Public Prosecutors and Discretion: A Comparative Study

By Julia Fionda | Go to book overview

1 The Discretion of the Prosecutor: An Introduction

WITHIN any given criminal justice system, the prosecutor holds a number of multifarious and varied duties ranging from reviewing police files, and making dispositional decisions in respect of each case, through to conducting the case for the Crown or the State at trial. How each duty is carried out at any one time may reflect current criminal justice policy, or, indeed, determine it. Such is the unique, central, and pivotal position of the prosecutor in the structure of the criminal justice process that practice at that stage can have wide-reaching, reverberating effects on the decision-making practice of all other agencies throughout the process, both at the initial stages (that is, the police) and at the 'back door' of the system (that is, the courts, the probation service, and the prison service). Paul Rock has expressed these influences thus: 'Independent interdependence is the weak force that binds the criminal justice system together',1 and indeed, it is this interdependence which has elevated the central player in most (though not all) systems, the prosecutor, to such a position of importance in setting the boundaries of a coherent criminal justice policy, while upholding and respecting the hallowed independence of each agency.

This book aims to explore the limits of the discretionary role of the prosecutor in the field of 'sentencing'. 'Sentencing' is a wide-ranging word which generally evokes a common misconception of a solely judicial function-in the English sense meaning a function performed solely by a judge under the veils of independence and impartiality. The word 'sentencing', however, can be used more widely in the sense of allotting a penalty to an offender in response to his or her criminal behaviour--which definition exceeds the limited jurisdiction of the judge and falls, to some extent, within the remit of other officials within the criminal justice system.

Thus the role of the prosecutor as a sentencer has an indirect influence on the judicial process of sentencing by means of deciding charges on the indictment, mode of trial, and so on. However, this role can also be a positive and active 'sentencing' procedure in which the prosecutor makes an adjudication of guilt and then issues a penalty which, depending on the

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1
P. Rock, Helping Victims of Crime ( Oxford, 1990), 39.

-1-

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