Discretion and Accountability in Prosecution: A Comparative Perspective on Keeping Crime out of Court
CHRISJE BRANTS AND STEWART FIELD
The argument that offenders should only be brought before criminal courts as a last resort, and that diversion from prosecution is often a preferable response to crime, has only recently gained widespread official acceptance within the British criminal justice systems. Such views are of rather longer standing in Holland and this is reflected in the greater variety of diversionary mechanisms available there and the larger numbers of known offenders kept out of court. On the surface this might be seen as a straightforward reflection of the much-vaunted liberalism of the Dutch system, its greater concern about the negative effects of stigmatization, and greater scepticism about the deterrent effect of the public court appearance. While there is certainly something to this argument, any convincing explanation of the differences in diversionary practices must be rooted in more concrete analysis of contrasts in the institutions and legal culture underpinning respective criminal justice practices.
In the United Kingdom, the development of diversion has rested largely on encouraging the increased use of the traditional police caution, while the majority of criminal cases are processed through the courts. In Holland, in contrast, the majority of cases are not decided by the courts. There is extensive use of conditional diversion by the Public Prosecution Service and, in some cases, the police provides a state response to crime that is low-key and largely invisible. Conditional diversion involves the use of techniques whereby the decision not to prosecute is made conditional upon undertakings by the offender. The introduction of such techniques in England and Wales has until recently been rejected by the British Government. Comparative analysis offers an opportunity to examine the ways in which different attitudes to conditional diversion reflect very different institutional backgrounds and legal cultures. In particular, we shall highlight the important differences in both the formal role assigned to prosecutors and the very different cultural assumptions about how they approach that role.