor the results of his investigation, should be brought before a court within and if it is an offense punishable with forty-eight hours. After the police has imprisonment, not exceeding three years or completed its investigations, it submits the a fine, the prosecutor must then require all dossier to the prosecutors for prosecution. relevant witness and suspect statements 308 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE Prosecution: The prosecutorial function 3. India is exercised by the Attorney General. That a) Organizational structure of is to say, all public prosecutors are the police and the designated by the Attorney General and prosecution operate under the Attorney General’s Police: The Central Bureau of Chambers. The Attorney General is the Investigation (CBI) is the premier Minister of Justice. There are also police investigation agency of the central prosecutors exercising the powers of government. The CBI is under the prosecution on behalf of the Attorney Ministry of Personnel and Training, headed General. Police prosecutors appear before by a Director and answerable to the Prime Circuit Tribunals, Community Tribunals Minister. The CBI has concurrent and Juvenile Courts (these are subordinate investigative jurisdiction in the Union courts of first instance). All major offenses Territories. It can also take up the (1st degree) are triable on indictment investigation of cases at the request of the before the High Court. All appeal matters state governments. Besides the CBI, there are handled by state attorneys from the are state police forces headed by Directors Attorney General’s Chambers. General of Police, who are appointed by the state government concerned. The police b) Role of prosecutors in police has power to initiate investigations of investigations cognizable offenses itself but require a The police seeks legal advice from the court order for non-cognizable offenses. Attorney General whenever necessary Other investigative powers, include arrest, during the course of an investigation. After search, seizure and interview suspects and the police has completed an investigation, witnesses. a duplicate docket of the case to be tried Prosecution: The prosecution wing in a on indictment is sent to the Attorney state is headed by the Director of General’s Chambers. Before the prosecutor Prosecutions who is responsible for the initiates criminal proceedings in court, he prosecution of cases in the Magistrate’s studies the docket. Should there be any Courts. He is aided by the Additional, need for further investigation, he advises Deputy and Assistant Public Prosecutors the investigator to do so. The prosecutor (Grade I and Grade II), appointed by the also arranges pretrial conferences. Here state government. Public prosecutors who he meets and interviews all parties of a prosecute cases in the High Court are case, with a view to clarifying certain issues appointed by the state government from and ascertaining the relevance of the panel of suitable lawyers prepared by witnesses. This also gives the prosecutor the state government in consultation with a chance to expose and work on weaknesses the High Court. Public prosecutors who in the case before the matter goes to trial. appear in Sessions Courts are also During investigations, the prosecutor appointed by the state government from applies to the court for arrest, search and such panel in consultation with the detention warrants, which are then Sessions Judge. They do not fall under the executed by police investigators. jurisdiction and control of the Director of Prosecutions, but rather are responsible to the District Magistrate. The prosecution agency does not have a national level body. At the central level, the Attorney General is the most senior law 309 RESOURCE MATERIAL SERIES No. 53 officer of the Government of India with b) Role of prosecutors in police legal power to address all courts in the investigations country. Prosecutors appointed by the The prosecutor has no authority to central government appear in High and conduct investigations. The role of the District Courts in cases involving the prosecutor is an advisory one. In certain
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