RESOURCE MATERIAL SERIES No. 53 GROUP 3 ISSUES CONCERNING PROSECUTION IN RELATION TO CONVICTION, SPEEDY TRIAL AND SENTENCING Chairperson Mr. Kyoji Ishikawa (Japan) Co-Chairperson Ms. Pauline Christine Ngo Mandeng (Cameroon) Rapporteurs Mr. Madan Lal Sharma (India) Mr. Jonathan John Mwalili (Kenya) Dr. Meen Bahadur Poudyal Chhetri (Nepal) Members Mr. Mohamed Jameel Ahmed (Maldives) Mr. Yutaka Kubo (Japan) Mr. Takahiro Ueda (Japan) Adviser Professor Yuzuru Takahashi (UNAFEI) I. INTRODUCTION The right to a speedy trial is a fundamental human right. It has been The main objective of the criminal trial affirmed in the Universal Declaration of is to determine whether an accused person Human Rights 1948 and enshrined in the has violated the penal law and where found consitutions and statutes of some guilty, to prescribe the appropriate countries. Speedy trial is a vital element sanction. Prosecution is an executive in the administration of criminal justice. function of the state and is usually In fact, unnecessary delay in the trial discharged through the institution of the constitutes a denial of justice. The prosecutor. The burden of proof rests on the prevention and control of crime as well as prosecution as per the prescribed standard the effective rehabilitation of the convict of proof. The prosecutor faces several are enhanced by speedy trial. The problems in proving the guilt of the accused prosecutor is at the center stage of a person. Some of these problems fall beyond criminal trial and plays a leading role in the scope of his duties and responsibilities. its conduct. In the second part of the paper, The legal framework, the law enforcement the group has examined some of the laws infrastructure and the quality of the and practices which prevail in different personnel operating within the legal countries where this right is guaranteed. system, amongst other factors, Factors affecting the realization of a speedy considerably affect the conviction rate. In trial have also been discussed from the the first part of the paper, our group has perspective of the prosecutor. defined conviction rate, and analyzed the Sentencing is the final stage of a criminal reasons for variation in rates in different trial. An appropriate sentence is one which countries. The group has discussed some strikes a balance between the preservation of the problems which may arise in proving of social order and the rehabilitation of the the case in a court from the perspective of convict. The participation of the prosecutor the prosecutor under four categories in sentencing and the stage of the such relating to investigation, prosecution, trial, participation differ depending on the legal and legal and systemic factors. The group systems as practiced in different countries. has also proposed solutions to some of these Sentencing remains the prerogative of the problems. 348 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE presiding judge/magistrate who usually B. Conviction Rate enjoys wide discretion, and the The conviction rate may be taken to recommendations of the prosecutor are not mean the ratio of cases convicted out of the binding on him. In the third part of this total number of cases decided in a given paper, the group discussions revealed year. problems which may arise in the Our group is of the view that the sentencing process. The countermeasures conviction rate is a reasonably good proposed therein, are intended to ensure indicator of the efficiency and efficacy of that the prosecutor effectively assists the the criminal justice system prevailing in a court in arriving at an appropriate country. Of course, there is a limitation to sentence. the significance of the conviction rate as an indicator of prosecutorial efficacy. II. HOW WELL DOES THE Distinctive conviction rates are caused by PROSECUTION ESTABLISH ITS the differences in the evidential standard CASE AGAINST THE DEFENDANT? required at the initiation of prosecution, more fundamentally the differences in the A. Preface role of investigators and prosecutors to The preservation of life and property is refer cases to the court. In countries where one of the fundamental functions of the a considerably low evidential standard is state. Over the millennia, the state has required to send a case to court, it should endeavored to perform this function be tasked to pass judgement of conviction through various institutions. Crime and or non-conviction based on such criminality are as old as humanity itself prosecution, the conviction rate is and their total elimination appears to be systematically lower than the countries beyond human ingenuity. The requiring a higher evidentiary standard. investigative, prosecutorial, adjudicatory A high conviction rate, however, is not the and correctional institutions aim at primary objective of the criminal justice containing criminality within socially system. acceptable limits. The state causes Notwithstanding the aforesaid, a high sanctions to be imposed upon the criminals conviction rate may be indicative of commensurate with the gravity of their methodical and painstaking investigations crimes. and effective prosecution. On the contrary, Any violation of the law is investigated an excessively low conviction rate definitely by the competent agencies and if a prima indicates unsuccessful and ineffective facie case is made out, a charge sheet/bill prosecution. of indictment is filed in the competent It should be made clear, however, that it court. Prosecution is conducted by the is not the mandate of the prosecutor to prosecutor on behalf of the state. The court secure conviction at any cost. He is required adjudicates the case on the basis of to be fair, impartial and must present all evidence adduced and either convicts the the facts, including facts and circumstances offender or acquits him. The court imposes favorable to the offender, before the court the sentence on the convict after it has for an appropriate decision. This is the heard him and the prosecutor. The general practice in most common law aforesaid procedure is followed in most countries, where the prosecutor does not jurisdictions, with occasional variations to have the authority to withhold a case from punish the offender as per the procedure prosecution. established by law. The correctional Our group realizes that no conviction services attempt to rehabilitate him. handed down by the court of first instance 349 RESOURCE MATERIAL SERIES No. 53 is final until confirmed by the highest court 3. Indonesia3 in the event of an appeal. However, as no The overall conviction rate was 98.4 published data is available in relation to percent in 1994. Of offenders, 84.17 percent the decisions of appellate courts, data were sentenced to terms of imprisonment regarding the convictions as rendered by and others were fined/paroled or given the courts of first instance is used. minor sentences. Similarly, the convictions obtained through the plea bargaining process shall be dealt 4. Nepal4 with in this paper. According to a survey conducted in 20 districts of Nepal in 1996, the average C. Overview of Conviction Rate in conviction rate was found to be 16 percent. Some Countries 5. Japan5 1. England and Wales1 The conviction rate in Japan is The conviction rate in England and extremely high. In District Courts, it was Wales was 90.6 percent in 1992-93; 90.2 99.91 percent in 1994; 99.92 percent in percent in 1993-94 and 90.3 percent in 1995 and 99.94 percent in 1996 in cases 1994-95. It may, however, be added that the wherein the defendant had pleaded guilty. newly created Crown Prosecution Service In cases wherein the defendant had not has the power to withdraw a case from pleaded guilty, the conviction rate was prosecution under certain circumstances. 97.73 percent in 1994; 97.92 percent in Further, about 85 percent defendants 1995 and 98.01 percent in 1996. In pleaded guilty. Summary Courts, the conviction rate was 99.79 percent in 1996 wherein the 2. India2 defendant had pleaded guilty and 94.90 Under the Indian Penal Code offences, percent in cases wherein the defendant had the conviction rate was 47.8 percent in 1991 not pleaded guilty. In grave offences such and 42.1 percent in 1995. In 1995, the as homicide, robbery, bodily injury, rape or conviction rate for grave offences was as larceny, the acquittal rate is as low as follows: murder, 37.0 percent; culpable between 0.1 to 0.3 percent. homicide not amounting to murder, 36.3 percent; rape, 30 percent; kidnapping and 6. Republic of Korea6 abduction, 30.3 percent; robbery, 34.1 Conviction rate in 1993 was 99.5 percent; and burglary, 42.7 percent. percent. It was 99.11 percent in murder; However, for the Special and Local Laws, 99.87 percent in robbery; 99.74 percent in the conviction rate was 85.8 percent in rape and 99.59 percent in bodily injury 1995. This is largely explained by a high cases. In special code offences, conviction conviction rate in traffic related offences rate was 99.61 percent. i.e., 90.4 percent. 3 Bureau of Central Statistics, Government of Indonesia, 1994, p. 26. 1 Mr. G.D. Ethrington’s paper on “The Crown 4 As per country paper presented by the participant Prosecution Service and the Public Interest” of Nepal in this course. published in UNAFEI Resource Material Series 5 The White Paper on Crime, 1996, Research and No.49, p. 93. Training Institute, Ministry of Justice, Government 2 As per data published by National Crime Records of Japan, p. 112. Bureau, Ministry of Home Affairs, Govt. of India, 6 The White Paper on Crime published by the in Crime in India, 1995. Government of Korea, 1993, p. 182. 350 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE 7. Thailand D. Analysis of Conviction Rates The conviction rate ranges between 97 The conviction rate is largely affected by to 98.40 percent from 1991 to 1993, as per the quality of investigation and the statistics published by the Attorney standard of proof prescribed by law to send General’s Office.