Public Prosecutors and Discretion: A Comparative Study

By Julia Fionda | Go to book overview

6 Models of Prosecutorial Sentencing

1. INTRODUCTION

THE preceding chapters have shown that the extent to which a public prosecutor is regarded as having a significant impact on the sentencing process differs substantially in the four jurisdictions compared. Various haphazard contributory factors have produced an incoherent pattern of degrees of prosecutorial power in the sentencing field. The four European countries have, for circumstantial and historical reasons, pursued reform in this area at different paces and times and consequently have arrived at different stages of evolution. Comments in the previous chapters have also shown how background factors in each jurisdiction, as well as the operational philosophies and self-reflective attitudes of practitioners, have had a substantial influence, whether restrictive or librational, over the evolution of the prosecutor's role. Hence, the present picture of prosecutorial change in Scotland, the Netherlands, Germany, and England and Wales reads rather like a league table of that evolution. In ascending order, the English CPS, being in its infancy in comparative terms, allows only a strictly limited role for the Crown Prosecutor in influencing sentence; that influence is limited to an indirect, consequential exercise of persuasion related to their procedural decision-making, except for their power under s. 36 Criminal Justice Act 1988 to appeal against unduly lenient sentences. This is the only explicit and direct form of influence over sentencing that Crown Prosecutors currently possess. However, there exists in England and Wales an abundance of potential for development and improvement of the prosecution system, by virtue, principally, of that infancy and immaturity.

The Scottish Procurator Fiscal system, having witnessed a sudden spurt of reform in the late 1980s, and being longer established as a service, has proceeded beyond that kindergarten stage. However, progress in Scotland has been limited and came to an abrupt halt upon the retirement of its key instigator, William Chalmers, so that the likelihood of further development seems smaller than in England and Wales although the potential is still significant.

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