ANNUAL REPORT FOR 2001
andRESOURCE MATERIALSERIES No. 60

UNAFEI
Fuchu, Tokyo, Japan

February 2003

Kunihiko Sakai
Director
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho,Fuchu, Tokyo 183-0057, Japan

CONTENTS
INTRODUCTORY NOTE................................................................................................................. v
PART ONEANNUAL REPORT FOR 2001
Main Activities of UNAFEI............................................................................................................... 3
UNAFEI Work Programme for 2002 ............................................................................................... 14
Appendix .......................................................................................................................................... 16
PART TWOWORK PRODUCT OF THE
120TH INTERNATIONAL SENIOR SEMINAR“Effective Administration of the Police and
the Prosecution in Criminal Justice”
Visiting Experts’ Papers• The Competence of the Police in Investigation Proceedingsby Eberhard Siegismund (Germany)................................................................................... 35• The Public Prosecution Office in Germany : Legal Status, Functions and Organizationby Eberhard Siegismund (Germany)................................................................................... 58• The Effective System of Criminal Investigation and Prosecution in Korea
by Young - Chul, Kim (South Korea)................................................................................... 77• Reforming Pakistan Police: An Overview
by Muhammad Shoaib Suddle (Pakistan) ........................................................................... 94• The Thai Constitution of 1997 and its Implication on Criminal Justice Reformby Kittipong Kittayarak (Thailand) .................................................................................. 107• Effective Administration of the Police and the Prosecution in Criminal Justiceby Peter Boeuf (United Kingdom)..................................................................................... 118• The Effective Administration of Police and Prosecution in The United Statesby Anthony Didrick Castberg (U.S.A)............................................................................... 131
Participants’ Papers• Effective Management of the Police and the Prosecution in Criminal Justiceby Nobuyuki Kawai (Japan).............................................................................................. 144• Effective Administration of the Police and the Prosecution in Criminal Justice in Malaysia
by Azmi Bin Ariffin (Malaysia) ......................................................................................... 149• Effective Administration of The Police and Prosecution in Criminal Justice of Papua New
Guineaby John Maru (Papua New Guinea) ................................................................................. 158iii

• Effective Administration of the Police and Prosecution in Criminal Justice:
the Practice and Experience of the United Republic of Tanzania
by Laurean Mutahunwaaaa Tibasana (Tanzania) ............................................................ 164
Reports of the Course• Effective Administration of the Police System
by Group 1 ........................................................................................................................ 182• Cooperation between the Police and Prosecutors
by Group 2 ........................................................................................................................ 194• Effective Case Screening by Prosecutors or other Competent Agencies
by Group 3 ........................................................................................................................ 202

iv

INTRODUCTORY NOTE
It is with pride that the Asia and Far East Institute for the Prevention of Crime and the Treatmentof Offenders (UNAFEI) offers to the international community Resource Material Series No. 60.
This volume contains the Annual Report for 2001 and the work produced in the 120th International
Senior Seminar that was conducted from 15 January to 14 February 2002. The main theme of thisSeminar was, “Effective Administration of the Police and the Prosecution in Criminal Justice.”
The 120th International Senior Seminar considered the systematic and functional reform of thepolice and the prosecution. The Seminar was opportune as it was held shortly before the Eleventh
United Nations Commission on Crime Prevention and Criminal Justice that considered the wholeissue of “Criminal Justice Reform.” It is evident that the police and the prosecution, by definition,
have a symbiotic relationship yet in many countries we see these agencies working, at best, separately
and, at worst, at odds with one another. These are situations that must be reformed in order that thecriminal justice system not only functions but also succeeds.
In this issue, papers contributed by visiting experts, selected individual presentation papers fromamong the Course participants, and the reports of the Courses are published. I regret that not all thepapers submitted by the Course participants could be published. Also, I must request the understandingof the selected authors for not having sufficient time to refer the manuscripts back to them before
publication.
I would like to pay tribute to the contributions of the Government of Japan, particularly the Ministryof Justice, the Japan International Cooperation Agency and the Asia Crime Prevention Foundation
for providing indispensable and unwavering support to UNAFEI’s international training programmes.
Finally, I would like to express my heartfelt gratitude to all who so unselfishly assisted in the
publication of this series; in particular the editor of Resource Material Series No. 60, Mr. Sean Eratt(Linguistic Adviser) who so tirelessly dedicated himself to this series.
February 2003

Kunihiko Sakai
Director of UNAFEIv

vi

PART ONEANNUAL REPORTFOR 2001• Main Activities of UNAFEI• UNAFEI Work Programme for 2002
• Appendix

UNAFEI

MAIN ACTIVITIES OF UNAFEI(1 JANUARY 2001 - 31 DECEMBER 2001)
I. ROLE AND MANDATE
The Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) was establishedin Tokyo, Japan in 1961 pursuant to an agreement between the United Nations and the Government of Japan. Its goal is
to contribute to sound social development in Asia and the Pacific region by promoting regional cooperation in the fieldof crime prevention and criminal justice, through training and research.
UNAFEI has paid utmost attention to the priority themes identified by the Commission on Crime Prevention andCriminal Justice. Moreover, UNAFEI has been taking up urgent, contemporary problems in the administration of criminal
justice in the region, especially problems generated by rapid socio-economic change (e.g., transnational organized crime,
corruption, economic and computer crime and the re-integration of prisoners into society) as the main themes and topics
for its training courses, seminars and research projects.
II. TRAINING
Training is the principal area and priority of the Institute’s work programmes. In the international training courses
and seminars, participants from different areas of criminal justice discuss and study pressing problems of criminal justiceadministration from various perspectives. They deepen their understanding, with the help of lectures and advice by the
UNAFEI faculty, visiting experts and ad hoc lecturers. This so-called “problem-solving through an integrated approach”
is one of the chief characteristics of UNAFEI programmes.
Each year, UNAFEI now conducts two international training courses (two months duration) and one internationalseminar (one month duration). Approximately 75 government officials from various overseas countries receive fellowships
from the Japan International Cooperation Agency (JICA; a governmental agency for ODA programmes) each year toparticipate in all UNAFEI training programmes.
Training courses and seminars are attended by both overseas and Japanese participants. Overseas participants comenot only from the Asia-Pacific region but also from the Middle and Near East, Latin America and Africa. These participants
are experienced practitioners and administrators holding relatively senior positions in criminal justice fields.
During its 40 years of existence, UNAFEI has conducted a total of 119 international training courses and seminars,
in which approximately 2875 criminal justice personnel have participated, representing 100 different countries. In theirrespective countries, UNAFEI alumni have been playing leading roles and holding important posts in the fields of crime
prevention and the treatment of offenders, and in related organizations.
A. The 117th International Senior Seminar
1. Introduction
From 15 January to 16 February 2001, 23 participants from 18 countries attended the 117th International Senior
Seminar to examine the main theme of the “Current Situation and Countermeasures against Money Laundering”.
2. Methodology
Firstly, the Seminar participants respectively introduced the current situation regarding the role and function of
criminal justice agencies in their country in the fight against money laundering. Secondly, General Discussion Sessions
in the conference hall examined the subtopics of the main theme. In sum, the participants diligently and comprehensively
examined measures to strengthen and improve international cooperation in the fight against transnational organized crime.
This was accomplished primarily through comparative analysis of the current situation and problems of preventing money
laundering in the international arena. How modern criminal justice agencies are to respond to this emerging form of crime
through the use of mutual legal assistance and extradition was analyzed, in order to seek concrete recommendations. To
conduct each session efficiently, the UNAFEI faculty provided the following three topics for participant discussion:
Topic 1: Methods for Obtaining Intelligence for the Investigation of Money Laundering;
Topic 2: Components and Legal Framework for Combating Money Laundering: Current Situation, Problems andSolutions for an Asset Confiscation System

3

ANNUAL REPORT FOR 2001
Topic 3: Current Situation of, Problems in and Solutions for the Use of Special Investigative Tools in Combating
Money Laundering.
A chairperson, co-chairperson, rapporteur and co-rapporteur were elected for each topic and organized the discussions
in relation to the above themes. In the conference hall, the participants and UNAFEI faculty seriously studied the designatedsubtopics and exchanged views. Final reports were compiled, based on the said discussions, and were ultimately adopted
as the reports of the Seminar. These reports have been printed in their entirety in UNAFEI Resource Material Series No. 58.
3. Outcome Summary
Money laundering has become a global phenomenon and in this sense its growth has reflected recent rapid
technological advances. Although money laundering techniques have become more sophisticated and widespread a
number of countries do not have legislation to criminalize money laundering. Even those countries which do have such
legislation often have ineffective legislation or simply do not have the necessary infrastructure to deal with the problems
engendered by money laundering.
There are now three primary international instruments that provide countries with a framework within which tocombat money laundering. These are the United Nations Convention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances 1988, the Forty Recommendations of the Financial Action Task Force and the United Nations
Convention against Transnational Organized Crime (UN TOC) 2000. It is imperative to fully implement these instruments.
It is recognized that the main methods of investigation, used in money laundering cases, fall into three categories;
controlled delivery, electronic surveillance and undercover operations. Controlled delivery is often the only means ofidentifying those involved in predicate offences (such as drug trafficking) and money laundering. The use of undercover
operations and electronic surveillance requires a balance between the investigation of the criminal activity and theconstitutional rights of the individual.
In relation to the actual confiscation of proceedings there is a general lack of awareness and a lack of political will.
Specific problems identified were; countries’ confiscation laws have a narrow scope of application, the burden of proof
upon the state to prove that the assets result from money laundering is too onerous, there are a number of implementation
problems (e.g. banking confidentiality, lack of international cooperation, lack of procedural laws, lack of FIUs/STRs).
In consideration of the issues raised above the following are some of the recommendations which have been made:(i) A greater awareness must be generated about money laundering.
(ii) Introduce Financial Intelligence Units (FIUs) and Suspicious Transaction Reporting Systems (STRs).
(iii) Ensure that, where countries have STRs, these are broadened according to the individual situation of therespective country.
(iv) Sanctions should be created and imposed for non-disclosure of STRs and non-compliance with the guidelines
in submitting STRs.
(v) Each country should have a comprehensive proceeds of crime law which includes all serious crime. In particular,
a defendant should be required to prove the lawful origin of the alleged proceeds of serious crime or otherproperty liable for confiscation thereby shifting the burden of proof.
(vi) The bank secrecy laws should be amended to allow law enforcement agencies to obtain information concerning
the location of the proceeds of crime.
(vii) Financial institutions must be required to report suspicious transactions.
(viii) States must enter into multilateral and bilateral treaties in order that the confiscation of the proceeds of crime
can be properly carried out.
It is evident that anti-money laundering laws and systems need to be established on a worldwide level. This must act
hand in hand with increased training and a better exchange of information among countries in order to combat money
laundering. In addition, each country should work closely with its international partners in bilateral and multilateralassistance agreements to promote action to effectively address money laundering.

4

MAIN ACTIVITIES
B. The 118th International Training Course
1. Introduction
UNAFEI conducted the 118th International Training Course from 21 May to 12 July 2001 with the main theme,“Best Practices in the Institutional and Community-Based Treatment of Juvenile Offenders”. This Course consisted of
25 participants from 16 countries. The United Nations has recognized the prevalence of juvenile offending and at theTenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (April 2000, Vienna) it urged
for measures to be taken to address the root causes and risk factors related to juvenile delinquency. In particular theinternational community has accepted that the move towards restorative and community justice is a natural consequenceof a decreasing use of formal juvenile justice systems. Resultantly, UNAFEI, as a United Nations regional institute,decided to undertake this course looking specifically at the issue of the treatment of juvenile offenders both institutionallyand in the community.
2. Methodology
The participants examined measures to strengthen and improve practices in the institutional and community-based
treatment of juvenile offenders. This was accomplished primarily through comparative analysis of the current situationand problems of juvenile delinquency, juvenile correctional practice and the treatment of juvenile delinquents in thecommunity. By learning from the successes and failures of ever-implemented solutions (not only in the Asia-Pacificregion but also in other parts of the world), the best practices applicable and feasible in each participating country were
explored.
The objectives of the Course were primarily realized through the Individual Presentations and Group Workshop
sessions. In the former, each participant presented the actual situation, problems and future prospects of their country
with respect to the main theme of the Course. The Group Workshops further examined the subtopics of the main theme.
To facilitate discussion, the participants were divided into the following three groups under the guidance of faculty advisers:
Group 1: Best Practices in Delinquency Prevention;
Group 2: Best Practices in the Community-Based Treatment of Juvenile Offenders; andGroup 3: Best Practices in the Institutional Treatment of Juvenile Offenders.
Each group elected chairpersons and rapporteurs to organize the discussions. The group members seriously studied
the designated subtopics and exchanged their views based on information obtained through personal experience, theIndividual Presentations, lectures and so forth. Thirteen sessions were allocated for Group Discussion. In the fourth, fifth,
sixth and seventh week, Plenary Meetings were held to discuss the interim outline of the Group Workshop reports andto offer suggestions and comments. During the final Plenary Meetings in the seventh week, drafts of the Group Workshop
reports were examined and critiqued by all the participants and the UNAFEI faculty. Based on these discussions, theGroups further refined their reports and presented them in the Report-Back Sessions, where they were endorsed as thereports of the Course. The full texts of the reports will be published in the UNAFEI Resource Material Series No. 59.
3. Outcome Summary
In the latter half of the last century there has been an increase in criminal activity among juveniles. It is recognized,
however, that stiffer penalties are not the required response despite public calls for such. Indeed empirical research showsthat harsher penalties can even increase re-offending. It is within this context that the institutional and community-based
treatment of juvenile delinquents must be expounded.
In considering the preferred model for the community-based treatment of juvenile offenders four guiding principles
were considered to be of fundamental importance. These principles were thought to be as follows;(i)

As far as possible, at least for juveniles of a certain age, the preferred option is to divert him or her at the precourt or court stage.
(ii) There should be a multi-disciplinary team to work on the best treatment option that will address the needs ofthe juvenile to help him or her remain in the community.
(iii) The multi-disciplinary team should influence the availability of community resources to support the juvenile
in conflict with the law.
(iv) The system should be one of through care for continuity of care and supervision of the juvenile.

5

ANNUAL REPORT FOR 2001
It is recognized that effective delinquency prevention is based on what is called risk factor prevention whereby therisk factors of offending are identified and prevention methods are designed to counteract them. In particular, the“Communities That Care” (CTC) model developed by a research team at the University of Washington, USA stood out
as proving to be both flexible and applicable to various situations because it allows the needs and resources of eachparticular community to be taken into consideration when selecting appropriate programmes. This model provides aframework in which risk/protective factors are systematically targeted by programmes/policies with known efficacy.
In the arena of juvenile offending, most countries are facing problems related to overcrowded institutions, nonavailability of technical and professional staff, non-existent or non-professional parole system and no juvenile/family
courts, classification or juvenile training schools.
In response to the issues raised, the following recommendations are among those that were suggested:(i)Specialized training that a community-based corrections staff needs to address beyond his/her early years in
the corrections service should be developed. Thus, staff involved in the delivery of cognitive behavioral
programmes, multi-systemic therapy and so on should benefit from such training.
(ii) An offender-based information system should be established which allows for a systematic assessment of therisks and needs of each juvenile, an objective benchmarking of progress made by each offender and an analysisof the impact of treatment programmes and other casework intervention by Probation Officers, volunteers andother agencies working in partnership to achieve successful outcomes for the juvenile.
(iii) Community support is vital to the community-based treatment of juveniles and can only be achieved byenhancing public confidence in the treatment system by means such as using volunteers and developing a clear
public relations strategy.
(iv) A National Board should be established with representatives from governmental and non-governmental agencies
such as criminal justice, social welfare, health services, education and community services.
(v) The principal actor in delinquency prevention should be the Community Board which should consist of membersof the community such as principals of local schools, active parents, programmes managers of local social
service agencies, local probation officers, local police chiefs and local public health nurses.
(vi) Delinquency prevention programmes should be implemented by direct service providers (e.g. criminal justiceprofessionals, nurses, teachers, social workers, drug therapists, volunteers, etc.) under the guidance of theCommunity Board.
(vii) Consideration should be given to establishing Juvenile Classification Homes, Juvenile Training Schools andJuvenile Medical Training Schools on one campus, close to the Juvenile Court in order to avoid operational
problems.
The role of the United Nations was appreciated in that it has provided standard practices and international instruments
such as the Convention on the Rights of the Child, the Beijing Rules and the Riyadh Guidelines. At the same time newly
emerging concepts like “risk management” and “restorative justice” provide platforms upon which all those involved in
the treatment of juveniles can invigorate their discussions and so develop a comprehensive, multi-disciplinary approachto juvenile delinquency prevention and treatment.
C. The 119th International Training Course
1. Introduction
From 10 September to 1 November 2001, UNAFEI conducted the 119th International Training Course with the main
theme, “Current Situation of and Countermeasures against Transnational Organized Crime”. This Course consisted of
27 participants from 15 countries. This training course coincided with a historic change in the attitude of the world tochallenging international organized crime. The entire perspective with which countries around the world approachinternational organized crime changed forever after the atrocities in the USA on 11 September 2001, the second day ofthis course.
The Course further proved to be significant and timely in that it was held when the United Nations Convention on
Transnational Organized Crime (hereinafter the “UN TOC Convention”) is soon expected to enter into force by ratificationof the many member states. The General Assembly adopted the UN TOC Convention in November 2000 and last December,in Palermo, Italy, the Convention was signed by more than 120 countries. At present 132 countries have already signed
and 10 of these countries are represented by the participants’ countries.

6

MAIN ACTIVITIES
2. Methodology
The participants examined the current trends and issues in investigating organized crimes, particularly the expansionof investigative techniques in the areas of electronic surveillance, controlled delivery, undercover operations, immunity
systems and witness and victim protection programmes. Drug trafficking, money laundering, use of violence and extortion,acts of corruption, trafficking in women and children, illicit manufacturing of and trafficking in firearms, the illegal
trafficking and transportation of migrants, computer-related crime, and the illegal trafficking in stolen vehicles, perpetrated
under the influence of criminal organizations, have been serious problems throughout the world, including Asia and thePacific region. It is further recognized that transnational organized crime is increasing in the global community at a ratethat demands action from all agencies concerned.
The objectives were primarily realized through the Individual Presentations and the Group Workshop sessions. In
the former, each participant presented the actual situation, problems and future prospects of their country with respect tothe main theme of the Course. The Group Workshops further examined the subtopics of the main theme. To facilitate
discussions, the participants were divided into the following three groups, with two focus areas respectively, under theguidance of faculty advisers:
Group 1: (i) Analysis of the current situation of illicit drug trafficking(ii) Tools facilitating the investigation of transnational organized crime.
Group 2: (i) Analysis of the current situation of illegal firearms trafficking and human (women, children, migrants)
trafficking(ii) Criminalization of participation in an organized criminal group and conspiracy, immunity systems,
and witness and victim protection programmesGroup 3: (i) Analysis of the current situation of money laundering.
(ii) Countermeasures against money laundering.
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions. The group members seriously
studied the designated subtopics and exchanged their views based on information obtained through personal experience,
the Individual Presentations, lectures and so forth. Twelve sessions were allocated for Group discussion.
In weeks six and seven Plenary Meetings were held to discuss the interim outline of the Group Workshop reports
and to offer suggestions and comments. During the Plenary Meetings, drafts of the Group Workshop reports were examined
and critiqued by all the participants and the UNAFEI faculty. Based on these discussions, the Groups further refined theirreports and presented them in the Report-Back Sessions, where they were endorsed as the reports of the Course. The
reports will be published in full in the UNAFEI Resource Material Series No. 59.
3. Outcome Summary
Illicit drug trafficking is accelerating at an unprecedented pace, spreading very rapidly across the globe, as a resultof rapid globalization. The information technology revolution has reduced the world to a small village and has madecommunication exceptionally fast and easy. The drug trafficker has found very useful tools to reach his desired destination
with ease and with a high degree of secrecy, speed and specificity (three S’s). The recent increase in the scope, intensity
and sophistication of crime around the world threatens the safety of citizens everywhere and hampers countries in theirsocial, economic and cultural development.
Illegal firearms’ trafficking has recently developed into a serious problem. Many of the firearms are mainly smuggled
for internal use of one nation. However, there are certain amounts of firearms that have been smuggled by criminal groups
for making profit as well as for fueling the operation of international terrorism. Basically there are three categories ofcountry involved in this type of trafficking as follows; illegal manufacturing countries, transit countries and effected
countries.
Human trafficking, especially in women, children and migrants is another area that has increased recently in termsof volume and practice. The International Organization for Migration (IOM) estimated that the global human trafficking
industry generates up to US$ 8 billion each year from this “trade on human misery.” Nearly 2 million children are abused
and trafficked globally every year. Basically, there are 2 categories of country involved in this human trafficking asfollows; source countries and destination counties. Further there are two types of human trafficking; those engaged inforced labor (including prostitution) and those persons voluntarily engaged in illegal work, the so-called illegal immigrants.

7

ANNUAL REPORT FOR 2001
The International Monetary Fund (IMF) has estimated that the aggregate size of money laundering in the world could
be somewhere between two to five percent of the world’s gross domestic product (GDP). Money laundering operations
basically consist of three phases or stages. The first phase is the “placement” i.e. where cash enters the financial system.
The second phase consists of “layering” i.e. where the money is routed through a number of transactions so that any
attempt to trace the origin of money is lost. The last or the third phase consists of “integration” i.e. the money is broughtback into the economy with the appearance of legitimacy and thus, integrated within the lawful economy leaving no traceof the illegal money for the various law enforcement agencies of the different countries.
Among the suggested countermeasures against transnational organized crime, the following were suggested;(i)Specialized training should be provided to personnel involved in the investigation of transnational organizedcrime.
(ii) Optimum finances must be provided to train specialized personnel and suitably equip them.
(iii) Specific legislation must be implemented to define all terms (such as wiretapping, controlled delivery andundercover operations) and lay down general procedures for those investigating transnational organized crime.
(iv) International cooperation must be fostered especially in the area of controlled delivery where it has been seen
to be lacking.
(v) All states should have legislation which criminalizes conspiracy and/or participation in an organized criminalgroup (see Article 5 of the TOC Convention).
(vi) The use of immunity systems must be sensitive to a country’s culture, history, national sentiment and domestic
laws as there are both benefits and drawbacks in the use of such systems depending on the specific nationalsituation. States should however strive to implement the provisions contained within Article 26 of the TOC
Convention.
(vii) Countries should adopt measures that guarantee the protection of witnesses as stipulated in Article 25 of the
TOC Convention.
(viii) In order to detect money laundering in the most effective way, it is important to obtain illegal proceeds at an
early stage and identification of persons at the time of opening his or her bank account is imperative.
(ix) Asset forfeiture systems should be developed in countries.
(x) Professional “gatekeepers” (e.g. lawyers and accountants) should be required to identify their clients and channel
any suspicious transactions to the relevant financial intelligence unit or face sanctions accordingly.
The rapid growth in transnational organized crime and the complexity of the investigation requires a truly global
response. At present, the measures adopted to counter organized crime are not only predominantly national, but also
different from one country to another. It is, thus, absolutely imperative to increase global cooperation between the world
law enforcement agencies and to continue to develop the tools which will help them effectively in countering transnationalorganized crime, including money laundering.
D. Special Seminars and Courses
1. Sixth Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China
The Sixth Special Seminar for Senior Officials of Criminal Justice in the People’s Republic of China, entitled“International Cooperation in Criminal Matters”, was held from 26 February to 16 March 2001. Ten senior criminal
justice officials and the UNAFEI faculty comparatively discussed contemporary problems faced by China and Japan in
the realization of criminal justice.
2. Second Special Seminar for Kenya on Juvenile Delinquent Treatment Systems
UNAFEI conducted the Second Special Seminar for Kenyan criminal justice officials who are working for theprevention of delinquency and the treatment of juvenile delinquents in their country. The Seminar, entitled “Juvenile
Delinquent Treatment Systems”, was held from 5 November to 29 November 2001. The Seminar exposed eighth Kenyan
officials to the workings of the Japanese juvenile justice and treatment system through lectures and observation visits torelevant agencies. As a result of this comparative study, the officials successfully developed action plans for the
implementation and development of institutional and community-based treatment systems for juvenile delinquents in
Kenya.
3. Fourth Special Training Course on Corruption Control in Criminal Justice
UNAFEI conducted the Fourth Special Training Course entitled “Corruption Control in Criminal Justice” from 5
November to 30 November 2001. In this course, twelve foreign officials engaged in corruption control comparatively

8MAIN ACTIVITIES
analyzed the current situation of corruption, methods of corruption prevention, and measures to enhance international
cooperation in this regard.

9

ANNUAL REPORT FOR 2001
III. TECHNICAL COOPERATION
A. Joint Seminars
Since 1981, UNAFEI has conducted 23 joint seminars under the auspices of JICA and in collaboration with hostgovernments in Asia and the Pacific. With the participation of policy-makers and high-ranking administrators, including
members of academia, the joint seminars attempt to provide a discussion forum in which participants can share theirviews and jointly seek solutions to various problems currently facing criminal justice administration in both the hostcountry and Japan.
1. Kenya-UNAFEI Joint Seminar
The Kenya-UNAFEI Joint Seminar was held in Nairobi on the theme of “Effective Administration of Juvenile Justice”
from 14 to 17 August 2001. The Government of Kenya, JICA and UNAFEI organized the Joint Seminar. There wereabout one hundred participants from the police, prosecution, judiciary and the prison, probation and children’s departments
in Kenya. The Seminar focused on the role of the police, prosecution and the judiciary in juvenile justice and analyzed
how coordination between the relevant agencies involved in juvenile justice could be improved. The UNAFEI delegationconsisted of 6 members of UNAFEI as well as a member of the Japanese Family Court and the Japanese Police.
2. Philippines-UNAFEI Joint Seminar
The Philippines-UNAFEI Joint Seminar was held in Manila under the theme of “Community Involvement in the
Criminal Justice Administration” from 5 to 8 December 2001. The Government of the Republic of the Philippines, JICA
and UNAFEI organized the Joint Seminar. Over 200 local participants including lawyers, government officials, nongovernmental representatives and members of the judiciary and the police attended the Seminar. The UNAFEI delegationconsisted of the Director, the Deputy Director, four professors, the Linguistic Advisor, a member of the Secretariat andan official from the National Police Agency of Japan. The Seminar concluded with the adoption of recommendations on
enhancing community involvement in criminal justice administrations.
B. Regional Training Programmes
1. Thailand
In January 2001, UNAFEI dispatched the Deputy Director and a professor to Thailand to assist the Office of the
Narcotics Control Board (ONCB) in organizing the Ninth Regional Training Course on “Effective Countermeasuresagainst Drug Offences and the Advancement of Criminal Justice Administration.”
2. Costa Rica
In July 2001, UNAFEI dispatched the Deputy Director and a professor to Costa Rica to attend the Third International
Training Course on “Effective Treatment Measures to Facilitate Reintegration into Society”, organized and hosted by
the Government of Costa Rica through the United Nations Latin American Institute for the Prevention of Crime and theTreatment of Offenders (ILANUD).
C. Others
In July and August 2001, two UNAFEI professors were dispatched to Kenya to assist the Children’s Department of
the Ministry of Home Affairs and National Heritage in a project to develop nationwide standards for the treatment ofjuvenile offenders.
IV. COMPARATIVE RESEARCH PROJECT
Reflecting its emphasis on the systematic relevance of training activities and priority themes identified by the UN
Commission, the research activities of the Institute are designed to meet practical needs, including those for training
materials for criminal justice personnel.
V. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime trends, crime prevention strategies andthe treatment of offenders, from Asia, the Pacific, Africa, Europe and the Americas, and makes use of this informationin its training courses and seminars. The Information and Library Service of the Institute has been providing, upon request,
materials and information to United Nations agencies, governmental organizations, research institutes and researchers,
both domestic and foreign.

10MAIN ACTIVITIES
VI. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute. Since 1971, the Institute has issued
the Resource Material Series, which contains contributions by the faculty members, visiting experts and participants of
UNAFEI courses and seminars. In 2001, the 56th, 57th and 58th editions of the Resource Material Series were published,
as was “The Global Challenge of High-Tech Crime”, a book presenting the results of the Workshop on Crimes Related
to the Computer Network at the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders
held in Vienna, Austria in April 2000. In December 2001 the results of the Nepal-UNAFEI Joint Seminar on “Effective
Countermeasures to Combat Organized Crime in Criminal Justice Processses” (held in Kathmandu, Nepal in December
2000) was also published. Additionally, issues 104 to 106 of the UNAFEI Newsletter were published, including a briefreport on each course and seminar (from the 117th to the 119th respectively) and providing other timely information.
VII. OTHER ACTIVITIES
A. Public Lecture Programme
On 2 February 2001, the Public Lecture Programme was conducted in the Grand Conference Hall of the Ministry ofJustice. In attendance were many distinguished guests, UNAFEI alumni and the 117th International Seminar participants.
This Programme was jointly sponsored by the Asia Crime Prevention Foundation (ACPF), the Japan Criminal Policy
Society (JCPS) and UNAFEI.
Public Lecture Programmes increase the public’s awareness of criminal justice issues, through comparativeinternational study, by inviting distinguished speakers from abroad. This year, Mr. Peter H. Wilkitzki (Director-General,
Criminal Affairs Bureau, Federal Ministry of Justice, Germany) and Ms. Susan L. Smith (Senior Trial Attorney andInternational Money Laundering Counsel, Asset Forfeiture and Money laundering Section, Criminal Division, US
Department of Justice, the United States of America) were invited as speakers to the Programme. They delivered lectures
respectively entitled “Criminal Law Sanctions in Germany: Facts and Trends” and “Money Laundering: Trends andTechniques”.
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in several countries have commenced, or are about to commence, research
activities in their respective criminal justice fields. It is, therefore, one of the important tasks of UNAFEI to support thesecontributions to improve the crime situation internationally.
C. Overseas Missions
Mr. Keiichi Aizawa (Deputy Director) and Mr. Chikara Satou (Professor) represented UNAFEI at the “9th Regional
Training Course on Effective Countermeasures against Drug Offences and the Advancement of Criminal Justice
Administration” convened by the Office of the Narcotics Control Board (ONCB), Thailand. Mr. Keiichi Aizawa and Mr.
Chikara Satou presented expert lectures on the role of the confiscation of illicit proceeds and anti-money launderingsystems in combating drug trafficking. The Training Course was held in Thailand from 14 January to 27 January 2001.
Mr. Mikinao Kitada (Director) represented UNAFEI and was a member of the Japanese delegation at the Tenth United
Nations Commission on the Prevention of Crime and Criminal Justice held in Vienna, Austria from 8 May to 17 May 2001.
Mr. Keiichi Aizawa (Deputy Director) attended the First Asia Cyber Crime Summit which was held in Hong Kongfrom 24 April to 27 April 2001. Mr. Keiichi Aizawa presented a lecture as a panelist at this Summit.
Mr. Yasuhiro Tanabe (Professor) attended the Seminar on Forfeiting the Proceeds of Crime and presented a lecture.
This Seminar was hosted by the Asset Forfeiture and Money Laundering Section of the United States Department ofJustice and the Anti-Money Laundering Office of Thailand. It was held from 15 May to 18 May 2001 in Thailand.
Mr. Hiroshi Tsutomi (Professor) attended the Ad Hoc Expert Group Meeting on Criminal Justice Statistics as anexpert. This Meeting was held in Buenos Aires, Argentina from 23 April to 25 April 2001.
Mr. Keiichi Aizawa (Deputy Director) and Mr. Kenji Teramura (Professor) visited Costa Rica from 14 July to 28
July 2001 where they presented lectures on behalf of UNAFEI at the Third International Training Course on Effective
Treatment Measures to Facilitate Reintegration into Society.

11

ANNUAL REPORT FOR 2001
Mr. Mikinao Kitada (Director), Mr. Yuuichirou Tachi (Professor) and Mr. Kunihiko Suzuki (Staff) visited the People’s
Republic of China from15 July to 22 July 2001 for the purpose of fostering international exchange between the respective
criminal justice administrations.
Mr. Hiroshi Tsutomi (Professor) and Mr. Kei Someda visited Kenya as short-term experts, as part of a JICA
international assistance scheme providing special support to the Children’s Department of Kenya from 24 July to 14
September 2001.
Ms. Sue Takasu (Professor) attended the Inter-Governmental Open-Ended Expert Group Meeting to Prepare Draft
Terms of Reference for the Negotiation of an International Legal Instrument against Corruption in her capacity as arepresentative of the Japanese Government, from 30 July 2001 to 3 August 2001.
Mr. Mikinao Kitada (Director), Mr. Toru Miura (Professor), Mr. Yasuhiro Tanabe (Professor) and Ms. Mikiko Kakihara(Professor) formed the UNAFEI delegation which attended the joint Kenya-UNAFEI Seminar in Nairobi, Kenya from
6 August to 22 August 2001.
Mr. Yasuhiro Tanabe (Professor) attended the International Association of Prosecutors’ Annual Conference in Sydney,
Australia from 1 September to 8 September 2001 where he made a presentation to the conference.
Mr. Keiichi Aizawa (Deputy Director) participated in the Seminar on Extradition and Mutual Legal Assistance as avisiting lecturer in Laos from 22 September to 1 October 2001.
Mr. Mikinao Kitada (Director) attended the 17th Law-Asia Conference held in Christchurch, New Zealand from 3
October to 8 October 2001 where he was invited to speak at two of the sub-sessions.
Mr. Kenji Teramura (Professor) acted as an observer at the 21st Asian and Pacific Conference of Correctional
Administrators which was held in Cheng Mai, Thailand from 20 October to 27 October 2001.
D. Assisting ACPF Activities
UNAFEI cooperates and corroborates with the ACPF to further improve crime prevention and criminal justiceadministration in the region. Since UNAFEI and the ACPF have many similar goals, and a large part of ACPF’s membershipconsist of UNAFEI alumni, the relationship between the two is very strong.
VIII. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative responsibility for running the Institute.
The Director, Deputy Director and seven professors are selected from among public prosecutors, the judiciary, corrections
and probation. UNAFEI also has approximately 20 administrative staff members, who are appointed from among officialsof the Government of Japan, and a linguistic adviser. Moreover, the Ministry of Justice invites visiting experts fromabroad to each training course and seminar. The Institute has also received valuable assistance from various experts,
volunteers and related agencies in conducting its training programmes.
B. Faculty Changes
Mr. Hiroshi Iitsuka, formerly Professor of UNAFEI and Chief of Training Division, was transferred to the Matsudo
Branch of the Chiba District Court on 1 April 2001.
Mr. Akihiro Nosaka, formerly Professor of UNAFEI and Chief of Information and Library Service Division, wastransferred to the Chiba Probation Office on 1 April 2001.
Mr. Shinya Watanabe, formerly Professor of UNAFEI and Chief of Research Division, was transferred to Fuchu
Prison on 1 April 2001.
Mr. Chikara Satou, formerly Professor of UNAFEI, was transferred to the Hachioji Branch of the Tokyo District
Prosecutors Office on 1 April 2001.

12

MAIN ACTIVITIES
Mr. Toru Miura, formerly a Judge at the Kushiro District Court, joined UAFEI as a Professor and the Chief of Training
Division 1 April 2001.
Mr. Kenji Teramura, formerly a Senior Researcher with the Takamatsu Regional Headquarters, joined UNAFEI as
a Professor and Chief of Research Division 1 April 2001.
Mr. Kei Someda, formerly a Senior Researcher at the First Research Department, joined UNAFEI as a Professor andChief of Information and Library Service Division on 1 April 2001.
Mr. Yasuhiro Tanabe, formerly a Prosecutor with the Tokyo District Prosecutors Office, joined UNAFEI as a Professoron 1 April 2001.
Ms. Sue Takasu, formerly a Prosecutor with the Yokohama District Prosecutors Office, joined UNAFEI as a Professoron 1 April 2001.
Ms. Rebecca Findlay-Debeck left her position as a linguistic advisor at UNAFEI on 1 April 2001 and was replaced
by Mr. Sean Eratt, a Solicitor from England.
IX. FINANCESThe Ministry of Justice primarily provides the Institute’s budget. The total amount of the UNAFEI budget isapproximately ¥351 million yen per year. Additionally, JICA and the ACPF provides assistance for the Institute’s
international training courses and seminars.

13

UNAFEI WORK PROGRAMME FOR 2002
I. TRAINING
A. 120th International Senior Seminar
The 120th International Senior Seminar, “Effective Administration of the Police and the Prosecution in Criminal
Justice” is to be held from 15 January to 15 February, 2002. The 120th International Senior Seminar will examine measures
to improve police systems and enhance methods of case screening by prosecutors. They will also look at means offacilitating better cooperation between police and prosecutors.
B. 121st International Training Course
The 121st International Training Course, “Enhancement of Community-Based Alternatives to Incarceration at all
Stages of the Criminal Justice Process”, is scheduled to be held from 20 May to 14 July 2002. This Course will examine
current initiatives and the use of non-custodial measures at every stage of the criminal justice process.
C. 122nd International Training Course
The theme of the 122nd International Training Course is, as yet, undecided. It is scheduled to be held from 2 September
to 3 November 2002.
D. Seventh Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China
The Seventh Special Seminar for Senior Criminal Justice Officials in the People’s Republic of China, “Criminal
Justice Reform”, is scheduled to be held at UNAFEI from 25 February to 15 March 2002. Ten senior criminal justiceofficials and UNAFEI faculty will discuss contemporary problems faced by China and Japan in relation to the above theme.
E. First and Second Seminars on the Judicial System for Tajikistan
The First and Second Special Seminars for officials involved in criminal justice from Tajikistan will be held from 4
March until 21 March and from 27 May until 14 June at UNAFEI. The objectives of these courses will be to study the
Tajikistan and Japanese criminal justice systems and to comparatively study the current situation, problems andcountermeasures in respect of transnational crime.
F. Third Special Seminar for Kenya on Juvenile Delinquent Treatment Systems
UNAFEI will hold the Third Special Seminar for Kenyan criminal justice officials who are working for the preventionof delinquency and the treatment of juvenile delinquents in their country. The Seminar, entitled “Juvenile Delinquent
Treatment Systems”, will be held from October to November 2002. The Seminar will expose Kenyan officials to theworkings of the Japanese juvenile justice and treatment systems through lectures and observation visits to relevant
agencies.
G. Fifth Special Training Course on Corruption Control in Criminal Justice
UNAFEI will conduct the Fifth Special Training Course entitled “Corruption Control in Criminal Justice” from
October to November 2002. In this course, foreign officials engaged in corruption control will comparatively analyze
the current situation of corruption, methods of corruption prevention, and measures to enhance international cooperationin this regard. During this course there will be a joint programme between the International Association of Penal Law
and UNAFEI.

14

MAIN ACTIVITIESII. TECHNICAL COOPERATION
A. Joint Seminars
Currently the venue and the theme of UNAFEI’s joint seminar for 2002 are undecided. It is likely that the joint
seminar will be held in either Indonesia or Pakistan.
B. Regional Training Programmes
1. Costa Rica
In July 2002, two UNAFEI professors will represent the Institute at the Fourth International Training Course on the
Improvement of Prison Conditions and Correctional Programmes, San Jose, Costa Rica.
C. Others
From July to September 2002, one or two UNAFEI professors will be dispatched to Kenya to assist the Children’s
Department of the Ministry of Home Affairs and National Heritage in a project to develop nationwide standards for thetreatment of juvenile offenders.
III. OTHER ACTIVITIESA. Joint Seminar for the Ratification of the UN TOC Convention
The United Nations Centre for International Crime Prevention (CICP) and UNAFEI will hold a Joint Seminar for
the Ratification of the UN TOC Convention from 17 to 19 July 2002 at the Osaka branch of UNAFEI. Between 30 and
35 participants will come from between 15 and 20 developing countries from all over the Asia and Pacific region. The
issues to be discussed at the Seminar will be the outstanding achievements made by the TOC Convention, legal/practicalinformation that is necessary for the drafting of national legislation which complies with the TOC Convention and technicalassistance that can be provided by the CICP.
B. Fortieth Anniversary Ceremony and Symposium
As UNAFEI will celebrate its 40th anniversary in 2002, the 40th Anniversary Ceremony and Symposium will beheld from 2 to 3 October 2002. This celebration will be held together with the ACPF (Asian Crime Prevention Foundation)
which celebrates its twentieth anniversary at the same time. The celebrations will be held at the Ministry of Justice inTokyo. The theme of the Symposium will be “Regional Strategies for Combating Corruption in the Context ofDevelopment.” UNAFEI alumni from Japan and abroad will be invited to this occasion.

15

APPENDIX
MAIN STAFF OF UNAFEI

Director

Mr. Mikinao Kitada

Deputy Director

Mr. Keiichi Aizawa

Faculty
Chief of Training Division, Professor

Mr. Toru Miura

Chief of Research Division, Professor

Mr. Kenji Teramura

Chief of Information & Library Service Division, Professor

Mr. Kei Someda

Professor

Mr. Yuichiro Tachi

Professor

Mr. Yasuhiro Tanabe

Professor

Ms. Sue Takasu

Professor

Mr. Hiroshi Tsutomi

Professor

Ms. Mikiko Kakihara

Linguistic Adviser

Mr. Sean Brian Eratt

Secretariat
Chief of Secretariat

Mr. Yoshinori Miyamoto

Deputy Chief of Secretariat

Mr. Kunihiko Suzuki

Chief of General and Financial Affairs Section

Mr. Masuo Tanaka

Chief of Training and Hostel Management Affairs Section

Mr. Takuma Kai

Chief of International Research Affairs Section

Mr. Kouichirou Iida

<AS OF 31 DECEMBER 2001>

16

APPENDIX

2001 VISITING EXPERTS
THE 117TH INTERNATIONAL SENIOR SEMINAR
Mr. Daniel P. Murphy

Senior Counsel,
Strategic Prosecution Policy Section,
Criminal Law Branch,
Department of Justice,Ontario, Canada

Mr. Peter Wilkitzki

Director General,
Criminal Affairs Bureau,
Federal Ministry of Justice,Federal Republic of Germany

Dr. Gil Galvao

Director General,
International, European and Cooperative Relations,
Ministry of Justice,
Portugal

Ms. Susan L. Smith

Senior Trial Attorney,
International Money Laundering Counsel,
Asset Forfeiture & Money Laundering Section,
Criminal Division,
Department of Justice,
Washington D.C, United States of America

Mr. Jung-sug Chae

Senior Prosecutor,
Seoul High Prosecutors Office,Seoul, Republic of Korea

Mr. Sin Kam-wah

Senior Superintendent,
Organized Crime and Triad Bureau,
Police Headquarters,
Hong Kong
THE 118TH INTERNATIONAL TRAINING COURSE

Ms. Pamela Phillips

Coordinator, Community Conferencing,
Department of Families,
Youth Justice Directorate,
Brisbane, Queensland,
Australia

Dr. Alan W. Leschied

Associate Professor,
University of Western Ontario,
London, Ontario, Canada

Ms. Chomil Kamal

Deputy Director and Chief Probation Officer,
Ministry of Community Development,
Singapore

Mr. Rob Allen

Member of the Youth Justice Board andDirector of the Esmee Fairbairn Foundation,
London, England, United Kingdom

17

ANNUAL REPORT FOR 2001
Dr. Tracy Harachi

Research Associate Professor,
Social Development Research Group,
University of Washington,
United States of America
THE 119TH INTERNATIONAL TRAINING COURSE

Dr. Matti Joutsen

Director,
International Affairs, Ministry of Justice,
Helsinki, Finland

Mr. Severino H. Gaña, Jr.

Assistant Chief State Prosecutor,
Department of Justice,
Manila, the Republic of the Philippines

Mr. Dimitri Vlassis

Crime Prevention and Criminal Justice Officer,
United Nations Centre forInternational Crime Prevention,
Vienna, Austria

Mr. James E. Moynihan

Legal AttachéFederal Bureau of Investigation,
United States Embassy,
Tokyo, Japan

Mr. Edward C. Shaw

Assistant Legal Attaché,
Federal Bureau of Investigation,
United States Embassy,
Tokyo, Japan

18

APPENDIX

2001 AD HOC LECTURERS
THE 117TH INTERNATIONAL SENIOR SEMINAR
Mr. Yuuki Furuta

Director General of Criminal Affairs Bureau,
Ministry of Justice,Japan

Mr. Hideaki Suzuki

Director of Japan Financial Intelligence Office,Japan
THE 118TH INTERNATIONAL TRAINING COURSE

Mr. Kenji Higashikawa

Chief Liaison Officer, International Affairs Department,
National Police Agency

Mr. Ei Shimamura

Assistant Director, Juvenile Division, Community Safety Bureau,
National Police Agency

Mr. Kazuo Kurashima

Classification Coordinator attached to the Medical Care andClassification Division, Correction Bureau, Ministry of Justice

Mr. Shuji Yoshida

Director, Education Division, Correction Bureau, Ministry of Justice

Mr. Takashi Kubo

Professor, Research and Training Institute of the Ministry of Justice

Mr. Kazuo Suzuki

Director (Superintendent), Training Institute of Correctional
Personnel, Ministry of Justice

Mr. Motoyuki Shishido

Vice-Chairman of Secretariat, Kantou Regional Parole Board,
Ministry of Justice

Mr. Toshihiko Takagi

Director of the Supervision Division, Rehabilitation Bureau,
Ministry of Justice

Mr. Yukio Shirai and
Mr. Kenichi Morishita

Professors, the Research and Training Institutefor Family Court Probation Officers,
Supreme Court of JapanTHE 119TH INTERNATIONAL TRAINING COURSE

Mr. Kenji Higashikawa

Chief Liaison Officer, International Affairs Department,
National Police Agency, Japan

Mr. Noriaki Mizuno

Director, Financial Intelligence Office, Financial Services Agency,Japan

Mr. Hiroshi Kawamura

Assistant Vice-Minister of Justice (Deputy Director for Criminal
Affairs Bureau), Ministry of Justice, Japan

Mr. Masahiko Okubo

Deputy Director (Superintendent), 2nd Organized Crime Control
Division, Criminal Investigation Bureau, National Police Agency,
Japan

Mr. Minoru Shikita

Chairman, Board of Directors, Asian Crime Prevention Foundation

19

ANNUAL REPORT FOR 2001

2001 UNAFEI PARTICIPANTS
THE 117TH INTERNATIONAL SENIOR SEMINAR
Overseas Participants
Ms. Nadira Tabassum

Senior Assistant Secretary,
Ministry of Home Affairs,
Dhaka, Bangladesh

Mr. Phoung Sophy

Assistant of Misdemeanours,
Department of Criminal Police,
Ministry of Interior,
Chamkamoun District, Cambodia

Mr. Raymond Porter Aguilar

Drugs Prosecutor,
Fiscalia General De La Republica,
Republic’s General Prosecution,
San Jose, Costa Rica

Mr. Kevueli Tunidau

Principal Legal Officer,
Office of the Director of Public Prosecutions,
Lautoka, Fiji

Mr. Sudhir Kumar Awasthi

Inspector General of Police,
Crime Branch, CID,
UP Lucknow,
Uttar-Pradesh, India

Mr. Soeparno Adi Soeryo

Chief of the Legal Bureau,
Attorney-General’s Office of the Republic of Indonesia,
Jakarta, Indonesia

Mr. Richard Otieno Okore

Fraud Investigator,
Criminal Investigation Department (CID) Headquarters,
Nairobi, Kenya

Mr. Ahmad Zaidi Bin Ibrahim

Sessions Court Judge,
Kuala Trengganu Sessions Court,
Trengganu, Malaysia

Mr. Kedar Prasad Poudyal

Joint Attorney,
Office of the Appellate Government Advocate,Rajbiraj, Nepal

Mr. Bader Talib AL-Shaqsi

Assistant Director of Assessment Department,
Special Branch,
Royal Oman Police, Head Office,
Qurum, Oman

Mr. Ahmad Nasim

Deputy Inspector General of Police,
Gujranwala Division,
Lahore, Pakistan

Mr. Camillus Jacob Sambua

Senior State Prosecutor,
Office of the Public Prosecutor,
Waigani, N.C.D, Papua New Guinea

20

APPENDIX
Mr. Meinrado P. Paredes

Judge,
Regional Trail Court, Branch 13,
Cebu City, Philippines

Ms. Ronel Van Wyk

National Coordinator,
Project Investigations, Commercial Branch Head Office,Detective Service, South African Police Service,
Pretoria, South Africa

Mr. Dappula Prasantha Joseph De Livera

Senior State Counsel,
Joseph De LiveraAttorney General’s Department,
Colombo 12, Sri Lanka

Mr. Saidi Ally Mwema

Ast. Commissioner of Police & Regional CID Officer,
Dar-Es-Salaam Regional CID Office,
Dar-Es-Salaam, Tanzania

Mr. Pisan Mookjang

Superintendent in Economic Crime,
Crime Prevention and Suppression Division,
Police Cadet Academy,
Nakhonpratom, Thailand

Japanese Participants
Mr. Ryoichi Chihara

Deputy Superintendent,
Ibaraki Juvenile Training School,
Ibaraki, Japan

Mr. Takashi Itoyama

Prosecutor,
Tokyo District Public Prosecutors Office,Tokyo, JapanMr. Haruo Maruyama

Chief of General Affairs Division,
Tokyo Probation Office,Tokyo, Japan

Mr. Wataru Nemoto

Judge,
Tokyo District Court,
Tokyo, Japan

Mr. Mitsuru Nishikori

Director of Guard and Rescue Department,
7th Regional Coast Guard Headquarters,
Kita-Kyushu, Japan

Mr. Tatsuo Ueda

Narcotics Control Officer,
Narcotics Control Department,
Kanto-Shinetsu Regional Bureau of Health and Welfare,Tokyo, JapanTHE 118TH INTERNATIONAL TRAINING COURSE

Overseas Participants
Mr. Mohammed Azizul Haque

Senior Superintendent,
Barisal Central Jail,
Barisal, Bangladesh

Ms. Phyllis Yolanda Beckles

Senior Probation Officer,
Probation Department,
St. Michael, Barbados

21

ANNUAL REPORT FOR 2001
Dr. Fernando Rabello Mendes Filho

Presidence Advisor,
Para’s Child and Adolescent Foundation,
Belem Para, Brasil

Mr. Chen Hao

Deputy Director,
Household Registration Division,
Public Order Bureau,
Ministry of Public Security,
Beijing, China

Mr. Waliki Naiseruvati Satakala

Assistant Superintendent of Prisons,Fiji Prison Service,
Suva, Fiji

Mr. Ambati Siva Narayana

Inspector General of Police,
Indian Police Service,
Security Intelligence,
Andhra Pradesh, Hyderabad, India

Mr. Sambas Somawidjaja

Head of Sub-directorate for Social Rehabilitation For Juvenile
Delinquency,
National Social Welfare Board,
Jakarta, Indonesia

Mr. Teh Guan Bee

Principal,
Sekolah Tunas Bakti (Juvenile Boys Home),
Taiping, Malaysia

Mr. Binod Mohan Acharya

District Judge,
District Court,
Kalikat, Nepal

Mr. Zaka-Ur-Rab Rana

Senior Lecturer,
Central Jail Staff Training Institute,
Lahore, Pakistan

Mr. Amin Ali Ibrahim Inabi

Director,
Probation Department,
Ministry of Social Affairs,
Ramallah, Palestine

Mr. Martin Tongamp

Probation Officer,
Division of Probation and Parole Services,
Boroko N.C.D, Papua New Guinea

Ms. Matshego Bitsang Joyce

Deputy Director,
Youth and Females Department ofCorrectional Services,
Pretoria, South Africa

Ms. Rajapakshage Sunethra Gunawardhana

Provincial Commissioner,
Department of Probation and Child Care Services,
Badulla, Sri Lanka

Ms. Duangporn Ukris

Acting Superintendent,
Sirindhorn Vocational Training School,
Nakornprathom Province, Thailand

22

APPENDIX
Japanese Participants
Mr. Naoyuki Fukushima

Assistant Judge,
Tokyo District Court,
Tokyo, Japan

Mr. Kazuhito Hosaka

Prosecutor,
Mito District Public Prosecutors Office,Ibaragi, JapanMr. Yasuhiro Hosoi

Principal Specialist,
Fukui Juvenile Classification Home,
Fukui, Japan

Ms. Yukiko Kudou

Probation Officer,
Hokkaido Regional Parole Board,
Sapporo, JapanMr. Shousuke Kuwabara

Senior Family Court Probation Officer,
Fukuoka Family Court,
Fukuoka, Japan

Mr. Masamichi Noda

Family Court Probation Officer,
Hiroshima Family Court, Kure Branch,
Hiroshima, Japan

Ms. Kae Sakuma

Public Prosecutor,
Saitama District Public Prosecutors Office,Kumagaya, Japan

Mr. Takahito Shimada

Researcher,National Research Institute of
Police Science,
Kashiwa, Japan

Ms. Tomoko Yoshida

Professor,
Training Institute for
Correctional Personnel,
Fuchu, JapanMr. Hideo Yoshioka

Probation Officer,
Yamaguchi Probation Office,Yamaguchi, JapanTHE 119TH INTERNATIONAL TRAINING COURSE

Overseas Participants
Mr. Oscar Antonio Goyanes

Inspector,
Argentine Federal Police,
Buenos Aires, Argentina

Mr. Bechem Eyong Eneke

Sub Director for Human Resources,
Ministry of Justice,
Yaounde, Cameroon

Ms. Gina Antonella Ramos Giron

Public Prosecutor,
Attorney General’s Office
Department of Organized Crime,
Tegucigalpa, Honduras

23

ANNUAL REPORT FOR 2001
Mr. Shankar Pratap Singh

Deputy Inspector General of Police,
Anti-Corruption Cell-III,
Central Bureau of Investigation,
New Delhi, India

Mr. Jan Samuel Maringka

Head of Section, Deputy Attorney-General’sfor Special Crimes,
Jl. Sultan Hasanundin No. 1,
Jakarta Selatan, Indonesia

Mr. Bulatov Timur

Senior Investigator,
Invest. Div Head ADM. Section,
DIA Chui Region,
Department of Internal Affairs,
Bishkek, Kyrgyzstan

Mr. Nouphanh Mahaphonh

General Director,
Judicial Administration Department,
Ministry of Justice,
Vientiane, Laos

Mr. Zainal Rashid Bin Hj Abu Bakar

Head of Criminal Investigation Department,
Johor Bahru Police District,
Royal Malaysia Police,
Johor, Malaysia

Mr. Sazali Bin Salbi

Director of Anti-Corruption Agency,
Labuan, Malaysia

Mr. Bhola Prasad Kharel

District Judge,
Jhapa District Court,
Chandragadi, Nepal

Mr. Saad Imtiaz Ali

SSP/Deputy Director,
Central Planning and Training Unit,
National Police Academy,
Islamabad, Pakistan

Mr. Zafarullah Khan

Deputy Inspector of Police,
Officer on Special Duty, PSP (PPM Baz)
Establishment Division,
Islamabad, Pakistan

Mr. Miguel Angel Moran Flores

Major Operative Officer, Chief of Training,
Anti-Narcotics Department,
Peruvian National Police,
Lima, Peru

Mr. Sittipong Tanyapongpruch

Judge,
Central Intellectual Property and International Trade Court,
Bangkok, Thailand

Mr. Muchwangali Charles

Regional Crime Investigations Officer,
Uganda Police, Kampala,
UgandaMr. Raphael Angel Romero Sibulio

Chief Inspector, Judicial Technical Police,
Caracas, Venezuela

24

APPENDIX
Japanese Participants
Mr. Masakazu Ameku

Narcotics Control Officer,
Kyusyu Regional Bureau of Health and Welfare,
Regional Narcotic Control Office,Ministry of Health, Labor and Welfare,
Okinawa, Japan

Mr. Takao Hamada

Probation Officer,
Shikoku Regional Parole Board,
Kagawa, JapanMr. Yasunari Hataguchi

Assistant Judge,
Osaka District Court,
Osaka, Japan

Ms. Mayumi Ichikawa

Senior Programme Officer,
Kasamatsu Prison,
Gifu, Japan

Mr. Tsunekazu Kobashi

Public Prosecutor,
Tokyo District Public Prosecutors Office,Tokyo, Japan

Mr. Takashi Maruoka

Senior Immigration Inspector,
Tokyo Regional Immigration Bureau,
Tokyo, Japan

Ms. Azumi Misawa

Public Prosecutor,
Kobe District Public Prosecutors Office,Himeji Branch Office, Japan

Ms. Reiko Ota

Public Prosecutor,Fukuoka District Public Prosecutors Office,Fukuoka, Japan

Mr. Takahiro Satou

Deputy Director of Guard Division,
Guard and Rescue Department,
10th Regional Coast Guard Headquarters,
Kagoshima, Japan

Mr. Taizo Yokoyama

Assistant Judge,
Tokyo District Court,
Tokyo, Japan

Mr. Masayuki Takeda

Chief Investigator of 2nd Division,
1st Department,
Public Security Investigation Agency,
Tokyo, Japan

25

ANNUAL REPORT FOR 2001

SIXTH SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICEOFFICIALS OF THE PEOPLE’S REPUBLIC OF CHINA

Mr. Li, Chang-Ming

President
Tonghua City Intermediate People’s Court,
Jilin Province

Mr. Chen, San-Hu

Division Chief
Science, Technology & Training Division,
International Cooperation Department
Ministry of Public Security

Mr. Zhang, Ming

Division Director,
Division of Judicial Assistance, Department of
Judicial Assistance andForeign Affairs, Ministry of Justice

Mr. Zhao, Hong-Kui

Deputy Director,
Research Division,
Prison Administration Bureau,
Ministry of Justice

Mr.. Zhang, En-You

Deputy Director of Teaching Management,
Central Institute of Judicial Police

Mr. Li, Wen-Sheng

Deputy Division Chief ,Legal Affairs Department,
Ministry of Public Security

Mr. Zhou, Yong-Jie

Public Prosecutor,
The People’s Procuraturate of Sichuan Province

Mr. Gao, Gui-Jun

Judge,
Supreme People’s Court

Mr. Li, Zhen-Qi

Chief Judge,
Second Chamber of Criminal Justice,
Beijing High People’s Court

26

APPENDIXSECOND SPECIAL SEMINAR FOR KENYAN OFFICIALSON JUVENILE DELINQUENT TREATMENT SYSTEMSMr. Charles Mwiti MbengiChildren’s Officer,
Wamumu Approved School

Mr. Philip Khisa Wapopa

Children’s Officer,
Othaya Approved School

Mr. Julius Kemboi Yator

Manager,
Thika Approved School

Ms. Margaret Wakasa Buyela

Deputy Director,
Children’s Department Headquarters,
Ministry of Home Affairs

Mr. Francis Aloyce Onyango Obare

Officer in-Charge,
Kisumu Juvenile Remand Home

Ms. Rhoda Kanini Muisyo

Officer in-Charge,
Nairobi Juvenile Remand Home

Ms. Judy Njoki Ndungu

Chief Children’s Officer,
Children’s Department, Ministry of Home Affairs

Mr. Abdi Sheikh Yusuf

Provincial Children’s Officer,
North Eastern Provincial Children’s Office27

ANNUAL REPORT FOR 2001

FOURTH SPECIAL TRAINING COURSE ON CORRUPTION CONTROL

Overseas Participants
Mr. Sailendra Kumar Adhikary

Chief Metropolitan Magistrate,
Metropolitan Magistrate Court,
Bangladesh

Mr. Chaudhary Vinay Veerendra

Deputy Commissioner of Police,
Anti Corruption Branch, Directorate of Vigilance,
Government of National Capital Territory of Delhi, India

Mr. Toton Suprapto Sh.

Justice,
Supreme Court of Indonesia,
Indonesia

Mr. Kennedy Bosire Masita

Superintendent of Police,
Fraud Investigator,
Criminal Investigations Department, Headquarters,
Nairobi, Kenya

Mr. Asan Kangeldiev

Prosecutor of the Department,
General Prosecutor Office of the,Kyrgyz Republic,
KyrgyzMr. Thomas Akin Jelimin

Deputy Public Prosecutor /Senior Legal Officer,
State Attorney General’sChambers, Sarawak,
Malaysia

Mr. Idham Bin Abd. Ghani

Deputy Public Prosecutor/
Head of Research Unit,
Anti-Corruption Agency, Anti Corruption Agency
Malaysia

Mr. Kumar Bahadur Khadka

Section Officer
Commission for theInvestigation of Abuse of Authority
Nepal

Ms. Christiana Ijeoma Onuogu

Legal Adviser /Head of Prosecution,
Independent Corrupt Practices Commission,
Nigeria

Ms. Grace Morales Hernaez

Graft Investigation Officer II,
Office of the Ombudsman,
Mindanao,
Republic of the Philippines

Mr. Prasong Kunajiraporn

Judge,The Court of Appeals Region 9,
Thailand28

APPENDIX
Ms. Supinya Berkfah

Senior Officer,
The Office of the National
Counter Corruption Commission,
ThailandJapanese Participants
Mr. Takushi Noguchi

Assistant Judge,
Yamaguchi Family Court (Iwakuni Branch),Japan

Ms. Saori Watanabe

Public Prosecutor,
Yokohama District Public Prosecutors Office,Japan

Mr. Tsuyoshi Kishi

Public Prosecutor,
Sendai District Public Prosecutors Office,
Japan

29

ANNUAL REPORT FOR 2001

Distribution of Participants by Professional Backgrounds and Countries(1st International Training Course - 120th International Senior Seminar, U.N.Human Rights Courses and 1 Special
Course)Professional
Background
Country

Judicial
and
Other
Administration

Correc- CorrecProbaPublictionaltionalPolicetion
ProsecuOffiOffiOfficials
Paroletors
cials(Ad cials(JucOfficers
ult)
enile)

Judeg

Afghanistan

78Bangladesh

20

11

5

4

Myanmar

3

China

12

Total

23
5

4

5

2

3

14

India

14

10

Indonesia

20

20

Iran

5

11

Iraq

5

5

6
5

10

7

11

24

3

9

3

1

50

7

1

1

2

6

20

21

14

3

6

8

8

6

3

3

5

5

1

2

1

5

1

12

3

53

6

2
5

37
66
3

94

1

105

1

2

41
28

4

Oman

58
3

2

Jordan

4
1

10

3

3
19

4

3

100

Kyrgyz

1

1

2

Laos

5

5

4

10

24

Malaysia

19

2

4

42

Maldives

31

8

3

1

5

3

1

Mongolia

1

Nepal

27

13

9

31

10

2

29

Pakistan

18

Palestine

1

Philippines

17

1

2
8

1

1
9

21

33

2

82

2

1

73

6

3

5

118

1

1

15

3

1

1

73

1

107

1

149

2
1

8

3

9

Saudi Arabia

4

6

3

Singapore

10

18

5

12

10

3

10

Sri Lanka

21

20

12

20

18

1

11

Taiwan

12

4

2

2

1

Thailand

21

30

37

15

14

8

10

Turkey2112

United Arab Emirates

1

3
3

1

1

2

21
1

8

4
1

1
10

5

2

7

ASIA

287

188

195

354

3

2

Algeria
Botswana

1

Cameroon

3

Cote d'Ivoire

176

37

63

4

4

4

1

44

37

20

5
3

1

1

1

Ethiopia3

1

Gambia

2
2

1

1

3

Guinea
4

1

2

1

12

Lesotho

2
1

5
3

7

1

6

2

38

1

1

2

Liberia
Madagascar

3

1

1

1

Morocco542

Mauritius

1,409

3
1

6

1
29

2

Egypt

Kenya

7
1

Viet Nam

Ghana

118

1

Uzbekistan

30

Others2

Hong Kong

Korea

TrainSocial
ing&Res
Welfareearch
Officers
Officers

3

Brunei

CambodiaChild
WelfareOfficers

3
11

BhutanFamilyCourt
Incestigation
Officers

1
1

4

5

Mozambique

1

1

1

Nigeria

1

5

5

3
1

12

APPENDIX
Professional
Background
Country

Judicial
and
Other
Administration

Correc- CorrecProbaPublictionaltionalPolicetion
ProsecuOffiOffiOfficials
Paroletors
cials(Ad cials(JucOfficers
ult)
enile)

Judeg

South Africa

2

Seychelles

3

Sudan

2

1

Swaziland
Tanzania

13

Zambia3

4

1

Zimbabwe

1

AFRICA

24

5

1

Total

1

4

2

19

1

4

1

2
1

17

5

11

74

7
1

7

3

159

3
17

0

1

9

0

0

1

0

8

1

3

1

51

1

Fiji

6

Kiribati

1

Marshall Island

1

1

9

20

1
14

1
3

4

Micronesia

1

Nauru

1

1

New Zealand1

Papua New Guinea

10

Solomon Islands

3

Tonga

2

1

1
1

4

12

2
9

3

Western Samoa

1
25

3

Argentina

2

2

6

2

47

1
1

25

0

6

0

0

3

1

12
1

4

3

127

2

6

1
1

1

2

1

2

1

1

Brazil

2

Chile

1

3

Colombia

3

1

2

Costa Rica

3

4

4

15
3

Ecuador

1
1

1

1

6

3

1
1

4

1

11

2

14

1

6
2

1

Guatemala1
1

Honduras

1

Jamaica3

Mexico1

Nicaragua

1

3

4
1

4
1

1

Panama

1
1

2

4

2

Paraguay

94

10Saint Lucia

1

4

2

24

1

10

1

1

1

1

1

1

Trinidad and Tobago

2

1

Venezuela

1

U.S.A.(Hawaii)

1

NORTH & SOUTH
AMERICA

24

1
1

19

1

8

18

56

Bulgaria

2
1

7

2

1

1

2

1

3

11
7

1

Hungary

1

Macedonia

1

2
22

2

1

Grenada

42
5

2

1
14

Barbados
Bolivia

1

2
1

THE PACIFICSaint Vincent

Others6
1

Vanuatu

Peru

TrainSocial
ing&Res
Welfareearch
Officers
Officers

2
13Australia

El Salvador

Child
WelfareOfficers

2
4

UgandaBelizeFamilyCourt
Incestigation
Officers

141
1
1
1

Poland1

Lithuania

1
3

1
1

EUROPE

2

0

0

0

0

0

0

0

0

0

0

5

JAPAN

105

139

228

88

81

72

170

57

38

2

48

58

1,086

TOTAL

467

362

466

622

306

111

249

62

44

50

97

91

2,927

31

ANNUAL REPORT FOR 2001

32

PART TWORESOURCE MATERIAL SERIES
No. 60Work Product of the 120th International Senior Seminar“EFFECTIVE ADMINISTRATION OF THE POLICE
AND THE PROSECUTION IN CRIMINAL JUSTICE”

UNAFEIVISITING EXPERTS’ PAPERS
THE COMPETENCE OF THE POLICE IN INVESTIGATION PROCEEDINGS
Eberhard Siegismund*
I. INTRODUCTION
Several years ago, a survey was conducted in Germany on the subject of security and protection against crime. The
results – not surprisingly – indicated that the majority of the country’s citizens want a stronger state. Approximately 70
percent of the people surveyed in Germany’s eastern states were even willing to accept a restriction of their basic rights
if this would lead to greater success in combating crime. Only roughly one in three persons over the age of 30 were of
the opinion that there could be no absolute protection against criminal offences in a free society.
Precisely older citizens have a – usually unfounded – excessive fear of becoming the victim of a criminal offence.
This fear and the desire among broad segments of the population for greater security in everyday life are reflected in thecall for a strengthening and extension of the powers of the police. The Code of Criminal Procedure is thereby quickly
exposed to the reproach that its unnecessary formalities serve solely to protect the perpetrator. Politicians who woo votersby championing an enlargement and strengthening of the police forces as well as an increase in the number and speed ofarrests and a concomitant shortening of criminal proceedings can reckon with considerable support. Especially since theevents of 11 September 2001 and the launch of the global campaign to combat terrorism, endeavours to strengthen andextend the powers of the police unquestionably have good prospects for success.
This development must be followed all the more closely in view of the fact that the previous expansion of the scopeof the duties of the police is problematic from the standpoint of both criminological policy and constitutional law andmore than ten years ago already gave German defence attorneys cause to warn against an “annexing of criminal proceedings
by the police”.
In the following I would like to familiarise you with the current law in Germany and with the broad scope of police
activity in criminal investigation proceedings. I would also like to discuss the subject of the extension of police powers
and present models for successful co-operation in response to specific kinds of crime. And, finally, permit me to address
the question of how constructive co-operation between the police and the judicial authorities could ideally be structured.
II. THE CURRENT LAW IN GERMANY
A. Overall Responsibility of the Public Prosecution Office in Investigation Proceedings
Pursuant to section 160 subsection (1) of the Code of Criminal Procedure (hereinafter also abbreviated as CCP), assoon as the public prosecution office obtains knowledge of a suspected criminal offence it must investigate the facts todecide whether public charges are to be preferred. For this purpose it is authorised to make investigations itself or throughthe authorities and officials in the police force (section 161 subsection (1), first sentence of the CCP). The officials in thepolice force are thereby obliged to comply with the request or order of the public prosecution office (section 161 subsection(1), second sentence of the CCP).
The police also have a duty to investigate criminal offences (section 163 subsection (1) of the CCP). To this extent
they may – even without an application by the public prosecution office – “take all measures where there should be nodelay, in order to prevent concealment of facts”. The duty of taking initial action is thus transferred to the police.
The aforementioned provision in section 161 of the CCP is thus the statutory foundation for the authorisation of
investigations of all kinds, including investigatory acts involving interference with a basic right that are less intrusive
and are therefore not encompassed by a specific authorisation of interference. These include short-term observation andthe use of confidential informers or undercover buyers (in the case of drugs), for example, as well as simple searchmeasures such as the procurement of information from authorities.

* Deputy Director General in the Judicial System Division,Federal Ministry of Justice,
Berlin, Germany

35

RESOURCE MATERIAL SERIES No. 60
With respect to the distribution of tasks between the public prosecution office and the police, account must also betaken of section 158 subsection (1) of the CCP, pursuant to which the information of a criminal offence or an application
for criminal prosecution may be filed with the authorities and officials in the police force as well as with the publicprosecution office and the Local Courts. This is a provision that for all practical purposes enables the police to take initialaction to investigate and thus ascertain the facts of the case in the overwhelming majority of cases (approximately 80
percent).
Moreover, you find a multitude of rights of interference in the Code of Criminal Procedure that can be exercised in
exigent circumstances either by all police officers or only by the so-called “officials assisting the public prosecution
office”, who have greater authority to make orders than the other officials in the police force.
B. All Police Officers have the Following Coercive Powers:• the right to make provisional arrests (section 127 subsection (1), first sentence; section 127 subsection (2); section 127b
subsection (1); section 163b subsection (1), second sentence of the CCP),•

the right to carry out measures for identification purposes (section 81b and section 163b subsection (1), third sentenceof the CCP; at checkpoints: section 111 subsection (3) of the CCP),•

the right to establish identity (section 163b of the CCP),•

the right to use technical means within the meaning of section 100c subsection (1), numbers 1a and 1b of the CCP(taking of photographs and making of visual recordings, use of technical means for the purposes of surveillance),•

the right to use an undercover investigator in exigent circumstances (section 110b subsection (1), second sentence of
the CCP),•the right to examine papers with the consent of the holder pursuant to section 110 subsection (2), first sentence of
the CCP.

C. The Police Officials Assisting the Public Prosecution Office also have the Authority to Order the Following:• seizure (section 98 subsection (1), first sentence, and section 111e subsection (1), second sentence of the CCP),•

search (section 105 subsection (1), first sentence of the CCP),•

physical examination of the accused (blood samples and other bodily intrusions; section 81a subsection (2) of the CCP),•

physical examination of persons other than the accused (section 81c subsection (5), first sentence of the CCP),•

establishment of identity through DNA analysis (section 81g subsection (3) of the CCP in conjunction with section
81a subsection (2) of the CCP),•

use of technical means within the meaning of section 100c subsection (1), number 2 of the CCP (listening to andrecording of private speech outside private premises),•establishment of checkpoints (section 111 subsection (2) of the CCP),•

emergency sale of objects that have been seized or attached (section 111l subsection (2), second sentence, andsubsection (3), second sentence of the CCP),•

computer-assisted search (section 163d subsection (2), first sentence of the CCP).

D. Statutory Distribution of Tasks Between the Public Prosecution Office and the Police
As I mentioned at the beginning, the police admittedly have the right to take initial action; on the other hand, however,they are obliged to comply with requests and orders of the public prosecution office and – this is crucial – transmit therecords of their investigations to the public prosecution office without delay (section 163 subsection 2, first sentence of
the CCP).

36

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
The public prosecution office is responsible for leading the investigation proceedings; it is in charge of the proceedings
at this stage. The police criminal investigation department is thus (only) an investigatory body of the public prosecution
office. As a matter of principle, the public prosecution office is hence responsible for substantive direction of the police
investigations. It has legal control and bears basic responsibility for the proper procurement and the reliability of theevidence required for the criminal proceedings. Under the law there is thus neither any independent right of investigationon the part of the police nor any area of the investigation proceedings that is not subject to the control of the publicprosecution office.
The Federal Administrative Court summarised this finding as follows (Federal Administrative Court decision volume
47, pages 255 et. seq., 262):
The measures taken by the police when taking initial action are criminal investigations just the same as themeasures taken at the instruction of the public prosecution office and the actions of the public prosecution officeitself. The Criminal Procedure Code makes no provision for a special investigation proceeding by the police
criminal investigation department. The investigations to prosecute criminal acts form an integrated whole; theinvestigation proceeding is not split into a police proceeding and a public prosecution office proceeding.
From the sole responsibility of the public prosecution office for the conduct of the investigation proceedings it follows
that the power of decision concerning the conclusion of the investigation – termination or preferment of charges – islikewise solely the responsibility of the public prosecution office.
If the investigations offer sufficient reason for preferring public charges, the public prosecution office prefers themby submitting a bill of indictment to the competent court (section 170 subsection (1) of the CCP). In all other cases it
terminates the proceedings (section 170 subsection (2), first sentence of the CCP). The percentage of investigations thatare terminated due to negligible guilt of the perpetrator and lack of public interest in criminal prosecution or uponcompliance with conditions or instructions is relatively large, however. I already addressed these issues earlier in mylecture on the duties of the public prosecution office.
III. ACTUAL LEADERSHIP OF THE INVESTIGATION PROCEEDINGSAt least from crime thrillers, we are all familiar with the public prosecutor who leads the investigation at the sceneof the crime, supervises the taking of evidence, participates in the examination of witnesses or the accused, or conducts
such examination himself, and in all other respects co-operates closely in a spirit of mutual confidence and trust with theofficials of the homicide squad. The public prosecution office also makes extensive use of its authority to lead theinvestigations in the prosecution of so-called government crime, politically motivated criminal offences and legallycomplex environmental or economic crime.
Precisely in the area of economic crime, the investigations are clearly concentrated at the public prosecution office,which thereby often avails itself of the specialist knowledge of experts in the fields of tax or banking law. Command of
criminal investigation techniques is of lesser importance in cases involving these offences; for the most part, they turnon questions that can only be authoritatively answered by an expert trained in criminal or commercial law. It is thus
especially in this area that the public prosecutor exercises the authority to lead the case that is vested in him for the entire
investigation proceeding.
The guidelines for criminal proceedings – these are detailed instructions of the Land ministries of justice for the workof the public prosecution office – state the following in this regard:
In cases that are of considerable importance or are difficult in terms of fact or law, the public prosecutor should
personally clarify the facts of the case from the very beginning, namely inspect the scene of the crime himself andpersonally examine the accused and the most important witnesses. The consequences ensuing from the offence
can also be of importance for the decision as to whether he should personally examine the aggrieved person as awitness.
In all other cases, however, the authority of the public prosecutor to lead the investigations goes largely unexercised,although this is regulated in the aforementioned guidelines as well:37

RESOURCE MATERIAL SERIES No. 60
Even if the public prosecutor does not personally clarify the facts of the case but instead delegates this task to theofficials assisting him, to the authorities and officials in the police force or to other agencies, he must lead theinvestigations or at least determine their direction and their scope. He can thereby also give specific individual
instructions as to the way in which individual investigatory acts are to be carried out.
In fact, the legal position of the public prosecutor has been considerably watered down over the years. There are anumber of reasons for this:A. Greater Weight of Police Investigations
In practice, it is police officers who conduct the majority of all investigations and, namely, independently of a requestor order of the public prosecution office. In the area of petty and fairly serious crime, they in fact usually investigate
without the direction of the public prosecution office up to the point where a decision can be made. There is a relatively
simple explanation for this. Criminal offences are largely reported to the police. Moreover, the police often become awareof an initial suspicion in the course of performance of their official duties and take action on the basis of this.
In such cases section 163 of the CCP grants the police the authority to investigate the facts of the case themselves
and to take all measures where there should be no delay. As a rule, the public prosecution office initially knows nothing
about this and thus cannot exercise its authority to lead the investigation at all.
In other words: For all practical purposes, it is up to the police whether and how the principle of mandatory prosecution(Legalitätsprinzip) is translated into action.
I would like to make a few brief remarks concerning the principle of mandatory prosecution:
A criminal proceeding is not a proceeding between parties like a civil proceeding. In contrast to the civil proceeding,which is governed by the parties’ freedom of disposition and in which the decision is rendered on the basis of a formal
truth dependent on the submissions of the parties, in the criminal proceeding the public prosecution office – and the police– are bound by the principle of mandatory prosecution. This principle ensures uniform and equal application of the law
as opposed to arbitrary selection and instils confidence that criminal prosecution will be handled in an objective and justmanner.
Exceptions to the principle of mandatory prosecution are usually lumped together under the term “principle ofdiscretionary prosecution” (Opportunitätsprinzip). After all, the public does not have an interest in the prosecution of
every single criminal offence. In cases involving minor and moderately serious crimes where only private legal interests
have been infringed, the law therefore makes prosecution subject to further conditions.
Returning to the subject at hand: For all practical purposes, it is thus up to the police whether and how a matter isinvestigated, in other words, whether and how the principle of mandatory prosecution is translated into action. For thepolice by no means limit themselves to taking initial action but instead largely independently undertake investigatory
action up to the point where a decision can be made. They thereby strive to deliver conclusive results to the publicprosecution office. The public prosecution office and the judges are consequently only able to exercise their control in
isolated cases.
Thus it is in fact the principle of discretionary prosecution that reigns in investigation proceedings – at least according
to the criticism voiced in legal literature. For empirical studies indicate that the police can determine whether or notinvestigations will be instituted•

through the way in which the information of the offence is registered,•through selective clarification work in the course of police squad activity, and•through the offence-dependent intensity of police investigations.
Let me give you an example:

A few years ago a colleague from the United States stayed at our home. She did not speak German and still had somedifficulty keeping the German banknotes apart. When she paid for a purchase one day, the salesperson slipped her a38

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Czech 100-crown bill that was worth only a fraction of the German 100-mark bill she should have received in change.
Our guest failed to notice this fraudulent trick because the 100-crown bill was roughly the same size and colour as the
100-mark bill. My wife and I accompanied her to the police station, where the officers listened to her complaint. They
also confronted the salesperson with our guest’s accusation but were unable to clarify the facts of the case. The police
officer took the 100-crown bill for safekeeping and wrote down our address. When I inquired about the status of theinvestigations a few days later, I was surprised to learn that the police had neither filed a written report nor investigatedthe case any further. There was absolutely no documentation whatsoever of the incident; they merely offered to give meback the 100-crown bill.
This is a prime example of how sheer passivity on the part of the police authorities – in this case failure to file areport of a criminal offence – can result in a gross violation of the principle of mandatory prosecution. The fact that inthis way it is also possible to control the workload of the police and keep cases that are difficult or impossible to solveout of the statistics is another critical point that one must bear in mind when contemplating an extension of the powersof the police.
As a rule, the question of whether coercive measures under the law of criminal procedure will be used in the further
course of the investigation proceeding likewise hinges on a preliminary examination and decision by the police that is
not stipulated by law. For except in cases involving financial and economic crime, where the public prosecution officegenerally takes the lead in the proceedings, it is the police who decide whether the files should be submitted to the publicprosecution office in order for the latter to apply for the issue of a warrant of arrest. It is not unproblematic that this allows
the police a certain amount of discretion that can unquestionably be exercised after the provisional arrest of a suspect toinfluence his willingness to make statements, in particular to make a confession, name accomplices or divulge the hiding
places of loot or of objects used to commit the crime.
The police also often play a crucial role in determining the course of the proceedings through responsible examinationof the accused. It is the police who can decide the question of whether – in cases where the facts are unclear – a certain
person should no longer be examined as a witness but rather as an accused. For all practical purposes it is thus up to thepolice to determine the point at which certain rights of the accused become effective. This is a particularly delicate issue
in light of the fact that the police officers often conduct an “informal preliminary talk” or an “informatory questioning”
of the suspect in order to first ascertain whether they can reckon with a statement or perhaps even a confession or otherinformation pertaining to the offence. Such conduct by the police has no foundation in law, but it is not expressly prohibited
either. From the standpoint of respect for the rights of the accused, however, it is particularly problematic because thedefendant is not usually formally advised of his rights beforehand. Hence the term “informal” preliminary talk.
Such kinds of talks or questioning are quite popular with the police because the knowledge acquired in this manner
can ultimately find its way into the investigation proceedings. The investigating officer, for instance, can add a note to
the file detailing the information he has obtained and later testify to this in court as a witness. It goes without saying that
defence attorneys do not favour this practice.
While – at least under German procedural law – the defendant indeed has the right to call in and consult with defence
counsel at any time, the defence counsel does not have any statutory right to be present when the defendant is examined.
Thus in the final analysis the police examination can be structured at the discretion of the officer conducting theexamination, for the public prosecutor is usually not present.
Anyone familiar with the subject matter knows that in most cases, mistakes made during the investigation proceedings
cannot be eliminated later on in the main hearing; it is likewise common knowledge that once the defendant has made acomprehensive confession to the police he will hardly ever be able to distance himself from it. This alone makes it clearthat in the majority of cases it is not likely to be the public prosecution office but rather the police investigatory authorities
that take the steps determining the subsequent course of the investigation proceedings.
B. Head Start of the Police in the Investigations as a Consequence of Preventive Action
The police have an ambiguous position in criminal proceedings, as can clearly be seen from the following example:
A burglar has broken into a bank and taken a hostage. While the public prosecutor who has hurried to the scene of
the crime can order the police officers to apprehend the suspect and preserve evidence at the scene of the crime, he cannot
order them to free the hostage by firing a shot at the perpetrator. For the latter act would not be a criminal prosecution
measure but rather a measure to safeguard public security.

39

RESOURCE MATERIAL SERIES No. 60
The general clause laid down in the police acts of Germany’s Länder stipulates thatIn the context of action to avert danger, the police authorities must also prevent any foreseeable criminal offences(preventive suppression of crime).
It is thus the task of the police, as the law enforcement authority under the purview of the Minister of the Interior, totake preventive or responsive action to suppress disturbances of the peace. This also includes action taken against
perpetrators, such as an assault to free hostages.
Here the police are subject to the instructions of the Minister of the Interior; as soon as investigations of persons
suspected of having committed a criminal offence are on the agenda, however, the federal statutory regulations of theCode of Criminal Procedure and the Courts Constitution Act apply, with the result that the public prosecution office isauthorised to give instructions to the officials assisting it. To the extent that the police are engaged in the prosecution ofa criminal offence, one speaks of repressive action; to the extent that they are acting to prevent criminal offences, one
speaks of preventive action. Occasionally, however, this distinction poses problems because the general duty (regulatedby Land law) of the police to suppress crime overlaps with the duty (regulated by federal law) to clear up criminal offences
pursuant to the provisions of the Code of Criminal Procedure.
It must, however, be noted that preventive action to suppress crime is an independent pillar in the area of action to
avert danger and thus logically falls within the sole competence of the police. Given the use of computers to collect andprocess vast quantities of information, prevention as conceived above constitutes a considerable extension of the dutiesof the police. This can be seen from the example of a confidential informer – a small-time drug dealer, for instance –controlled by the police who regularly supplies the police with a wealth of information that – after evaluation and collationby the police – makes targeted investigatory action possible. Since the public prosecution office does not find out about
this flow of information in most cases, it cannot exercise its authority to lead the investigations at all.
You will now ask me who has “supreme authority” at the scene of the crime in the case involving the hostage-taker:
the senior public prosecutor or a senior police officer. The guidelines for criminal proceedings contain a wise provision
for such a constellation:
In the event that criminal prosecution duties and duties to avert danger follow simultaneously and directly fromone and the same situation, the public prosecution office and police shall be competent to take the measuresnecessary to fulfil their duties.
In such a case, close co-operation based on mutual trust between the public prosecution office and the police isparticularly essential. Co-operation in a spirit of partnership dictates that when fulfilling its duties each agency
also take into account the implications this will have for the fulfilment of the other duties following from thesituation. If the public prosecution office becomes involved, the public prosecutor and the police shall takemutually agreed action if at all possible. This shall also apply in the event that the situation does not permit
simultaneous appropriate fulfilment of both their duties. In this case it shall be decided, by weighing the merits ofthe duties and the legal interests involved, whether criminal prosecution or action to avert danger is the higher
good under the given specific circumstances.
Up to this point there has only been an appeal to the police and the public prosecutor to agree on a mutually acceptablecourse of action at the scene of the crime; the question of whether the police may on its own responsibility fell the hostagetaker by firing a shot or must instead wait until the public prosecutor gives his instructions is answered by the following
provision:
If the situation requires a decision concerning the use of direct force without delay and if agreement cannot bereached – even after consulting the superior agencies – as to which duty has priority under the specificcircumstances, the police shall make the decision.
C. Professionalisation of Criminal Investigation Techniques
Last year, the police investigatory authorities dealt with approximately 6.5 million criminal offences. It goes without
saying that not only in view of the multitude of investigation proceedings but also in view of its usual lack of specialisation,
the public prosecution office is dependent on the specialist knowledge of the police criminal investigation officers.
Furthermore, the police with their technical equipment are much more in the public limelight and hence more the focus

40

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSof political attention; they thus enjoy not only greater goodwill but also greater financial support. As a consequence of
the wide range of new techniques for establishing proof that have also been upheld in decisions of the highest courts(such as DNA analysis, fibre expertise, chemical analysis) and the frequently convincing command of these techniquesby the police, the head start of the police in the investigation proceedings from the standpoint of information has become
so pronounced that the public prosecution office must often limit itself to checking the plausibility of the results of theinvestigations submitted to it.
It is meanwhile often only the police who have specialists capable of accurately selecting, sequencing and assessing
the prospects for success of individual investigatory methods. The public prosecution offices are thus only rarely able tocontrol, influence or direct the investigations in substantive terms.
It must be pointed out in this context that the police forces – which are organized at Land level and have no central
office where information can be accessed by all Land police authorities – are hardly in a position to effectively combat
criminal offences committed on a national scale. This particularly hinders the prosecution of offenders who operateinternationally. Against this background, the decision was taken to establish the Federal Criminal Police Office (BKA)
in Wiesbaden. In addition to its information collection and co-ordination functions, the Federal Criminal Police Officemaintains the facilities and equipment required for all kinds of criminal investigations and criminological research inorder to assist the Land police authorities in their investigations.
D. Police Control of Data
Since 1972, the Federal Criminal Police Office has had the electronic information network “INPOL” at its disposal
to assist the police in the fulfilment of their duties. INPOL is made available at federal and Land level for joint use bypolice agencies and contains the following data, among other things:•

wanted persons data file,•wanted property data file,•

Criminal Records Index (CRI),•

prisoner file,•

Identification Service,•

Automated Fingerprint Identification System (AFIS),•

motor vehicle light identification file for hit-and-run accident queries,•

vehicle identification and analysis system,•

unidentified dead and missing persons data file,•police crime statistics.

Of particular importance in this context is the wanted persons data file. It facilitates determination of the whereaboutsof wanted persons, apprehension, detention, taking of fingerprints and photographs, and establishment of identity. Amongother things, it contains data concerning persons who are wanted for arrest, whose whereabouts are unknown, whose
permission to drive has been withdrawn or who are sought in matters falling within the competence of the border police.
Just under one million persons are currently listed in this file.
The wanted property data file serves to conserve evidence and recover property. It contains, for example, theinformation needed for search measures concerning objects that were used to commit a criminal offence or surfaced inconnection with the offence or are otherwise of significance to a criminal proceeding. It also contains information
concerning vehicles that are under police surveillance. Among the approximately 6.5 million objects contained in thisdata file are 350,000 cars, 500,000 motor vehicle license plate numbers, 1.3 million personal identification documents,
just under 600,000 blank documents – including personal identification documents, for instance – and more than 100,000
weapons.

41

RESOURCE MATERIAL SERIES No. 60
Only the police authorities are entitled to use INPOL, Germany’s most important collection of data. Only they may
enter and access data. Thus far the judicial authorities have no right of their own to access INPOL.
The judicial authorities themselves have only relatively few information systems at their disposal. In addition to theprogrammes installed at the public prosecution offices, through which they compile and administer their own files, thesesystems include•

the Federal Central Criminal Register (here is where all criminal sanctions are registered),•

the Central Commercial Register (the purpose of which is to ensure uniform approval or denial of business licenses
to weed out unsuitable persons), and•the Central Register of Traffic Offenders (here is where all traffic infractions are registered).

In practice this means that when the police stop a person to check identification, they can access the INPOL datafrom the squad car by radio. The police officers on the scene thus have a considerable amount of highly sensitive data
concerning the person in front of them at their fingertips, but the person being checked cannot discern or deduce theextent of this information.
If the public prosecution office wanted to comprehensively control the police in investigation proceedings, it would
have to be able to access the current database at any time in order to also be able to judge the latter’s lawfulness in thecontext of its control function. In fact, however, the judicial authorities have no access to police data because some of it
is obtained on the basis of information acquired in the course of preventive action by the police. While consideration is
being given to the possibility of granting the judicial authorities access to police databases in the future, at present the
information advantage of the police essentially rules out the possibility of control by the public prosecution office in
certain areas of investigation.
E. Information Advantage through EUROPOL
Through EUROPOL, police and other information and data from the European Union Member States and third
countries are collected and analysed at a central facility for later use in investigations, control measures and executive
operations.
The aim of EUROPOL is to bring to light the activities and structures of organized crime as well as data concerning
the members and profits of criminal organizations with the aid of modern analysis techniques and to process thisinformation for the use of the national police authorities. This includes defining focal areas for further technicalinvestigatory measures, identifying connections with other investigation complexes and elaborating new investigatory
approaches. Future threatening scenarios are generated and their impact assessed in order to enable decision-makers tocarry out medium- and long-term planning and take preventive action. EUROPOL thus functions more or less as aclearinghouse for the collection and exchange of criminally relevant information. In addition to personal data of convictedindividuals, suspects, potential witnesses and victims, contacts, companions and possible informants, information fromvirtually all national and European institutions can be accessed. This data is then processed to compile strategic analyses,
among other things.
The judicial authorities do not (yet) have any influence on the activities of EUROPOL within the European area.
The German public prosecution offices do not even have a right to obtain information directly from EUROPOL. The
Federal Criminal Police Office, as the EUROPOL “national unit” for Germany, is merely obliged under the EUROPOL
Convention to notify the criminal prosecution authorities of information concerning them and of any connections identified
between criminal offences. It is currently not, however, under any obligation to forward requests for information by the
public prosecution offices or the courts to EUROPOL.
One must thus conclude that police clearly have a crucial advantage in the case of EUROPOL as well, and that here,
too, the public prosecution office cannot exercise its statutory right to control and lead the investigation proceedings.
F. The de facto Control of Matters by the Police in a Large Percentage of Investigation Proceedings is Based on
the Following:• Many investigatory acts are undertaken nearly exclusively by police officers on their sole responsibility (summons,
examination, taking of fingerprints and photographs, search, arrest, evaluation of evidence, assessment of the status42

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSof the parties to the proceedings as accused or as witnesses). The police maintain a presence day and night; in manycases they are therefore immediately at the scene of the crime and are thus able to determine the course of the future
investigations.
•

Since the police are also engaged in preventive activity, i.e. work to prevent criminal offences, they have a wealthof detailed knowledge that often enables them to take swift action without the public prosecution office becoming
aware of this.

•Public attention and media coverage focus far more often on the work of the police than on the work of the publicprosecution office. Thanks to the benevolence of political leaders, the police are better staffed and have more modern
equipment and a more highly developed basic and further training system than the judicial authorities.

•

The control of data by the police in the context of increasingly comprehensive computer-assisted investigatory
methods gives them a distinct advantage over the public prosecution office.

•The same is true of the professionalisation of criminal investigation and intelligence techniques by the police.

•

The police alone have taken organizational measures in response to the internationalisation of crime by establishing
INTERPOL and EUROPOL. The public prosecution offices are still denied access to these databases.
IV. REFLECTIONS ON AN EXTENSION OF THE POWERS OF
THE POLICE UNDER THE LAW OF CRIMINAL PROCEDURE

Given the increasingly important role of the police in criminal proceedings and their de facto advantage over the
public prosecution office, it is not surprising that the police in Germany have begun to explore the possibility of amending
provisions of the law of criminal procedure to reflect this growing importance. In the following I would like to examine
a number of suggestions in greater detail:A. Obligation of the Witness to Appear before the Police and Make Statements
Pursuant to section 161a of the CCP, witnesses are obliged to appear before the public prosecution office upon being
summoned and to make statements on the subject matter. If witnesses fail or refuse to appear without justification, thepublic prosecutor may impose a coercive fine on them. The current law of criminal procedure does not, however, provide
for an obligation of the witness to appear before the police and make statements. The police merely have the possibilityof pointing out to the witness that if he refuses, they will see to it that he is examined by the public prosecutor or thejudge, vis-a-vis whom the witness has an obligation to appear and make statements.
Time and again there have been calls by the police for legislation mandating an obligation to appear and makestatements in the case of police examination of witnesses as well. A corresponding proposal is now the subject of a billthat has been submitted by the Länder.
Law enforcement practitioners believe that investigation proceedings could be conducted more efficiently if witnesses
were under an obligation to appear before the police and make statements. In their opinion, an early initial examinationby the police takes on particular importance when the public prosecution office leading the investigation does not yet
have sufficient knowledge of the facts of the case and it would be useful to be able to draw on specific experience or
knowledge of the police or on intelligence they have gathered from preventive work to combat crime that is not immediately
available to the public prosecution office. Furthermore, they continue, in no small number of cases the investigatory
authorities have to deal with ambivalent and intimidated witnesses whose willingness to testify must also be encouragedby the police. From the standpoint of the police, it is precisely the witnesses occasionally called upon to make statements
concerning crime complexes of organized crime who should be examined promptly.
In the case of minor and moderately serious crimes, they continue, witnesses are often unwilling to appear before
the police upon being summoned due to the inconvenience, cost or time commitment this entails. An obligation to appear
before the police would at any rate be likely to accelerate the proceedings in such cases and reduce the time, cost andeffort involved for the simple reason that once such witnesses have put in an appearance, they are generally willing to
make statements. The proposed provision is to read as follows:

43

RESOURCE MATERIAL SERIES No. 60
Witnesses shall be obliged to appear before the police authority upon being summoned and to make statementson the subject matter if the summons is based on an order or request of the public prosecution office.
In the opinion of the Federal Government, which commented on the proposed provision, this would merely lead toa shift of powers to the police. For according to the explanatory memorandum to the bill, an obligation of witnesses toappear before the police and make statements was to then take on particular importance when the public prosecution
office did not yet have sufficient knowledge of the facts of the case but an early examination would nevertheless be
useful. In the Government’s view, however, an order or request by the public prosecution office to the police to summon
a witness would – if it were to be more than just a formality – presuppose a prior comprehensive briefing on the statusof the proceedings in each individual case. Thus no acceleration or increase in the efficiency of investigation proceedings
would be associated with a provision such as the one proposed.
Furthermore, it is admissible under German law for witnesses to be accompanied by legal counsel when they appear
at the examination. If witnesses were obliged to appear before the police, they would in any case bring legal counsel withthem if they could themselves be subject to criminal prosecution and therefore have a right to refuse to make statements
or if they belonged to the group of aggrieved persons or witnesses entitled to private accessory prosecution or, finally, if
they were particularly in need of protection. In these cases it is possible under the law for an attorney to be assigned to
the witness as counsel prior to examination by the public prosecutor or the judge.
In the event of the introduction of an obligation to appear before the police and make statements, the principle of fair
proceedings would demand that legal counsel already be called in – at state cost, if necessary – during the examinationby the police. This could not only lead to delays in the proceedings and addition expense for the police but also perhaps
exceed their expertise. For it is certainly doubtful whether a police criminal investigation officer, who as a rule has only
an intermediate-level school education, would be able to hold his own against an attorney with considerable court
experience serving as legal counsel for the witness. In such cases the officer conducting the examination would be
dependent on the assistance of the competent public prosecutor, insofar as he did not simply discontinue the examination
session and leave the questioning of the witness accompanied by counsel to the public prosecutor.
This example shows that the police authorities should only be given additional powers if there is no doubt that they
are fully capable of exercising them.
B. Independent Power of the Police to Terminate the Investigation when the Perpetrators are Unknown
More than 1.5 million cases of ordinary theft and just under 700,000 cases of damage to property – snapping off a
car antenna, for example – are committed in Germany each year. In cases involving crimes committed on a mass scalein which the perpetrators are likely to remain unknown, the investigation proceedings have already been simplified tothe point where no effort is generally made to procure evidence or examine witnesses.
As a rule, the file consists of just one sheet of paper on which the person harmed describes the criminal offence, aform with which the police notify the person harmed two or three weeks after the crime that they were unable to locate
a perpetrator, and another form signed two or three weeks later by the public prosecutor with which he notifies the person
harmed that the criminal proceedings had to be terminated because the perpetrator is unknown.
In view of this practice it is not surprising that consideration is being given in police circles to whether – at least in
the case of unknown perpetrators – the final termination order could not also be signed by the investigating police officer.
For this – according to the argumentation of the proponents of such a solution – would avoid unnecessary circulation offiles and spare the public prosecutor a review of the case and the issue of a termination order.
The shifting of competence for termination of proceedings to the police appears very problematic to me not only inlight of the statutory authority of the public prosecution office to lead the investigation proceedings but also in view ofthe following:•

44

The termination of proceedings against unknown perpetrators by the police on their own responsibility would callfor more intense police review of the criminal investigation process especially in regard to the legal assessment of
the offence; thus far, given the competence of the public prosecution office for final review, this question has notbeen a focus of review by the police investigation officials. A competence of the police to terminate proceedings ontheir own would therefore go hand in hand with an additional commitment of resources to review that cannot bemade by the police in every case.

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

The termination of proceedings against unknown perpetrators by the police harbours a slew of potential objections
by affected insurance companies, etc., who might perhaps demand further investigatory acts and insist on a decisionby the public prosecution office.

•Such a shift would essentially result in the emergence of parallel competence of the police and the public prosecution
office all the way up to the conclusion of criminal proceedings, which would in turn complicate queries concerning
the outcome of criminal proceedings as well as the fulfilment of reporting requirements both for statistical purposes
and for the Federal Central Criminal Register.

•

The termination of investigations against unknown perpetrators is often only temporary or at least open-ended
timewise. Since the police are not as centrally organized as the public prosecution office and the number of police
authorities is significantly larger, it is not likely to be all that easy to promptly link subsequent incoming tips concerningperpetrators to the correct proceedings.

•

Even investigation proceedings in which no accused persons have been identified or examined can involve interference
that could make it appear wise on rule-of-law grounds to provide for review by another body – in this case the publicprosecution office.

•And, finally, it is difficult to imagine that authority to lead the investigation could remain vested in the publicprosecution office but at the same time be undermined by an independent power of the police to terminate theproceedings.

In short: Independent termination of certain investigation proceedings by the police is unlikely to lead to either ageneral reduction in public administration costs in the area of criminal prosecution or better co-operation between the
public prosecution office and the police. The mere fact that the police largely take the lead in proceedings involving
prosecution of minor and moderately serious crimes does not justify any changes to the law. Interests protected under
the constitution such as the effectiveness of criminal prosecution and the separation of powers as well as the traditional
distribution of functions between the investigatory and judicial bodies, to which the public prosecution office belongs,
dare not be infringed. The idea of transferring an independent power of termination to the police in certain investigation
proceedings should therefore be abandoned.
V. IDEAS FOR OPTIMISING CO-OPERATION BETWEEN
THE PUBLIC PROSECUTION OFFICE AND THE POLICE
My remarks are intended to make it clear that merely shifting competences from the public prosecution office to thepolice – in other words, increasing the latter’s power – will not necessarily lead to simplification and acceleration of theproceedings and save costs and, moreover, that it can be questionable from the rule-of-law perspective.
There are, however, a number of areas in which an intensification of co-operation between the public prosecution
office and the police could improve criminal prosecution and relieve the burden on the investigatory authorities as awhole, in other words, on both the public prosecution office and the police:
A. Co-ordination of Investigation Strategies
Insofar as the prosecution concepts and investigation strategies of the police can have an impact on criminal
prosecution, involvement of the public prosecution office in the form of mutual consultation and co-ordination appears
indispensable. There would otherwise be reason to fear that the measures taken by the police would not be followed upby the public prosecution offices and would thus prove fruitless. If, for instance, the police launch a long-term campaign
aimed at busting an openly active drug scene by making a multitude of arrests, the public prosecution office must be
involved beforehand so that it can take steps to ensure the availability of the personnel resources required to handle thesearrests and their subsequent processing by the judicial authorities.
The arrangement spelled out in item No. 5 of Annex E to the Joint Guidelines of the Ministers of Justice and Ministersof the Interior relating to Co-operation between the Public Prosecution Offices and the Police in the Prosecution oforganized Crime is a prime example of how to structure co-operation extending beyond individual cases between the
public prosecution office and the police to combat organized crime:

45

RESOURCE MATERIAL SERIES No. 60
Co-operation, extending beyond individual cases, between the public prosecution office and the police isintended to enable both authorities to obtain, jointly develop and use as the basis for their respective individual
measures the same in-depth knowledge of the forms of manifestation of organized crime and of the specificproblems relating to the cases involved.
Co-operation extending beyond individual cases is also to enable agreement to be reached on the local andtemporal management of the investigation capacities of the public prosecution office and the police criminal
investigation department through the creation of focal points corresponding to the actual situation in question.
The public prosecution office and the police criminal investigation department arrange regular official meetings
at which there is special discussion of the•actual situation, anticipated development and measures to combat organized crime within their sphere,•knowledge and experience gained from the course of investigations and of court proceedings, and also the effectsof mistakes made during investigations,•knowledge and experience acquired from the use of undercover investigation methods and from the protection of
witnesses, including ensuring the necessary secrecy,•knowledge and experience acquired from measures for siphoning off profits,•local practice with regard to international legal assistance and other forms of co-operation with foreign authorities,•general questions of co-operation,•public relations.
Discussions should take place once a year, and where necessary more frequently. The customs investigation
department should be given the opportunity of taking part. The departments participating decide on whether tocall in other authorities. The respective superior authorities must be informed of the outcome of such discussions.
This “model” could be applied without any problem to other areas of crime (especially fairly serious and serious
crime) and facilitate the elaboration of joint strategies to combat crime.
In several of Germany’s Länder, for instance, working groups consisting of both public prosecutors and police officers
have been established at the public prosecution office to take concerted action to combat official corruption.
B. Steps to Combat Domestic Violence
Strategies for combating domestic violence have also been developed by the public prosecution office and the police
in collaboration with other authorities in order to effectively protect women and children against violence, impose
appropriate sanctions for offences and prevent recidivism.
Violence in the immediate social environment is a phenomenon that was long taboo and played down in importance.
This form of crime, however, to which more than 10,000 women fall victim every year, constitutes a gross violation of
the physical and emotional integrity of the individuals concerned.
As in the case of efforts to combat organized crime, intensive co-operation between public prosecution offices, policeand other agencies leads to a concentration of knowledge and experience and thus not only to higher-quality investigations
but also to more effective protection of the affected victims. The investigation work is complemented by measuresdesigned to heighten the awareness of the individuals and agencies concerned. Among other things, these include;•

the elaboration of a handbook for criminal investigation officers to provide guidance for action at the scene,conservation of evidence and handling of cases,•

a broad range of basic and further training courses to teach police strategies for intervention in cases involving domestic
violence,46

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

an informational brochure for women frequently affected by domestic violence explaining how they can effectively
protect and defend themselves with the assistance of the police and the judicial authorities.

C. Co-operation Models for Simplification of Proceedings
1. Juvenile Delinquency
In my opinion, there is a need for co-operation between the police and the public prosecution office not only in regard
to co-ordination of police investigation measures; consideration should also be given to the question of whether closer
co-operation between the public prosecution office and the police in the form of delegation of responsibilities or
preliminary examinations could simplify and speed up the conclusive handling of criminal proceedings.
In a number of Germany’s Länder there are guidelines for combating juvenile delinquency that assign a broad rangeof responsibilities to the police in order to relieve the burden on the judicial authorities without, however, encroachingon the authority of the public prosecution office to lead the investigation proceedings.
Behind this is the fact that in cases involving more minor criminal offences, the Juvenile Courts Act allows the publicprosecutor at the juvenile court or the juvenile court judge to refrain from imposing formal sanctions at an early stage ofthe proceedings. The term “diversion” used in this context means a deviation in sanction practice from the classic formal
procedure involving the judicial authorities in favour of an informal, swift and flexible response. Accordingly, preferenceof charges and conviction may – following the exercise of socio-educational influence or implementation of socioeducational measures – be replaced by termination of the proceedings.
The aim of these administrative provisions is thus;•

the promotion and improvement of co-operation between the police, the youth welfare authorities, the publicprosecution office and the court,•

the guarantee of a real socio-educational response by the state in lieu of a formal court decision,•

the involvement of parents and other persons with the right of care and custody,•

the simplification and acceleration of juvenile criminal proceedings, not only in the interest of the judicial authorities
but also in the interest of the young person concerned.

The prerequisite for such flexible handling of proceedings is that it apply only to criminal offences of a minor naturesuch as;•theft, misappropriation and receiving stolen property of slight value (up to approximately fifty dollars),•minor cases of fraud (involving damages of up to fifty dollars),•

unauthorised use of a vehicle,•

obtaining benefits by devious means, or travelling without paying for a ticket,•

minor cases of damage to property, especially damage that is the product of typically juvenile motivation or situations,such as graffiti,•

negligent bodily injury,•

insult,•minor cases of driving without permission to drive.

In order to submit only really suitable cases to the public prosecutor or the court, the police must determine in theirinvestigations whether the accused has already voluntarily rendered meaningful socio-educational accomplishments or
voluntarily suggests or actually renders such accomplishments. These can consist of the following in particular;

47

RESOURCE MATERIAL SERIES No. 60•

an apology to the person harmed,•

restitution of the harm caused (also partial restitution)•

payment of compensation for pain and suffering•

performance of work for the person harmed,•

community service work,•

participation in police road safety instruction,•a socio-educational talk by the police with the young person in connection with his examination,•a socio-educational talk by the public prosecutor with the young person.

Insofar as a socio-educational measure of this kind is suggested or implemented by the police after consulting withthe public prosecution office, or by the public prosecution office itself, this presupposes three things;•

no earnest denial of the criminal accusation,•consent of the young person to the measure,•no objection by the person with the right of care and custody or by the statutory representative.

Final control of the implementation of a socio-educational measure involving the young person lies in the hands ofthe public prosecution office. It is responsible for ensuring that due account is taken of the idea of social education. Not
until then is the proceeding terminated without leaving a blot on the accused juvenile’s record.
The distribution of labour between the police and the public prosecution office is advantageous for all the parties
involved, including the young person concerned;•

The proceeding is standardised and simplified in such a manner as to avoid unnecessary effort and expense,•

The waiver of intensive investigations – at the youth and social welfare authorities, for instance – ensures that the young
person’s private sphere remains largely untouched,•

The socio-educational option afforded the young person confronts him with the consequences of his act just the same
way as a formal sanction,•

The regular consultations between the police and the public prosecution office guarantee that the police investigatory
authorities remain aware of their limits.

2. Mediation between the Perpetrator and the Victim
Administrative provisions are in place that promote pragmatic and flexible co-operation on a case-by-case basis
between the police and the public prosecution office in order to ensure uniform practice in the area of mediation between
the perpetrator and the victim. Here, too, the police investigatory authorities are only conceded powers of their own tothe extent that this does not dilute the supreme investigatory authority of the public prosecution office.
The statutory basis for mediation between the perpetrator and the victim is section 46a of the Criminal Code. Pursuant
to section 46a, the court may mitigate or dispense with punishment if the perpetrator has completely or substantially maderestitution for his act or has earnestly strived to make restitution. The same is true if the perpetrator has, in a case in which
the restitution for the harm caused required substantial personal accomplishments or personal sacrifice on his part,completely or substantially compensated the victim.
The guidelines issued in most of Germany’s Länder provide for the following action on the part of the police:48

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

After clarifying the basic facts of the case, the police limit their investigations to verification of personal particulars
and examination of the victim and the accused person,•

In suitable cases the police inform the victim or his attorney at the earliest opportunity of the possibility of mediation
between the perpetrator and the victim; this can be done by handing out or sending an information sheet or by giving
an oral explanation,•

To the extent that this appears expedient, the police seek to establish contact with the accused or his attorney and informthem of the possibility of mediation between the perpetrator and the victim and of the conceivable consequences under
the law of criminal procedure. The standardised information sheet is to be handed out or sent for this purpose,•

The police submit a case they deem suitable for mediation between the perpetrator and the victim to the publicprosecution office without delay,•

In cases of doubt, the police consult the public prosecution office either in person or by phone as to the procedure to
be followed.
Similar guidelines exist for the procedure to be followed at the public prosecution office:Insofar as the accused and the person harmed agree to such mediation, the public prosecution office requests a conflictmediation agency to carry it out. There the affected parties receive impartial assistance in regulating the consequencesof the act that caused the harm.
Upon conclusion of mediation between the perpetrator and the victim, the files are submitted to the public prosecution
office, which then decides – with the involvement of the court, if necessary – whether the proceeding should be terminatedor whether the circumstances of the act nevertheless give cause for preferment of charges. In such a case, as I pointed
out earlier, the conclusion of mediation between the perpetrator and the victim can lead the court to mitigate or evendispense with punishment.
As you have undoubtedly realised, in such cases it would probably be simpler for a public prosecutor to immediately
prefer charges – i.e. without mediation between the perpetrator and the victim – or terminate the proceedings upon paymentof a regulatory fine. In my opinion, however, this relatively time-consuming mediation procedure is worthwhile for all
the parties concerned;•

Peaceful relations under the law are restored, and conflicts are settled,•

The victim obtains satisfaction from the perpetrator,•

Further disputes between perpetrators and victims under the law of civil procedure are usually unlikely to arise.

3. Models for more Efficient Efforts to Combat Shoplifting
The extent of petty crime in Germany gives cause for reflection on steps to optimise the state’s response.
Approximately 700,000 cases of shoplifting are registered by the police every year. In more than half of the cases,
the value of the shoplifted items is less than ten dollars; in another thirty percent the value is between ten and fifty dollars;
and in only about one percent of the cases is the value more than five hundred dollars.
Even though the fault of the perpetrators in the majority of cases is extremely slight and the proceedings – at leastin the case of first offenders – are very often terminated without imposition of any sanctions at all, the processing of suchoffences nevertheless places a considerable burden on the police and the judicial authorities. Furthermore, law enforcement
practitioners are of the opinion that the previous sanctioning practice in this area of petty crime is inadequate.
A working group in the state of Saxony is now developing a model for efficient co-operation between the police andthe public prosecution office. This model not only greatly simplifies the handling procedure but also leads to impositionof financial sanctions on the perpetrator in every case of shoplifting, even those involving loot of slight value.
The key features of this co-operation model are the following;

49

RESOURCE MATERIAL SERIES No. 60•

In the case of loot with a value of less than fifty dollars, the police offer the accused the option of terminating theproceedings upon payment of a regulatory fine – subject, however, to the decision of the public prosecution office,•Whenever possible, the offer to terminate the proceedings is made in the context of the personal hearing of the accused.
In cases where small amounts are involved, a form with a standardised offer can already be enclosed with the summonssent to the accused to appear for examination,•

The form makes it clear that this offer is only applicable if the perpetrator does not already have a theft record. It thenpoints out that the public prosecution office will most likely terminate the proceeding upon payment of the regulatory
fine, that no entry will be made in the Federal Central Criminal Register, and that in the event that the public prosecutor
decides otherwise any regulatory fine that may have been paid will be reimbursed or credited toward any other finethat may be payable,•

The consent of the accused should be declared on the form,•

The accused is informed that he can suggest a specific non-profit-making institution in the declaration of consent,•

In the interests of equal treatment, the assessment of the suggested sum of money to be paid is made on a standardised
basis (a multiple of the value of the shoplifted goods, for instance).
In the city of Nuremberg there is a similar pilot project to effectively combat shoplifting:If a shoplifter is caught in the act, the police arriving on the scene may offer him the option of immediately andvoluntarily paying a specific sum of money to the police officer on the spot or to the public treasury within six days. The
prerequisite, however, is that the person in question be a first-time offender and that the value of the stolen goods notexceed fifty dollars. The sum of money collected on the spot should be nine times the value of the goods. After payment
has been made, the public prosecution office can usually conclude the proceeding immediately. The sanction thus follows
hot on the heels of the act.
These two models clearly show that acceleration and simplification of the investigation proceedings are only possible
through co-operation models providing for a distribution of labour that are jointly developed and translated into action
by the police and the public prosecution office.
4. The “House of Juvenile Justice” in Stuttgart
This pilot project optimises co-operation between the police and the public prosecution office in a manner that canhardly be surpassed, namely by accommodating the youth welfare office, the police and the competent public prosecutor
under one roof. This ensures constant and direct contact between the three most important institutions concerned withchild and juvenile delinquency. Moreover, the nearby local court keeps time slots available for hearings so that main
hearings can be conducted at short notice if necessary.
The key principles governing the work in the House of Juvenile Justice can be summarised as follows;•

Case conferences: All the institutions involved exchange their knowledge and co-ordinate assistance measures in theevent of interventions or sanctions. Close daily co-operation and the personnel continuity marking this co-operation
foster mutual trust and confidence in both the individuals involved and their skills. At the same time, they ensure aqualified multidisciplinary diagnosis as the prerequisite for an effective response to child or juvenile delinquency,•

Parallelism of case handling: Upon receipt by the police of a notice of a criminal offence, the public prosecution
office is also promptly informed so that it can immediately bring its own set of instruments to bear in suitable cases.
The officials of the youth welfare office function as intermediaries in this context, involving the necessary co-operation
partners,•

Immediacy: There is no longer merely discussion about the young person concerned but discussion with him as well
– and, if appropriate, also with his parents. The young person thus experiences the public prosecutor in action as areal person rather than just a faceless name contacting him through a form letter. Many young delinquents are
impressed by the intensity of the adults’ concern for them. Not infrequently, this is the first time that the children
and young people concerned sense that someone really cares about what they do and what becomes of them.

50

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
This new form of co-operation has thus far shown in an impressive manner how proceedings can be made more
effective and, in particular, how they can be handled more expeditiously. More high-quality pilot projects of this kind
are to follow in Germany.
VI. SUMMARYa)

For all practical purposes, it is the police who take the lead in the majority of investigation proceedings. Thanks totheir constant presence and consequent ability to take initial action to apprehend suspects, their superior personnel
and technical resources, their control of data, and their European network, they are in a position to decisively
influence the course of the investigation proceedings. In most cases the steps paving the way for conviction or
acquittal are thus already taken during the investigation proceedings, not later on in the courtroom.

b)

In order to meet rule-of-law standards, promote acceptance of court decisions by the accused, strengthen publicconfidence in the lawfulness of intervention by the judicial authorities and forestall critical reporting by the
media, the investigation work of the police should be critically monitored, controlled and, in individual cases,
managed by a competent, fully trained lawyer – the public prosecutor in Germany. This should at least be the casewhen criminal offences other than petty crimes or crimes committed on a mass scale are involved.

c)

Against this background, any attempts by the police to obtain even more latitude and even more freedom from theinfluence and control of the public prosecution office must be greeted with extreme caution. There should also be
no further consideration of the idea of shifting powers of the public prosecution office to the police.

d)Strong support should, however, be given to joint endeavours by the public prosecution office and the police todivide up the tasks arising in the course of the investigation proceedings in such a way as to increase thetransparency of the investigation proceedings and more swiftly and efficiently bring them to a conclusion while atthe same time preserving the competence of the public prosecution office to lead the proceedings. Close cooperation in close quarters between the police and the public prosecution office affords optimal conditions for
this, as pilot projects prove.

51

RESOURCE MATERIAL SERIES No. 60
ANNEX 1
Rates of various offences or offence groups
Population: 82 163 500 (01-01-2000)12
Key___

Offence or offence groups1
Total offences

Cases
recorded%

Offencerate2

6 264 723

100.0

7 625

Encompassing:
4***

Theft under aggravating circumstances

1 519 475

24.3

1 849

3***

Theft without aggravating circumstances

1 463 794

23.4

1782

5100

Fraud

771 367

12.3

939

6740

Criminal damage to property

671 368

10.7

817

2240

Intentional bodily harm in less serious cases

261 894

4.2

319

7300

Drug offences

244 336

3.9

297

6730

Insult, assault and battery

152 282

2.4

185

2300

Crimes against personal freedom

146 198

2.3

178

2220

Dangerous bodily harm and serious bodily harm

116 912

1.9

142

6200

Resisting a public official in the execution of his duties and lessserious criminal offences against public order

115 097

1.8

140

5300

Embezzlement

86 284

1.4

105

5400

Forgery of documents

71 796

1.1

87

2100

Robbery; extortion resembling robbery and assault of a motor
vehicle driver resembling robbery

59 414

0.9

72

5200

Breach of trust (section 266 Criminal Code)Withholding and embezzlement of wages or salaries (section
266a Criminal Code)Misuse of cheque and credit cards (section 266b Criminal Code)38 107

0.6

46

6760

Environmental offences

34 415

0.5

42

6300

Accessoryship before and after the fact

29 479

0.5

36

7100

Serious criminal offences and less serious criminal offences insecondary criminal law

28 308

0.5

34

6400

Arson

28 002

0.4

34

7260

Offences in violation of laws concerning weapons

23 607

0.4

29

6710

Non-payment of maintenance allowance

15 761

0.3

19

6500

Crimes in public office (Cases of bribery are included)

8 512

0.1

10

1110

Rape (attempts included) and aggravated sexual assault

7 499

0.1

9

0100

Murder and manslaughter (attempts included)

2 770

0.0

3

+0200

1

The list of keys is incomplete.

2

The offence rate is the number of cases, which have come to the attention of the police, calculated on the basis of 100 000 inhabitants.

52

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
ANNEX 2

(Crest)(Stamp of the authority)

Ms/Mr

Date:
Tel.:
Case officer:
Ref. No.:(Please quote when replying)
Investigation proceedings in respect of theft
Encls.:

Reply letter
Transfer slip

Dear,
You stand accused of the following:That on(date) at around(time) you did misappropriate in(place)goods to the value of DM
in order to permanently retain these goods for yourself
without payment (minor crime of theft in accordance with section 242 subsection 1 of the Criminal
Code [StGB]).
In accordance with section 163a of the Code of Criminal Procedure (Strafprozessordnung - StPO)
you are herewith afforded the opportunity to make a statement with regard to this accusation. You
are furthermore afforded the possibility below of applying for simplified conclusion of proceedings
on payment of a sum of money. If within two weeks of your receipt of this letter no notice quoting
the above ref. No. and no statement returning the enclosed reply letter is received from you by theabovereferenced authority, it will be presumed that you do not wish to avail yourself of the possibility of simplified conclusion of proceedings or of your right to make a statement.
1.

3

Possibility of simplified conclusion of proceedings
If you are a first offender3, it is possible in the case at hand in accordance with section 153 a
subsection 1 of the Code of Criminal Procedure to refrain from filing a public charge if you- consent to simplified conclusion of proceedings using the form enclosed by the dateofand-effect payment in respect of the amount of DM(in words:
Deutsche Mark)byat the latest.

A first offender in this context is whoever has not been previously punished for a property offence and in respect of whom no proceedings relating
to such offences have been discontinued in the past five years in accordance with section 153 of the Code of Criminal Procedure (Non-Prosecutionof Petty Offences) or section 153a of the Code of Criminal Procedure (Provisional Dispensing with Court Action).

53

RESOURCE MATERIAL SERIES No. 60

Payment should be effected for the benefit of the Landesjustizkasse Chemnitz, a/c No. 87 001
500 at the Landeszentralbank Chemnitz (branch code [Bankleitzahl]: 870 000 00) expressly
stating the ref. No. above.
Please find enclosed a transfer slip.
The public prosecution office will decide as to allocation to the sum of money to state funds or
to a charitable establishment. You may propose a charity yourself.
If you agree to this treatment of the case in good time and effect payment in respect of theamount in good time and in full, the proceedings are very likely to be discontinued by the public prosecution office. This is conditional on you not having come to notice previously undercriminal law. The final decision is to be taken by the public prosecution office. Documented
payment of the sum of money in good time will be considered agreement. If the proceedings
are discontinued by the public prosecution office, no entry will be made in the Federal Central
Criminal Register ("criminal register"). You will be considered not to have a criminal record,
and the event will not be entered in a certificate of good conduct.
If you do not agree to this treatment of the case, the public prosecution office will decide.
Please note in particular that there is no mechanism for the following:- an extension of the period set for the submission of your agreement;- a reminder to pay the sum of money;- examination of the reasons for which you have not paid the sum of money, or have not paid
it in good time.
In the event of a different decision being taken on the merits of the case by the public prosecution office, the sum of money paid may be refunded or set off against any criminal fine
imposed by the court.
2. Information regarding the caseIf you wish to provide information concerning the case, you may also use the enclosed reply
letter.
Please note that you are free in accordance with the statutory provisions whether to make astatement on the case, and at any time to consult defence counsel to be chosen by yourself.
Furthermore, you may apply for individual items of evidence to be taken to exonerate you.
Yours sincerely,

Signature of case officer

54

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
ANNEX 34
(First name, last name of the accused, postcode, city, street, house No.)To (Stamp of the police authority)

Reply

Investigation proceedings concerning myself in respect of theft
Re your letter ofRef. No.
I would like to inform you of the following:
1. Application for simplified conclusion of proceedings (Please do not forget to sign!)
q I am a first offender.4 I consent to the treatment of the case as proposed and intended by
the police and suggest discontinuation of the proceedings on payment of a sum of money,q I will pay the sum of money in cash to the police.
q I transferred the sum of money to the Landesjustizkasse Chemnitz on(date).
q I will pay the money to the benefit of the Landesjustizkasse Chemnitz, a/c
No. 87 001 500 at the Landeszentralbank Chemnitz (branch code [BLZ] 870
000 00).
q I propose the following charity to receive the sum of money(optional):q In the event of a different decision on the merits being taken by the public prosecution
office, I agree to the sum of money being set off.
If the sum of money is not used up by an instruction in accordance with section 153 a of
the Code of Criminal Procedure or by setting off in the context of another decision on the
merits of the case, I apply for repayment to a/c No.:
Branch code (BLZ):
Name and address of the financial institution:~ I do not consent to simplified conclusion of proceedings.
2. Information on the case (optional, see legal notice in covering letter, continue on another sheet if necessary)_____________________
place, date4_________________________d.o.b.__________________
signature with first and last names

date of birth

A first offender in this context is whoever has not been previously punished for a property offence and in respect of whom no proceedings relating
to such offences have been discontinued in the past five years in accordance with section 153 of the Code of Criminal Procedure (Non-Prosecutionof Petty Offences) or section 153a of the Code of Criminal Procedure (Provisional Dispensing with Court Action).

55

RESOURCE MATERIAL SERIES No. 60

56

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

57

THE PUBLIC PROSECUTION OFFICE IN GERMANY :LEGAL STATUS, FUNCTIONS AND ORGANIZATION
Eberhard Siegismund*
I. INTRODUCTION
Where the media in Germany are concerned with legal matters and problems, it is particularly the criminal law thatis the focus of public attention. Serious news magazines regularly report on spectacular criminal offences and on the way
in which they are dealt with by the investigating authorities and the courts. Thus, a few years ago, a murder case with apoliceman as the victim, moved centre-stage – a trial that went on for months; this was followed by the Mainz childmolester case – a case that made legal history because it caused Parliament to change the law and establish video
examinations as part of criminal procedure; and now we have a case against three right-wing radicals in an East German
town, who set fire to an apartment block several years ago, thereby endangering the lives of a large number of asylum
seekers.
Whilst it is occasionally apparent that an effort is being made to report objectively on the course of such trials, one
cannot fail to recognise a tendency towards critical reporting, indeed in two respects: on the one hand, public attention
is drawn to judicial sanctioning practice, which is sometimes felt to be too lenient – especially with regard to young
criminal offenders; on the other hand, the criminal prosecution practice of the police and the public prosecution office isoften eyed very critically.
Even though it deserves to be called – actually by dint of statute, and this is something I will be coming back to later– the “most objective authority in the world”, the public prosecution office is, however, not infrequently said, as the“cavalry of the law”, to demonstrate a certain “dashing spirit” and is thus thought to be blind in its enthusiasm forprosecution. Public prosecutors, although said to investigate swiftly and in a straightforward manner, are said to do so,
however, one-sidedly to the accused’s disadvantage, without any sure instinct and without the requisite critical distance.
Charges of this kind were heard again just recently in petitions addressed to the Federal Ministry of Justice in Berlin,
after a young man had been convicted of attempted murder and sentenced to a long term of imprisonment in a trial basedon circumstantial evidence. Here the victim was a policewoman; her lover and her father, who were also among thesuspects, were also policemen. From the media vantage point, the investigating authorities had erroneously concentrated
their inquiries on the person who was subsequently convicted and – as they were professional colleagues – had spared
the other two suspects further investigations in line with the principle that birds of a feather flock together. An interesting
little detail here: after the Federal Court of Justice had dismissed the appeal on points of law only against the judgmentof the lower court, composed of three professional and two lay judges, the convicted person’s application for the reopeningof the proceedings has now been granted.
Occasionally, but only very seldom, the charge has also been levelled in the press that the public prosecution office
is kept on a tight rein by the Government. It is said to be subjected to political influence in its investigations, perhaps
with the result that people close to the Government are not being prosecuted with the requisite vigour. In Germany,
however, these are matters that do not fall within the competence of the Federation but rather within the competence of
the Länder, for in Germany the organization of the justice system is fundamentally a matter for the constituent states of
the Federation, i.e. the Bundesländer.
Following a brief introductory historical overview, I would now like to acquaint you with the legal status and functionsof the public prosecution office as well as with organizational questions. At this point I will be less concerned with
scientific discourse than with a practice-oriented presentation.
II. THE LEGAL STATUS OF THE PUBLIC PROSECUTION OFFICE IN GERMANY
The status and functions of the public prosecution office are laid down by statute, i.e. by the Courts Constitution Act– in its sections 141 to 151 – and by the Code of Criminal Procedure – for instance, in sections 158 to 163 – but not in* Deputy Director General in the Judicial System Division,Federal Ministry of Justice,
Berlin, Germany

58

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
detail and certainly not conclusively. The provisions in the Courts Constitution Act – which I shall refer to as the CCA–on the status of the public prosecution office rather tend to have the character, at least in part, of guiding principles orof organizational principles, whereas the important allocations of function in the Code of Criminal Procedure are mainly
drafted in the form of general clauses.
Nevertheless, in Germany we have had largely positive experience with this system of provisions and so, in October
1990 when East and West Germany were reunified, we also transferred this part of the law unchanged to the new
Bundesländer.
A. Historical Review
In German criminal procedure the public prosecution office is a relatively young institution. The relevant provisions
were conceived on the model in French criminal procedure. Until the beginning of the nineteenth century, France had an
inquisitorial procedure conducted in secret and in writing.. After Montesquieu had extolled the virtues of English legal
institutions as models for the constitution of the courts and for criminal procedure, these institutions were adopted,
particularly the principle of ex officio prosecution, the parties’ duty to furnish proof, the principle of oral proceedings,
the principle of proceedings in public, and, above all, trial by jury.
The definitive element of French criminal procedure was a prosecution proceeding where the charges were preferred
by a special state criminal prosecuting authority, i.e. a public prosecution office. Compared with the procedure in force
in Germany, French procedural law displayed indisputable objective advantages, for in Germany proceedings before thecriminal courts up to the mid nineteenth century were conducted in writing and in secret. The criminal courts were
equipped with their own investigating staff – the court police. The court police were responsible for clearing up the factsof a case until they were “ripe” for final judgment by the court. There was hardly any control of the police, or none atall. Criminal court judges were reproached for “lack of diligence, bias and overweeningness”. Hence the Prussian Kingwas initially concerned only with disciplining the courts and affording the state interest in imposing punishment greater
chances of enforcement. It was, however, the more liberal elements in the Berlin Ministry of Justice who succeeded indeveloping a conception for reform in 1845: according to this conception, the public prosecutor was not only to act inthe state’s interest but also to show equal concern for the defendant, i.e. for his defence. This was designed to obtain
popular support for a novel institution, and to make it clear that the public prosecution office was now to be the custodianof the law, for the benefit of the defendant as well.
The Ministry took an even greater step forward by making the decision to put the police under the control of the
public prosecutor, for there was specific cause for concern that reasonable account was not being taken of the accused’s
rights during police prosecution measures.
The statue that came into force at the beginning of 1847 contained the following core provisions:•Public prosecutors were made subject to the official supervision of the Minister of Justice and to his instructions.

•

Courts were not allowed to intervene proprio motu, but only upon application by the public prosecution office.

•Public prosecutors had to watch over compliance with statutory provisions in criminal proceedings. A publicprosecutor had to take care that no guilty person escaped punishment and that the guiltless were not prosecuted.

B. What is the Situation Like in Germany Today with Regard to the Public Prosecution Office, when Seen
against the Backdrop of its Early Beginnings in Berlin?
The modern view is that public prosecution offices are hierarchically structured, independent organs of theadministration of criminal justice. They are on an equal level with the courts. What this means in detail is easier tounderstand when one knows how public prosecution offices are structured in Germany. The Federal Republic of Germany
is a federal state. And because Judicial Power lies with the individual Bundesländer – 16 in all – we have independent
Land public prosecution offices in each Bundesland.
The public prosecution office is organized parallel to the courts, which means that the territorial competence of publicprosecutors is governed by the territorial jurisdiction of the court where the public prosecution office has been established:section 143(1) of the CCA.

59

RESOURCE MATERIAL SERIES No. 60
Section 141 of the CCA states that there should be a public prosecution office at every court. Hence, there is a publicprosecution office at every Regional Court in the Länder that make up the Federal Republic of Germany, meaning a totalof 116 public prosecution offices at the Regional Courts. As a rule, these public prosecution offices also carry out publicprosecution functions at the Local Courts. They are subordinate to a regional public prosecution office established atevery Higher Regional Court (sections 142 and 147 of the CCA), so there are a total of 25 regional public prosecution
offices. The regional public prosecution offices are, in turn, subordinate to the respective ministers of justice of theBundesländer: section 147 of the CCA.
Example: There is one public prosecution office each at the Regional Courts in Bonn, Cologne and Aachen. Thesepublic prosecution offices are subordinate to the regional public prosecution office in Cologne. The regional publicprosecutor there is subordinate to the Minister of Justice of the Land of North-Rhine/Westphalia in Düsseldorf.
On the federal level, the Federal Public Prosecution Office exists parallel to the Federal Court of Justice. This authority
is headed by the Federal Public Prosecutor General: section 142(1), no. 1, of the CCA; there are other federal publicprosecutors assigned to him. On the one hand, the Federal Public Prosecution Office performs the classical functions ofa “public prosecution office at the Federal Court of Justice”, i.e. it represents the prosecution in all cases that come before
that court: section 135 and section 121(2) of the CCA. Section 142a of the CCA otherwise provides for special competenceof the Federal Public Prosecution Office to act in cases of first-instance jurisdiction of the Higher Regional Courts (section
122[1] and [2] of the CAA), i.e. particularly in cases of crimes against the state and of terrorist crimes as well as in othercases involving serious crime that goes beyond individual Länder borders. This means, for instance, that the interventionof the Federal Public Prosecutor General was called for on an exceptional scale after the events of 11 September 2001
in New York.
I still need to mention that in cases of “normal” delinquency there is no national public prosecution office operating
throughout the Federation, since criminal prosecution is on principle a matter for the Länder. Thus there is no superior/
subordinate relationship of any sort between the Federal Public Prosecution Office in Karlsruhe and the Länder publicprosecution offices at the Higher Regional Courts and the Regional Courts. Nevertheless, in agreements reached by
Länder ministers of justice, two institutions have been created that are competent in certain criminal prosecution matters,
where such competence encompasses all the Länder:•

One of these institutions is the Central Agency in Ludwigsburg, concerned with the registration and clearing up ofcases of violent action perpetrated by the Nazis, and having the obligation to pass these cases, for the purpose ofprosecution, to the public prosecution office at the court with local jurisdiction over the place where the perpetrator
is living,•

The other institution takes the form of a central agency for collecting evidence and documentation; this agency wasestablished at the regional public prosecution office in Braunschweig where it is responsible for documenting violent
action perpetrated by state organs of the former GDR, and here in particular homicides perpetrated at the border wallin Berlin, as well as on the inner German border; furthermore, physical assaults and deprivation of liberty for politicalreasons are also included in the agency’s documentation functions. However, apart from the homicide crimes,
prosecution of the offences concerned is in most cases already barred by lapse of time (statute of limitations).
III. FUNCTIONS OF THE PUBLICPROSECUTION OFFICE

To illustrate the public prosecution office’s status, it would seem expedient to look at its various functions in criminal
proceedings.
The public prosecution office has three main functions: It is•

the “leader, so to speak, of the investigation proceedings”•

the authority that conducts the prosecution in the intermediate proceedings and in the main proceedings, and•

it is the authority that is responsible for execution of sentence in criminal proceedings, as well as the authority handlingpardons in criminal cases.

60

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
A. Leader of the Investigation Proceedings
In investigation proceedings the public prosecution office has the sole power of indictment: section 152(1) of theCode of Criminal Procedure – which I shall now be referring to as the CCP. The principle of official prosecution, which
is formulated as a legal norm here, means that criminal prosecution is fundamentally the duty of the state (acting for thecommunity of law-abiding people), and not of the individual.
1. The Principle of Mandatory Prosecution
The public prosecution office shall, unless otherwise provided by law, be obliged to take action in relation to all
criminal offences which may be prosecuted, provided there are sufficient factual indications: section 152(2) of the CCP.
The principle of mandatory prosecution means a compulsion to prosecute any and every suspect, and, on fulfilment of
all preconditions, to prefer public charges.
With the public prosecution office’s monopoly over indictment, practical application is given to the principles of
equality before the law (Art. 3 of the German Constitution) and of justice within the realm of possibility. The publicprosecution office’s source of information is from receipt of information about a criminal offence or from an application
for criminal prosecution (section 158[1] of the CCP) or from somewhere else – particularly from a police communication– regarding suspicion of commission of a criminal offence; this is the usual way in which the public prosecution officegets its information, for more than 80 % of criminal informations are laid with the police. The public prosecution officehas to investigate the facts of a case for the purpose of deciding whether public charges are to be preferred; it either has
to do this itself or through the police: sections 160(1) and 163 of the CCP.
In its investigations the public prosecution office is bound to maintain absolute objectivity: hence it is required toascertain not only incriminating but also exonerating circumstances (section 160[2] of the CCP) and its shall ensure thatsuch evidence is taken the loss of which is to be feared. It is these provisions that gave rise to the familiar saying that the
public prosecution office is “the most objective authority in the world”.
2. The General Investigation Clause in Section 161CCP
The statutory basis for the public prosecution office’s authority to conduct any kind of investigation, that is to say
the core provision regulating investigation proceedings, is section 161(1) of the CCP:
“For the purpose indicated in section 160(1) to (3), the public prosecution office shall be entitled to request
information from all authorities and to make investigations of any kind, either itself or through the authorities
and officials in the police force provided there are no other statutory provisions specifically regulating theirpowers. The authorities and officials in the police force shall be obliged to comply with the request or order ofthe public prosecution office, and they shall be entitled in this case to request information from all authorities”.
This general investigation provision also forms the legal basis for those cases of interference with basic rights thatare less intensive and are therefore not covered by a special statutory authority, such as for instance;•

short-term monitoring,•the use of undercover investigators (i.e. police informers) or•

the use of purchasers in a bogus sale.

The important thing is that the public prosecution office can obtain information from public authorities, from otheragencies or persons at any time. The authorities are obliged to give the public prosecution office the information inquestion, even where the requested information still has to be put together by collecting material, or where it has to beacquired from observation of official operations. The requested authority may only refuse to provide the information
concerned if its provision will cause detriment to the welfare of the Federation or of a German Land, or would seriously
endanger performance of public functions or would make such performance much more difficult.
So far as the requested authority’s duty to provide information extends, the public prosecution office may also question
the officials working for that authority or get them to submit the relevant documents . Information may also be requested
from other agencies or persons. If such information is refused, a formal examination may be imposed, and in certain
circumstances, surrender may be requested, or search and seizure ordered. The public prosecutor will regularly draw
attention here to the conceivable types of possibility in order to lend emphasis to his request for information.

61

RESOURCE MATERIAL SERIES No. 60
Pursuant to section 161a of the CCP the public prosecution office may formally question witnesses and experts forthe purpose of the investigation. Upon being summoned, they are obliged to appear before the public prosecution officeand to make statements on the subject matter or to render their opinion. If they are summoned only to appear before thepolice, they will not be under this obligation. Examination under oath is, however, reserved only for the judge.
3. The Jurisdiction of the Investigating Judge
If the public prosecution office considers a judicial investigation to be necessary it will have to make the relevant
applications to the Local Court, to be decided by the investigating judge: section 162 of the CCP; what is meant here isparticularly coercive measures, like a search (sections 102 et seqq. of the CCP), seizure (sections 94 et seqq. of the CCP)
and remand detention (sections 112 et seqq. of the CCP). Under specific conditions certain coercive measures may also
be ordered in exigent circumstances by the public prosecution office acting on its own (see e.g. section 105[1], first
sentence, of the CCP for the search of private premises).
Until about a year ago both the public prosecution office and the police with responsibility for conducting criminal
investigations had become accustomed to relatively uninhibited application of the element of “exigent circumstances”,
and they therefore made relatively generous use of the possibility, for instance, of searching people’s homes without ajudicial decision to this effect, on the ground that the element of “exigent circumstances” had been found to pertain. But
the Federal Constitutional Court brought this practice to an abrupt end with its decision of 20 February 2001. The principles
guiding this decision may be set out as follows:
The Constitution guarantees the inviolability of the home. Hence it is ensured that the individual has anelemental living space, having due regard to his human dignity. On his private premises he has the right to be leftin peace. A search represents a serious interference with this constitutionally protected sphere of life. It is in linewith the weight attached to such interference and with the constitutional importance of protecting private
premises that the Constitution should, on principle, reserve the right of ordering a search for members of the
judiciary.
It is now the responsibility of all state organs to ensure that this judicial prerogative becomes effective in practiceas a means of securing a elemental basic right. Both the courts and the criminal prosecuting authorities have totake action to counter any deficits in effectiveness. This means practical and organizational measures to create
the conditions needed for judicial control that is actually effective. Only by doing this can there be suppression of
the frequently criticised tendency on the part of the criminal prosecuting authorities towards excessive use of
powers available in cases of urgency.
Conclusion: It must remain absolutely exceptional for the investigating authorities to have competence in regard
to searches of private premises.
This decision of the Federal Constitutional Court is of very considerable importance in practice. It is now no longer
sufficient if there is just pure speculation or just presumptions based on everyday criminalistic experience as the basis
for assuming exigent circumstances. Exigent circumstances have to be established on concrete facts relating to theindividual case. The mere possibility of losing evidence will not be enough. Hence the criminal prosecuting authorities
must make a regular attempt to obtain an order from the competent court with jurisdiction before beginning a search.
Only in extremely exceptional situations will they themselves be allowed to make the order in exigent circumstances
without first trying to obtain a judicial decision. Not only do the investigating authorities have to take account of theFederal Constitution Court decision, so do the courts: they are required to set up an emergency or duty service in orderto ensure that an investigating judge can be reached at any time.
4. The Principle of Discretionary Prosecution
The public prosecution office’s competence to terminate proceedings on discretionary grounds is such an everyday
occurrence that one cannot imagine doing without it (sections 153 et seqq. of the CCP). These possibilities of terminatingproceedings are indispensable particularly for the purpose of swift disposal of petty crime (shoplifting, fare dodging,negligent infliction of bodily harm). Here we are essentially looking at the following measures:•

62

Termination by the public prosecution office, pursuant to section 153(1) of the CCP, where the perpetrator’s guilt is
considered to be of a minor nature and there is no public interest in the prosecution (e.g. shoplifting by a first offenderwhere the item stolen is worth up to 5 Dollars).

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

Termination, pursuant to section 153a of the CCP, where the perpetrator does not bear heavy guilt and where theconditions and instructions imposed on the accused are of such a nature as to eliminate the public interest in criminal
prosecution (e.g. where there has been minimal bodily harm and the accused is willing to pay the victim a sum ofmoney for pain and suffering).

•

Termination pursuant to section 154 of the CCP, or else limitation of criminal prosecution pursuant to section154aof the CCP in a case where several offences have been committed but where other offences committed by the same
perpetrator in addition to the principal offence are no longer significant (on the grounds of procedural economy: theaccused first steals a bottle of beer in a department store, and an hour later he commits a bank robbery; here theproceedings may be terminated in respect of the theft because a severe sentence is to be expected for the robbery).

It follows from the plenitude of competence I have just outlined that the public prosecution office is rightly referred
to as the “leader of the investigation proceedings”.
5. Disposal of Cases by Public Prosecution
If the public prosecution office has not brought the proceedings to a conclusion through application of the provisions
I have referred to, or has terminated the proceedings for lack of evidence of commission of an offence, it will have three
options at its disposal:•

To start with, the public prosecution office may apply for issuance of a penal order if a main hearing does not seem
necessary and a prison sentence is to be expected not exceeding one year (with suspension of sentence on probation).
Penal order proceedings have developed into an extremely popular instrument for the public prosecution office;sanctioning is swift and economical in procedural terms, and it is less of a burden on the accused because he isspared a main hearing held in public. In 2001 approximately 500 000 penal orders were issued in Germany.

•

Secondly, the public prosecution office may make an application for a decision to be taken in an accelerated procedureif, given the simple factual situation or the clarity of the evidence, the case is appropriate for an immediate hearing.
(maximum sentence of one year’s imprisonment).
The accelerated procedure, a type of procedure that deserves support in the light of the view that punishment
should, as far as possible, follow hot on the heels of the offence, has not yet developed its full potential in Germany.
Practitioners are experiencing some difficulty with this procedure; it is mainly a matter of encounteringorganizational difficulties (at present also including co-ordination problems between the police and the publicprosecution office), and this is preventing an increase in the number of cases here. In 2001 there were only 35,000
cases where use was made of the option of following the accelerated procedure.

•

Thirdly, the public prosecution office may prefer charges. Whenever the investigations offer sufficient reason for
preferring public charges, the public prosecution office must prefer such charges by submitting a bill of indictment
to the court that has jurisdiction locally: section 170(1) of the CCP.

Let me give you a few supplementary figures on operations conducted by the public prosecution office and on its
work in investigation proceedings:
In the whole of Germany there are about 5,300 public prosecutors – of whom circa 30 % are women – who deal withroughly 6.5 million criminal offences every year. Charges are preferred in only 540,000 cases, and in addition to this,about 500,000 penal orders are issued. Approximately 3 million cases are terminated by the public prosecution office,of which about 1.2 million cases are terminated for lack of evidence of guilt, and the remainder on the ground of negligible
guilt or on other grounds. Indictments are mainly preferred before the Local Court, i.e. in 530,000 cases. Only 10,000
indictments go to the Regional Court, and a much smaller number, i.e. only about 150, go to the Higher Regional Court.
B. Main Hearing, Filing of an Appellate Remedy
Pursuant to section 226 of the CCP the presence of a public prosecutor shall remain uninterrupted at the main hearing.
In extensive proceedings, for instance where the facts of a case are very complex, or where there are several defendants,
the public prosecution office will be represented by two prosecutors.

63

RESOURCE MATERIAL SERIES No. 60
The main hearing begins with the indictment being read out: section 243(3) of the CCP. While the evidence is being
taken the public prosecutor shall have the right to ask questions(section 240[2], first sentence, of the CCP) and the rightto apply for evidence to be taken (sections 244 et seqq. of the CCP). In practice the public prosecutor usually exercises
restraint here and leaves it to the defence to make applications for evidence to be taken. When the taking of evidence has
been completed, the public prosecutor will give his closing speech: section 158(1) of the CCP.
If the public prosecution office considers the decision questionable on factual or legal grounds, it may seek an appellate
remedy, also for the defendant’s benefit: section 296 of the CCP. When appellate remedies are sought, however, thisusually happens to the defendant’s detriment in the vast majority of cases (about 95 % of all cases).
C. Execution of Sentence
The public prosecution office is responsible for execution of sentence. In practice this means that it calls upon theconvicted person to pay his fine or to present himself at a specified penal institution at a specified time in order to serve
the prison sentence imposed on him.
For social reasons or for health reasons relating to the convicted person himself the public prosecution office may
grant the convicted person permission to pay his fine in instalments or to begin service of his prison sentence at a later
date. The public prosecution office is also the authority responsible for dealing with pardons; hence it can, in a decision
granting a pardon, remit execution of a prison sentence in certain extremely rare cases, for instance where the convictedperson is seriously ill. In my twelve years of experience in the criminal courts I only encountered this in one or two cases.
IV. THE POSITION OF THE PUBLIC PROSECUTION OFFICEBETWEEN JUDICATURE AND ADMINISTRATION
A. Parallels with Judicial Training and Activity
Every public prosecutor in Germany undergoes the same – excellent – training as judges do. As a rule, he will havespent four or five years training at a university, and then registered for the First State Examination in Law, which takes
about six months and which covers the whole syllabus, written examinations and a written assignment to be completed
within a period lasting several weeks. Following this relatively demanding examination he will undergo a period ofpractical training lasting roughly two and a half years, ending with a state examination which also takes about six months
and for which there are written requirements (written examinations and a written assignment) and oral requirements(analysis of file material, and an oral examination). A public prosecutor’s professional qualification therefore corresponds
precisely to that of a judge.
The public prosecutor’s investigating activities in preliminary proceedings does not actually differ from the duty
incumbent on the judge at the main hearing to clear up the facts of the case comprehensively. Like a public prosecutor,
the judge is also required by law to clear up the offence in question in full, taking into account all incriminating andexonerating circumstances. In other words, by law the public prosecutor is not a party, and equally he is not the opponentof the defendant.
If one further considers the various opportunities the public prosecutor has in shaping the investigation, opportunities
that are otherwise nowhere to be found in the Code of Criminal Procedure, in particular the possibilities of terminating
the proceedings, it could be argued that his activity is attributable to the judicial field. However, the public prosecution
offices do not exercise any judicial functions; in their essential functions they move in the border area between theexecutive and the judicature. Even though the majority of cases are disposed of by means of termination by the publicprosecution office, this does not constitute an exercise of judicial power in qualitative terms and, as such, is negated by
the fact that public prosecutors are bound by instructions received – a subject we still need to discuss – and that they lackthe competence to give decisions with final and binding effect, for it is the final and binding decision that forms theessence of judicial power.
B. The Public Prosecution Office as an Organ of the Administration of Justice on an Equal Level with the
CourtsThe public prosecution offices are not, however, an administrative authority of the executive. Within theadministration of justice they have the task, jointly and equally with the courts, of dispensing justice and, as such, they
are integrated in the justice system as an independent organ in the administration of justice, without however becoming
part of the Third Power, i.e. the judiciary. In other words, the public prosecution office is an institution sui generis. It
does not “administer” but works towards adjudication, belongs within the functional realm of the courts and, together

64120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
with the judge, fulfils the function of dispensing justice in the criminal law field. The public prosecution office builds a
bridge between the executive and judiciary and therefore stands between both Powers. And so the position and the functionof the public prosecution office are best described as follows:
The public prosecution office is an organ in the administration of justice on an equal level with the court. It is acustodian of the law and therefore serves to implement criminal justice.
V. OVERVIEW OF STRUCTURES AND ORGANIZATION
AT THE PUBLIC PROSECUTION OFFICES
A. Internal Structure of the Public Prosecution Office
The organizational foundations of the public prosecution offices are only dealt with in initial outline by the Courts
Constitution Act. Other provisions are to be found in rules on the organization and service operations of the publicprosecution office, contained in uniform orders issued by the Land ministries of justice. The public prosecuting authorities
are hierarchically – monocratically – structured. Pursuant to section 147 no. 3 of the CCA they are headed by a “first
official”. The heads of the authority at the public prosecution offices at the Higher Regional Courts have the official titleof “Public Prosecutor General”; the heads of the authorities at the public prosecution offices established at the Regional
Courts have the official title of “Chief Senior Public Prosecutor”.
The public prosecution office is divided into divisions that are headed by senior public prosecutors. The number andscope of the divisions within a public prosecution office depend on the area of competence of the authority concerned.
As a rule, larger public prosecution offices have general divisions and also special divisions geared to specific areas ofcrime. The general divisions cover cases of “normal” everyday crime such as, for instance, theft, offences of inflictionof bodily harm, criminal damage to property and fraud.
The general division is usually the training ground for new professionals starting their careers; it is in the generaldivision that they become best acquainted with the fundamentals and techniques of public prosecution work. These publicprosecutors are often called “alphabet men” because of the fact that they have to process, for example, all cases against
accused persons whose family names begin with the letters A to D. Although such cases are rarely spectacular, the large
number that have to be processed parallel to one another – sometimes amounting to 1,000 per annum – and also thebreadth of life situations involved demand a high measure of perception, operative ability and legal knowledge.
That public prosecutors – like the police investigating authorities, too – are required to deal mainly with mass crimeor everyday crime is shown by the statistics kept. The statistics indicate that theft, fraud, criminal damage to property
and infliction of bodily harm top the list of criminal offences committed in Germany.
In the special divisions cases are processed falling within closely defined fields of crime. Here mention must be madeof:•corruption,•organized crime,•

capital crimes (i.e. particularly homicide crimes),•

political crimes, criminal offences against press laws,•

economic crimes,•

environmental crimes,•

drug-related offences,•juvenile crimes and those relating to the protection of juveniles,•

sexual crimes,

65

RESOURCE MATERIAL SERIES No. 60•

traffic crimes.

Usually through many years of specialisation in certain groups of offences the public prosecutors on the staff of adivision will have acquired profound expertise and legal knowledge in their fields. It is true that they are not usuallyinundated with a multitude of cases; nevertheless, their work is often so complicated that the workload of a special division
staff member is no less than that of his colleague from the “alphabetical” division.
B. Core Elements of a Special Division for the Suppression of Economic Crime
It is clear that the structures and sequences organized for the special divisions, which often have to process spectacularcases and are therefore under particularly strong pressure to succeed, need to be especially well structured in order toensure concentrated and accelerated processing of proceedings. This I would like to illustrate with reference to the areaof economic crimes, which, in some of the Bundesländer, are concentrated at one single public prosecution office. In thelight of what I have just said, the competent public prosecutors can be assumed to have absolutely expert knowledge.
•

The preconditions for effective and time-saving work in this field lie in both staff composition and material equipment
within this division. Public prosecutors, registry staff and typists need to be a practised team and must not be subject
to constant changes of staff.

•

As a supporting measure, training and further training must be ensured in the whole division, particularly for the
public prosecutors.

•

What has long since become indispensable is the reinforcement of economic crimes divisions with business experts,
e.g. from banking, EDP experts and auditors, who all have to be integrated into the public prosecution office. Herethe expenditure of time and money that would be associated with calling in external expertise can be kept at areasonable level.

•

What is also indispensable is an EDP infrastructure with integrated workplace networking, so as to be able to operatecompetitively.

•

At the same time, we need to abandon the public prosecutor as a “sole combatant”: there are new forms of organization
involving a combination of small groups with two or three public prosecutors backed up by the relevant service units.

•

Here one will regularly have to go a step further and also bring in experienced police staff. Such multi-track cooperation could avert friction and loss of time, especially in large-scale proceedings.

C. How Does the Individual Public Prosecutor organize his Work?
1. As a Division Staff Member
Let us now go back to the work done by divisional staff in the general divisions, in the “alphabetical division” dealing
with “normal” crime of an everyday nature. The diversity of his work cannot be encompassed in just a few sentences.
Moreover, the way in which a public prosecutor on the staff of a division actually performs his work will also depend on
his personality, his temperament and his professional commitment as well as on his area of work.
It is well imaginable that public prosecution office investigations can be conducted almost entirely from one’s desk
– with more intensive use of the telephone. This way of performing the work to be done is frequently found in practice,because the enormous workload, especially in the “alphabetical” divisions seldom allows time for external investigatory
acts – for instance inspection of the scene of the crime or participation in the search of private premises.
Some years ago, the Federal Ministry of Justice commissioned a “Survey of organization at the Public Prosecution
Offices and the Regional Public Prosecution Offices”. This survey was designed to show ways of effectively shaping
internal organization as well as to speed up work sequences by means of new forms of organization, by the intelligent
use of EDP and by taking other measures.
In the framework of this survey public prosecutors were asked to make a down-to-the-minute record of their work
assignments. The analysis that followed led to interesting results, for the first ten slots were filled by the following
assignments:

66

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
1. obligatory representation of the public prosecution office at specified court sittings 30.5 %2. studying files/processing 13 %3. telephone calls 10.5 %4. dealing with the public 9.5 %5. drafting public charges 8.5 %6. termination orders 8.0 %7. travelling time 8.0 %8. deadlines/statistics 5.5 %9. inquiries and communications 3.75 %10. training 2.75 %It is interesting to see inter alia that termination orders accounted for more or less the same amount of work as thedrafting of public charges did.
2. As a Head of Department
The allocation of functions for a senior public prosecutor, as the departmental head, takes on a very different
complexion:
1. responsibilities of a departmental head 29 %2. dealing with the public 26 %3. studying files and processing 15 %4. telephone calls 8 %5. terminations 7 %6. legal remedies/appellate remedies 6 %7. travelling time 4 %8. own investigating activity 2 %9. applications to the court 2 %10. transfer orders 1 %The responsibilities of a departmental head include, inter alia, the assignment of divisional staff to the court sittings
where they are required to represent the public prosecution office; giving decisions on whether corpses may be released;
the examination of termination orders; the examination of new criminal informations; the checking of reports on sittings;
the evaluation of daily newspapers; and the preparation of draft testimonials.
Dealing with the public mainly involves specialist discussions and consultations within the authority. This area
naturally takes up much more time than it does in the case of a “normal” public prosecutor.
It is a remarkable fact, however, that the head of a department spends most of his time at his desk; his own investigating
activity, amounting to just 2 %, is of hardly any significance.
VI. ARE POLICE ONLY IN THE ROLE OF ASSISTING
THE PUBLIC PROSECUTION OFFICE?
A. General Proposals to Improve Co-operation between the Police and the Public Prosecution Office
However, the fact of the public prosecutor being “tied to” his desk – probably a mainly self-imposed practice – does
not fit Parliament’s picture of the public prosecution office, in its role of leading the investigation proceedings, being
required to take charge of all investigations, i.e. particularly those conducted by the officials assisting it, for this is a taskthat can hardly be performed from one’s desk. In the light of such very evident restraint shown by the public prosecution
office in investigation proceedings, it is not surprising that in recent years the police, who in fact – compared with the
public prosecution office – have more expertise in criminalistics, and more technical equipment, and have therefore
attained a higher degree of specialisation, are now intensifying their demands for an expansion of their police powers incriminal proceedings at the expense of functions exercised by the public prosecution office and by judges.
Naturally, it will often be appropriate to limit the public prosecution office’s power of heading investigations to thebasic issues and central aspects of the investigation proceedings, and to give the police a free hand with regard to thedetail. However, in an individual case, the sensitivity of a case, and the legal difficulties involved, may make it necessary67

RESOURCE MATERIAL SERIES No. 60
for practically all investigative steps to be planned and implemented in close co-ordination with the police. Generally,as the evaluation of the statistics shows, hardly any use is made of this possibility.
What can be done to block the public prosecution office’s retreat from investigation proceedings? Can the theory of
the public prosecution office’s overall responsibility for investigation proceedings still be upheld in the face of actual
control by the police? The experts brought in by the Federal Ministry of Justice have advised against having statutory
solutions; they propose organizational changes adapted to regional needs:•

Intensive consultation with the police about matters arising in connection with a particular investigation reduces
police frustration about releasing the accused or about subsequent termination of the proceedings, and leads to better
results in the investigation, because there can then be precise determination in advance of what is actually needed
for the purpose of preparing the main hearing.

•

Changes of location (having the police criminal investigation department at the public prosecution office, or else
having public prosecutors at the police criminal investigation department) might intensify co-operation and reducebureaucratic sequences as a result of the closer proximity.

•

Regular joint official discussions between the police and the public prosecution office may, in different areas, leadto co-ordinated and simplified investigations. This also includes, for instance, agreements on the use of forms whena criminal information is laid in shoplifting cases.

B. Optimism of Co-operation in the Accelerated Procedure
Let us now look at these recommendations in specific terms, referring to the example presented by the “accelerated
procedure”: Cases that are clear and simple in terms of their facts – like shoplifting or fare dodging – are regularly disposedof in the accelerated procedure. In such cases the statute envisages punishment following hot on the heels of the offence
committed. The public prosecutor does not need to prefer public charges in writing; they will be preferred orally at the
beginning of the main hearing and entered in the record made at the court sitting. If the defendant confesses, witnesses
can be dispensed with and – under favourable circumstances – judgment pronounced on the day the offence was committed.
As I said at the outset, the investigative work is largely performed by the police acting on their own. Only when they
have finished their investigation will the files be sent to the public prosecutor, who will then – so to speak, without getting
up from his chair – only have to draft the decision concluding the investigation, i.e. the memorandum of termination or
the indictment.
This kind of sequence with processing by the police followed by processing by the public prosecution office ought
to come into juxtaposition in the accelerated procedure, whereby the police will bring in their criminalistic and the publicprosecution office their court experience. This is what the position is, particularly where an accused person is arrested,
for it is at least mandatory for the person apprehended to be questioned immediately, for his committal to be effected atshort notice and, if necessary, for him to be brought to court without delay. That requires arrangements to be made on
the organizational level between the court, the public prosecution office and the police – something which functions in
an exemplary manner in a number of German towns and cities, but which is only in its infancy in other areas .
The motivating energy of efficient collaboration between police investigating officials and the public prosecution
office cannot be overestimated in relation to the goal of avoiding, or at least reducing, frustration experienced by thepolice – as has frequently been the case in the past. It is totally disappointing for investigating officials if an arrested
accused is set free by the public prosecution office because the prerequisites have not been fulfilled for issuing an arrest
warrant, or where investigatory activity involving great expenditure of time and effort leads to the termination of theproceedings. Since the actual fact of “successful” conclusion of the proceedings, in the sense of obtaining the accused’s
conviction, is something which the police officials concerned often remain unaware of, it may certainly have an uplifting
effect on job satisfaction in the service if police investigation measures can be concluded directly with a judgment.
With this in mind, consideration could be given to the following sequence of police activity in the accelerated
procedure: In most cases the police will generally arrest the perpetrator at the scene of the crime. Using police information,
the police will then, in addition to taking the accused’s personal particulars and ascertaining his personal situation, also
ascertain whether he has had any prior brushes with the criminal law. At this stage, they will already be examining whether
the facts are appropriate for a hearing using the accelerated procedure, in other words whether the event involving
commission of the offence remains within a simple dimension, or whether the evidence is clear.

68120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
The competent police official may now face three different situations:•Firstly, the situation where the facts are so clear, from the police point of view, that the accused can immediately betaken into the custody of the court, the police will then give the documents to the public prosecutor, who will go on
processing the case.

•Secondly, the situation where the police can affirm the case’s suitability for swift disposal but rule out taking theaccused into custody, for instance because he has a permanent domicile. The accused may then and there be summoned
to the court hearing. After his personal particulars have been taken, he will be set free again, the police file on thematter will be closed, and the file will be sent to the public prosecution office.

•Thirdly, the situation where there may be doubts as to whether the case is really appropriate for swift disposal. In
such a situation the police official processing the case will get in touch directly with the public prosecutor on duty
to deal with urgent cases, in order to get a decision from the latter on whether an accelerated procedure is to befollowed at all.

This sort of gradation of action by the police should be the subject of consultation with the public prosecution officeso as to improve communication between both authorities and thus also their mutual understanding. Here we find relevant
models in pilot schemes in Germany. It is obvious that adjacent accommodation for the public prosecution office and thepolice may also be beneficial. In fact, the police headquarters of some of the large German cities have made an officeavailable on their premises to the public prosecutor who is responsible for cases involving the accelerated procedure.
VII. PILOT SCHEMES FOR SIPHONING OFF THE PROCEEDS OF CRIME
A. Organizational Recommendations
There certainly are successful models of fruitful co-operation not only between the public prosecution office and thepolice but also involving close co-operation with customs, the tax and other authorities, i.e. in the field of siphoning off
illicit funds. In practice, siphoning off assets acquired through criminal offences has proved to be a difficult matter inlegal terms and has actually necessitated great effort, which has effectively restricted its application to a few important
cases. The expertise needed for taking urgent measures in an individual case and the relevant experience therefore cannot
be assumed – in the long run as well – to apply at all times in the case of every divisional public prosecutor. So, in actual
fact, it is the following organizational measures that need to be taken as essential elements of an effective, differentiatedand “court-tested” siphoning-off practice:•

Through training and further training adequate basic knowledge will have to be imparted to all divisional publicprosecutors and judges.

•

At every public prosecution office at least one specialist will have to be appointed who has a more profound knowledgeof the subject, who constantly updates his knowledge and who, as a multiplier – here assuming the necessary freedom
for him to operate in his service unit – imparts his knowledge within that unit.

•

Guidelines, collections of forms, and manuals must be made available for use in everyday practice.

•

Close co-operation must be organized with the courts, the police, customs, tax authorities and other partners, whereby
the power of the public prosecution office to direct the investigations in substantive terms must remain unassailable.

•

Regular joint service meetings must lead to constant mutual exchange of up-to-date information and of court decisions.

B. Practical Application and Successes
On the basis of these perceptions the public prosecution office in Hanover has, for instance, set up a pilot investigation
unit where investigations relating to property assets are conducted separately from the other investigations. This unit has
the sole task of tracing criminally tainted assets and of freezing them for the benefit of the state or of the victims of theoffences concerned. The classical functions of clearing up the offence and conducting the criminal prosecution are theresponsibility of other public prosecutors acting in the same case. This central office for “organized crime and corruption”
principally has a co-ordinating and response function for legal and organizational questions. It is also responsible fororganizing and co-ordinating supra-departmental training events and exchanges of experience, the drafting of forms, andthe assessment of success, including securing the assets frozen.

69

RESOURCE MATERIAL SERIES No. 60
In the police force of the state of Lower Saxony special investigation groups have been set up for the purpose of
securing assets. Certain persons have been assigned by the tax offices to act as contacts with the task of responding tothese special investigation groups and to the experts at the public prosecution offices.
This pilot scheme has produced very positive results indeed. What was impressive was not only the commitment of
all those involved in the project, but also the quality of co-operation and, surprisingly, the considerable extent of theproceeds ensuing from the respective investigations:
About 28 million Marks’ worth of assets were siphoned off, i.e. about 14 million Dollars.
This pilot scheme shows that developing communication between the public prosecution office and the police
authorities and the close co-operation between them is one of the important requirements for successful investigation work.
VIII. THE FUNCTIONING OF THE PUBLIC PROSECUTION OFFICE
A. Statutory Foundations of the Power to Issue Instructions
After trying to give you an overview of the external contacts of the public prosecution office with the police, I would
like to conclude this lecture by giving you a brief statement on the way in which the public prosecution office functions,with special reference to the question of the importance attached to the right to issue instructions – a right that is establishedby statute – in the everyday business of the public prosecution office.
As I said at the beginning already, the public prosecution office is structured as a hierarchy. According to section
144 of the CCA, public prosecutors act, in their service capacity, as deputies of the head of the authority. So if the publicprosecution office at a court is composed – as is usually the case – of several officials, all public prosecutors subordinate
to the head of that authority will be acting as his deputy. It follows from this that the acts performed by a public prosecutor
at a trial (for instance giving his consent to termination of the proceedings) will also take full effect if they violate abinding instruction given by his superior.
It is explicable, in terms of the monocratic structure of the public prosecution office, that no specific public prosecutor
is, in the final analysis, required to have the competence to act in a specific criminal case; on the contrary, changes ofcompetence can be made, as and when desired, within a public prosecution office. The first officials of the publicprosecution offices at the Higher Regional Courts, i.e. the Public Prosecutor Generals, and those at the Regional Courts(the Chief Senior Public Prosecutors) are entitled themselves to take over the official duties of the public prosecution
office at all courts in their district and, if necessary, to entrust the discharge of those duties to an official who is not theofficial who would initially be competent, for instance the official duty of representing the public prosecution office at
specified court sittings.
The officials of the public prosecution office shall carry out the official instructions of their superior: section146 of
the CCA. The right to issue instructions (section 147) is vested in the public prosecutors who hold positions as superiors
as well as in the Minister of Justice. Since, however, the Minister of Justice is not a public prosecutor, his power to issue
instructions is referred to as being “external”. An external instruction issued by the Minister of Justice is initially directedto the Public Prosecutor General, who will then, assuming the instruction is accepted, translate it into an internal instruction
for the public prosecution office concerned.
B. The Ministerial Right to Issue Instructions as a General Guidance for Action
The actual significance of the Ministerial right to issue instructions is illustrated by the issuing of general guidelines
and circulars that do not relate to a specific individual case but to the proper handling of provisions of criminal procedureand of criminal law. Here reference must be made to•

the Guidelines on Criminal Proceedings, containing in particular detailed instructions on the prosecution of certain
criminal offences;•

the Guidelines on the Youth Courts Act, containing requirements relevant to criminal proceedings in cases against
young persons;•the Guidelines on Relations with Foreign Countries in Criminal Matters; and70

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

the Directive on Communications in Criminal Matters, identifying the service units that are to be informed on thecommencement of investigations. Here the particular focus is on communications about persons who are subject toservice supervision, to state supervision, to professional supervision or to supervision under the law regulating theirprofession, such as doctors, clergymen or Public Service staff.

Ultimately, having such guidelines is sensible and indispensable for ensuring that the administration of justice iscarried out consistently.
C. The Ministerial Instruction in an Individual Case
By contrast, what is highly problematic is the individual, i.e. specific, Ministerial instruction. Such instructions are,however, a very seldom occurrence. As a rule, it is sufficient for the Ministry to make informal requests, give informal
advice or recommendations.
To the extent that there is any public knowledge at all regarding such recommendations – most of which are usually
expressed in informal terms – external observers often assume the existence of extraneous political considerations on thepart of ministerial bureaucracy.
With this in mind, attention must be drawn to the following fact: the Minister of Justice bears parliamentary
responsibility for the Ministry’s activities. Hence he, or she, is essentially free to implement his or her legal policies by
issuing instructions in an individual case, for in doing so the Minister is also subject to the control of Parliament.
Clearly, when issuing an individual instruction, he can only move within the parameters of what is legally permissible.
That the Minister’s right to issue instructions is not to collide with the principle of mandatory prosecution and the relevant
provisions of criminal law and of criminal procedure law requires no further elaboration.
D. An Instruction Issued Internally within the Authority Concernd
In the final analysis, similar considerations apply to the right to issue instructions internally within the authority itself,
pursuant to section 147 no. 3 of the CCA. Internal instructions issued by the head of the authority may relate to generalrules – for instance regarding uniformity in the prosecution of shoplifting – and might suggest certain ways of proceedingcorresponding to the value of the goods stolen, e.g. that the regulatory fine should be 10 times the value of what wasstolen. As a rule, no difficulties will be encountered here, so far as the public prosecutor working on a case has sufficient
scope to act.
What is more difficult to assess is those instructions that affect the handling of a specific individual case. There ismuch controversy about the details of where the limits lie in respect of the public prosecutorial right to issue instructions.
Conflicts may certainly arise, for instance when the recipient of an instruction considers that instruction to be unlawful
and his superior tries to exert informal pressure. It is particularly these informal instructions, issued orally and politely
to the public prosecutor concerned, that may cause difficulties, especially for a young colleague trying to conform towhat is required of him, in a situation where that public prosecutor takes the view that the instruction in question is notcorrect.
E. Problem Solving by an Individual Instruction being Issued in Writing
With this situation in mind, and also to cover the case where an external instruction is issued, a group of criminallaw professors have presented a proposal for a legal provision dealing with this problem. Let me just refer to this provision
as follows:“ ... (2) Instructions by superior authorities in respect of the handling of a case in specific proceedings shall be
issued in writing and shall include the reasons. 2Where there are exigent circumstances and an instruction
cannot be issued in writing, an oral instruction shall be confirmed in writing without delay.
(3) 1A public prosecutor may request that instructions relating to the handling of a case in specific proceedings
shall be issued to him in writing including the reasons. 2Where a public prosecutor deems an instruction to be
unlawful, he shall indicate this to the head of the authority in writing, stating the reasons. 3The instruction shallbe deemed to have been withdrawn to the extent that it is not repeated in writing.

71

RESOURCE MATERIAL SERIES No. 60(4) 1A public prosecutor who deems an instruction already issued to him to be unlawful and who has indicatedthis to the head of the authority shall, upon his own application, be released from handling the case further. 2 He
shall however undertake any action that cannot be postponed. ...”I am not entirely sure whether this proposed provision will solve the problem, for it is specifically the informal
requests, advice and recommendations from the superior authority, or from the service superior, that can lead to conflict.
However, I am confident that discussions with experts from other countries will point to ways of getting to grips withthese difficulties.
IX. RECAPITULATIONa)

On the basis of his professional competence and his statutory functions a public prosecutor is entitled and boundto guarantee the lawfulness of investigation proceedings. Part of this involves, in particular, the protection of theaccused’s and other participants’ basic rights anchored in the Constitution. Where investigation measures aretaken which are associated with a particular interference with the accused’s elemental basic rights, such as
searching his home, the public prosecutor’s power to make such an order shall not, as a rule, suffice. Here it is thejudge, with basically the same qualification but independent in terms of his position, who has jurisdiction; only
where there are exigent circumstances can the public prosecutor or the officials assisting him intervene. Against
the backdrop of the high ranking basic rights established in the Constitution the Federal Constitutional Court has
rightly warned that the element of “exigent circumstances” must be resorted to with restraint.

b)

In Germany the multitude both of criminal offences committed and of investigatory acts needed in connection
therewith make it actually impossible for the public prosecution office to comply with their obligation to take thelead in all investigation proceedings. In the majority of cases, investigations are therefore, in actual fact, led by thepolice. However, since in all cases competence to terminate proceedings, as well as to prefer public charges, rests
solely with the public prosecution office, the final legal and factual control of the investigation proceedings
remains the prerogative of the public prosecution office. This has proved its worth in practice. Hence there is nocause for expanding the powers of the police in investigation proceedings.

c)

As coercive measures in investigation proceedings may go hand in hand with interference with elemental basic
rights – especially those of the accused – there is, on the contrary, reason for strengthening the public prosecution
office’s power to take the lead and their competence in investigation proceedings, and to counter the tendency on
the part of the police – often complained of – to make more generous use of their competence to act in urgent
cases. What is more, effective, preventive judicial control has to be ensured in relation to coercive measures.

d)

The fact that in practice it is the police who are leading the investigations draws a veil over the sole responsibility
borne by the public prosecution office. For the purpose of strengthening their position and of dismantling possible
hurdles obstructing information and communication in the relationship between the defence and the publicprosecution office, statutory provisions are being drawn up in the Federal Ministry of Justice in Berlin; they aredesigned to give the public prosecution office the opportunity of informally discussing the factual and legal
position with the participants in the proceedings. This way conflicts can be resolved and the conditions needed forswift conclusion of proceedings created.

e)

There are no easy answers in view as regards conflicts arising for the public prosecution office when a publicprosecutor is given problematic instructions by a service superior or by his Minister of Justice. Here the only thingthat might help would be to appeal to those in positions of authority at least to issue those instructions that are of apolitically sensitive nature in writing and therefore to take responsibility – vis-a-vis the outside world and the
media. Whether, however, this is the ideal route to take will be a matter for careful examination.

72

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
ANNEX 1
Options facing the public prosecution office when making their decisions *Type of disposal

Ground for choosing different
type of disposal

Overview of prerequisites-

1.

termination,section 153 CCP- less serious criminal offence- lack of public interest in prosecution- guilt considered to be of a minor nature- in the case of subsection (1), second sentence,
approval of the court not necessary--Guilt would not-be considered of a minor
nature.

2.

termination,section 153b CCP- also applicable in respect of serious criminal
offences- lack of public interest in prosecution(unwritten element)- presence of conditions where a court may
dispense with imposing a penalty (e.g.
reparation, perpetrator-victim mediation)-Public interest in criminal
prosecution must be offset inrelation to the perpetrator and/or
offence.

3.

termination withconditions andinstructions,section 153a CCP- less serious criminal offence- interest in criminal prosecution may be offset
by sanctions- degree of guilt not an obstacle- court’s and accused’s consent necessary-Gravity of guilt presents an
obstacle.

4.

penal orderproceedings,
sections 407 et seqq.
CCP- less serious criminal offence- further clarification of the facts not necessary- anticipated penalty (for a defended accused)imprisonment not exceeding one year
(suspended on probation)-Main hearing-seems necessary.

5.

accelerated
procedure,
sections 417 et seqq.
CCP- appropriate for immediate hearing given
simple factual situation or clarity ofevidence- anticipated penalty imprisonment notexceeding one year
-Case is inappropriate for
immediate hearing.

6.

normal proceedings,
section 170 subsection (1) CCP- public charges -* according to Schlüchter, Beschleunigtes Verfahren, 1999, p. 69

73

RESOURCE MATERIAL SERIES No. 60
ANNEX 2

Sample Penalty Order (See paragraph 409 for an explanation of the order’s contents)

Local Court

Place and date

Münster, 4 February 2001
File Reference:

13 Cs 72/97

Address and telephone

Kleine Gasse 7(Please indicate in all correspondence with the
Local Court - especially when lodging legal
remedies)

999876

Mr Klaus Schrader
Am Ring 134400 Münster

Defence Counsel: Mr Müller

Penalty Order
You stand accused by the Münster Public Prosecution Service of negligently causing bodily injury
to the witness Mr Fechte whilst in charge of a motor car in the Hiltrup district of Münster at 3.30
pm on 5 October 2000.
You stand accused of the following:
While driving along the South Promenade you turned left onto state highway 54. Paying
insufficient attention, you failed to observe Mr Fechte’s right of way as he approached in his
vehicle from the direction of Rinkerrode. You thereby caused both vehicles to collide, resulting in
Mr Fechte’s motorcar being propelled onto the on-coming carriageway where it collided with thevehicle of Mr Hellmer, who is also a witness and who was travelling in the direction of Rinkerrode.
Mr Fechte suffered minor injuries in the collision .
Offence pursuant to section 230 and the second clause of the first sentence of section 232,
subsection 1, of the Criminal Code. Prosecution of this instance of bodily injury by negligence isdeemed to be in the public interest.
The Public Prosecution Service has brought the following evidence:
1.
2.
3.

Information provided by yourself
Witnesses:(a)Dieter Fechte, 4600 Dortmund, Sachsenring 12(b)Rainer Hellmer, 4400 Münster, Gänsestieg 13
Extract from the criminal register

Upon application by the Public Prosecution Service you are sentenced to pay a fine of:
20 daily amounts of _ 40 each.
Your are also ordered to pay for the costs of the proceedings. In addition you are held liable foryour own expenses.
P.T.O.
The reverse side contains information about appeals and shows how the costs were calculated.
74

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

75

RESOURCE MATERIAL SERIES No. 60

76

THE EFFECTIVE SYSTEM OF CRIMINAL INVESTIGATION
AND PROSECUTION IN KOREA
Young-Chul, Kim*
I. INTRODUCTION
Since the dawn of history, every civilized country has developed its own investigation system; exercised investigative
power, cracked down on criminals and indicted them. In other words, every country has been imposing upon criminals
appropriate sanctions commensurate with their crime. Every civilized country has invested its legal system derived fromits national consensus. Under the system, each country has organized investigative and judicial authorities and enacted
criminal procedure laws which govern the investigation process. Through such a system, each country has maintained
national order and secured the human and welfare rights of its citizens.
Today, crime is being committed in more sophisticated methods and in a more organized form. In addition, newtypes of crime are continuously occurring. To effectively deal with such situations, investigative organizations are also
getting systematized and scientific in terms of organization and investigation methods. Especially in the Republic ofKorea, prosecutors play a main role in the investigation and judicial process. Prosecutors initiate investigation or direct
the police regarding a specific crime. Prosecutors are the only authority in deciding whether to indict a specific suspect,participate in trial and execute judgements made by judges.
In connection with the topic of this international seminar, I would like to focus my presentation on the status or the
power of the Korean prosecution just right after the overview of the recent trend of crimes in Korea, the criminal
investigation organizations. And with related to the case screening, I would like to emphasize the prosecutor’s controlof the police, and the prosecutor’s discretionary power in deciding whether to indict a specific person, thereby explaining
how168.0 mm investigation is conducted in Korea and human rights are protected.
II. RECENT TRENDS OF CRIME IN KOREA
A. Crime Rates Compared with Other Countries
The extent of the crime problem in Korea is not as serious as in other foreign countries. Table 1 shows the comparisonof crime problems among America, England, Germany, France, Korea, and Japan by focusing on murder and robbery
crimes. The number of murder crimes in Korea was 705 in the year of 1996. Meanwhile, America experienced 23,305
murder crimes and Germany experienced 3,751 murder crimes in the same year. The crime rate1 for murder was 1.6 in
Korea, which is the second lowest among the six countries. The murder rate in America was 9.0, which is more than 5times that of Korea. In cases of robbery, Korea experienced 4,469 incidences while the number of robberies was 618,817
in America. When the incidences are converted into robbery rates by taking into account the sizes of total populations ineach of the six countries, the robbery rate of Korea is 10.1, the rate of America is 237.7, that of Germany is 71.0, that ofFrance is 126.9, and that of Japan is 2.1.2 This comparison indicates that Americans are 23 times more likely to experiencerobberies and citizens in England, Germany, and France are about 10 times more likely to experience such crimes thanpeople in Korea. Therefore, though Japan is the lowest country with a 1.0 murder rate and a 2.1 robbery rate, it is safe to
say that the extent of the crime problem in Korea is not as serious as in other industrialized countries.

The current crime problem in Korea is not at such a life-threatening level like other industrialized countries. However,the legal researchers and practitioners of Korea are now paying special attention to the recent trends of crime problems.
Both the quantitative and qualitative aspects of crime problems have become worse since Korean society entered themass-consumption and information era of social development. The numbers of crimes are rapidly increasing in recent* Professor
Prosecutor
years,
andandtheSeniornatureof crimes is becoming more violent. Furthermore, crimes which are newly emerging with the
Judicial Research and Training InstituteRepublic of Korea
1

Crime rate is calculated by estimating crime incidences per 100,000 individuals.

2

It is the same when the crime rates of index crimes (murder, robbery, rape, aggravated assault, burglary, larceny, and auto theft) are compared. The
index crime rate of Korea was 2,033 in 1997, while those of America, Germany, and Japan were 4,899, 8,026, and 1,506 respectively (Legal Research
and Training Institute, 1999, The White Paper on Crime:39).

77

RESOURCE MATERIAL SERIES No. 60
expansion of computer and information technologies are causing a great difficulties for the law professions in terms ofinvestigating such new types of crimes and counteracting high-skilled offenders.3
B. Overall Trends of Crime in Korea
Table 2 shows the overall trends of crime incidences from 1966 to 1998. Major characteristics of the overall trend
can be categorized as follows:(i)

Crime rates tend to gradually increase with the years. For instance, the crime rate in 1966 was 1,358, that of1976 was 1,408, that of 1986 was 1,966, and the crime rate reached 3,803 in 1998. The current level of crime
incidences in Korea is relatively low compared with the 4,899 and 8,026 of America and Germany.
(ii) Crime rates have increased rapidly in recent years. It took about 20 years for crime rates to reach 2,000 crimes
per 100,000 persons, but it took only 6 years to reach 3,000 crimes.
(iii) Arrest rates are pretty high compared to those of other countries. The average arrest rate is about 90 percent.4

C. Trends of Newly Emerging Crimes
1. Computer Crimes
Various kinds of computer crimes have newly emerged with the development of computer technology and Internet
services. Computer crimes5 have unique characteristics different from other traditional crimes. First, computer crimes
are generally repetitious and continuous unless they are detected. Second, they are committed by persons without
geographical limitations. Third, they are hard to detect as they are generally sophisticated and usually committed bypersons possessing specialized expertise.
The Supreme Public Prosecutor’s Office reports that computer crimes tend to increase in recent years. Table 3 shows
the trends of computer crimes. As shown in Table 3, there has been a 1,251.4% increase in the numbers of persons arrested
for computer crimes from 1996 (37 persons) to 1999 (500 persons). It can be observed that computer fraud such as afraudulent transactions on on-line markets is the most frequent type of computer crime. It comprises about 49% of thetotal computer crime. Illegal access such as hacking and theft of other person’s IDs and passwords is the next frequent
computer crime. From 1996 to 1999, about 171 persons have been arrested for this type of illegal activity.
2. Drug-related Crimes
In Korea, drug-related crimes are controlled by three distinct laws and regulations concerning narcotics, marijuana
and psychotropic medicine. Table 4 shows the trends of drug-related crimes from 1989 to 1998. As shown in Table 4,
3

Soon-Rae, Lee, Recent Trends of Crime and Countermeasures to Deal with Crime Problems in Korea, The 4th International Training Course on
Crime Prevention and Criminal Justice, 2000. 10., p. 127.

4

Arrest rates are obtained through the number of arrests made over the number of crime incidences occurring multiplied by 100.

5Computer crimes can be sorted into two categories: crimes where a computer is an object of criminal activity and crimes where a computer is an
instrument for crime.
a. Computer crime where the computer is an object of criminal activity- crimes against computer hardware•disruption of physical configuration of computer•theft of computers-crimes against computer software•distributing computer viruses and sending mail bombs•hacking the operation of computer system•illegally copying computer software
b. Computer crime where computer is an instrument for crime-intentional modification of input information, operating software, and output-unlawful access to computerized data (computer spy)-business of copied computer software-computer crimes related to VAN or commercialized network services•provision of illegally copied software•dissemination of legally prohibited information (pornographic materials, political ideology threatening national security)•distribution of malicious information defaming innocent person’s integrity•theft of other person’s IDs and passwords•fraudulent transactions on on-line markets

78

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
there were 8,350 drug-related crimes in 1998. They occupied about 0.4% of the 1998 total crimes. The rate of drugrelated crime is 17.98. Such a rate is much lower than those of assault (344.29), larceny (166.93), and fraud (214.35).
The total number of drug-related crimes continued to decrease in the early 1990’s, but it has increased since 1993.
Among drug-related crimes in 1998, those in violation of the Psychotropic Medicine Control Act are the most frequent,following by those violations against the Marijuana Control Act and Narcotics Act. The recent increase since 1995 canbe explained in terms of factors such as the growth in the quantity of drugs smuggled into Korea as more Koreans travel
around the world.
3. Organized Crimes
The volume of the Korean economy rapidly expanded during the 1980s. As the economic conditions got better, there
happened a transformation in people’s attitudes. The traditional attitudes emphasizing diligence, abstinence and hard
work were no more sincerely accepted in people’s minds. Instead, they started to seek a life of more pleasurable andenjoyable ways. It was during the period when so-called ‘immoral’ businesses started to open to a greater extent. Luxurious
facilities such as ‘adult disco clubs’, ‘adult entertaining shops’ or ‘hotel gambling’ were newly opened one after another.
Organized crimes6 took advantage of such opportunities. The crime organizations, which were scattered around withtiny memberships, became involved in this ‘immoral’ businesses. With the profits from the businesses, the organizedcrimes recruited new members and invested enough money in an attempt to shape the loosely connected organizations
into tightly controlled forms. The establishment and formation of organized crime firms appeared during the 1980s. The
1990 Presidential Declaration on ‘War on Crime’ made a significant impact on such newly formed crime organizations.
Massive efforts by police squads and prosecutor’s offices nationwide were devoted to dissolve organized crimes. Problems
caused by organized crimes were diminished by the efforts.7 But, since the middle of 1990s when the convicted members
tended to be released from incarceration, the Task Forces at the level of District Prosecutor’s Office have noticed several
attempts of ex-members to restore the previous crime organizations.
III. CRIMINAL INVESTIGATION ORGANIZATIONS OF KOREA
A. Overview of the Investigation Organizations
Criminal investigation organizations of Korea are divided into two categories. One is prosecutors and the other isjudicial police officers. The public prosecutor has authority to investigate criminal cases and is entrusted to exclusive
authority, albeit with a minor exception, to initiate criminal procedures by indicting the offenders.8 The judicial police
officer also has authority to conduct investigations under the supervision of the public prosecutor.9 Judicial police officers
are made up of general judicial police officers that deal with criminal cases in general and special judicial police officers
that handle the specific type of cases set out in the relevant laws.
When a crime occurs, the judicial police officer usually initiates the investigation. In reality, a police officer
investigates daily crimes such as thefts, violence or traffic related crimes. Upon conclusion, the case is then transferredto the public prosecutor’s office where a public prosecutor continues with the investigation by questioning the suspect
and related persons, examining documents and other evidence. The public prosecutor may conduct additional
investigations as necessary. Due to such investigations by the public prosecutor, those who need not be punished will be
released from the process at an early stage. Consequently, the conviction rate at trial is rather high, constantly more than90 percent. In the case of complex offenses and white-collar crimes, such as large-scale bribery cases involving politiciansor high ranking public officials, economic offenses, narcotics offenses, environmental offenses, organized crimes, tax
evasions and police misconduct, the public prosecutor can initiate the investigation ex officio or without prior investigationby the judicial police officer.
Public Prosecutor’s Offices are under the jurisdiction of the Ministry of Justice. They consist of the Supreme Public
Prosecutor’s Office, the High Public Prosecutor’s Office, the District Public Prosecutor’s Office and their respective
6

Organized crimes are often classified into four types: a) social and political organized crime, such as terrorist groups or guerilla groups, b) predatoryorganized crimes, which specialize in robbery or larceny like slum gangs, c) organized crimes seeking psychological satisfaction, such as biker
groups, d) syndicate organized crimes, which are involved in ‘immoral’ enterprises providing illegal services to demanding clients.

7

It was estimated in 1994 that the organized crimes consist of 364 families and include about 11,117 members. About 10,616 members were once
arrested and 3,622 were imprisoned.

8

Article 195 of the Criminal Procedure Act.

9

Article 196 of the Criminal Procedure Act.

79

RESOURCE MATERIAL SERIES No. 60
Branch Offices, each corresponding to the court within their jurisdiction. Police officers belong to the National Police
Agency and are referred to as ‘judicial police officers’ in the Criminal Procedure Act.10 The Korean police have almost
the same functions and duties as those of other countries. And there is a National Intelligence Service, which investigatesnational security crimes such as espionage, insurrection, inducement of foreign aggression, rebellion and violation of the
National Security Act.11 It also performs analysis and collection of intelligence concerning national security.12 And there
are special investigative agencies which are described as ‘special judicial police officers’ in the Criminal Procedure Act.13
In the case of special offences such as the customs offence of tax evasion, special investigative agencies, such as the
Customs Office, the Tax Administration Agency conduct the investigations.
B. Relationship between Prosecutor and Judicial Police Officer
Under the Korean Criminal Procedure Law, the relationship between the prosecutor and the judicial police officer
is not one of cooperation, but one of order-obedience.14 Accordingly, the prosecutor directs and supervises the judicial
police officers in connection with criminal investigation and the police should obey the prosecutor’s official order.15
These duties of the prosecutor are essential in realizing the spirit of the rule of law which requires the protection of humanrights and due process in the investigation of crimes.
Judicial police officers should obey any official order issued by the prosecutors.16 Moreover, the judicial police
officers, as assistants of the prosecutors, can investigate crimes only under the control of prosecutors. In case a judicial
police officer does not comply with a prosecutor’s order or commits any unjust act in connection with performing his/her duty, that prosecutor can, through his/her chief prosecutor, request the officer to stop the investigation or request his/her superior officer to replace him/her.17 If necessary, prosecutors can request the police or other executive departments
to dispatch some of their officers to the prosecutor’s office. In order to ensure that prosecutors effectively control judicial
police officers, Korean laws provide the following:18
1. Prosecutors’ Authority to Inspect the Place of Arrest or Detention
To deter unlawful arrest or detention, the chief prosecutor of the district public prosecutor’s office or its branch
offices dispatches prosecutors once a month to the place of the investigation where a suspect is being arrested or detained.
The inspecting prosecutor examines relevant documents and questions the arrestee or detainee.19 If there is reasonableground to believe that any suspect has been arrested or detained in violation of due process, the prosecutor should release
the suspect or order the judicial police officer to transfer the case to the prosecutor’s office.20 The purpose of this system
is to protect individual rights from unlawful infringement. This provision emphasizes the prosecutor’s role as an advocate
of human rights.
2. Right to Request the Judge to Issue an Arrest Warrant
Under Korean law, the judicial police officer is not entitled to directly request the judge to issue an arrest warrant.
A judicial police officer should apply for an arrest warrant with the prosecutor.21 If such an application is made by ajudicial police officer, the prosecutor examines the application documents and decides whether to request the judge toissue the arrest warrant. The same is true of a warrant for search, seizure or inspection.22

10 Article 196 of the Criminal Procedure Act.
11 Article 3 of the National Intelligence Service Act.
12 Functions and duties of the National Intelligence Service are so similar to the CIA in the United States of America that it is commonly called KCIA,

which means Korean CIA.
13 Article 197 of the Criminal Procedure Act
14 Article 196 of the Criminal Procedure Act
15 Article 53 of the Public Prosecutor’s Office Act.
16 Article 53 of the Public Prosecutor’s Office Act.
17 Article 54 of the Public Prosecutor’s Office Act.
18 Kwang-Am Kim, The System of Criminal Investigation and Prosecution in Korea, The 5th International Training Course on Crime Prevention andCriminal Justice, 2001. 10., pp. 142-146.
19 Article 198-2, Section 1 of the Criminal Procedure Act.
20 Article 198-2, Section 2 of the Criminal Procedure Act.
21 Article 200-2 of the Criminal Procedure Act.
22 Article 215 of the Criminal Procedure Act.

80

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
3. Right to Approve Urgent Arrest made by a Judicial Police Officer
Prosecutors or judicial police officers may arrest a suspect without an arrest warrant in cases where there is reasonableground to believe that (1) the suspect has committed a crime punishable by death, life imprisonment or imprisonment for
more than three years; (2) the suspect may destroy evidence or has escaped or may escape; and (3) it is practically
impossible to obtain an arrest warrant from a district court judge because of urgency.23 Of course, prosecutors or judicial
police officers should state the above reasons of urgency to the suspect before arresting him/her. When a judicial police
officer urgently arrests a suspect, he should obtain the approval of a prosecutor immediately after the arrest.24 In reality,
when a judicial police officer has made an urgent arrest, he immediately transmits the application documents of approvalof arrest to the prosecutor by facsimile. Through this system, prosecutors can prevent judicial police officers from illegallyarresting a person, thereby protecting human rights. This provision also serves as a tool which secures prosecutor’s rightto control judicial police officers.
4. Right to Direct Judicial Police Officers in Connection with Disposition of Seized Articles
When judicial police officers (1) sell the seized article and keep the proceeds in custody; (2) return the seized article
to its owner; or (3) temporarily return it to its owner, they must obtain prior approval of the prosecutor.25
5. Judicial Police Officer’s Duty to Report to the Prosecutor
When crimes happen which are related to national security or are socially important such as insurrection, foreign
aggression, crimes related to explosives, murder, etc., judicial police officers should immediately report to the chiefprosecutor of the district prosecutors’ office having jurisdiction over the investigation.26 Moreover, judicial police officers
are also obliged to report to the prosecutor on the occurrence of riots and important affairs or movements of politicalparties or social groups. Based on such reports, prosecutors take appropriate measures and direct judicial police officers.
IV. INDEPENDENCE OF PUBLIC PROSECUTORS IN KOREAAs quasi-judicial officers, prosecutors must remain truly objective and impartial in carrying out their duties. To
achieve these goals, prosecutors must be independent which means being free from any interference. So in the performanceof their duties, prosecutors should be subordinated only through laws in order to insulate the criminal justice system frombeing abused by political opportunism. As the keeper of the rule of law, prosecutors must make sure that all are equal
under the law regardless of their status in society. Particularly, in the case that powerful politicians are breaking the law
themselves, it is very important that prosecutors be in a position to stand up and demand that justice must prevail. In
order to ensure the independence of prosecutors, Korean laws provide the following:
A. Guarantee of Prosecutor’s Status
The President has the authority to appoint and assign public prosecutors upon recommendation from the Minister ofJustice. The qualifications for the public prosecutor are identical to that of the judge: passing the national judicial
examination and completion of a two-year training course at the Judicial Research and Training Institute.27 In addition
to these requirements, some professional experience is needed to be appointed as a high-ranking public prosecutor.28 The
status of the public prosecutor, like that of the judge, is guaranteed by law. The public prosecutor may not be dismissedor suspended from the exercise of his/her powers or be subject to a reduction in salary other than through impeachment,
conviction of crimes punishable by imprisonment or more severe penalties or other disciplinary actions based on relevantlaws and regulations.29
B. Limitation of Justice Minister’s Direction
In view of the importance of the public prosecutor’s role in criminal proceedings, the Public Prosecutor’s Office Act
states that the Minister of Justice, as the chief supervisor of prosecutorial functions, may generally direct and supervise
public prosecutors but for specific cases can only direct and supervise the Prosecutor General.30 This is to safeguard the23 Article 200-3, Section 1 of the Criminal Procedure Act.
24 Article 200-3, Section 2 of the Criminal Procedure Act.
25 Article 219 of the Criminal Procedure Act.
26 Article 2 of the Rules on Execution of Duties of Judicial Police.
27 Article 29 of the Public Prosecutor’s Office Act.
28 Article 27, 28 of the Public Prosecutor’s Office Act.
29 Article 37 of the Public Prosecutor’s Office Act.
30 Article 8 of the Public Prosecutor’s Office Act.

81

RESOURCE MATERIAL SERIES No. 60
public prosecutor’s quasi-judicial status by ensuring each public prosecutor’s independence from outside influence withregard to the case in hand.
C. Status of Prosecutor General
The Prosecutor General in Korea shall take charge of affairs of the Supreme Public Prosecutor’s Office, exercise
general controls over the prosecuting affairs, and direct and supervise public officials of public prosecutor’s offices. So,
the role of the Prosecutor General in Korea is extremely important in the criminal justice system. In order to ensure theindependence of the Prosecutor General from political influence, the term of the Prosecutor shall be 2 years, and he shallnot be re-appointed. And, he shall not promote or join any political party within a two-year period after he retires fromoffice.31
D. Prohibition of Prosecutor’s Political Movement
In order to secure the independence of public prosecutors from political influences, the Public Prosecutor’s Office
Act provides that “No public prosecutor shall commit any of the following acts while in office: (1) To be a member of
the National Assembly or a local council, (2) To participate in any political movement, (3) To be engaged in a businessthe purpose of which is to obtain any monetary profit, (4) To be engaged in any remunerative duties without permissionof the Minister of Justice.32
V. PUBLIC PROSECUTOR’S AUTHORITY IN CASE SCREENING
A. Criminal Investigation
Korean prosecutors have the authority and duty to investigate all crimes. An investigation authority is an inevitablepremise of indictment and the starting point in imposing punishment upon criminals. Under Korean law, the authority toinvestigate crimes is vested in the prosecutors.33 But, in reality, prosecutors cannot investigate all the crimes due to thelimitation in the number of prosecutors. So, most of the criminal cases are conducted by judicial police officers rather
than prosecutors.34 Instead, prosecutors screen the cases conducted by judicial police officers. Consequently, it is very
important for prosecutors, as the leaders or main players of criminal investigation, control and direct the police who are
the assistants to the prosecutors.
B. Indictment and Maintenance of Indictment
As the only prosecuting authority, Korean prosecutors have the power to decide whether or not to prosecute a suspect.35
In case a prosecutor chooses to indict a person, the prosecutor has the duty to participate in the trial and maintain indictment
until a final court judgement has been rendered. Under Korean Criminal Procedure Law, indictment by a private person
is not allowed and only the government can indict a suspect. Of the many departments of our government, the prosecutor’s
office monopolizes the authority of prosecution.36
In addition, prosecutors have the discretionary power to suspend prosecution even if there is sufficient evidence tomaintain prosecution.37 Prosecutors suspend prosecution when they think the benefit of non-prosecution is greater thanthe cost of prosecution. It enables prosecutors to take into account criminal policy factors when deciding whether toprosecute a suspect.
C. The Right to Direct and Supervise Judicial Police Officers
Korean prosecutors have the legal right to direct and supervise judicial police officers as far as criminal investigations
are concerned.38 Under Korean law, prosecutors are the czars of criminal investigations. Consequently, judicial police
officers are obliged to obey the prosecutors’ orders which are issued based on the prosecutors’ legal authority. Generally
speaking, judicial police officers serve as members of the executive. However, they are all under the control of theprosecutors when they perform judicial police work in connection with criminal investigations.39 This system is based
31 Article 12 of the Public Prosecutor’s Office Act.
32 Article 43 of the Public Prosecutor’s Office Act.
33 Article 195 of the Criminal Procedure Act.
34 In 1999, the number of suspects in cases transferred to the prosecutors by judicial police officers was 2,327,445, which accounted for 97% of

2,400,485 suspects in all the cases accepted by the prosecutor’s offices.
35 Article 246 of the Criminal Procedure Act.
36 Article 246 of the Criminal Procedure Act.
37 Article 247 of the Criminal Procedure Act.
38 Article 196, Section 1 of the Criminal Procedure Act.

82

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
on the belief that due process and individual rights will be best protected by enabling prosecutors to play a leading rolein criminal investigation since they are legal experts and are guaranteed independence and a high status. It is also the best
way to effectively indict a suspect and to maintain such an indictment.
D. The Right to Direct and Supervise the Execution of Judgments
In Korea, prosecutors direct and supervise the execution of all criminal judgments, e.g., direction and supervision of
the execution of arrest warrants, search or seizure warrants and final criminal judgments.40 This was designed based upon
the belief that the appropriateness of warrant execution and the protection of individual rights in connection with suchexecution could best be secured by entrusting those duties to the prosecutors who represent the public interest.
E. Authority and Duties as Representatives of the Public Interest
Korean prosecutors, as representatives of the public interest, directly participate or direct public officials to participate
in civil suits in which the government is a party or in which the government has an interest.41 In these civil proceedings,
the Korean Minister of Justice represents our government. Even though an executive department or its subsidiaries
becomes a defendant in an administrative suit, the prosecutors direct public officials of the department or participate in
the trial because the prosecutors are legal experts and representatives of the public interest.
VI. CASE SCREENING AT SEVERAL STAGES
A. Investigation
There are two kinds of investigation methods in Korea. The one is compulsory investigation which is conductedunder a warrant issued by a judge and the other is voluntary investigation which is conducted without a warrant. In Korea,
a public prosecutor can investigate the case at his/her own initiative or screen the cases conducted by police officers at
each of these stages.
1. Compulsory Investigation
First, I would like to tell you about arrest and detention during compulsory investigation. Before January lst, 1997,
we only had a detention warrant system in the Criminal Procedure Law. But, through the revision of the Criminal Procedure
Law, we introduced the arrest warrant system additionally from the beginning of 1997. If there is a probable cause tosuspect that a person committed a crime and in case he/she refuses to appear in an investigative agencies’ offices without
any reasonable ground or there is a concern that he/she may disappear, the investigative authorities can arrest a suspectwith an arrest warrant issued by a judge.42 A request for a warrant to a judge may be made only by a public prosecutor;
police officers must apply to a public prosecutor for a warrant. So, at this stage, a public prosecutor can screen the cases
applied by police officers. If a public prosecutor who has screened the case, thinks an arrest warrant is necessary, he/sherequests an arrest warrant from a judge. But, when a public prosecutor thinks a warrant is not necessary, he/she rejects
a warrant request by police officers. If a public prosecutor thinks there is not enough evidence for an arrest warrant, he/she directs police officers to further the investigations. However, the following cases are exceptions to the warrant
requirement for arrest:
(i)
(ii)

Any person may arrest, without a warrant an offender who is committing or has just committed an offense(socalled in flagrante delicto arrest).
The police or public prosecutor may arrest a person who is believed to have committed an offense punishable
by death, life imprisonment or up to three years imprisonment when there is not sufficient time to obtain awarrant in advance.43

If the police officer who arrests a suspect, thinks that detention of a suspect is necessary, a detention warrant must
be requested from a judge through the same procedure as in an arrest warrant within 48 hours from arrest.44 So, investigative
39 As long as criminal investigation is concerned, judicial police officers are directed and supervised by prosecutors(Article 4, Section 1 of the Public

Prosecutor’s Office Act). However, the authority of judicial police officers widely ranges over protection of people’s life, body and property,
prevention, suppression and investigation of crime, gathering information about crime, control of traffic, social stabilization and peace-keeping(Article 3 of the Police Act).
40 Article 4 of the Public Prosecutor’s Office Act.
41 Article 4 of the Public Prosecutor’s Office Act.
42 Article 200-2 of the Criminal Procedure Act.
43 Article 200-3 of the Criminal Procedure Act.
44 Article 200-4 of the Criminal Procedure Act.

83

RESOURCE MATERIAL SERIES No. 60
authorities can detain a suspect when they have a detention warrant issued by a judge. A request for a warrant may bemade only by a public prosecutor; police officers must apply to a public prosecutor for a warrant. The public prosecutor
requests a detention warrant from a judge after screening the case if the following conditions are met:
(i)
(ii)

The suspect has no fixed dwelling; orThere are reasonable grounds to believe the suspect may flee or destroy evidence.45

When the police detain a suspect, the suspect must be released if not transferred to the public prosecutor within 10
days.46 After the completion of the investigation, the police transfers the suspect to the public prosecutor’s office. The
public prosecutor can detain the suspect for 10 days.47 The 10 days detention in police custody and a further 10 days
detention under the public prosecutor are granted by a detention warrant. If more investigation is necessary, the judge
can grant detention of an additional 10 days by the public prosecutor’s request.48 The maximum term of pre-prosecution
detention is thus 29 days, since the detainee’s transfer day from the police to the prosecutor is calculated in the detention
period on both sides.
Before questioning, the police or a public prosecutor must inform a suspect of his/her right to remain silent.49 A
suspect also has the right to consult with a lawyer during pre-trial detention.50 Suspects in police custody are held inpolice detention cells, while those who have been transferred to the public prosecutor’s office are detained in official
pretrial detention houses. The Constitution provides detainees with the right to request the court to review the legality ofdetention before indictment is instituted.
2. Search and Seizure
Search and seizure is also one of the compulsory investigations, and the procedure of issuing a search and seizure
warrant is similar to that of an arrest and detention warrant. The investigative agencies can search and seize places andthings when they have a search and seizure warrant issued by a judge.51 A request for a warrant may be made only by apublic prosecutor; police officers must apply to a public prosecutor for a warrant.52 So, at this stage, a public prosecutor
can screen the cases applied for by police officers. But the following cases are exceptions to the warrant requirement forsearch and seizure:(i)

When the police or a public prosecutor arrests or detains a suspect, they can search and seize without a warrant
at the crime scene.53(ii) The police or a public prosecutor can search and seize things, which are owned or possessed by a suspect who
can be under urgent arrest54 within 48 hours from arrest.55(iii) the police or a public prosecutor can seize things which are brought forward by the owner or possessor.56

3. Wiretapping
Like other countries, secrecy of communication is protected by the Constitution in Korea.57 But as you know, insome crime investigations, the police and a public prosecutor need wiretapping in order to apprehend fugitives andinvestigate criminal activities. At this point, there is a conflict of interest between the constitutional right and theinvestigative need. We restrict the legal wiretapping strictly by regulating the legal wiretapping by the special law named
Communication Secrecy Protection Act. Under this Act, wiretapping can only be permitted under strict conditions andby restricted procedures, and a request for wiretapping permission may be made only by a public prosecutor; police
45 Article 201 of the Criminal Procedure Act.
46 Article 202 of the Criminal Procedure Act.
47 Article 203 of the Criminal Procedure Act.
48 Article 205 of the Criminal Procedure Act.
49 Article 12, Section 2 of the Constitution of the Republic of Korea, Article 200, Section 2 of the Criminal Procedure Act.
50 Article 12, Section 4 of the Constitution of the Republic of Korea.
51 Article 215, Section 1 of the Criminal Procedure Act.
52 Article 215, Section 2 of the Criminal Procedure Act.
53 Article 216 of the Criminal Procedure Act.
54 It means a case in which the police or public prosecutor can arrest a person who is believed to have committed an offence punishable by death, life

imprisonment or up to three years imprisonment without an arrest warrant, when there is not sufficient time to obtain a warrant in advance, as is
described above.
55 Article 217 of the Criminal Procedure Act.
56 Article 218 of the Criminal Procedure Act.
57 Article 18 of the Constitution of Republic of Korea.

84

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
officers must apply to a public prosecutor for permission.58 So, at this stage, a public prosecutor can screen the caseapplied by police officers.
The public prosecutor requests a written permission for wiretapping from a judge under the following conditions:
(i)
(ii)

There is enough ground to suspect that some specific crimes which are enumerated in the Act are planned,
performed or were performed.
It is difficult to hinder commitment of crime, apprehend a criminal, or collect the criminal evidence with methods
other than wiretapping.59

The maximum period for wiretapping is three months, but an additional three months can be granted by a judge, if
necessary.60
4. Voluntary Investigation
In Korea, voluntary investigation involves interrogation of a suspect by summons, inspection at the scene,interrogation of a relevant witness and so on. If it is necessary for criminal investigation, a public prosecutor and thepolice can demand the appearance of a suspect and listen to the suspect’s statement.61 A public prosecutor and the police
must notify the suspect that he/she has the right to remain silent in advance before listening to the suspect’s statement.62
But a public prosecutor and the police can’t force the suspect to appear without an arrest of detention warrant becauseinterrogation by summons is a voluntary investigation.
Like other countries, interrogation of a suspect is one of the most important investigation methods. When a crime iscommitted, investigative agencies usually perform inspection on site at the crime scene, if it is necessary. At the inspection
on site, they try to recreate the crime situation, analyze the crime and collect the relevant evidence. This is a very importantcriminal investigation method, especially when serious and violent crimes such as murder, robbery, rape are committed.
A public prosecutor and the police can demand appearance of a witness by summons and listen to the witness’s statement.
But a public prosecutor and the police can’t force the witness to appear.
By the way, with just the traditional investigation methods, we can’t solve the new kinds of crime which are getting
more sophisticated and ingenious. So, public prosecutors and the police utilize various advanced devices, for example,
computer systems, VTRs, poly-graphs and other equipment in performing their prosecutorial functions in order to enhancethe efficiency of criminal procedure. For forensic criminal investigation there are several laboratories in the Supreme
Public Prosecutor’s Office, that is, lab for DNA Analysis Section, Drug Analysis Section, Polygraph Section, Document
Examination Section, Criminal Photography Section, Phonetic Analysis Section and Psychological Analysis Section. As
at the beginning of this year, we have the most state-of-the-art identification equipment such as Automatic DNA Sequencer,
Computer Polygraph System. Also, investigation equipment such as Passive Night Vision System, Wireless Video
Camera, Cellular Telephone Interceptor are also available for scientific investigation. In addition we set up a plan inwhich Criminal DNA Data Base will be established and fully operated in the near future. Besides, there is the National
Scientific Investigation Laboratory that assists scientific investigation which the police perform. The laboratory is under
the direction of the Ministry of Government Administration and Home Affairs and it actually performs a central function
and duty in the police’s scientific investigation.
When police officers conduct voluntary investigations and report the results of the investigations, the public prosecutor
should screen the case thoroughly. If the public prosecutor can not be confident of the case, he should re-investigates thecase at his/her own initiative or direct the police officer to make up for the result of the investigation.
B. Indictment
In Korea, prosecutors have the sole authority to decide whether to prosecute a suspect, except in cases of the quasiindictment process by the court and petty crime indictment made by the police. This is called the principle of Indictment
Monopolization. For the purpose of this disposition, all investigative agencies transfer the cases to the public prosecutor
and the public prosecutor completes the investigation and decides his/her disposition. To institute prosecution, the public
58 Article 6, Section 1 of the Communication Secrecy Protection Act.
59 Article 5 of the Communication Secrecy Protection Act.
60 Article 6, Section 7 of the Communication Secrecy Protection Act.
61 Article 200 of the Criminal Procedure Act.
62 Article 12, Section 2 of the Constitution of Republic of Korea.

85

RESOURCE MATERIAL SERIES No. 60
prosecutor should be confident the case can be proven beyond a reasonable doubt in court. When he/she is not confident,
he/she should not institute prosecution. He/She should drop the case for insufficiency of evidence. Due to this practice,
the conviction rate at trial is constantly very high, more than 99 percent in Korea. But, it’s a very hard task for a publicprosecutor to complete an investigation.
1. Presentation of Indictment
To prosecute a suspect, the prosecutor should present a written indictment to the court. Prosecution can not be madeverbally or by way of wire. In practice, the prosecutor draws up the indictment and submits it to the court. In case of aprosecution with detention, arrest warrant (or urgent arrest document, arrest document against a flagrant offender), thedetention warrant and a certificate of detention are attached to the indictment.
2. Principle of Presentation of Indictment Only
In the indictment, neither documents nor things which can mislead a judge can be attached. Accordingly, prosecutors
do not present documents or things such as complaints, inspection documents or expert’s opinions at the time ofprosecution.

86

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
VII. DISCRETIONARY POWER OF PROSECUTORS IN CASE SCREENING
A. Introduction
Under Korean law, prosecutors have the discretionary power to suspend prosecution even if there is sufficient evidence
to convict a suspect.63 This is called the Principle of Discretionary Prosecution. It is a concept contrary to the Principleof Compulsory Prosecution.64 The purpose of the Principle of Discretionary Prosecution is to enable the prosecutor totake into consideration criminal policy in deciding whether to prosecute a specific suspect. However, some lawyers are
critical of this principle in that: (1) such a principle can not effectively control a prosecutor’s arbitrary decision, and (2)it is possible that the exercise of the prosecution authority might be influenced by political pressure.
B. Discretionary Power and Its Criteria
Section 1 of Article 247 of the Korean Criminal Procedure Law provides that the prosecutor may decide to suspend
prosecution considering the factors enumerated in Article 51 of the Korean Criminal Law. The prosecutor may decide
not to prosecute a suspect taking into account the suspect’s age, character, pattern of behavior, intelligence, circumstances,
relationship to the victim, motive and method for committing the crime, results and circumstances after the crime. However,the factors enumerated in Article 51 of the Criminal Law are not words of limitation, and therefore prosecutors may
exercise their discretionary power considering factors other than those enumerated in the article. So, to ensure whether
these factors exist or not is also a very important purpose of the investigation by the public prosecutor and police officier.
In Korea, many cases are dropped under the procedure as suspension of prosecution. As for the offences stipulated in the
Criminal Code such as theft, violence, suspension of prosecution is exercised in about 60 percent of the cases.
C. Reasons for Suspension of Prosecution
Although it is up to the prosecutor to decide whether to suspend a prosecution, it is very difficult to definitely state
the reasons for non-prosecution because the prosecutor must think about various factors relevant to a specific case in
making the decision. For example, the prosecutor should consider whether non-prosecution would help the criminal’s
rehabilitation and not confuse social order. Although such criminal policy considerations have been materialized througha long period of practice, we have to admit that the test for non-prosecution differs slightly from one prosecutor to anotherprosecutor. It is due to the different views on life of individual prosecutors. The test might also vary with the times orchange in people’s way of thinking. Accordingly, we can not definitely state the reasons for non-prosecution. However,
Article 51 of the Korean Criminal Law enumerates the following factors:
1. Factors regarding the Suspect(i) Age
According to the age of the suspect, prosecutor’s disposition of the case might differ. Generally speaking, prosecutors
deal leniently with juveniles, students and the aged.
(ii) Character and pattern of behavior
The character, pattern of behavior, hereditary diseases, habit career, prior convictions, etc., of the suspect are usuallyconsidered in making a suspension-of-prosecution decision.
(iii) IntelligenceIntelligence refers to the suspect’s sensibility. Sensibility is measured by the suspect’s academic career and extent
of knowledge.
(iv) Circumstances or environment
The suspect’s circumstances such as family background, vocation, work place, living standard, relationship withclassmates and parental guidance are considered in making the non-prosecution decision. In addition, the prosecutor also
takes into account the effect of prosecution upon family members of the suspect.
2. Relationship to the Victim
Whether the suspect is a relative to the victim or a colleague in the work place is also one of the factors.

63 Article 247, Section 1 of the Criminal Procedure Act.
64 Namely the Principle of Compulsory Prosecution means that the prosecutor should prosecute a suspect when there is sufficient evidence to convictthat person in the prosecutor’s opinion and the other requirements for prosecution are satisfied.

87

RESOURCE MATERIAL SERIES No. 60
3. Factors Related to the Crime(i) Motive for committing the crime
Whether the crime is a premeditated or non-premeditated one, whether it was provoked by the victim, or whether
the negligence of both the suspect and the victim has combined to cause the accident are also important factors in making
a suspension-of-prosecution decision.
(ii) Method and result of the crime
The dangerousness of the method of committing the crime, the profits the suspect has gained from the crime, thepeople’s concerns about the crime, the effect of the crime on society, the extent of the damage and the degree of possible
punishment are also considered by the prosecutor. In addition, the prosecutor considers whether there exist reasons toaggravate or mitigate punishment.
4. Circumstances after Committing the Crime(i) Factors related to the suspect
Whether the suspect repents the crime, has apologized to the victim, has tried to compensate for the damages inflictedon the victim, has escaped or has destroyed evidence are important factors in making a suspension-of-prosecution decision.
(ii) Factors related to the victim
Whether the damages inflicted on the victim have been recovered, and whether the victim wants the suspect to bepunished are also considered.
(iii) Other factors
Other factors considered are social circumstances, change of people’s sentiment, time period elapsed after thecommission of the crime, repeal of law, change of the extent of punishment, etc.
D. Procedure for a Decision of Suspension of Prosecution
1. Written Oath
In practice, the prosecutor reprimands the suspect for committing a crime and has him/her write an oath stating thathe/she will not commit a crime again in the future. Irrespective of whether the suspect is detained or not, the prosecutor
summons, admonishes the suspect and has that person write an oath. In reality, however, the prosecutor sends anadmonishing letter to the suspect instead of having him/her write an oath when he/she is not detained. As you may haveguessed, it is to reduce the prosecutor’s work load. When the suspect is a juvenile or student, the prosecutor also has thesuspect’s parent or teacher submit a written oath to the prosecutor stating that he/she will supervise the suspect well sothat the suspect will not commit a crime again in the future.
2. Arrangement for the Suspect’s Protection
When making a suspension-of-prosecution decision, the prosecutor may entrust the suspect to his/her relative or amember of the Crime Prevention Volunteers Committee. In case there is no person to take the suspect or it is inappropriate
in the prosecutor’s opinion to entrust the suspect to the above-stated person, the prosecutor may request social organizations
such as the Korean Rehabilitation and Protection Corporation to protect the suspect.
3. Disciplinary Action
In principle, when the prosecutor makes a decision of suspension of prosecution against a public official because thecrime committed is a trivial one, the prosecutor should ascertain the result of the disciplinary process held by theorganization to which such public official belongs. Moreover, within 10 days from the beginning of the investigation
against a public official, the prosecutor is obliged to notify the organization to which that official belongs of the fact thatinvestigation is going on. Generally speaking, such organization does not proceed with disciplinary action against the
public official. Consequently, it is rare for the prosecutor to ascertain the results of disciplinary action before making asuspension-of-prosecution decision against a public official.
E. Suspension-of-Prosecution Decision for Juvenile Offenders on the Fatherly Guidance Condition
Suspension of prosecution for juvenile offenders on the fatherly guidance condition is the suspension of prosecution
for juvenile offenders under the age of 18. It is a suspension-of-prosecution decision on the condition that the offenderis subject to the protection and guidance of a member of the Crime Prevention Volunteers Committee for a period of six
months to twelve months after the decision, depending on the possibility of committing a crime again in the future. The
volunteers are nominated by the chief prosecutor of the district public prosecutor’s office. We have operated this system88

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
nationwide since January 1, 1981 to prevent juvenile offenders from being repeat offenders and to rehabilitate them intosound and reasonable citizens.
To make this decision, the prosecutor should select the person to protect the offender among the members of the
Crime Prevention Volunteers Committee, hand in a referral document to the person, receive from that person a certificate
stating that he/she has received the custody of the offender and would bear the responsibility of protecting and guiding
the offender. Of course, the prosecutor should have the offender and his/her patron submit written oaths. Even after thedecision, at least once a month the prosecutor receives from the volunteer how he/she is instructing and guiding theoffender. They also continue to cooperate with each other. If the offender does not comply with the volunteer’s guidanceor commits another crime, the prosecutor may remand the suspension-of-prosecution decision and prosecute the offender.
In light of the low rate of such offenders committing another crime and the high rate of usage of this system, we can saythat it has worked very effectively so far.
F. Suspension-of-Prosecution Decision on the Probation Committee Guidance Condition
This is for offenders who need probation and guidance by experts for a period of six to twelve months depending
upon the possibility of the offenders committing another crime in the future. Suspension of prosecution is made on thecondition that the offender is subject to the guidance of the ‘Probation Committee.’ The prosecutor entrusts the offender
to a member of the committee. The procedure for this disposition is similar to the suspension-of-prosecution decision on
the fatherly guidance condition. However, this system applies to adult offenders as well.
G. Control of the Prosecutor’s Discretion
The dangerousness of the principle of discretionary prosecution is that the prosecutor might abuse the power or thatthe decision will be affected by political pressure. So, it is necessary to set some limitation on the prosecutor’s discretionary
power. The criteria for the exercise of discretionary power or its control should comply with the ends of criminal justice.
In this sense, the discretionary power is to be exercised and controlled on a standard of rationality. There are several
controlling devices which can be classified into two categories: they are internal controls and external controls.
1. Internal Control(i) Control by superior
All decisions made by a prosecutor are subject to the control of his superior. The superior is required to review alldecisions made by prosecutors. He is to check the propriety of the decision. Also, he must review whether or not thedecision complies with the criteria of prosecutorial policy. In practice, the Deputy Chief Prosecutor reviews all cases
disposed of by prosecutors prior to the review by the Chief Prosecutor who actually checks only selected cases. The
Deputy Chief checks not only the propriety of the decision but clerical mistakes in the case files. The prosecutors are
required to write the reason for the decision not to prosecute. The reasoning must be succinct and precise. Writing thereason of the decision not to prosecute is regarded to be important in terms of the control of discretion. The prosecutoris psychologically restrained by this requirement of writing reasons. The Chief or the Deputy Chief Prosecutor usuallyreads the decision document which is written by the prosecutor. If the Chief or the Deputy Chief thinks that the Decision
is inappropriate, then he asks the prosecutor for an explanation of the reasoning for the decision. They discuss the matter
thoroughly until they reach a common conclusion. This practice is generally based on the theory that the assigned
prosecutor knows more than his superior about the case. In this case, they call the prosecutor to explain the case and thereasoning of the decision. In case of a conflict of opinion on legal issues, superiors are likely to yield to prosecutors,
because the legal responsibility for the specific decision is charged not to the superior but to the prosecutor. In the matterof policy, however, prosecutors usually concede to superiors. If a prosecutor anticipates conflict on opinion with a superior,
he may discuss the case with them prior to making the decision.
(ii) Control by general guidelines
Prosecuting discretion is also controlled by general guidelines of instructions issued by the Prosecutor General. Since
the Prosecutor General has a duty to carry out unified prosecuting policy, he, from time to time, issues direction or
instruction in the form of general guidelines. A prosecutor is bound by these official guidelines. If he willfully disregards
these guidelines, he may be subject to disciplinary punishment. And, the Prosecutor General annually dispatches aninspection team which consists of one Supreme Prosecutor and several Senior Prosecutors to all subordinate prosecutor’s
offices in order to review the propriety of decisions made by prosecutors. Normally, the emphasis of the inspection is
given to the decisions not to prosecute. If they find any impropriety, they may issue a mandate in the name of the Prosecutor
General to re-investigate or institute prosecution. The outcome of this inspection is utilized as reference material in theformation of prosecuting policy for the next year.

89

RESOURCE MATERIAL SERIES No. 60(iii) Appeal on the prosecutor’s decision of non-prosecution
This process can only be initiated by petition of a complainant who is not satisfied with the decision not to prosecute.
When a complainant is notified that the prosecutor has decided not to prosecute a certain person, he/she may appeal tothe competent chief prosecutor of the High Public Prosecutor’s Office to which the prosecutor belongs.65 If the appeal
is dismissed, the complainant may re-appeal to the Supreme Public Prosecutor’s Office. This is regarded as a relatively
strong control device.
2. External Control(i) Quasi-prosecution by the court(Judicial Control)
When a complainant is notified that the prosecutor has made a non-prosecution decision, that person may apply fora ruling to the High Court corresponding to the High Public Prosecutor’s Office to which the prosecutor concerned
belongs.66 If the High Court holds that the prosecutor’s decision of non-prosecution was inappropriate and refers the caseof a district court judgment, prosecution is presumed to have been made to the district court.67 However, this systemapplies only to crimes regarding abuse of authority by public officials.
(ii) Notification of non-prosecution decision and reasons
A prosecutor is, by statute, required to inform a complainant of the decision to prosecute or not to prosecute withinseven days after the date of disposition of the case. Particularly in the case of a decision not to prosecute, the prosecutor
has to explain, in writing, the reason why prosecution was not instituted within seven days after he receives a requestfrom a complainant. Although this is not a direct control on the prosecutor’s power of non-prosecution, it works as anindirect control device in that it places psychological pressure on the prosecutor.68
VIII. CONCLUSION
What should be the role of public prosecutors in criminal investigation is one of the most controversial questions
among nations of different legal traditions and practices. The border-line between the jurisdiction of the prosecutors andpolice officers is quite difficult to be drawn particularly on the role of criminal investigation. The role of prosecutors incriminal investigation ranges from total control as in the case of Korea, France and Germany, or taking a leading role asin Japan and the United States, to separation of investigation and prosecution as in Thailand, England and Wales after
1986, or complete control by police as in some commonwealth countries.
In my experience as a prosecutor, I believe that prosecutors must play an active role in criminal investigation. In
order to ascertain the truth of the matter before making the decision to prosecute, the prosecutor must be allowed to
conduct investigations on his/her own initiative or direct judicial police officers as far as criminal investigations areconcerned. By participating closely in the conduct of investigation, the prosecutors not only will be able to make more
effective decisions and conduct more efficient litigation, they will also be able to supervise the legality of the investigation.
As a consequence, they will be in a better position to do justice to both the victim of crime and the suspect as well as tofulfill their duty in protecting society at large. And, I would also like to emphasize that prosecutors must be impartial andobjective in the performance of their duties. They should play an active role in criminal investigations so as to maintainthe highest standard of efficiency in investigations and prosecution, while, at the same time, safeguarding the rights of
the accused and crime victims. To be able to discharge their functions effectively, prosecutors, like judges, should be
independent and be immune to undue influences, especially political ones. At the same time, prosecutors should be held
accountable and be transparent in the performance of their duties.
In concluding, due to the fact that crimes are no longer confined to the boundary of one country, the functions ofprosecutors should be expanded to include not only domestic matters but also issues of international cooperation. In theso-called “global villages”, international cooperation and legal assistance on criminal matters are very important andurgent to prevent and suppress transnational crimes. Only with the help of foreign countries’ law enforcement agencies,
we can cope with the international crimes and protect our society. So, I hope that this international seminar can be acornerstone to promote international criminal cooperation and legal assistance.

65 Article 10 of the Public Prosecutor’s Office Act.
66 Article 260 of the Criminal Procedure Act.
67 Article 262 of the Criminal Procedure Act.
68 Article 258, Section 1 of the Criminal Procedure Act.

90

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
APPENDIX A
Table 1 COMPARISON OF THE EXTENT OF CRIME PROBLEMS
AmericaEnglandGermany

France

Korea

Japan

Murder Incidence
Crime rate

23,305
9.0

1,375
2.7

3,751
4.6

2,696
4.7

705
1.6

1,279
1.0

Robbery Incidence
Crime rate

618,817237.7

60,016116.7

57,75271.0

73,310
126.9

4,469
10.1

2,684
2.1

Data : Japan Ministry of Justice Research Center,1996 : 398
Table 2 CRIME INCIDENCES AND ARREST RATES FROM 1966 TO 1997
Incidences

Arrests

Arrest rate(%)

Num. ofArrested

Population(unit:1,000)

Crime rate

1966
1967
1968
1969
1970

399,820
361,582
333,098
352,070
333,537

286,613264,833
259,362
332,851
289,637

71.7
73.2
77.9
94.5
86.8

385,873
369,003
391,551
419,122415,504

29,43630,13130,83831,54432,241

1,358
1,200
1,080
1,116
1,035

1971
1972
1973
1974
1975

351,574
369,839
323,363
337,535
387,207

293,279
330,890
289,157
292,839
335,944

83.4
89.5
92.2
86.8
86.8

395,467
442,274
398,431400,266
462,908

32,88333,505
34,103
34,69235,281

1,069
1,104
948
978
1,097

1976
1977
1978
1979
1980

504,630
506,545
513,165
557,793595,277

450,059
448,168
438,265
491,567
475,353

89.2
88.5
85.4
88.4
79.9

609,177
600,197
589,008
651,998
697,62935,84936,41236,96937,534
38,124

1,408
1,391
1,388
1,481
1,561

1981
1982
1983
1984
1985

625,934
658,371786,553803,792
810,416

549,532
575,029
656,204
693,387
693,270

87.8
87.3
83.4
86.3
86.5

734,981784,564
859,097
888,105
885,765

38,72339,32639,91040,40640,806

1,616
1,674
1,971
1,989
1,986

1986
1987
1988
1989
1990

809,660
946,390968,965
1,073,997
1,171,380

704,874
825,601
856,517949,308
1,047,760

87.0
87.2
88.4
88.4
89.0

902,895
1,054,407
1,114,468
1,179,156
1,326,775

41,184
41,57542,38042,38042,793

1,966
2,276
2,308
2,534
2,737

1991
1992
1993
1994
1995

1,230,118
1,241,102
1,356,914
1,373,407
1,399,085

1,130,262
1,135,146
1,298,637
1,246,582
1,269,375

91.9
91.5
95.7
90.8
90.7

1,418,168
1,451,942
1,656,113
1,582,428
1,599,930

43,26843,66344,05644,45344,850

2,843
2,842
3,080
3,090
3,119

1996
1997
1998

1,494,846
1,588,613
1,765,887

1,358,982
1,452,097
1,632,678

90.9
91.4
92.5

1,681,321
1,802,720
2,010,814

45,24846,991
46,430

3,304
3,454
3,803

91

RESOURCE MATERIAL SERIES No. 60
Table 3 TRENDS OF COMPUTER CRIMES
Number

1996

1997

1998

1999

Total

1,125

37

233

355

500

Modification of Electrical
Documents

65

3

28

19

15

Disruption of ElectricalTransactions

28

-

16

9

7

Intrusion of Secrecy

17

-

4

3

10

Computer Fraud

555

8

88

206

253

Disruption of Electrical
Records

11

-

-

5

6

Unlawful Access

171

17

31

27

96

Others

274

9

66

86

113

Table 4 TRENDS OF DRUG-RELATED CRIMES
Total

Narcotics Act

Marijuana Control
Act

Psychotropic
Medicine Control
Act

1989

3,876
(100)

657
(100)

1,025
(100)

1,994
(100)

1990

4,222
(109)

1,215
(185)

1,450
(141)

1,557
(78)

1991

3,133
(81)

838
(128)

1,138
(111)

1,157
(58)

1992

2,968
(77)

949
(144)

1,054
(103)

965
(48)

1993

6,773
(175)

3,364
(512)

1,509
(147)

1,900
(95)

1994

4,555
(118)

1,314
(200)

1,499
(146)

1,742
(87)

1995

5,418
(140)

1,135
(173)

1,516
(148)

2,767
(139)

1996

6,189
(160)

1,235
(188)

1,272
(124)

3,682
(185)

1997

6,947
(179)

1,201
(183)

1,301
(127)

4,445
(223)

1998

8,350
(215)

892
(136)

1,606
(157)

5,852
(293)
(Unit : Persons)92120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

93

REFORMING PAKISTAN POLICE: AN OVERVIEW
Muhammad Shoaib Suddle*
I. INTRODUCTION
Police reform has emerged as a top priority in Pakistan Government’s commitment for strengthening the rule of law.
Despite many past reform efforts, it is only in about the last two years that Pakistan has viewed police reform as a criticaldevelopmental priority. The interest in reform stems from clear and overwhelming evidence that a fair, responsible,
ethical and efficient criminal justice system is an important factor in the promotion of economic and social development
and of human security. It also stems from the fact that law and order crisis in Pakistan has continued to deepen over time,and in recent years the police has been increasingly unable to cope with its increased responsibilities, particularly withregard to combating serious crime.
A. The Problem
Among the serious constraints undermining the police system of Pakistan are: (1) an outdated legal and institutionalframework (devised for nineteenth century India consisting of near static villages with hardly any urbanisation orindustrialization, and meant principally for a colonial rule), (2) arbitrary and whimsical (mis)management of police by
the executive authority of the state at every level (policemen were increasingly recruited, trained, promoted and posted
without regard to merit and mainly for their subservience to people with influence and power), (3) inadequate
accountability, (4) poor incentive systems, (5) widespread corruption, and (6) severe under-resourcing of law and order.
B. The Way Forward
To meet the challenges of modernizing an outmoded institutional framework and improving the professional andethical content of policing, the government has initiated an ambitious reform process. The thrust of these reforms is toorganize a police system, which is politically neutral, non-authoritarian, accountable and responsive to the community,
professionally efficient, and last but not least, which is an instrument of rule of law.
In a profound revamping of the structure and systems of police at federal, province and local government levels, thegovernment has decided to dismantle the – anachronistic – Police Act of 1861, which was more suited for rule by acolonial power than safeguarding and promoting rule of law. The draft Police Ordinance 2002 aims, inter alia, at
depolitising police, improving police professionalism through a merit-oriented system of recruitment and career
progression, and making police more accountable to citizens. If properly implemented, these radical reforms can bringabout a fundamental transformation in the quality of policing, and make police a people-friendly public service, particularly
for the poor and disadvantaged.
II. THE HISTORICAL CONTEXTPakistan inherited, in 1947, a more-than-eighty-year-old police system from the British. The overriding consideration
before those who designed the police organization in 1861 was to create an instrument in the hands of the – colonial –government for keeping the natives on a tight leash, not a politically neutral outfit for fair and just enforcement of law.
Police was designed to be a public-frightening organization, not a public-friendly agency. Service to the people was not
an objective of this design. It was designed in response to the social and political realities of the times: The paramountconcerns were collection of land revenue and maintenance of law and order (a euphemism for what Justice Cornelius
called the rule of danda (stick)). Both these – incompatible – functions were vested in a European officer, variously called
Collector, District Officer, Deputy Commissioner or District Magistrate. In his latter capacity, the District Officer washead of the magistracy who tried most criminal cases.
It is crucial to understand the basic difference between a colonial police and a police meant for a free country. Whereas
the former was geared at raising semi-militarised, semi-literate, underpaid, bodies of men for maintaining order by
overawing an often turbulent and hostile – native – population, the latter aimed at creating quality professionals tasked* Inspector General of Police,
Balochistan,
Quetta,Islamic Republic of Pakistan

94120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
to prevent and detect crime in plural, multi-ethnic and socially conscious communities, through just and impartial
enforcement of laws. The former knew how to rule, the latter to serve.
Another important reason why tight and effective control over criminal justice administration was felt critical wasto protect the interests of European middle class responsible for trade and administration in India. To that end, those who
investigated and prosecuted criminal cases were effectively subordinated to the District Officer.
Not only was this union of distinct functions in one government functionary wrong in theory and bad in principle, it
was also contrary to the pre-British and ancient Indian practices under which there existed a virtual separation between
the judiciary and the executive. This – untenable – position of District Officer was severely criticised even by many
Britons, but it was felt to be “absolutely essential” to the maintenance of British rule in India.
As the overriding objective of police organization designed in 1861 was to maintain the stability of the Raj, thepurpose was admirably achieved through emulating the Irish Constabulary model – by placing police under direction andcontrol of the executive authority through the office of the District Officer who acted as the agent of the colonial
government.
A. The Irish Constabulary Model
As Britain expanded its empire, a policing model deemed ideal for colonial rule came to be identified. The model
was based principally on the experience the English had while they tried to enforce order in Ireland (which rejected rulefrom Westminster) through Irish Constabulary established under the Constabulary Acts of 1822 and 1836.
As pointed out by Mawby (1990), Irish Constabulary sought legitimacy at Westminster rather than among theindigenous population. It was an alternative to an army of occupation with no community mandate whatsoever. On a
structural level it was highly centralised with a recognised chain of command from the individual constable, throughchief constable to inspector general, who in turn was responsible to chief secretary and lord lieutenant.
Another significant characteristic of the model was that it firmly established the principle that the constable wasanswerable to the chief constable rather than the law, the chief constable himself being responsible to central government.
Jeffries (1952, 31) also notes that the Irish blueprint was considered as the ideal mechanism for solving a specific
set of law-and-order problems:
It is clear enough that from the point of view of the Colonies there was much attraction in an arrangement which
provided what we should now call a ‘para-military’ organization or gendarmerie, armed and trained to operate
as an agent of the central government in a country where the population was pre-dominantly rural,communications were poor, social conditions were largely primitive, and the recourse to violence by members of
the public who were ‘agin the government’ was not infrequent. It was natural that such a force, rather than one
organized on the lines of the purely civilian and localised forces of Great Britain should have been taken as asuitable model for adaptation to colonial conditions.
B. The London Model
The Metropolitan Police Act 1829 established the principles that shaped modern English policing. First, policing
was to be preventive and the primary means of policing was conspicuous patrolling by uniformed police officers. Second,command and control were to be maintained through a centralised, quasi-military organizational structure. Third, police
were to be patient, impersonal and professional. Fourth, the authority of the English constable derived from three official
sources – the crown (not the political party in power), the law, and the consent and co-operation of the citizenry. Finally,
the oversight of the Home Secretary was to operate in such matters as establishment, administration, and disciplinary
regulations, leaving the direction of policing as such in the hands of the two Joint Commissioners and now theCommissioner of the Metropolitan Police. In other words, the secretary of state was not explicitly or implicitly given theauthority to direct police operations.
Policing in Britain for the past 173 years has continued to rest on these broad principles, and the Police Act guarantees
the independence of the office of chief constable. In maintaining responsibility of direction and control of his force, theAct places high value on the principles that the chief constable should be free from the conventional processes of democratic
control and influence in relation to decisions in individual cases.

95

RESOURCE MATERIAL SERIES No. 60
C. The Irish and British Models Compared
Using the three criteria of legitimacy, structure and function, Mawby (1990) demonstrates that the English andColonial models of policing are quite distinct. In terms of legitimacy, while the English system is founded on the law
and on local government accountability, an alien authority using its law to suit its purpose legitimises the colonial model:
In the colonial system, the police not infrequently usurped the role of judge, jailer and executor. The ‘order’imposed by the police did not automatically square with the ‘law’ with which it was habitually coupled. (Arnold
1986, 3)To a certain extent, the same can be said of the structure. While the police forces of England were decentralised,civilian, and not organized in a military fashion, although senior officers tended to be recruited from the military, thecolonial system featured a military structure, with personnel often drawn from the armed forces, usually (and certainlyin the case of senior officers) aliens, armed, and living in separate quarters.
The two models are also distinctive in terms of their functions. While the police forces under the English system
accepted responsibility for a range of non-crime tasks, their responsibilities for general administration were nowhere asimportant as in the colonial model. Moreover, the role of the former in maintaining order and protecting the state frompolitical protest, while scarcely ignored, never attained the priority it had in the colonies. As Arnold (1986, 3) argues,
within the colonial system:
The distinction between political and crime control function is largely a false one. To the colonial regime crimeand politics were almost inseparable: serious crime was an implicit defiance of state authority and a possible
prelude to rebellion; political resistance was either a ‘crime’ or the likely occasion for it. The resources andskills developed in combating one were freely employed in defeating the other.
No wonder, then, that in India, where a small occupying force imposed alien rule combining administrative, judicial
and police functions, the police organization that emerged tended to follow Irish pattern, whereas in countries like UnitedStates and Australia that remained under colonial rule but where the indigenous population was in a minority and/or
policing settlers was a priority, as in the British Indian cities of Calcutta (now Kolkata), Madras (now Chenai) and Bombay(now Mumbai), alternative policing systems similar to the English system emerged.
D. The Napier’s Police Organization
In India, Sir Charles Napier created an Irish-type police in the province of Sind (now the south-eastern province ofPakistan) in the 1840s, and a similar system was later adopted in other provinces. The force was armed and organizedon a military basis. Its location, in barracks, like Irish Constabulary, illustrated its source of legitimacy, structure andfunction as an organ of social control.
It was not only the single men who lived in barracks; married constables and sub-constables were usuallyaccommodated in the barracks with their wives and children; partly for their protection, partly to make it moredifficult for them to form the ‘local connection’ which their senior officers greatly feared. (Tobias 1977, 246)
Napier (1851, 7) was a great sceptic of the civil service. He thought that it was ‘a system under which the best mustmisgovern, as founded on false principles.’ He, therefore, decided to run his new administration not through civil servants,
but military officers or ‘soldier civilians,’ as he called them, with ‘far less expense and more activity.’ Following thepara-military Irish Constabulary model, he placed the police of the entire province under the command of a captain ofpolice.
The Napier model was based on two main principles: Firstly, that the police must be kept entirely distinct from themilitary in their support of the government. And secondly, the police must be an entirely independent body there to assist
the civilian authorities in discharging their responsibilities for law and order, but under their own officers.
Although the new police was to be employed solely on police work and was to be supervised by officers whose sole
duty it was to control and direct them, the system lacked logical finish. Paradoxically, the district heads of police wereorganizationally under the command of their provincial chief, the captain of police, while operationally each one of themwas subject to orders of his respective civilian authority. In essence, the senior officers of the force were merely to begood managers of the men under their command while the District Officers, apart from their revenue and judicial functions,were tasked with the responsibility of maintaining law and order in their respective districts.

96120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
E. The Rationale for Napier’s Model
Napier’s irrational organization was a deliberate departure from the Irish Constabulary model, which the author of
the new scheme had purportedly tried to follow. It was a typically bizarre arrangement that shocked the theorists but
which made ‘sense’ in view of the aims and character of the – colonial – administration (Griffith 1971, 72-4).
F. East India Company’s Historic Decision on Police Reform
It may look quite inconceivable that the British administrators, with liberal backgrounds, did not believe in theprinciple of separation of powers. Actually most of them did; but as pragmatists it was their ‘considered view’ that only
by supplementing and not by judicially reviewing or correcting the police actions (often taken at the behest of executive
authorities) could the writ of the rulers be established with maximum of vigour and ease.
Some ‘liberalisation’ in views, however, started with the Bird Committee’s report of 1838. The Committee wastasked to look into the ‘desirability’ of introducing in India police reforms similar to those Peel had introduced in London
in 1829. After stressing that the chief cause of police inefficiency was its inadequate supervision, the Committee
recommended that control over police be entrusted exclusively to an officer other than the Collector.
An intense debate followed the Bird report. There also came a scathing indictment of the system by the TortureCommission of 1855, which concluded that revenue authorities in Madras were grossly misusing their police powers to
extort revenue from the poor peasants. These historic developments led the Directors of East India Company to examine
afresh the vexed subject of police reform in India.
In 1856, after examining the available evidence, the Directors issued orders clearly emphasising that further
organizational development of police throughout the sub-continent would proceed on the basic premise that the District
Magistrate would seize to have any role in the affairs of police. In line with the basic principles of a modern organization,
they decided to commit the police exclusively to a – European – superintendent of police responsible only to his
departmental hierarchy. In what may be termed as the most important policy directive – of 24 September 1856 – for the
reorganization of police throughout British India, the Directors observed that the police in India had lamentably failedin accomplishing the tasks for which it was established. Identifying ineffectual and irrational control by the District
Magistrate as one of the major causes of police failure, they directed:
The management of the police of each district be taken out of the hands of the Magistrate and be committed to an
European officer with no other duties and responsible to a General Superintendent of Police for the wholepresidency (see Gupta 1974, 354-5).
G. The Police Act of 1861
The implementation of the 1856 directive could have rid the police of many of its chronic organizational ills, but the‘Mutiny’ of 1857 completely transformed the whole liberal perspective. The clock was turned back and tightening ofcontrol over police was felt a more compelling necessity both to rein in the natives and prevent policemen from everfalling into the footsteps of mutineers. The historic decision regarding separating the police from the executive authorities
was withdrawn, and it was strongly advocated that with the judicial and police powers concentrated in the same hands,
the District Officer would be more effective in keeping the junior police ranks loyal to the rulers.
Under the Police Act 1861, the Inspector General of Police as the chief of provincial police assumed specificresponsibilities in the areas of police policy formulation and the line operations involved in the execution thereof. His
appointment was firmly controlled by central government although, once appointed, he was to act as an advisor to theprovincial government on all matters connected with the police administration of the province.
In carrying out his responsibilities, the Inspector General was to be assisted by several Deputy Inspectors Generalposted on a territorial basis, usually each to a group of three to five districts called a range. The Deputy Inspector General
was to exercise a general supervision over the District Superintendents in his range, and they were to look towards him
for advice, guidance, leadership and co-ordination of police work within the range.
As head of the district police, a District Superintendent was made responsible for all matters relating to the internal
economy of the force, its management and the maintenance of its discipline and the efficient performance of all its duties
connected with the prevention, investigation and detection of crime.

97

RESOURCE MATERIAL SERIES No. 60
H. The System of Dual Control
Under the Police Act of 1861, in addition to being under the senior police hierarchy, the District Superintendent was
simultaneously subjected to the operational – lateral – control of the District Magistrate. Under paragraph 2 of section 4of the Act:The administration of the police throughout the local jurisdiction of the magistrate of the district shall, under thegeneral control and direction of such magistrate, be vested in a district superintendent and such assistant district
superintendents as the Provincial Government shall consider necessary.
The police administration at the district level was thus subjected to a dual control – all administrative, technical,
financial, professional and organizational control of Inspector General through his deputies; and the lateral general control
and direction of the District Magistrate. Also, postings and transfers of Superintendents of Police and officers senior tothem were the concern of the provincial government, not of the Inspector General.
Because of its failure to rectify the long-discovered structural defects of the Irish model, an intense criticism of thedraft Police Act of 1861started right from the day it was introduced in the Legislative Assembly. It was variously describedas ‘old wine in new bottle’ and ‘a new friend with an old face.’ Nonetheless the Act was passed with the hope that ‘at no
distant period’ the police in India would be reformed on lines similar to Peel’s.
Sir James Stephan, a law member of the Governor General’s Council in 1870-71 and a political philosopher of the
Indian Civil Service, however, was quick to put the whole debate about police reform in the ‘correct’ perspective. After
accepting that the administration of justice was not in a satisfactory state in any part of the Empire, he enunciated insuccinct terms:
The first principle to be born in mind is that the maintenance of the position of the district officers is absolutely
essential to the maintenance of British rule in India and that any diminution in their influence and authority over
the Natives would be dearly purchased even by an improvement in the administration of justice. (Cited in Gupta,
1979, xvii-xviii)
In practice, at least in some provinces, the ground position was far worse in that the police operations were controlled
and directed not merely by the District Magistrate, but at the sub-divisional level by his subordinate, the AssistantCommissioner, and at the divisional level, by his superior, the Commissioner. In fact the police were impressed upon toact as the ‘hands’ of the civilian authorities, thereby reducing the former to an agency of the latter and practically excluding
the Inspector General and his deputies from supervision of police not only in the sphere of law and order but also, to avery large extent, even from its internal administration.
These retrograde steps, including, in particular, constant interference with the authority of senior officers of police
over the men under their command, had a crippling effect on the ill-conceived police organization, in addition to
exacerbating the bitter complaints of police oppression and extortion (Griffiths 1971, 99), apart from spoiling the disciplineof the force.
I.

The Police Commission 1902-03
By the beginning of 20th century, the situation became so ‘bad’ that Lord Curzon, the Governor General, had to
declare police reform as one of the most urgent needs of Indian administration. Accordingly, in July 1902, he appointed
a commission to be presided over by Sir Andrew Fraser, chief commissioner of the Central Provinces, to report on thestate of the police organization.
The commissioners, in their report submitted in 1903, recorded their ‘emphatic’ view that the 1861 system hadcompletely failed. One of the major causes of its failure, according to them, was undue interference with the police by
the civilian authorities. “The purpose of Police Act 1861 was not to create a system of dual control but merely to provide
for a reserve of authority outside the police organization, to be exercised by the District Magistrate only sparingly andin very specific situations, while the day to day police work was to be directed and controlled solely by the senior officersof police,” they said.
But, oddly enough, the recommendations of the Fraser Commission fell short in addressing adequately the fundamental– and chronic – organizational ills of police, or bringing about any substantial reform.

98120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Why the British did not feel able to reform police, despite overwhelming evidence in support of reform, was largely
because they wanted to ensure in-built subservience of police to the executive administration; never mind that corruption,lack of professional excellence, police high-handedness and resultant police-public estrangement were some of the obvious
by-products of this policy. It was also due to the fact that they were not prepared to make terms and conditions of policerank and file attractive enough. In other words, the police organization was designed not to attract better talent.
In his note of dissent, the Moharaja of Darbhanga, the only Indian member of the Fraser Commission, maintainedthat the junction of the thief-catcher with judge was surely more anomalous in theory and more mischievous in practice.
“The connection between the district superintendent and the magistrate needed to be severed entirely and completely,
because as bed-fellows, they were capable of causing incalculable harm,” he emphasised. He further said that his own
experience in Bengal had made him believe that it was essential to sever this connection between the police and themagistracy in the high interest of justice and fair play.
Ironically, similar liberal and rational views of vision and professional wisdom were frequently expressed, but were
almost always superseded by the overriding considerations of precipitating the Raj.
Functioning under the guiding principles of this colonial philosophy, the police performed remarkably well in its
role of an occupying force. Although this role kept it miles apart from the public and often turned it into a target of
emotional abuse by those who were pitted against the British.
III. POLITICS OF POLICE REFORM
The first attempt to bring about a perceptible change in the Irish-type colonial police was – vainly – made within six
months of Pakistan becoming a free country in 1947. Under the progressive and able leadership of Governor General
Muhammad Ali Jinnah, the Sind Assembly passed a Bill (XXV of 1948) in February 1948 for establishing a modern
police force for the city of Karachi. In his statement of objects and reasons, Mr. M. A. Khuro, chief minister, who
successfully piloted the Bill, had thus to observe:
Sir, the Bill is a long one, but most of it is already in operation in Bombay and other cities. Karachi has verymuch developed and many more people have come in. The population has considerably increased and the police
force in the present conditions will not be able to cope up with the situation. Therefore, like Bombay, we aregoing to appoint Commissioner of Police for the city of Karachi and give him powers which are identical to thosewhich are given to Police Commissioner of Bombay. This is the main idea behind it. The powers that he will
enjoy are in respect of curfews, processions, public meetings, permission of these, regulating arms and licences. I
think it is high time that Karachi city should have a Bill like this. There should be a regular Police Commissioner
for this city.
The Assembly passed the Bill on 7th February 1948 and an authenticated copy signed by the Speaker and bearing
the forwarding note of the Governor of Sind was duly forwarded to the Governor General’s office. Surprisingly, the Legal
Advisor to the Governor General made certain ‘minor corrections’ on the authenticated copy of the Bill, and returned it
to the office of Governor Sind for resubmission. Why he did so is not clear from the record, but it appears that the politics
of police reform did not let the Bill return to the Governor General, who because of his fast deteriorating health wasincreasingly unable to attend to official matters. (He died on 11 September 1948.)
In 1951, a committee headed by Sir Oliver Gilbert Grace, then Inspector General of police of the North Western
Frontier Province (NWFP), recommended that police set-up for the city of Karachi should be fundamentally changed.
However, no headway could be made because of strong opposition by the bureaucratic elite.
The Pakistan Police (Constantine) Commission of 1960-61 specifically went to India to study metropolitan police
system for Karachi, but the commissioners chose not to make any recommendation in this regard. They ‘felt’ that since
the capital had already shifted from Karachi to Islamabad, the issue was no longer relevant.
The Pay & Services Re-organization Committee (1961-62), headed by Justice Cornelius, recommended in clear terms
the introduction of metropolitan system of policing for cities like Karachi and Lahore, but the recommendation was not‘accepted’ for implementation by the ‘decision-makers.’

99

RESOURCE MATERIAL SERIES No. 60
In 1985, the Police Committee – which included the present author as member/secretary – was mandated to examine
whether the existing police system based on Police Act of 1861 was capable of meeting the growing law and orderchallenges, especially in Pakistan’s major urban centres, and to consider the introduction of metropolitan police system
as it existed elsewhere in the world. After an in-depth discussion of the issue, the Committee strongly recommended thatthe existing – outdated – system needed to be fundamentally restructured, especially for capital cities and major towns
with a population of over 500,000. A Ministerial Committee also approved the recommendation. However, the Cabinet
in its special meeting held on 6th January 1987 ‘decided’ to send a delegation consisting of Member/Secretary of the
Ministerial Committee and the Additional Secretary, Ministry of Interior, to India and Bangladesh to study the reforms
proposed by the Police Committee. (It is worth recalling that Bangladesh – which was East Pakistan until 1971 – hadalready changed the 1861 system of policing in Dhaka (1976), Chittagong (1978) and Khulna (1987).
The two-member delegation after having ‘detailed and searching discussions/interviews’ with prominent experts on
the question of merits/demerits of the 1861 system, returned ‘absolutely’ convinced that as a pilot project the policing
system proposed by the Police Committee should be introduced in the major cities of Karachi, Lahore and Islamabad onpriority basis. However, before any headway could be made in this regard, the time and tide once again proved to be on
the side of the forces of status quo. In May 1988, the Government of Prime Minister Junejo was dismissed, with the longdebated police organizational reform suffering serious setback yet another time.
After the new elected government was installed, the Prime Minister in her speech before the Police Service of Pakistan
Association on 12th April 1989 announced that the old police system would be replaced on experimental basis in selected
cities of Pakistan. (A directive No FDS (IMP)/PMDIR/114/89 dated 04.05.1989 followed the announcement.) However,in the meanwhile, it was ‘decided’ to send another delegation headed by the Interior Secretary to India and Bangladesh.
Interestingly, this delegation also returned with ‘strong’ recommendation in favour of changing the 1861 system.
A four-member British delegation headed by Sir Richard Barrat, Her Majesty’s Chief Inspector of Constabulary
visited Pakistan from 21 to 26 January 1990. The delegation emphasised that the present police establishment was acontinuation of the police appointed during the British days, which was essentially a ruler-appointed police, and that thewhole policing philosophy needed to be changed on the lines suggested by the Police Committee of 1985. “The central
problem surrounding police ... in Pakistan is that the present system was created many years ago under colonial rule andhas not been refined or evaluated to keep pace with the changing face of the country in the last decade of the twentiethcentury ... Police ... throughout Pakistan has clung to the role envisaged by the Police Act of 1861, in which the mainfunctions were the maintenance of law and order and preservation of the status quo by methods of suppression andcontrol,” the delegation observed.
The Police Reforms Implementation Committee, in its final report submitted on 1st March 1990, also reiterated that
the Prime Minister’s directive for introduction of metropolitan police system in the cities of Karachi, Lahore and Islamabadshould be implemented without further dilly-dallying.
A UN Mission led by Vincent M. Del Buono, UN’s Interregional Advisor for Crime Prevention and Criminal Justice,
visited Pakistan from 26 March to 10 April 1995. The Mission made a number of categorical recommendations and urgedthat as an essential first step in the process of renewal, the political leadership of the country at all levels should state asa matter of fundamental policy that an effective, viable, independent but publicly accountable police was crucial to thedevelopment of stable democratic government institutions. “The present crisis comes as no surprise. Since 1960, there
have been eleven separate committees or commissions established by governments in Pakistan and four international
missions requested by the Government of Pakistan which have recommended major reforms of policing in Pakistan.
These have for the most part been ignored and the remedies suggested have been unimplemented. Had the proposed
reforms been undertaken, much of the present crisis could have been avoided... The present police system, which has
been allowed to deteriorate so badly by successive governments and been so abused for political patronage, has not yet
completely broken down due to the dedication, integrity, initiative and professionalism of a large number of individual
officers and constables. In spite of their best efforts, policing will collapse not only in Karachi but also in other parts ofthe country unless law enforcement institutions are strengthened immediately,” the Mission observed.
Next, a Japanese police experts team led by the Director General of the National Police Agency, Mr. Sekine, visited
Pakistan in April 1996 on the invitation of the Government of Pakistan. After analysing police reforms of 1947-54 inJapan, the team observed that it was crucial that police reforms in Pakistan should be focussed on building a relationshipof trust between the people and the police, and that the police in Pakistan should adopt a public service concept. In orderto establish mutual trust between the police and the general public, the team suggested the following steps.

100120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

Creation of institutional structures that ensure political neutrality and democratic control of the police.

•

Proper sharing of responsibilities between the federal government and the provincial governments.

•

Adoption of unified chain of command of the police.

•

Establishment of recruitment and selection system of personnel based on merit.

In March 1998, the Good Governance Group of 2010 Programme, taking support from the Japanese report,
recommended that police be depoliticised and their recruitment, postings, transfers, training and career development
ensured on merit.
In their February 1999 report on Sustainable Peace in Karachi, the Colombian experts recommended a clean breakwith the existing situation. “If a professionally competent, politically neutral and democratically controlled Karachi
Metropolitan Police Force is not formed, there will probably be no police reform or reconstruction of the public sector,
both of which are essential elements for sustainable peace,” they concluded.
IV. TOWARD A COMPREHENSIVE POLICE REFORM PROGRAMME
Faced with a deepening crisis both internally within its own organization and externally in its relations with the
public, the 1861 police system started running aground under the strain of social change brought about in 1947 by the
freedom from colonial rule. It was like expecting a pushchair designed for a toddler to take an adult from one city toanother on a steep road. It was not possible, without a fundamental restructuring of the organization that was so broke.
The last decade of the 20th century particularly witnessed an almost complete collapse of the existing law and orderapparatus, thanks mainly to growing and reckless interference in vital aspects of police administration by the ‘persons
of influence.’ No surprises, if the machine designed for colonial purposes failed to meet the aspirations of a free people
who wanted to enjoy the fruits of liberty, freedom, and rule of law.
Common complaints against the police ranged from routine discourtesy and incidents of neglect, incompetence,
inefficiency, arbitrariness, inadequate or no response to citizens’ requests for help to institutionalised abuse of power andwidespread resort to high-handedness and corruption. Policing by consent was virtually non-existent. Citizens would
lend little or no co-operation, at least little voluntary co-operation, to their police. They perceived police not as an
instrument of rule of law, but as a corrupt, insensitive and a highly politicised force, operating mainly to look after theinterests of the powerful.
This unacceptably high level of police-public estrangement did not come about lightly or suddenly. For most citizens
confronting routine police misbehaviour was a bitter fact of every-day life, borne out of experience of successive
generations at the hands of a force widely believed to be working beyond the bounds of civilized code of behaviour. It
was the behaviour that defied change and was impervious even to the most scathing criticism by leaders of civil society.
Could the ordinary citizen do anything when things went wrong, grievances arose, or complaints about police fell
on deaf ears? Not much, because, badly enough, whatever arrangements existed were woefully inadequate, lacked publicconfidence and were far from user-friendly.
In any case, not many citizens felt able to formally complain against any actual or perceived abuse of authority by
the police. It was their widely-held belief that police could get away with any thing and every thing. There existed no
credible mechanism of policing the police, notwithstanding the fact that an increasingly expanding range of coercive
powers at their command required stricter accountability controls. Public confidence in the police had never been lower.
We knew why. We even knew how to fix it. But we were faced with the perpetual failure of both police leadership andthe governing elite to reinvent the design for a people-friendly police.
What people urgently required was a “fundamental change” in the way they were policed, as the police organization
designed for colonial purposes had since broken down. It had broken down under the strain imposed by a variety ofcomplex factors, including the growth of terrorism, sectarianism, proliferation of weapons, population explosion, andmodern conditions of life. Urban terrorism during the past decade claimed tens of hundreds of innocent victims andbrought Karachi the infamous title of ‘the City of Death.’ The economy also lost hundreds of billions of rupees. Indeed

101

RESOURCE MATERIAL SERIES No. 60
the inability of the law enforcement apparatus, inter alia, to tame the sectarian dinosaur and control illegal arms cost thenation dearly, both in terms of dissipating the gains of economic growth and its image internationally.
Poor law enforcement over time also became a serious threat to the emerging democratic order of Pakistan, its
economy, and the safety, well-being and integrity of its citizens. Although the country spent tens of billions every year
on police, civil armed forces and security agencies, yet the citizen suffered from a creeping sense of insecurity. It wasalmost as if the law enforcement system was designed not to work.
The solution lay in radically changing the way the police operated, in developing a sub-culture of professional
policing, trained and equipped to uphold the rule of law, in shifting from more-than-century-old oppressive policing
practices to community policing, and in reinventing the police which had miserably failed to win much-needed partnershipwith citizens and communities. It was time for police to enter into a customer service contract with the people of Pakistan,
a new guarantee of more effective, efficient, responsive, accountable policing. It was time to implement ideas that worked
and get rid of those that didn’t.
Fortunately, the most opportune moment to reinvent police came when the Government of Pakistan in November
1999 decided to set up the Focal Group on Police Reforms and tasked it to suggest fundamental restructuring of police.
The Focal Group, of which the present author was a member, submitted its recommendations in February 2000. These
were enthusiastically received and intensely debated by members of civil society as well as the media. In the meanwhile,and more significantly, the National Reconstruction Bureau (NRB) of the Government of Pakistan, as part of their good
governance and devolution of powers programme, decided to accord high priority to long overdue police reforms.
The NRB’s Think Tank on Police Reforms, which included the present author as a consultant, comprised seniorpolice administrators who knew the police best – who knew what worked, what didn’t; and how things ought to bechanged. The Think Tank spoke with as many policemen as it possibly could. It heard from the stakeholders – the peopleof Pakistan – all across the country, seeking their ideas, their input and their inspiration. It sought views of the judiciary,and experts of other criminal justice sub-systems. It held useful discussions with top business leaders who have successfully
used innovative management practices to turn their organizations around. It consulted public administration experts who
knew how best to apply the principles of reinventing public sector organizations to improving police services. In short,
it endeavoured to have meaningful dialogue with the best minds from private sector, government, and the civil society.
As the ground conditions that made the 1861 arrangement expedient had long ceased to exist, the Think Tank lostno time in concluding that police needed to be transformed from its colonial mould and organized on the basis of principles
governing standard, modern, contemporary police forces meant for policing free societies, not natives. In this regard, thekey issues debated in the NRB included: (1) What kind of organization will Pakistan Police need to meet the 21st century
law and order challenges? (2) Which model would be most suited in bringing about a radical change in the existing
intolerably high level of police-public estrangement? (3) How could such an organization be subjected to effective
democratic control, yet ensuring its political neutrality?
It took NRB more than a year to deliberate upon various aspects of the Focal Group’s blueprint of police reforms.
There was complete unanimity that every organization, whether public or private, could only perform well if founded on
valid organizational principles. In the case of Pakistan Police, these principles were ruthlessly violated over the years.
This resulted in the creation of a corrupt, inefficient and highly politicised police force. Consequently, the task ofmaintaining law and order suffered serious setback. Increasingly the police was rendered to act as agents of the politicalexecutive rather than as instruments of a democratic state. The selective application of law against opponents, whether
due to political interference or at the behest of persons of influence, became the norm rather than an exception. Politicaland personal vendettas were waged and won through manipulation of the instruments of state. Whatever safeguards
existed against the floodgates of pressure, inducement or threat from criminals or ethnic, sectarian or other powerfulelements virtually became dead. The net result of this all was that people perceived the police as agents of the powerful,
not as members of an organization publicly maintained to enforce rule of law.
As a first critical step towards reform, the NRB concluded that responsibility of maintenance of law and order would
need to rest unambiguously with the police. The police hierarchy will have to be made responsible not merely for theorganization and the internal administration of the force, but also for other matters connected with maintenance of law
and order. In short, policing will no longer be subject to dual control. In this regard, the Chief Executive took the historicdecision to abolish the office of the District Magistrate effective 14th August 2001.

102

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Secondly, it was agreed that necessary steps for rendering the police professionally competent, operationally neutral,
functionally cohesive and organizationally responsible for all its actions would need to be institutionalised in the Police
Ordinance 2002 (scheduled to replace the Police Act 1861 on 23rd March 2002). Once implemented, the new Police
Ordinance will lead to efficient police operations, better quality decision-making, improved discipline of the force, andrevamping of internal accountability mechanisms.
Thirdly, in a bid to insulate police from extraneous interference by the politicians in power, and emulating the Japanesepublic safety commission system, the NRB decided to establish public safety commissions at national, province anddistrict levels. In actual fact, the commissions at the district level have already been established and it is for the first timein the history of Pakistan that independent bodies having due representation from opposition parties will be performing
oversight role over certain critical aspects of police functioning.
Commenting on the improvement in police accountability and behaviour that resulted after the introduction in 1947of the public safety commission system in Japan, Bayley (1991) has observed:
The fact is that a transformation did occur in police behaviour in Japan in a relatively short period of time
immediately after World War II. It is associated with democratisation and in one of the most prized developmentsof the post war period. Japan’s contemporary record of excellence with respect to police behaviour is striking not
only in relation to the United States but also in relation to its own past.
Fourthly, the role, duties and responsibilities of police have been re-defined in a manner in which service function
gets precedence and the prevention and detection of crime is seen to have a social purpose. Not only does the new Police
Ordinance seek to solicit voluntary support and co-operation of the people, it will enable the police to act proactively forushering in a culture of rule of law in Pakistan.
Fifthly, it is crucial to bring police under a system of external accountability that enjoys public confidence. Once a
policeman renders himself accountable to the community he serves, his work ethics undergoes a radical change. By
subjecting himself to rule of law, he would be striving to upholding and promoting the cause of public interest. How cana police force hope to perform its functions efficiently and effectively without enjoying a high degree of public confidence
in the integrity of their operations? The new Police Ordinance seeks to achieve this objective by establishing an independent
statutory institution under the name and style of Police Complaints Authority. Simultaneously, since 14th August 2001
and for the first time in the history of Pakistan, the judiciary stands completely separated from the executive. There is no
doubt that this measure alone would have a profound impact in controlling serious police misconduct.
Sixthly, the reform strategy seeks to establish an independent Prosecution Service in each province of Pakistan. The
purpose is to improve the quality of both investigation and prosecution, in addition to introducing a system of check andbalance. The measure will also be a major step forward towards establishing a standard criminal justice system in Pakistan.
Seventhly, the process of reinvention requires that the political and police leaderships in Pakistan realise that thepolice have to respond to the expectations of their customers if they are to be effective. Historically, there has beenreluctance on the part of senior police hierarchy to recognise the necessity of seeing police forces as organizations thatare fundamentally no different from any other enterprise or business. As Butler (1992) points out, arising from this basic
error there has been a tendency to hide behind the complexity of policing as a means of excusing poor management andleadership. The police organization of tomorrow will therefore have to evolve a shared vision and understanding of acommon mission which will increasingly be focussed on meeting the community expectations. ‘Putting the customer
first’ would certainly improve the confidence of the public and an overt commitment to enhance the standards of bothpublic safety and police accountability will require the police leadership to lead and manage, not simply run, the force
to get results consistent with the mission.
In conclusion, law enforcement modernisation is one of the greatest challenges confronting Pakistan, a challengethat can and must be met. There are no short cuts, and no easy answers. Like an old Chinese saying, a journey of athousand miles begins with the first step. Fortunately, the government has already taken several steps in the right direction,and is determined to complete the journey. There is not a moment to lose.
REFERENCES
Arnold, D. (1986), Police Powers in Colonial Rule: Madras 1859-1947 (Oxford: Oxford University Press)

103

RESOURCE MATERIAL SERIES No. 60
Barrat, Sir Richard, Aspects of Policing in Pakistan, 1990
Bayley, D. H. (1985), Patterns of Policing: A Comparative International Analysis (New Brunswick: Rutgers University
Press)
Bayley, D. H. (1991), Forces of Order: Policing Modern Japan (Berkeley: University of California Press)
Butler, A. J. P. (1992), Police Management (Aldershot: Dartmouth Publishing Company Ltd.)
Constabulary (Ireland) Act, CIII of 1822
Constabulary (Ireland) Act, XIII of 1836
Griffiths, Sir P. (1971), To Guard My People: The History of the Indian Police (London: Benn)
Gupta, A. (1974), Crime and Police in India (up to 1861) (Agra: Sahitya Bhawan)
Gupta, A. (1979), The Police in British India, 1861-1947 (New Delhi: Concept Publishing Company)
Jeffries, S. C. (1952), The Colonial Police (London: Max Parrish)
Mawby, R. I. (1990), Comparative Policing Issues (London: Unwin Hyman)
Metropolitan Police (London) Act, XLIV of 1829
Misra, B. B. (1959), The Central Administration of the East India Company, 1773-1834 (Manchester: Manchester
University Press)
Napier, Sir W. (1851), History of General Sir Charles Napier’s Administration of Scinde (London: Chapman and Hall)
The New Encyclopaedia Britannica, 15th edition, vol. 25
Police Act of 1861
Police Committee Report, 1985 (Islamabad: Government of Pakistan)
Police Reforms Implementation Committee Report, 1990 (Islamabad: Government of Pakistan)
Report of the Colombian Mission, 1999 (Karachi: CPLC)
Report of the Indian Police Commission, 1902-3
Report of the UN Mission to Pakistan: Organized Crime, 1995 (Islamabad: UNDCP)The City of Karachi Police Act (XXV of 1948)
Tobias, J. J. (1977), ‘The British Colonial Police: An Alternative Police Style’, in P. J. Stead (ed.), Pioneers in Policing(Maidenhead: Patterson Smith), pp. 241-61

104

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

105

RESOURCE MATERIAL SERIES No. 60

106THE THAI CONSTITUTION OF 1997 AND ITSIMPLICATION ON CRIMINAL JUSTICE REFORM
Kittipong Kittayarak*
I. INTRODUCTION
It is indeed a great honor and privilege for me to be invited to share my views on recent trends and developments on
criminal justice reform in Thailand with distinguished criminal justice officials at UNAFEI’ s 120th International Senior
Seminar.
The topic of my talk today concerns the latest developments in the Thai criminal justice system. With the passageof the new Constitution, widely called “the People’s Charter,” on October 10, 1997, Thailand is now set to embark upona major reform course which will embrace not only political reform but also the long anticipated overhaul of the criminal
justice system. The Constitution have many detailed provisions relating to the court and criminal justice, particularly on
the procedural protection of the rights of the accused, so much so that it has been called the constitutional code of criminal
procedure by some critics. It also stipulated that the Court of Justice should have its own executive office separated from
the Ministry of Justice, which, as a consequence, has paved the way for the promotion of the independence of the judiciaryand the opportunity to reorganize the criminal justice agencies into the new Ministry of Justice. (Some selected articles
related to criminal justice are listed in Appendix 1 of this paper.)
In my presentation today, after briefly introducing the Constitution and the Thai criminal justice system, I will thenfocus upon the new procedural reform towards due process as introduced by the Constitution. These new constitutional
requirements have made a considerable impact to the practices of the police, prosecutors and judges in the investigation,prosecution and trial processes. After that, I will also discuss about the ongoing organizational reform of the criminal
justice as a result of the new Constitution.
II. THE CONSTITUTION OF THAILAND OF 1997
AND ITS ROLES IN CRIMINAL JUSTICE REFORM
The Constitution of 1997 represents another step of evolution of democratic principles in Thailand. Prior to this new
Constitution, Thailand has had 15 Constitutions since 1932 when the country’s political system was changed from theAbsolute to Constitutional monarchy. However, this Constitution is the first one that was draft by members of theConstitutional Drafting Assembly, who come to power by direct election and stringent selection process. In addition, it
was drafted from the perspective of the common people, through highly participatory process. This pro-rights, pro-reform
Constitution would not have passed the Parliament, had it not been that Thailand was hard hit by economic crisis duringthat same year. The economic crisis has waken the Thai society and forced them to question the past administration
perceived to be corrupt, inefficient, non-transparent and indifferent to the plight of the marginal and the underprivileged
sectors. Such dissatisfaction, together with the campaign for political reform supported by the businessmen and thegrowing middle class, are combining factors which led to the endorsement of the progressive, revolutionary Constitutionof 1997.
The new Constitution has created the ground rules for transforming Thailand from a bureaucratic polity prone toabuse of political rights and corruption into more participatory in which citizens will have greater opportunity to charge
their own destiny. It has set the frameworks of laws and administrative procedures, which promote citizen participation,
protect individual liberties, restricted state’s power to infringe upon individual rights, advocate independent judiciary,and create mechanisms for greater transparent and accountable government. Although the smooth implementation of theprinciples espoused in the Constitution is by no means guaranteed, in my opinion, there are adequate reasons to be
optimistic. The rapid growth of civil and society movement, the changing attitudes among the bureaucrats and the military,
the vibrant media and academia, the higher rate of education, and the generation shift of professional and society leaders* Director General,
Department of Probation,
Ministry of Justice,
Kingdom of Thailand

107

RESOURCE MATERIAL SERIES No. 60
from the right wing, reactionary to the progressive, liberal groups of people whose political views were forged during
the tumultuous years of the late 1960s and early 1970s, are among the encouraging signs for successful reform.
As the rule of law is one of the most important elements for good governance, the Constitution has put great emphasis
on overhauling the criminal justice system. The timing of the drafting of the Constitution was also coincided with the
public sentiments for reform, triggered by public dissatisfaction of criminal justice as a result of the wide media coverageon the abuse of powers by criminal justice officials, the infringement of human rights, the long and cumbersome criminal
process without adequate check and balance, etc. The public also learned of conflicts in the judiciary and other judicialorgans which at times were spread out and, thereby, deteriorated public faith in the justice system. With such background,the members of the Constitutional Drafting Assembly used the occasion to introduce a major overhaul of the Thai criminal
justice.
III. IDEOLOGICAL IMPLICATIONS ON DIRECTION OF REFORM
To understand the reform trends and presented in the Constitution, ones should first start with a quick glance at thelegal system of Thailand. To become familiar with the legal system of other countries, one of the most frequently asked
questions is whether the system is more related to the common law tradition or to that of the civil law, If one can determine
which of the two most important legal families such a system belongs to, one will also see a rough picture of the law andprocedure, the legal institutions and the roles of agencies in the criminal justice system of that country. However, in thecase of Thailand, there is no easy answer to this question. Due to her unique historical development, the Thai legal system
is a mixture of elements of both civil and common-law traditions. Of course, there is nothing wrong with a mixed legal
system, which is now the trend of every legal system in the age of globalization where countries can learn from theexperiences of others. However, in the case of Thailand, the rivalry between the two major colonial powers to insert theirinfluence over Thailand has resulted in an unbalanced system, particularly with regard to the protection of the accused.
Even though Thailand was able to maintain her independence during the colonial era, she was forced to quickly“modernize” or “westernize” her legal system so as to be free from the curse of extraterritoriality. Caught in the rivalry
between the English and the French in their colonial interests, Thailand was practically forced to adopt elements fromboth legal systems. Although structurally modeled after the civil law system, the Thai legal system had been strongly
influenced by the common law traditions in many areas of law and procedure. This is especially true regarding the roleof agencies involved in the administration of justice.
The adoption of common law-based adversary attitudes in the structure of the civil law system has resulted in muchdisadvantageous position for the accused. For instance, in the past, many Thai judges who were trained in England broughthome to their office the concept of adversary proceedings where judges are supposed to maintain passive impartial role
throughout the trial. This was so despite the fact that the Continental model had influenced the structure of the Thaicriminal process where judges are supposed to be more active in searching for the truth during trail. Such an attitude has
had a considerable adverse impact on the rights of criminal suspects who have been drawn into the process because theconcept of a state-sponsored defense counsel, which is an indispensable component of the adversary process, has not yet
been fully recognized. A passive attitude on the part of the court can also be observed in a motion for a detention warrant
and a preliminary hearing during which the court abandons the opportunity to participate actively in the control of police
conduct.
Discrepancies in ideologies can also be seen regarding the roles of prosecutors and police. Since, structurally, theThai prosecutors have been modeled after the continental system; they should assume a true quasi-judicial role, as dotheir counterparts in Germany or France. However, because of the influences of the English system, the Thai prosecutors
play a substantially less significant role than their counterparts in the civil law traditions. For instance, in Thailand,
prosecutors are not allowed to initiate or conduct criminal investigation. The Thai prosecutors can only request the police
to conduct additional investigation if they are of the opinion that the files of inquiry submitted to them by the police do
not have sufficient evidence for prosecution. They cannot conduct investigation on their own. This has made the Thai
prosecutors play less active role in the pretrial process and allows the police to dominate criminal investigation. Moreover,the influence of the adversary model also makes it more difficult for them to maintain an objective and impartial role.
Seeing themselves as protagonists, the Thai prosecutors and, to a larger degree, the Thai police have often been too
overzealous in convicting the accused.
In my opinion, the criminal process in any society should be a model that can best balance the common goals of
every criminal justice system-the efficiency in law enforcement and the protection of the accused. It does not matter

108

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
whether it belongs to the civil or common law family as long as it works well in that society, considering its social,economic and political contexts. The practice in Thailand is a good example how partial importation of only certain
elements in one legal culture without taking into consideration the whole context where they actually operate has createdmore harm than good.
With this new Constitution, there have been attempts to balance the scale towards protecting the rights of the accusedmuch more than earlier. Many good elements from the two legal systems have been strengthened. For instance, theConstitution provides more right to counsel to the accused as well as the right not to be witness against himself, which
is a trait of the common law, adversary model. In addition, the impeachment process has been introduced for the firsttime in this Constitution. At the same time, the Constitution also provides for a stricter quorum of the court, which isreminiscent of the civil law tradition.
IV. DIRECTION OF REFORMS AS APPEARED IN THE NEW CONSTITUTION
The Constitution of Thailand of 1997 has put great emphasis on establishing the rule of law in Thailand. As a soundsystem of justice is a prerequisite for achieving such goal, the Constitution has placed great importance to the issues ofdue process in the criminal justice process. As a matter of fact, there have long been attempts to overhaul the criminal
justice system in Thailand due to various problems it is encountering, namely, the abuse of powers and the lack of adequate
check and balance among the authorities involved, the inefficiency in investigation, prosecution and the trial process, theviolation of human rights, etc.
The direction of reforms as appeared in the Constitution is also a reflection of the dissatisfaction of the public towards
the inefficiency and the lack of due process protection in the current system. Here are some of the major points:* The Warrant Requirement: Article 237 of the new Constitution reduces the police’s authority to conduct
warrantless search and arrest and the power to issue arrest and search warrant is now handed over to the courts.
* The Right to Prompt Arraignment: After the arrest, the police will be required to bring the suspect to the courtin due course. Article 237 demands that the police must bring the suspect to the court within 48 hours.
* The Right to Bail: Article 239 establishes a more transparent bail procedure where the arrested person shall entitled
to reasonable amount of bail in relation to the offence committed, to prompt consideration by the court, to demand thereason if it is denied, and to appeal the denial to the higher court.
* The Right to Counsel and Right to have Lawyers or Trusted Persons Present During Interrogation: Article
241 grants the suspect the right to have a lawyer or trusted person present during police interrogation. The right to haveassistance from the state for legal counsel is stipulated in Article 242. The state is required to promptly find a lawyer forthe suspect if he or she is confined or detained.
* The Right to Speedy Trial: To prevent the delay of the criminal process, Article 241 provides that a suspect shallrightfully receive an expeditious, continual, and fair investigation or trial. The term “continual” was never before appearedin the previous Constitutions but was intentionally added to prevent the current practice in court where there will normallybe only one half-day hearing session a month for criminal trial.
* The Strict Quorum Requirement: Article 236 requires that judges must be present in full quorum when trying
a case. It also stipulates that any judge who is not in charge of trying a certain case shall not make a judgment or rulingon the case.
* Witness Protection: Article 244, for the first time, recognizes the rights of a witness in criminal case to be protected
and treated properly.
* Rights of Crime Victims: Article 245 demands that the state must look after the injured party or his or her relativein case that he or she was killed or physically or mentally assaulted by criminal offence committed by others.
* Miscarriage of Justice: Article 246 provides that any person who has become the accused in a criminal case andhas been detained during the trial is entitled to appropriate compensation, expenses and the recovery of any right lost on
account of that incident, if it is proved that he has not committed the offense or if his conduct does not constitute a crime.

109

RESOURCE MATERIAL SERIES No. 60
V. THE ORGANIZATIONAL REFORM OF THE CRIMINAL JUSTICE
Another major problem on the administration of criminal justice in Thailand, that is the “non-system” of the criminal
justice agencies. Unlike in most countries where major organs in the criminal justice system, such as the police, theprosecutors, the probation and correction officers, are under the purview of the Ministry of Justice, in Thailand, criminal
justice agencies are scattered in different places. For instance, the police and prosecutors have long been under the Ministryof Interior before becoming independent entities since 1992 and 1998 respectively. The Correction Department is under
the Ministry of Interior, while the Ministry of Justice only looks after administrative affairs of the Court of Justice andpart of the probation works related to the Court. As a consequence, instead of being the focal point for setting national
criminal justice policy and overseeing the administration of the whole justice system, the Ministry of Justice only involved
itself in the administration of the courts of justice.
Such an unorganized structure of the criminal justice system is one of the major causes for the lack of cooperationand coordination among organs within the system. In Thailand, the criminal process is not viewed as a single, coordinatedprocess. Each agency in the criminal justice system – that is, the police, the prosecutors, the defense lawyers, the courts,
and the correction officers – often focuses its resources in solving problems or creating works and projects within its own
organization without adequate consideration on the impact of such efforts on the criminal justice process as a whole.
These have resulted in repetition of works, the building of empires among criminal justice agencies, the lack of national
criminal justice policy, the end results of which is inefficiency in the administration of justice.
A. The Restructuring of the Ministry of Justice
The unorganized structure of the justice agencies in Thailand has long been an issue for discussion at the academic
and policy levels. The Senate’s Committee on the Administrative and Judicial Affairs have conducted studies and published
2 famous reports in 1996 and 1998 supporting the reorganization of the Ministry of Justice. The first report, which came
before the Constitution of 1997, has highlighted the necessity of the structural reform and has paved the way for theconstitutional-drafting members to introduce provisions for criminal justice reform. As regards organizational reform,
the new Constitution has stipulated that the Courts must have their own Offices of Secretary independent from theexecutives. To implement the idea in the Constitution, the Senate’s Committee on Administrative and Judicial Affairs,
in its second report of 1998, focused upon the organizational structure of the Ministry of Justice and the Court of Justice.
They have studied the structure of the Ministry of Justice and the equivalent organization of many countries including
those of Japan, Korea and the United States, etc. The findings and recommendations were well received by both the Prime
Minister Chuan Leekpai and Prime Minister Thaksin Governments. The Justice Reform Committee set up by Prime
Minister Chuan Leekpai prepared their own Report endorsing the Senate’s recommendations which only a slight variation.
Although the ideas have been well received by most academics and policy makers, actual implementation has, however,not been easy.
When the Thaksin Government took over in February 2001, it has set up the Committee for the reorganization of the
Ministry of Justice, chaired by a Deputy Prime Minister (Mr.Suvit Khunkitti). I was appointed as the Secretary to thisCommittee. The Committee has submitted its Report to the Cabinet in October 2001. According to the Report, it wasrecommended that the new Ministry of Justice should consist of the following agencies: (1) The Office of the Permanent
Secretary, (2) the Office of the Minister of Justice, (3) Office of Justice Affairs, (4) The Special Bureau of Investigation,(5) the Institute of Forensic Science, (6) the Rights and Liberties Protection Department, (7) the Department of
Immigrations, (8) the Department of Correction, (9) the Department of Probation, (10) the Department of Child
Observation and Protection, (11) the Department of Legal Execution. After receiving the Report, the Government decided
that since the Government was in the process of introducing a major reorganization and reform of the whole Bureaucraticsystem in which the justice system is a part thereof, the matter should therefore be considered by the Bureaucratic Reform
Committee. The Prime Minister himself chaired the Committee.
The Report of the Committee for the Reform of the Ministry of Justice has been fully endorsed by the Bureaucratic
Reform Committee. The Committee shared the views represented in the Report that to provide more efficiency andpromote better coordination in criminal justice administration, all agencies related to criminal justice administration
should be grouped together at the new Ministry of Justice. In addition, the Committee also raised several new issues suchas, whether the National Police Agency, the Office of the Attorney General, the Office of the Narcotics Control Board,
the Office of the Anti-Money Laundering Board, which are also involved with law enforcement, should also be includedin this new structure.
Taking into consideration all aspects of the pros and cons, the government has finally made a decision on January
9, 2002 that the Ministry of Justice shall consist of the following agencies:

110120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
1. Office of the Minister of Justice;
2. Office of the Permanent Secretary;
3. Office of Justice Affairs;
4. Department of Rights and Liberties Protection;
5. Special Bureau of Investigation;
6. Office of the Narcotics Control Board;
7. Office of the Anti-Money Laundering Board;
8. Institute of Forensic Science;
9. Department of Correction;
10. Department of Probation;
11. Department of Child Observation and Protection;
12. Department of Legal Execution;
Apart from these 12 agencies, the Office of the Attorney General, which is currently an agency under the supervisionof the Prime Minister, will be under the supervision of the Minister of Justice. As a result, while the Office of the Attorney
General can still maintain its independence from being under the full control of the Ministry of Justice, it will, throughthis new structure, have a connection with the new Ministry. Moreover, the Ministry will be responsible for the worksof the Office of the Narcotics Control Board and the Office of the Anti-money Laundering which are now under the
Office of the Prime Minister. In addition, the Ministry will also supervise the Thai Bar Association and the Law Society.
It should be noted that the Immigration Department is the only agency proposed by the Committee for the Reform of the
Ministry of Justice that was finally left out of the new structure.
It is expected that the bills affecting these changes will be presented to the Parliament in its next session in February
2002, and the dateline given by the Prime Minister for the new Ministry to begin its operation is on 1st October 2002.
B. Selected Debating Issues during the Restructuring
Although the proposed new structure of the new Ministry of Justice has in general been well received by all parties
involved, it has created debates on several issues, namely:
1. Whether the Whole National Police Agency should be Transferred to the Ministry of Justice?
The idea of having all the police forces transferred to be under the Ministry of Justice was first initiated for the firsttime during the meeting of the Bureaucratic Reform Committee by the Prime Minister who chaired the meeting himself.
After a long national debate on the issue, the idea was later turned down because it was afraid that the National Police
Agency which currently has more than 200,000 manpower is too big for the new Ministry of Justice and will make it into
“Ministry of Police Forces” instead. It was argued, among other things, that there must first be a decentralization of theforce to become local police, then we can incorporate only the “National Police Agency,” which should not be too large(a model seminar to that in Japan), to the new Ministry. Finally, it was agreed that the National Police Agency would
remain as an independent unit under the Prime Minister, while only part of the police, i.e. the economic crime unit, willbe transferred to the new Ministry. I was also agreed that process of decentralization and localization of the police should
be expedited.
2. Whether the Special Investigation Bureau should be established in the Ministry and What should be the Role of the
New Special Investigation Bureau vis-a-vis the Current Investigative Power of the Police?
The proposal by the Committee for Restructuring the Ministry of Justice coincided with the recommendations by
the Senate’s Report that a Special Investigation Bureau should be established within the Ministry of Justice. The reasonsfor such initiative are two folds: efficiency and check and balance. The lack of efficiency in the police investigation ofsophisticated crimes is quite obvious given the past records of unsuccessful investigation in high profile economic crime
cases. There are several reasons for such failure: namely, the lack of “professional investigators” trained and spent careerin this field, the lack of cooperation and coordination among agencies during the pretrial periods, the lack of efficientlaws to allow the investigators to conduct effective investigation. Due to the large size and its ineffective management,
it is difficult for the Police to train special investigators for sophisticated crimes. Moreover, there are cumbersome
procedures that do not allow all parties involved during the pretrial periods, such as the injured party, the police and theprosecutors, to work together. With such drawbacks, the time spent during the pretrial process for economic crime cases
is often long and as the police and prosecutors do not work together from the start the cases presented to the Courts areoften too weak to punish the offenders.

111

RESOURCE MATERIAL SERIES No. 60
In Thailand, the police are the only agency that can initiate criminal investigation. The prosecutors cannot prosecute
any criminal cases unless the police have already conducted the investigation into that case. This requirement has madethe police in Thailand dominate the criminal process for a long time. There has long been an attempt to curb police
investigative powers by proposing that the prosecutors should be allowed to participate in investigation together with thepolice in sophisticated and severe crimes. However, such attempt has however not been successful. The setting up of theSpecial Investigation Bureau is perhaps a new alternative and a solution to this long lasting problem. According to thenew proposed bill, the Special Investigation Bureau will have the jurisdiction to investigate “sophisticated crimes” asdefined by the Bill. The list of the names of the laws, which are considered sophisticated crimes, will appear in the
Annexes of the Bill. A committee consist of senior government officials in the areas of finance and security will also be
set up to determine what types of offenses in each particular law to be under jurisdiction of the new Special Investigation
Bureau.
Apart from the jurisdiction to investigate sophisticated crimes, the new Bureau, through the endorsement of theCommittee, will also be given the power to intervene in any crime it considers necessary to maintain public order. This
will allow the new Bureau to provide the long awaiting, necessary check and balance with the police. It will also makethe Minister of Justice accountable to the ineffective law enforcement, which has never before been the case due to thefragmented criminal justice agencies and the lack of responsible officer for effective law enforcement in the country. The
new draft bill also proposes a scheme for the prosecutors to work closely with the special investigators from the start so
as to make more effective investigation and prosecution.
3. Whether the Police have to Transfer its Forensic Division to the Institute of Forensic Science to be Establishedwithin the Ministry of Justice?
During recent years, there have been many incidents which have made the public lose faith in the forensic tests
conducted mainly by the Police by its Forensic Division, the Police Hospital, an organ attached with the Police. The lackof accountability and the non-transparent procedures are among the major causes for such distrust. Due to the common
agreement that there should be improvement of the forensic science in Thailand, the new Ministry of Justice will include
the Institute of Forensic Science as a new agency under its purview. The Institute will be responsible for setting standards
and guidelines for forensic related works. A national committee shall be set up to supervise and control the professional
standards in this area. It will also be responsible for training and building the capacity of personnel in forensic science.
It was also proposed that the Forensic Division of the police should be transferred to the Institute. However, after longdebate, it was agreed that the new Institute should not become a large operation center but a standard setting and capacity
building organization, therefore, it is not necessary to include the Forensic Division of the police in this new Institute.
The Institute will promote and set standards to all forensic units including those at universities as well as police labs.
4. Whether the Public Prosecutors which is Currently under the Office of the Attorney General should be Moved to
the Ministry of Justice and What should be their Relation vis-a-vis the Ministry of Justice?
The issue of whether or not the Office of the Attorney General should be under the new structure of the Ministry ofJustice has been a topic of hot debate during the Chuan Administration. The Committee for the Restructuring of the
Ministry of Justice decided to drop this issue at the beginning of their deliberation for fear of putting its feet into aquagmire. It has therefore left this issue to be decided later on by the Bureaucratic Reform Committee chaired by thePrime Minister. The Bureaucratic Reform Committee was of the opinion that the Office of the Attorney General should
be attached to the Ministry of Justice. It was realized however that due to the quasi-judicial status of the prosecutors, theyshould be relatively free from direct control of the Ministry. As a result, the new proposal only changes the supervisionauthority of the Office of the Attorney General, which is currently directly under the Prime Minister, to the Minister ofJustice. In this new structure, the prosecutors’ powers under the Public Prosecutors Act and the Criminal Procedure Codeare still left intact and the prosecutors are still free to make decision on criminal cases without any other outside interference.
The status of the Office of the Attorney General will therefore be different from other agencies in the Ministry in that its
line of supervision will not involve with the Ministry but will be supervised by the Minister himself.
VI. CONCLUSION
The past decade has been the busiest time for criminal justice officials in Thailand. After a long campaign, finallythe long awaited criminal justice reform has become a reality due to the new Constitution. However, even though theground works have already been laid down, it is not at all easy to implement the ideas and principles espoused by theConstitution. It may take some times for agencies in the new criminal justice structure to get accustomed to the new roles
and responsibilities. Nonetheless, I am quite confident that the Constitution has provided clear guidelines and frameworks
towards a fair and efficient criminal justice process.

112

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
In my opinion, there is a big different between the first law reform in Thailand which began more than a century ago
during the colonial era. At that time, the reform was a product of national political necessity rather than any real attempt
to change basic ideology and values in the society. The ongoing reform in Thailand this time is much different than theprior one in that it was demanded and fully endorsed by the public. With such a solid foundation, I am convinced that
the Thai criminal justice process and the administration of justice will soon be improved.

113

RESOURCE MATERIAL SERIES No. 60
APPENDIX A
CONSTITUTION OF THE KINGDOM OF THAILAND OF 1997
(Selected Provisions concerning criminal justice reform)
CHAPTER VIII
the Courts
Part 1
General Provisions
Section 233. The trial and adjudication of cases are the powers of the Courts, which must proceed in accordance with
the Constitution and the law and in the name of the King.
Section 234. All Courts may be established only by Acts. A new Court for the trial and adjudication of any particularcase or a case of any particular charge in place of an ordinary Court existing under the law and having jurisdiction oversuch case shall not be established.
Section 235. A law having an effect of changing or amending the law on the organization of Courts or on judicial procedure
for the purpose of its application to a particular case shall not be enacted.
Section 236. The hearing of a case requires a full quorum of judges. Any judge not sitting at the hearing of a case shallnot give judgement or a decision of such case, except for the case of force majeure or any other unavoidable necessity
as provided by law.
Section 237. In a criminal case, no arrest and detention of a person may be made except where an order or a warrant of
the Court is obtained, or where such person commits a flagrant offence or where there is such other necessity for an arrest
without warrant as provided by law. The arrested person shall, without delay, be notified of the charge and details of sucharrest and shall be given an opportunity to inform, at the earliest convenience, his or her relative, or the person of his or
her confidence, of the arrest. The arrested person being kept in custody shall be sent to the Court within forty eight hours
as from the time of his or her arrival at the office of the inquiry official in order for the court to consider whether there
is a reasonable ground under the law for the detention of the arrested person or not, except for the case of force majeureor any other unavoidable necessity as provided by law.
A warrant of arrest or detention of a person may be issued where:
1. there is reasonable evidence that such person is likely to have committed a serious offence which is punishable asprovided by law; or
2. there is reasonable evidence that such person is likely to have committed an offence and there also exists a reasonablecause to believe that such person is likely to abscond, tamper with the evidence or commit any other dangerous act.
Section 238. In a criminal case, a search in a private place shall not be made except where an order or a warrant of the
Court is obtained or there is a reasonable ground to search without an order or a warrant of the Court as provided by law.
Section 239. An application for a bail of the suspect or the accused in a criminal case must be accepted for consideration
without delay, and an excessive bail shall not be demanded. The refusal of a bail must be based upon the grounds
specifically provided by law, and the suspect or the accused must be informed of such grounds without delay.
The right to appeal against the refusal of a bail is protected as provided by law.
A person being kept in custody, detained or imprisoned has the right to see and consult his or her advocate in private
and receive a visit as may be appropriate.
Section 240. In the case of the detention of a person in a criminal case or any other case, the detainee, the public prosecutor
or other person acting in the interest of the detainee has the right to lodge with the Court having criminal jurisdiction aplaint that the detention is unlawful. Upon receipt of such plaint, the Court shall forthwith proceed with an ex parte114

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
examination. If, in the opinion of the Court, the plaint presents a prima facie case, the court shall have the power to orderthe person responsible for the detention to produce the detainee promptly before the Court, and if the person responsible
for the detention can not satisfy the Court that the detention is lawful, the Court shall order an immediate release of thedetainee.
Section 241. In a criminal case, the suspect or the accused has the right to a speedy, continuous and fair inquiry or trial.
At the inquiry stage, the suspect has the right to have an advocate or a person of his or her confidence attend andlisten to interrogations.
An injured person or the accused in a criminal case has the right to inspect or require a copy of his or her statements
made during the inquiry or documents pertaining thereto when the public prosecutor has taken prosecution as provided
by law.
In a criminal case for which the public prosecutor issues a final non-prosecution order, an injured person, the suspector an interested person has the right to know a summary of evidence together with the opinion of the inquiry official andthe public prosecutor with respect to the making of the order for the case, as provided by law.
Section 242. In a criminal case, the suspect or the accused has the right to receive an aid from the State by providing an
advocate as provided by law. In the case where a person being kept in custody or detained cannot find an advocate, theState shall render assistance by providing an advocate without delay.
In a civil case, a person has the right to receive a legal aid from the State, as provided by law.
Section 243. A person has the right not to make a statement incriminating himself or herself which may result in criminal
prosecution being taken against him or her.
Any statement of a person obtained from inducement, a promise, threat, deceit, torture, physical force, or any otherunlawful act shall be inadmissible in evidence.
Section 244. In a criminal case, a witness has the right to protection, proper treatment, necessary and appropriate
remuneration from the State as provided by law.
Section 245. In a criminal case, an injured person has the right to protection, proper treatment and necessary and appropriate
remuneration from the State, as provided by law.
In the case where any person suffers an injury to the life, body or mind on account of the commission of a criminal
offence by other person without the injured person participating in such commission and the injury cannot be remediedby other means, such person or his or her heir has the right to receive an aid from the State, upon the conditions and in
the manner provided by law.
Section 246. Any person who has become the accused in a criminal case and has been detained during the trial shall, if
it appears from the final judgement of that case that the accused did not commit the offence or the act of the accused does
not constitute an offence, be entitled to appropriate compensation, expenses and the recovery of any right lost on accountof that incident, upon the conditions and in the manner provided by law.
Section 247. In the case where any person was inflicted with a criminal punishment by a final judgment, such person,
an interested person, or the public prosecutor may submit a motion for a review of the case. If it appears in the judgmentof the Court reviewing the case that he or she did not commit the offence, such person or his or her heir shall be entitledto appropriate compensation, expenses and the recovery of any right lost by virtue of the judgment upon the conditions
and in the manner provided by law.
Section 248. In the case where there is a dispute on the competent jurisdiction among the Court of Justice, theAdministrative Court, the Military Court or any other Court, it shall be decided by a committee consisting of the Presidentof the Supreme Court of Justice as Chairman, the President of the Supreme Administrative Court, the President of suchother Court and not more than four qualified persons as provided by law as members.

115

RESOURCE MATERIAL SERIES No. 60
The rules for the submission of the dispute under paragraph one shall be as provided by law.
Section 249. Judges are independent in the trial and adjudication of cases in accordance with the Constitution and the law.
The trial and adjudication by judges shall not be subject to hierarchical supervision.
The distribution of case files to judges shall be in accordance with the rules prescribed by law.
The recall or transfer of case files shall not be permitted except in the case where justice in the trial and adjudicationof the case shall otherwise be affected.
The transfer of a judge without his or her prior consent shall not be permitted except in the case of termly transfer
as provided by law, promotion to a higher position, being under a disciplinary action or becoming a defendant in a criminal
case.
Section 250. Judges shall not be political officials or hold political positions.
Section 251. The King appoints and removes judges except in the case of removal from office upon death.
The appointment and removal from office of a judge of any Court other than the Constitutional Court, the Court ofJustice, the Administrative Court and the Military Court as well as the adjudicative jurisdiction and procedure of such
Courts shall be in accordance with the law on the establishment of such Courts.
Section 252. Before taking office, a judge shall make a solemn declaration before the King in the following words:“I, (name of the declarer) do solemnly declare that I will be loyal to His Majesty the King and will faithfully
perform my duties in the name of the King without any partiality in the interest of justice, of the people and of the
public order of the Kingdom. I will also uphold and observe the democratic regime of government with the King
as Head of the State, the Constitution of the Kingdom of Thailand and the law in every respect.”
Section 253. Salaries, emoluments and other benefits of judges shall be as provided by law; provided that the system ofsalary-scale or emoluments applicable to civil servants shall not be applied.
The provisions of paragraph one shall apply to Election Commissioners, Ombudsmen,members of the National
Counter Corruption Commission and members of the State Audit Commission mutatis mutandis.
Section 254. No person may simultaneously become a member, whether an ex officio member or a qualified member,of the Judicial Commission of the Courts of Justice, the Administrative Court or any other Court as provided by law.

116

noitaborP
fo tnemtrapeD

noitcetorp dna
noitavresbo dlihc
fo tnemtrapeD
noitcerroC fo
tnemtrapeD

seitrebiL
liviC fotnemtrapeD

ecitsuJ fo yraterceS
tnenamreP
ecitsuJ fo retsiniM

sriaffA
ecitsuJfo eciffO

ecneicS
uaeruB
cisneroF
noitagitsevnI
laicepS ehT fo etutitsnI ehTtinU rotiduA lanretnI

lareneG-yenrottA eht fo eciffO

Ministry of JusticenoitucexElageL fo tnemtrapeD

eciffO gnirednuaL
yenoM itnA

dnaliahT fo yteicoS waL ehT

raB iahT ehT

eciffO noitartibrA ehT)CJN( noissimmoC ecitsuJ lanoitaN

draoB
lortnoC scitocraN
eht fo eciffO

12

The New Structure of the Ministry of Justice120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
APPENDIX B

117

EFFECTIVE ADMINISTRATION OF THE POLICE AND
THE PROSECUTION IN CRIMINAL JUSTICEPeter Boeuf*
I. INTRODUCTION
In order to understand the present day relationship between the way in which the Police operate to investigate anddetect crime and the way in which criminals are prosecuted in England and Wales it is necessary first to understand thehistory of what are now two entirely separate organizations. I say England and Wales advisedly since in Scotland different
arrangements exist entirely, the Procurators Fiscal (the prosecuting agents) having traditionally a wider responsibility forsupervising and investigating crime in accordance with a different legal system and a different law. For no other reason
than that I operate in England and Wales the perspective I will give on the themes dominating this seminar will of necessity
be an English/Welsh one.
II. HISTORY
From an historical point of view the separation of the responsibilities for investigating crime and for prosecuting
arrested defendants has been a relatively recent development, the Crown Prosecution Service for which I work having
been created as recently as 1986 and arguably even now still battling to establish a place in the public conscience which
recognises its powers and responsibilities and its independent role from that of the Police. The Crown Prosecution Service
was the result of Parliamentary intervention in the form of an Act of Parliament, the Prosecution of Offences Act 1985
which resulted from no more than, say, 10 years gestation. The development of the Police service in England and Wales,
like so much else, has been a long evolutionary process with little parliamentary intervention to guide its development(until relatively recently) since time immemorium.
Indeed, the origins of British policing lie in early tribal history. They are based on customs for securing order throughresponsibility being placed on local representatives of the community. It can perhaps best be described as a primitive
system of policing of the people by the people. As time went by the system became based on the notion of communities
being notionally split up into groups of 10 people. These groups were called “tythings”. For each group there was one
tything man who was responsible for the orderly behaviour of his tything. A further individual, a “hundred man” wasresponsible for the tythings and the “hundred man” had to answer to a more senior representative appointed to oversee
an administrative area called a County. Those counties, subject to some boundary changes still exist today and they stilllargely determine the organization of the modern police service in England and Wales. The individual who was in chargeof the county was known as the Shire-reeve or in due course the Sheriff. Despite the conquest of England in 1066 by theNormans the system broadly remained the same. Eventually (1346 and thereafter) the role of the Sheriff was graduallyreplaced in law enforcement terms by the appointment in the counties of Justices of the Peace who assumed a role entailingboth the preservation of the King/Queen’s Peace by detaining and punishing wrongdoers in the territory for which they
were responsible.
Again in an evolutionary fashion and with larger populations springing up and larger local communities, the local
Justices of the Peace started to appoint unarmed, able-bodied citizens to act unpaid for 12 months in each parish (a small
community whose boundaries reflected the area from which the local Church drew its congregation). The Parish Constableworked in cooperation with the local Justices in securing compliance with the law and maintaining order. Where necessary,
the Parish Constable would present before the Justices those who had broken the law and the Justices of the Peace (tobecome known as Magistrates) imposed some sort of sanction. This system of upholding justice worked comparatively
well but began to be tested with a move towards a greater industrialised society in the 17th and 18th centuries and withthe development of large urban areas and cities. In those areas it became necessary for the Magistrates or Justices of thePeace to appoint more “Parish Constables”. One can readily see how these arrangements gradually led to the creation of
the fledgling police forces throughout the country. In 1829 the Metropolitan Police Act was passed establishing in London
the Metropolitan Police which until only within the last couple of years was responsible to the Home Secretary rather* Chief Crown Prosecutor
Crown Prosecution Service,
London, United Kingdom

118

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
than as elsewhere throughout England and Wales to a Police Authority made up of locally elected members of the local
authority and a selection of local Magistrates.
If I have dwelt on the historical background it has been merely to emphasize the strong traditional link which has
always existed between the locally appointed Justices of the Peace and those acting as policemen. As upholders of thelaw the police were expected to present before the Justices those who had broken the law. Once they were presented
before the Justices the Magistrates became, initially at any rate, prosecution, judge and jury in their own courts (originallyeven in their own houses!). Although in due course court procedures were regularised to ensure that the magistracy took
a more judicial role, the responsibility for prosecuting the “prisoner before the court” and explaining why he was there
remained firmly with the police. As late as 1985 to 1986 in London it was possible for even the most junior of police
officers to arrest a defendant in the middle of the night; to produce him at court the following morning and personally to
conduct the case before the Magistrate — a system ripe for the development of corrupt practice. Elsewhere had seen thedevelopment of police officers of varying degrees of seniority (Sergeant, Inspector, Chief Inspector) who acted as court
presentation officers. All the police cases listed in a particular court on a particular day would be presented by him.
As the law became more specialised some of the police authorities in the larger cities started to create small departments
manned by professional advocates who would prosecute some (but not necessarily all) of the cases prosecuted by thepolice force in that area. Thus, for example, the Police Force in Essex had created its own Prosecuting Solicitors officeas early as 1947. Further impetus for the development of these offices came from the publication of a Royal Commission
Report in 1962 on the Police, which effectively commented that police skills should be used for policing and that oflawyers for prosecuting cases in court. There was, however, no more philosophical analysis of the respective roles at thistime.
By the time a further Royal Commission was commissioned in 1978 to consider police powers and the prosecution
process approximately 32 of the then 36 police forces had Prosecuting Departments run and manned by qualified lawyers
and support staff.
It is, however, important to note the relationship between the police and the prosecutor. The prosecutors had nostatutory authority at all either to issue advice or to stop or alter charges brought against defendants. The relationshipbetween the Chief Constable as head of the police force and the prosecutor was the same as that between solicitor andclient. The client paid the solicitor to act or to give advice. If the client did not like the advice he was not bound to take it.
Though that was the constitutional position the reality was certainly much different. Although each prosecuting office
was entirely independent and separate from other prosecuting offices up and down the country and therefore different
systems and practices existed in each office, in general in those cases where they were experiencing difficulty they would:•

occasionally seek advice at an early stage about how to investigate a crime that had been committed or it was suspected
was about to be; or•sometimes present files of evidence for advice on what additional evidence might be obtained to strengthen the caseagainst an individual; or•

regularly present files on complicated investigations for advice on what charge or charges should be brought. (Ofcourse, in those cases the prosecutors might in submitting their advice suggest further enquiries be made in a certain
direction).

The vast majority of files submitted however were those where the investigation had been completed and the defendant
charged without prosecutorial involvement, the prosecutor being expected merely to present the case at court. Usually
this was not a problem but from time-to-time there would be files where the prosecutor would bemoan the failure to
consult at an earlier stage when an opportunity existed to improve the strength of the case.
From this it will be seen that no clear rules existed as to when, or if at all, the advice of the prosecutor should besought. Much depended upon the personalities of individual police officers and the relationship which they had with theirlocal prosecutors. In general terms those relationships were amicable and constructive with prosecuting advocates often
working alongside police officers in the same building. Psychologically however there was in the minds of both a clear
divide — police officers investigated crimes and prosecutors prosecuted them in court with little or no opportunity oreven desire except in extremis for prosecutors to become much more involved in the investigative process.

119

RESOURCE MATERIAL SERIES No. 60
The Royal Commission on the Police and Criminal Procedure (the Phillips Report) concluded amongst other thingsthat:•

too many cases were being prosecuted with evidential weaknesses which should have been identified at a muchearlier stage;•

the existing arrangements with prosecutions being handled on a local basis according to existing Police Force Areas
lacked a cohesive influence with the danger of different prosecution policies being applied in different areas; and•most importantly, it was quite inappropriate for the police to investigate crime and then to decide who should beprosecuted and taking also the responsibility for the prosecution process through the courts.

Phillips therefore recommended that an independent prosecuting authority should be created whose responsibility it
would be to:•advise in those cases where it was felt necessary;•

to receive files from the police where defendants had been charged;•

to decide whether those defendants should be prosecuted because there was sufficient evidence to suggest a realistic
prospect of conviction and it was in the public interest to do so; and•to conduct cases in the criminal courts.
III. THE CROWN PROSECUTION SERVICE

There recommendations were given life by the enactment of the Prosecution of Offences Act 1985 which created anational prosecuting agency — the Crown Prosecution Service — with effect nationally from 1 October 1986. The
organization was such that initially 31 local offices were responsible for prosecuting all (save a small number of minor
matters) criminal offences initiated by the Police in their 43 areas. There are four important issues which must be consideredat this point. The first relates to the retention by the Police of the responsibility to initiate proceedings without the priorapproval of the CPS. Of course, by the time files were considered for the first time by CPS, cases had started to develop
a life of their own. The public perception of victims remained that if the police had charged there must be sufficientevidence and so a subsequent decision by CPS that the case should not go ahead was unpopular both with the public on
occasions and also by charging police officers who hitherto had had an unfettered discretion to charge and who now, in
effect, were being told they had made a wrong decision. Psychologically this was not popular particularly after large
amounts of effort might have been expended in preparing a case that ultimately proved to be wasted effort. On otheroccasions it seemed to hard — pressed lawyers that in sometimes difficult situations where the police were under pressure
from the public to produce results, it was easier to charge a defendant — sufficient evidence or not — and leave it to CPS
to decide. If the CPS decided not to proceed the blame could neatly be shifted to that organization, the police indicating“we did our bit. If the case did not go ahead, it was not out fault”. It became easy for those who preferred the power toprosecute to remain with the police to claim that the CPS was, in fact, an acronym for Criminals Protection Society.
The second issue of significance relates to those efforts made on the part of the new Service to secure its independence.
In one sense, quite understandably, efforts were made by prosecutors to distance themselves from the Police. Arrangements
were rapidly made for prosecutors who had hitherto worked cheek by jowl with police investigators in police
accommodation to decant and move to CPS buildings sometimes some distance away from where their work was being
generated. Communication, if it took place at all, was in formal letter style or at best over telephone links. Inevitably withmuch less face-to-face contact problems which might formerly have been sorted out amicably became magnified out ofall proportion. Worse than that in some circles, the desire to impose on staff the high degree of independence which was
supposed to exist in Crown Prosecutors was such that all contact of a social nature with police officers was discouraged
for fear that others might fear that the prosecutor was being unduly influenced in his approach to his work, consciouslyor unconsciously by the police. Whilst the pursuit of the firmly based impression of true independence was an ideal to
be cherished it was often achieved at the expense of a good working relationship with police officers who in simple terms
felt insulted at the pariah status they were being accorded. In some areas for example, the notion that a Crown Prosecutor
should even set foot in a police station was frowned upon.

120

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Further feelings of growing alienation between the two organizations resulted from the 31 Area Structure adopted
by CPS. This meant that some of the 43 police force areas based on county districts which had formally had their own
prosecuting office based in, or near, their own Police Force Headquarters now had to liaise with the Chief Crown Prosecutor
whose offices might be 65 miles away. If that was something of an irritation in 1986 the position became much worse in1993 when the CPS reorganized itself into 13 larger areas which meant that a Chief Crown Prosecutor’s sphere of
responsibility might well encompass several police force areas. On my appointment as Chief Crown Prosecutor for theSouth West Area I became responsible for the prosecution of cases investigated by the Avon and Somerset Police Force,the Devon and Cornwall Police Force and the Dorset Police Force. Albeit that CPS operated through locally based branch
offices manned by lawyers, Chief Constables inevitably felt more divorced from those who bore the ultimate responsibility
for prosecuting their cases.
What is most significant about the 1985 Act however is the complete lack of control or power Chief Crown Prosecutors
had over the Chief Constables with whom they had to deal. It has already been indicated that theoretically the police were
only obliged to deliver the CPS file where a criminal charge had been laid. The Chief Crown Prosecutor had no power
to insist on seeing a file, for instance, where the police were not minded to proceed for whatever reason, or where perhaps
they were minded to issue a caution as opposed to issuing process. Worse however, was the situation in relation to boththe acquisition of further evidence and general file quality. In his review of the file presented the prosecutor may havetaken the view that the evidence could be considerably strengthened by further evidence being obtained. As a result arequest would be made to the police to follow-up that requirement. It would however be no more than a request. If, forwhatever reason — based either on resource problems, disagreements as to the need for further evidence, or even sheer
cussedness — there was no power on the part of the prosecutor to insist on the evidence being produced. Again, file
presentation standards became an early problem for Chief Crown Prosecutors. Prior to 1986 some police forces had been
scrupulous in preparing neatly typed files all in a similar format which immeasurably improved the lot of the busy
prosecutor in court. Lively debate ensued with police representatives claiming that the responsibility for typing files forpresentation in court was part of the prosecution process and not therefore something which the police should be doing.
If this sounds somewhat petty, it does reflect difficulties over funding arrangements. With no minimum standards of file
presentation initially capable of agreement the trend moved towards that of the lowest common denominator with local
Chief Crown Prosecutors having no power over Chief Constables but much responsibility for the outcomes in court.
IV. PROBLEMS
A further difficulty emerged at this stage — which I am not sure was ever totally resolved — again relating to thenotion of independence and requests for advice. If, the argument went, the Crown Prosecutor was to be independent of
the Police how could he then respond to a request for advice on how an investigation should be mounted because to doso would cross the line to the point at which the prosecutor was seen to be operating in the guise of a policeman? Thus
when a colleague was asked to confer with the local police imminently faced with a public order situation which was
likely to lead to mass arrests, he declined to do so on the basis that he could not become embroiled in such a matter —it was an operational issue for the police themselves to determine.
Another factor which over the years has bedevilled the relationship between the police and CPS has been the lackof confluence in the aims and objectives of each of the organizations. In 1829 one of the first Commissioners of theMetropolitan Police wrote to:•“the primary objective of the Police is the prevention of crime; the next that of detection of and punishment ofoffenders if crime is committed”.

Each police force in England and Wales is required each year to produce a policing plan which identifies its priorities
for the coming year. In addition, police forces are required to set a number of targets so that over a period a number
improvements can be achieved. Some of the targets are targets upon which the police themselves fall, some are targets
arbitrarily fixed by the Home Office, the Government Department bearing some responsibility for police issues. Thus in
2000-2001 numerical targets were required to be set by each police authority for:•domestic burglaries per 1000 households•

robberies per 1000 population•

vehicles crimes per 1000 of the population.

121

RESOURCE MATERIAL SERIES No. 60
Although no formal requirement was made as to the setting of the target for the detection of these crimes instructions
to police authorities encouraged targets to be set. As far as the detection of crime is concerned the Home Office definitionof a “detection” runs to six pages. Bizarrely, however, the successful outcome of a prosecution for the offence is no partof the definition. At one level, the fact that the defendant has been charged (sometimes not even that) will suffice to showthat a crime has been detected. We seem to have come a long way from Sir Richard Mayne’s definition of the objectivesof a police force set out as above in 1829. The impact of this, of course, is that there has been no premium for police
forces to prepare good quality files for submission to the Crown Prosecution Service. Strange though it may sound, theresponse of a Chief Constable to the anguished pleas of one of my colleagues to improve the quality of files submitted
in terms both of substance and presentation so better to secure a conviction, that “the conviction of charged defendants
is not a priority in the policing plan” was thoroughly understandable.
V. SUCCESS IN SPITE OF DIFFICULTIES
If a picture emerges of relationships between police investigators and CPS prosecutors being irredeemably bad thatis misleading and subject to many of the changes which have impacted upon the two organizations and others in recent
years.
To redress the balance it might be constructive to give some examples of the sort of results which were being achieved
regularly in the years following the creation of CPS which marked the ability of investigators and prosecutors to work
closely together (though independently of each other) to achieve just outcomes in spite of, rather than perhaps becauseof wider political concerns.
In 1990 political agitators reacting to the imposition of a Poll Tax in the United Kingdom organized a demonstrationin the centre of London which turned into an ugly riot with immense damage to property and injury to individuals. Muchof the activity had been filmed, either by national or local broadcasters or by the police themselves. As a result of requests
from the police to tender advice a special ad hoc CPS unit was set up, which with police officers analysed the available
material identifying perpetrators of crimes and advising the police which of those identified as being involved should be
the focus of attention. (At that stage the vast majority of the perpetrators had neither been arrested nor even identified byname). The prosecutors were not only able to guide the police to those most culpable but also to indicate some sort offramework around which potential interviews could be built. The approach undoubtedly assisted in focusing on what had
to be done and eliminated much effort which might otherwise have been wasted.
Less dramatic but just a important as far as the locality was concerned was the investigation of a riot which occurredin my own area at that time when after an end of season football match, a totally mindless riot took place which again
was the subject of a great deal of media film footage. By adopting similar tactics to those displayed in London similar
economies of effort and improved chances of successful convictions were prompted.
More recently, as London has been subjected to May Day riots aimed at centres of commerce the degree of liaison
between police officers in devising strategies to deal with those arrested has been a feature and planning meetings now
regularly take place in the weeks preceding the 1 May.
In 1992 a paper was published by UNAFEI prepared by my colleague, Anthony Taylor, from Greater Manchester
in which reference was made to Operation Gamma; Operation Omega; and Operation China in which the involvementof senior CPS lawyers at crucial points in the investigation of serious crimes is highlighted.
Again, in another area where I was Chief Crown Prosecutor — and to show that it is not always in cases concerning
serious public disorder — immediately after an old sailing ship hand foundered with the death of two passengers in the
coast of north Cornwall, police officers once more in possession of excellent television footage immediately liaised withthe local Crown Prosecutor who was able to advise them on the course of an intensive and far ranging investigation which
led ultimately to the conviction of the owner and master of the Maria Assumpta for manslaughter.
Without doubting for a moment the value and the need arguably for prosecutors to become so involved in work at
the early stage of an enquiry, I do have one cautionary tale involving the investigation of a somewhat gruesome murdercommitted in South Wales. Lawyers became engaged in the enquiry at an early stage advising on what powers the police
had and how they might execute those powers. At the trial when cross-examined about a course of action he had taken
one of the police officers responded to the effect that he had acted on the advice of the prosecutor. In due course theprosecutor concerned found himself in the unfamiliar position of being in the witness box being examined and cross-122

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
examined vigorously on his role in the investigation. That the subsequently convicted defendants were later to have theirconvictions quashed had nothing to do with this incident though the experience did cause pause for thought about theproper degree to which the division between the responsibility for investigation can be kept apart from the responsibility
for independent conduct of the prosecution. Perhaps the only safe stratagem is for those so intimately involved in advisingon the investigation to hand over to another team of lawyers at the point of charge? Do we then create a separate career
cadre of investigating lawyers and prosecution process lawyers?
VI. SERIOUS FRAUD OFFICE
Of course, in the jurisdiction of England and Wales the principles of separating strictly the responsibility forinvestigating and prosecuting established in 1986 on the creation of CPS were swiftly jettisoned in relation to serious
fraud offences. In 1986 in reviewing the existing arrangements for the prosecution of serious fraud the Roskill Committee
recommended the creation of a unified organization properly resourced with statutory powers of investigation to handled
the most serious fraud cases (currently ’7 million and above). Thus was born in 1988 the Serious Fraud Office (SFO).
The office is staffed by lawyers, accountants and others with relevant experience. It works closely with the police from
the Metropolitan Police Service and City of London Police Force Fraud Squads based in the SFO’s office. Working
cooperatively SFO controls investigation and prosecution. Those wishing to know a little more about SFO might usefullyrefer to Anthony Taylor’s same paper from 1992 in which a fuller description of SFO powers is given. In justifying what
he thought some might see as an “opportunist violation of (the) fundamental principle” that investigation and prosecution
should remain steadfastly apart, my colleague described it as “an essential response to the special problems which serious
frauds produce”. Is it too much to argue that the complexities of law and crime in this terrorist world in which we currently
live are as such that the greater involvement (albeit in a regularised fashion) of lawyers and police officers should be anequally essential response?
VII. MANUAL OF GUIDANCE
There are other developments too which have taken place over the course of the last 10 years which have assisted inenabling police officers and prosecutors to work more effectively. In terms of the preparation of files the anarchic situation
which in earlier times had prevailed and which was described earlier led to senior representatives from the CPS and all
police forces putting their heads together to prepare guidance on the format for file production which could be adopted
by all police forces when submitting files to CPS. That work produced a volume called the Manual of Guidance for Police
Officers. It is a volume which is constantly being updated and edited as changes in the law take place.
VIII. JOINT PERFROMANCE MANAGEMENT
It was, however, one thing to lay down nationally expected standards for the format of files, another to ensure that
all investigating officers complied with the Manual. Again, the format of the file was one thing; the quality of that which
was in those papers was another. In the course of time these issues were the subject of further debate between seniorpolice officers and CPS which led to the introduction of a management tool known as Joint Performance
Management(JPM). On the submission of each file CPS recorded whether the file had been received in the correct format;
and qualitatively whether there was any essential evidence missing.
Monthly statistics were to be collated and regular meetings convened between local CPS lawyers and managers andlocal senior police officers to analyse the results and to agree targets for future improvement. When operated correctly
the system worked well. It was possible in some areas for example to discern that local police officers did not fully
understand the circumstances in which they were obliged to hold identity parades so that training could then be applied.
The statistics also provided a useful tool for Her Majesty’s Inspectorate of Constabulary to consider when undertaking
their annual inspection of a police force.
Sad to note however that the JPM initiative has not been the success it should have been. There are two reasons forthis I suggest:•from a CPS point of view the bureaucratic burden of completing monitoring forms to be submitted to the police madestaff antipathetic to the scheme. It created extra work for them. Moreover, it was claimed that even when the procedure
was followed up to the letter, no improvements were secured over time.

123

RESOURCE MATERIAL SERIES No. 60•

from a police perspective, there was some concern that the scheme was one-sided in that it seemed to measure only
police performance. There was little in the scheme about CPS performance and in the prevailing atmosphere at thistime paranoia reigned. Moreover, when the police noted that CPS was returning only a fraction of forms confidence
fell further because it was claimed that the only reports being made were when failures had occurred.

Whether figures were massaged or not is difficult to say with any certainty. The difficulty has been that ultimately
few have had confidence in the system and it is no longer the driving force it ought to be. On a more optimistic note steps
have in recent times been taken to re-invigorate the system with a greater emphasis on exception reporting and lessbeauracracy.
IX. NAREY
A further development which threatened to impact on the quality of file submission by the police in the 1990s was
the consistent claim — well publicised in the national press — that police officers were expected to complete so much
paperwork that it was becoming difficult to get out of the police station to do any investigation. Hardly a day seemed to
go by without some claim or other that as many as sixty different forms had to be completed in even a straightforward
case. And, of course, it was CPS which was imposing those requirements. The fact that the claims were incorrect andfailed to distinguish between those forms which were required under the Manual of Guidance and other forms required
to be completed for police internal purposes hardly seemed to matter. As a result steps were taken by the Home Office(the Government Department which has responsibility for police affairs) to create a review of the administrative burdens
placed on the police with a view nationally to reducing them. There was considerable pressure being placed on CPS toaccept something much less than that which CPS felt was the minimum it required to ensure that proper decisions werebeing made in respect of defendants in accordance with its statutory duty. In the nature of things compromises werereached, which by and large have preserved the minimum standards CPS requires.
In a separate but allied development attention focussed on the process by which defendants appeared at court.
Historically, defendants who were not being held in custody by the police were bailed to appear at a court sitting at least
three weeks in advance. This enabled the police theoretically to have a quality file prepared before the date of first
appearance. As a result of changes proposed and adopted, the police would bail the defendant to appear at the next
available date on which the relevant court sat, which in many cases would be the next day. The day before what havebecome known as Early First Hearings (EFH’s), a CPS lawyer would attend the local police station — note thisdevelopment — to review the shortened file and to satisfy himself that sufficient information was available safely to deal
with the case the following day where a guilty plea was anticipated. Where a not guilty plea was anticipated the case isscheduled in a separate court for an Early Administrative Hearing (EAH) at which it was hoped issues having a direct
bearing on the case would be aired in a way that would enable the case to be managed better. It may be claimed that the
now regular attendance of prosecutors in police stations has helped to promote closer working between the twoorganizations.
X. “JOINED-UP JUSTICE”
There has undoubtedly been a sea change in Government thinking on crime and its impact on society which in turnhas started to influence the thinking of all involved in the criminal justice system. The government headed by Tony Blairwas elected on a manifesto dedicated to “being tough on crime and the causes of crime”. Several initiatives have beentaken and all of them seem to emphasize that the responsibility for delivering the manifesto commitments does not restin isolation with any one organization but that the approach much be an holistic one. No longer can organizations lookto their own narrow interests but they are expected to work cooperatively to achieve those ends the Government wasvoted in to achieve. It is a theme which pervades the whole of government thinking but in the criminal justice system it
is expressed as imposing “joined-up justice” with the emphasis on “joined-up working”. The clear expectation has beenthat the police, CPS, the Courts and the Probation Service and the Prison Service and indeed any other organizations
having an input should work collaboratively to achieve government aims.
XI. GLIDEWELL
One of the first actions which the newly elected Government took in 1997 was to appoint a former Appeal Court
Judge (Lord Justice Glidewell) to review the way in which the Crown Prosecution Service operated. After 12 months or
so in which the views of all interested parties both within and without the Service were consulted, the Report (reflecting

124120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
not only the conclusions of Sir Iain Glidewell but also of a retired Chief Constable and a Senior Manager from Industry)
concluded that:•in the 12 years of its existence the Service had achieved a reputation for independence about which it no longer had
to be quite so precious;•that it had been traditionally under-funded; and•that serious fault lines had developed between it and the police which were impacting deleteriously on the deliveryof justice in the courts.

Specifically, recommendations were made advocating the re-organization of the Service into Areas reflecting the 43
Police Force Areas so that there was a Chief Crown Prosecutor for each area who could negotiate with the one Chief
Constable. That recommendation was implemented with effect from 1999. There are now 42 Chief Crown Prosecutors
working alongside 43 Chief Constables. (The anomaly is in the London Area, which covers not only the Metropolitan
Police Service Area but also the Police Force for the “Square Mile” comprising the City of London Police.)
More fundamentally however, Glidewell recommended that at the point where defendants entered the Criminal
Justice System, police officers together with administrators should work together with CPS lawyers in co-located units
dedicated to providing a service to a specific Magistrates’ Court or Courts in the locality.
Glidewell prophesied that the introduction of such an organization would reduce delays; reduce duplication of effort
and material; create a better level of understanding between CPS lawyers and the police; and ultimately lead to efficiencies
in the Criminal Justice System. Since 1999 Chief Crown Prosecutors and their Chief Constables have been working
together to achieve those ends. Up and down England and Wales co-located criminal justice units have been opening andoperating successfully. At seminars which I have attended and chaired involving both Police and CPS representatives,
reports have been uniformly received commenting on the fact that not only have the Glidewell aims been achieved butthat the notion of working together has immeasurably improved communications and imbued both organizations with agreater respect for, and understanding, of the other. These are still early days yet and it will take some time before asystematic evaluation of the newly created criminal justice units can be made. By way of example, however, one
representative working in a unit was telling me that prior to the creation of the criminal justice unit the average numberof occasions on which a case was adjourned was something like 2.8. Since the joint-working initiative that figure has
fallen to 1.2. Anecdotal though this evidence is, it augers well for the future.
More than that however, Glidewell has created an impetus which is having an impact far wider than co-located CJU’s.
The Report recommended that the more serious criminal cases and trials which are heard in the Crown Court rather thanthe Magistrates’ Court should be handled in CPS units called Trial Units. There was never any suggestion that police
officers should be routinely housed in Trial Units. Experience is fast showing that the complexities of this serious casework
militate in favour of having close links with the police and there is a growing trend to have police personnel based in the
Trial Units. Thus for example, at the Central Criminal Court (the Old Bailey) in London I have a small area of the CPS
premises dedicated to Metropolitan Police service officers who have installed their own computer equipment. These are
not junior officers either. The response of the police, CPS personnel and the judiciary sitting of the Old Bailey proves
the value of adopting this approach.
XII. CRIMINAL JUSTICE BUSINESS PLANS
Whilst Glidewell was independently examining the workings of the Crown Prosecution Service the notion of “joinedup justice” was furthered by the publication of a Joint Business Plan for the Criminal Justice System presented by thethree Ministers who are responsible for the Criminal Justice System Departments. The Lord Chancellor, the Home
Secretary and the Attorney General. This was the first occasion on which this had happened; beforehand the individual
Ministers had published Annual Business Plans for their own Department alone. In the introduction to that document,
the Ministers state:“It is important to ensure that the Courts and other Agencies remain independent in their decision-making inindividual cases; but equally it is essential that the departments, agencies and services that comprise the
Criminal Justice System coordinate their activities effectively and efficiently in a joined-up way to achieve
Criminal Justice System aims and objectives”.

125

RESOURCE MATERIAL SERIES No. 60
The current Business Plan sets two principal aims:• To reduce crime and the fear of crime; and•To dispense justice fairly and efficiently and to provide confidence in the rule of law.
Those over-arching aims are each underpinned by a number of objectives.
The priorities for the Criminal Justice System in the current planning year were agreed as:•

Crime reduction;•

Attrition;•

Reducing delay;•

Victims and Witnesses•

Information Technology;•

Making the Criminal Justice System work; and•Implementing Criminal Justice System Reforms

Each of the eight objectives which support the aims of the Criminal Justice System reflect one or more of the priorities
set. If I pick on one or two however, it will, I hope give a flavour of the way in which the police and the Crown Prosecution
Service will be drawn together (and others) to meet the over-arching aims. A new objective that has a direct impact acrossthe criminal justice system as a whole is that which demands that more offenders are brought to justice. The target is to
reduce the high level of attrition, the gap between the number of crimes recorded and the number of crimes for which an
offender is properly convicted. There are many ways in which that target can be met but fundamentally it will mean that
quality files will have to be produced to prosecutors by the police if there is to be any prospect of a successful prosecution.
Again, as part of the aim to reduce delays, statutory time limits have been introduced within which defendants must be
dealt with at court. This puts a premium on both the police providing papers to a proper standard as quickly as possible
and CPS lawyers responding equally quickly.
Perhaps the biggest challenge for the criminal justice system is to meet the objective of providing a better service
for victims and witnesses. Though success is likely to be measured against the crude mechanism of a public opinion poll
it will not be one organization which has to answer if the results are poor but all organizations and the heads of theseorganizations will seek to ensure that the service they provide is up to the mark. It will, for example, be important for
CPS to liaise expeditiously with the police to allow them to warn witnesses who have to attend court in a convenientmanner and equally for the CPS and the courts to treat the witnesses who arrive at court in a considerate manner. All thiswill help to promote confidence in the Criminal Justice System which is an additional objective.
XIII. WORKING TOGETHER
In 1999 a Report was published by the National Audit Office (NAO) significantly entitled “Criminal Justice —Working Together”. The NAO is a body totally independent of government which certifies the accounts of all Government
Departments. In addition, the head of the NAO, the Comptroller and Auditor General has a statutory authority to report
to Parliament on the economy, efficiency and effectiveness with which Departments and other bodies have used theirresources. The Report containing 63 recommendations gave a clear message to criminal justice agencies that they must
work together to solve the identified problems of the criminal justice system. In relation to the Police and CPS the Report
recommends that police forces and Chief Crown Prosecutors should:•

Refine their data collection to improve the quality of monitoring under the joint performance management initiative;•

Develop monitoring to identify whether there are particular types of cases or procedures which give rise todisappointing performance on the timeliness and quality of file preparation, including the appropriateness of initialcharges prepared by the police;126

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS•

Take appropriate management action to address the problems identified by the monitoring.

In due course the fact that a Public Accounts Committee made up of Members of Parliament may wish to return tothis subject provides a distinct encouragement for Chief Constables and Chief Crown Prosecutors to take up the
responsibility placed upon them.
XIV. PERSISTENT YOUNG OFFENDERSPerhaps the most influential lever in forcing all Criminal Justice Agencies to work cooperatively together, and inparticular, the Police Service and CPS, has been the Government initiative to halve the time in which it takes to process
persistent young offenders through the courts from arrest to sentence from 142 days to 71 days. The target was set in
October 1997 when a persistent young offender was described as:“A persistent young offender is a young person aged 10 to 17 who has been sentenced by any criminal court in
the United Kingdom on three or more separate occasions for one or more recordable offences and within three
years of the last sentencing occasion is subsequently arrested or has an information laid against them for afurther recordable offence”.
This has proved to be a most challenging target which on a national basis has now been achieved though in certain
areas, including London, the target has still not been met albeit that the agencies concerned — and there are several —have been forced to liaise closely with each other. As far as the police and CPS have been concerned these cases havebecome a priority so that initial file quality standards have been paramount together with the need for CPS to communicate
quickly with the police where further work has been required, for example, to strengthen the evidence or to ensure
witnesses are warned. The overall success of the initiative has led the Government to commit itself to targeting theprosecution of all persistent offenders (no matter what their age). The details of how they are to be targeted has not yet
been finalised but once known they will undoubtedly force the police and CPS much closer together in trying to meet
the targets set.
XV. SECTION 51 — CRIME AND DISORDER ACT
I mentioned earlier the initiatives aimed at reducing delays (EFH and EAH’s) and statutory time limits. A further
development aimed at reducing delays was produced by the Crime and Disorder Act 1998. Section 51 of the Act introduces
a procedure whose impact has been to ensure that police and CPS lawyers cooperate if the Act is to be at all effective.
In those cases where a defendant is charged with an offence which can only be heard in the Crown Court (an indictableoffence) the traditional position has been that he must first appear in the lower Magistrates’ Court and once all the evidence
sufficient to mount a case has been formally presented to the Magistrates’ Court he is committed for trial to the Crown
Court. This has sometimes taken several weeks and has meant that often police officers have had to expend considerable
effort in preparing full files of evidence before committal proceedings take place and the defendant next appears at the
Crown Court — again possibly many weeks later — to enter a plea and if necessary to be tried. The new system operates
on the basis that once charged with an indictable offence, the defendant appears at the Magistrates’ Court as normal but
is immediately sent to the Crown Court without any consideration of the evidence at all. Eight days later (28 if not incustody) the defendant appears at the Crown Court for a preliminary hearing before the Judge. At that preliminary hearing
the Judge, amongst other things, estimates the complexity of the case and will set a period of not less than six weeks forthe preparation of the full prosecution file which must be served on the defendant. It follows that if the time limits are to
be met the CPS lawyers and the investigating police officers must be in close contact with each other. From the outset
the CPS lawyers will have been provided with an “expedited file” — a file in short form with a summary which may
well cover details of evidence available but not yet formally reduced to statement form. From that short form file the
CPS lawyer may be able to indicate exactly what his needs are for a successful prosecution to be mounted, giving theinvestigator at least six weeks to produce evidence that he may well have not considered obtaining himself or obviating
the need to obtain evidence as planned which the lawyer considers otiose. This sort of liaison is bound to be informedby discussions before the Judge involving those representing the defendant who may be able to identify the sole issues
to be contested in the trial. Often defendants indicate at this first appearance in the Crown Court that they are intending
to plead guilty which will mean that a less comprehensive file needs to be prepared.
The introduction of the procedure has undoubtedly enabled CPS lawyers to take a grip of a case at a much earlier
stage than has traditionally been the situation and therefore to influence its development and progress.

127

RESOURCE MATERIAL SERIES No. 60
XVI. EUROJUSTCrime as we know, no longer (if it ever did) confines itself to national borders. The cry often goes up that we areattempting to fight 21st century criminals with 19th century methods. In the European Union efforts to achieve a greater
spirit of cooperation in the detection and prosecution of international crime has seen the development of Europol (drawing
together the various police authorities operating in the European Union) and more recently and still very much in adevelopmental role Eurojust with broadly similar aims for those concerned in the prosecutorial and judicial aspects ofthe European criminal justice system. In very simple terms lawyers from member states are based in other member stateswith a brief to obviate the rubbing points which have plagued the investigation and prosecution of those responsible forinternational crime in the past. Thus, Eurojust lawyers have had minimum activities which have involved providing
information on that national law, arranging contacts among investigating national bodies, the transfer of information on
the stage of proceedings or on judgements, and the exchange of experience and legal advice. The European Commission
however sees a wider role for Eurojust. There are moves afoot for it to become involved in individual criminal
investigations. It is felt by the Commissioners that Eurojust collectively should be able to contribute actively to the proper
coordination of individual cases, in particular where urgent cross-border advice in needed. In exercising the wider
responsibility Eurojust would have powers requiring actions to be taken by member states on pain of having to explain
publicly why action had not been taken. Thus far in its fledgling existence the CPS has been able to provide lawyers
working on secondment in Belgium and Italy who as time passes will become more involved in the investigation rather
than merely the prosecutorial process.
XVII. THE AULD REVIEWPerhaps the most radical development in criminal litigation thinking in many years came about on the appointment
in 1999 of a current Lord Justice of Appeal (Lord Justice Auld) to conduct a review of the way in which the criminal
courts operate. The terms of reference were to carry out “a review into the practices and procedures of and the rules ofevidence applied by the Criminal Courts at every level with a view to ensuring that they develop justice fairly, bystreamlining all their processes, increasing their efficiency and strengthening the effectiveness of their relationships withothers across the whole of the criminal justice system, and having regard to the interest of all parties including victims
and witnesses, thereby promoting public confidence in the rule of law”.
Lord Justice Auld’s conclusions and wide-ranging recommendations (328) were published in October 2001. If only
half of those recommendations were to be followed it would represent a substantial change to the way in which ourcriminal courts are administered.
Before I consider one of the most fundamental recommendations made in more detail it is as well to reflect on Lord
Justice Auld’s view that the key to better preparation for and efficient disposal of criminal cases is early identificationof the issues. For this to happen he identifies four essentials:•

strong and independent prosecutors;•

efficient and properly paid defence lawyers;•

ready access by defence lawyers to their clients in custody; and•a modern communication system.

One of his recommendations states that sufficient resources should be provided to ensure that the Crown Prosecution
Service can take full and effective control of cases. But the most radical recommendation from the CPS point of viewconcerns the decision to charge. As I have already made clear traditionally the position in England and Wales has beenthat the police retain the responsibility for setting the criminal process in motion by deciding whether to charge a potential
defendant. Lord Justice Auld has recommended that in future the CPS should determine the charge in all but minor routine
offences, or where because of the circumstances, there is a need for a holding charge seeking the advise of the service.
In those cases where the police have preferred a holding charge it is recommended that a prosecutor should review and
if necessary reformulate the charge at the earliest opportunity.
Setting aside for the moment the practical difficulties or details which might result from this — for example theattendance of a prosecutor at a police station where defendants are charged on a 24 hour basis, this represents a major

128

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
shift in thinking welcomed whole-heartedly in CPS circles. The Auld Review is at present subject to a consultation processwith all interested parties responding to the recommendations by the end of January 2002.
What has been just as interesting as the recommendation itself has been the response of the police service in the guiseof the Association of Chief Police Officers — an organization made up of all the Chief Constables which although
operating in a consultative and advisory capacity is effectively the voice of policing in England and Wales. It is not, I
think, being too unfair to comment that the response from ACPO was expected to be negative. In reality, the response
has been extremely positive to the extent that a number of pilot sites have been identified up and down the country aimed
at testing out Lord Justice Auld’s recommendation.
From the CPS point of view this is a vitally important development because if the prosecutor is there at the beginningof the process he will have an opportunity of influencing the course of the proceedings thereafter.
XVIII. CONCLUSION
These are exciting and challenging times for Crown Prosecutors. If aspirations are to be met, the two key essentials
which need to be grasped are an ability to rise to the challenge of becoming increasingly involved at the charge and evenpre-charge stage to an extent which justifies the confidence of police officers and the public as well; and secondly, theneed to think cooperatively with the police and all others in the criminal justice system to meet the Government’s idealof a “joined-up criminal justice system”.

129

RESOURCE MATERIAL SERIES No. 60

130THE EFFECTIVE ADMINISTRATION OF POLICE AND
PROSECUTION IN THE UNITED STATES
Anthony Didrick Castberg*
I. POLICE
A. The Police RoleThe role of the police in the U.S. is popularly known as “to protect and serve,” a phrase which adorns the sides ofmany police cars. While perhaps effective for public relations purposes, this phrase greatly oversimplifies the police role.
Scholars have divided the police role into two components: order maintenance and law enforcement.1 But this, too, isoversimplified. In reality the police play many roles, including those listed above. They are frequently the first agency
called for a variety of problems faced by citizens, from lost children to disputes with neighbors over property lines. They
have significant responsibilities with respect to traffic control. In short, they interact with the public far more frequently
with respect to non-criminal matters than with criminal matters. While much of the actual police function involves service
rather than law enforcement, and the average police officer never fires his weapon in the line of duty, the most importantfunction of the police officer in the U.S. is law enforcement. It is through enforcement of the law that criminals areapprehended, evidence is collected, criminals prosecuted, order maintained, and the public served.
B. Control over the Police
Law enforcement in the U.S. is traditionally and historically a local function. The vast majority of cities, towns, andvillages in the U.S. have their own law enforcement agencies, most often called a “police department.”2 Rural, or
unincorporated,3 areas are patrolled by sheriffs’ departments, while major highways usually come under the jurisdictionof a state highway patrol. All of these agencies are autonomous and are under the control of the jurisdiction they serve.
It might be useful to examine Los Angeles County as an example. The county has a population of almost 10 million,
making it the most populous county in the U.S.; it has a population larger than all but eight states.4 Most of the 88 cities
in the county have their own police departments. Areas of the county not incorporated as cities fall under the responsibilityof the Los Angeles County Sheriff’s Department. Approximately 65% of Los Angeles County consists of unincorporated
areas, which contain about 12% of the population.5 Freeways in Los Angeles County are patrolled by the California
Highway Patrol, while rural highways may be patrolled both by the Highway Patrol and the Sheriff. To complicate matterseven further, some incorporated cities in Los Angeles County contract with the Sheriff for law enforcement protection.
And sheriffs in Los Angeles, and much of the rest of the nation, are also responsible for management of county jails andsecurity in courtrooms, among other functions. As we can see, then, even within one county in the U.S. there may be
multiple, overlapping police jurisdictions and functions.

* Professor,
Department of Political Science,
University of Hawaii at Hilo,
U.S.A
1

James Q. Wilson, VARIETIES OF POLICE BEHAVIOR, Mass: Harvard University Press, 1968.

2

There are many different terms for law enforcement officers in the U.S., but for purposes of simplicity the term “police” will be used here for all
law enforcement officers at the state and local level.

3“Unincorporated” refers to those areas which do not have their own government or city limits, even though they are named and recognized as cities
or towns by virtually everybody.

4

www.co.la.ca.us/overview.htm

5

Data from Los Angeles County web site: http://www.co.la.ca.us/.

131

RESOURCE MATERIAL SERIES No. 60
Neither state governments nor the federal government exercise direct control over local law enforcement agencies,
although state law may establish minimum training standards for law enforcement and both state and federal governments
may provide subsidies for special programmes. Because state and local law enforcement agencies are autonomous, they
are funded primarily by the jurisdiction they protect. Funding of local governmental functions in the U.S. comes primarily
from property taxes, resulting in wealthy communities having a great deal more to spend on law enforcement than poor
communities. These disparities may be made up to some extent by state subsidies, but there are nevertheless significant
differences among agencies in salaries, equipment, and other resources. Regional cooperation, however, is common, sothat every law enforcement agency need not need, for example, a sophisticated forensic laboratory but instead would pay
nominal fees to have forensic examinations take place at a large agency nearby, at a state agency, or by the FBI.
Nevertheless, small law enforcement agencies are at a distinct disadvantage compared to their large counterparts.
C. Diversity and Multiplicity of Law Enforcement Agencies in the U.S.
In 1999 there were 16,661 state and local law enforcement agencies in the U.S., employing almost 700,000 sworn
personnel.6 In addition to these agencies, there are over 1,000 specialized law enforcement agencies in the U.S., such asuniversity police, public school district police, housing authority police, transit police, game wardens, alcoholic beveragecontrol officers, and park police, all of which have limited law enforcement authority.7
At the national level there are numerous federal agencies, employing over 74,000 sworn personnel, which enforce
federal laws and regulations. These agencies include the Immigration and Naturalization Service, U.S. Marshals Service,
Federal Bureau of Prisons, Drug Enforcement Administration, Internal Revenue Service, and the best known, the Federal
Bureau of Investigation.8 In some cases, federal and state criminal law jurisdictions overlap, such as drug trafficking orbank robbery, which are both state and federal crimes, but for the most part federal law enforcement agencies haveseparate jurisdictions from state and local agencies. Federal offenses constitute a relatively small proportion of all crimes
committed in the U.S. – fewer than 1% of all arrests are for federal crimes.
The size of local law enforcement agencies in the U.S. varies considerably, ranging from 2,245 agencies with only
one sworn officer, to New York City, with almost 37,000 sworn officers.9 Given the great range in size of agencies, it isnatural that the organizational structures of the agencies vary, although most use the military model. In every police
department at the local level in the U.S., however, the primary operational function is motor patrol, almost exclusively
in marked vehicles. Nationally, approximately 70% of sworn personnel are assigned to uniformed patrol, while about
16% are assigned to investigation (detectives).10
D. Selection and Training of Law Enforcement Personnel
Only about 1% of police and sheriffs’ departments require a 4-year college degree, and less that 10% require a 2year degree for initial employment, although some agencies offer incentive pay for those with degrees. It is also becoming
more common for police agencies to require a degree for promotion to higher ranks. Federal law enforcement agencies
require a minimum of a bachelor’s degree, with some exceptions, and pay is accordingly higher than in most local agencies.
Local police departments in the U.S. require an average of 1,100 hours of training, while sheriffs averaged 900. Minimum
training standards are established by the state and generally referred to as POST (Peace Officer Standards and Training),
but individual law enforcement agencies may exceed the minimum requirements. Training takes place in classroom
settings and after graduation from the police academy, in the field by a field training officer (FTO).
While there may be a considerable amount of time involved in training new law enforcement officers, the time
devoted to their various responsibilities varies greatly. Of the 576 hours required by the Texas Commission on Law
Enforcement, for example, only 45 are devoted to criminal investigation, including protection and search of the crime
scene, interviewing techniques, and courtroom demeanor and testimony. Another 40 hours are devoted to arrest, search,and seizure, and only 8 hours to professionalism and ethics.11 Texas standards are typical. The new police officer in the
U.S., then, is not well-versed in either professional ethics or in preparing a case for prosecution.
6

Bureau of Justice Statistics (BJS), LOCAL POLICE DEPARTMENTS, 1999. May 2001, p. 1. “Sworn personnel” refers to officers with the power

7

Ibid., p. 12.

8

BJS, FEDERAL LAW ENFORCEMENT OFFICERS, 1996. January 1998, pp 1-2.

9

A sworn officer is authorized by law to make arrests.

of arrest.

10 Census, op. cit., p. 6.
11 Texas Commission on Law Enforcement, via WWW:

http://www.tcleose.state.tx.us/BPOC.htm.

132

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
It is normally the responsibility of the detective to prepare a case for prosecution, so the success or failure of a caseoften depends upon detectives. Detectives, however, are often dependent upon the patrol officer for initial informationfrom a crime scene, including statements of witnesses and suspects, collection of physical evidence, and crime scene
protection. Mistakes made by the patrol officer may not be subject to correction - failure to adequately warn a suspect of
his or her rights (the Miranda warning) is rarely subject to correction, and any admissions or confessions made without
such warnings may be declared inadmissible. Detectives generally learn their skills through a combination of experienceand formal training, but the amount of experience and formal training depends to a large extent upon the agency. Smallagencies are seriously handicapped in this regard; in 1999, 6,285 agencies served populations of fewer than 2,500 persons
and employed an average of only 3 sworn personnel per department.12 Officers in small departments such as these must
perform all law enforcement tasks, usually without formal training for the more advanced tasks such as crime scene
investigation.
The nature of the law enforcement profession requires frequent in-service training. Technological advances and new
appellate court opinions make this training necessary, but the amount of in-service training given to law enforcement
personnel varies widely from agency to agency. Smaller agencies lack both the funds and the personnel to provide suchtraining, while scheduling is a problem for all agencies – training takes time, and it may be difficult to find replacements
for those who must be away from their regular assignment to receive such training. Of particular concern is the problemof keeping law enforcement personnel abreast of developments in procedural law. In common law systems, such as the
U.S., appellate court decisions mandate how police may act in specific situations. Most of us are familiar with the Miranda
warning that must be read to suspects who are in custody and are to be interrogated. The case of Miranda v. Arizona13
changed police procedure in every law enforcement agency in the U.S.. A typical state or local law enforcement agency
will be affected by opinions handed down by state intermediate and supreme courts, federal circuit courts of appeal, andthe U.S. Supreme Court, necessitating constant reviewing of decisions coming from these courts. Few law enforcement
agencies have legally trained personnel solely devoted to this task, but instead rely on local prosecutors, the state attorney
general’s office, or legal reference services for periodic updates on procedural law But the process is not always efficientnor is the manner in which this information is passed to officers consistent. Failure to abide by rules established in thesedecisions may result in cases being dismissed and convictions voided, so the stakes are high.
Pay for police officers is usually related to size of department, with larger departments paying more than smaller
departments, although there are many exceptions to this. As noted above, financing of law enforcement agencies depends
to a significant extent upon the wealth of the community served by that agency.14 Annual police entry level salaries may
be as low as $21,000 or as high as $40,000. Disparities such as these cause morale problems in departments with low
pay and make it difficult to recruit qualified personnel. These problems, combined with inadequate training, leadership,and employment standards are prime contributors to police corruption.15
E. Politics and the Police
Police chiefs in the U.S. are usually appointed, either by a commission, by a city or town council, or by a local chief
executive, while sheriffs are usually elected by the citizens of the county they serve. Sheriffs usually have a set term ofoffice, such as four years, while police chiefs usually serve at the pleasure of the appointing body or official. In bothcases, of course, politics plays a major role. In smaller agencies, the chief is usually selected from within the department
itself, while larger agencies normally conduct a national search. The job of police chief or sheriff is a difficult one,requiring the person holding the position to not only be the top law enforcement officer in the agency but also part
politician, part administrator, and focal point for problems in the department and in the community as well. When crime
rates rise, criticism is directed at law enforcement and ends up on the desk of the chief or sheriff. The turnover rate ofpolice chiefs in large departments in the U.S. tends to be high.
The political aspects of police administration frequently lead to problems in effective law enforcement. Historically,in cities such as New York, Philadelphia, and Chicago, appointments to law enforcement positions from patrolman tochief, as well as promotions, were based on political patronage. Loyalty and allegiance to a politician were far more
important factors than honesty and integrity, and working for a politician’s reelection campaign brought with it a virtual
12 LOCAL POLICE DEPARTMENTS 1999, op.cit., p. 3.
13 384 U.S. 439 (1966).
14 See Joseph E. Pascarella, Municipal Police Salaries as a Function of Community Home Values, Household Incomes, and Physical Housing Characteristics,

in JSTICE RESEARCH AND POLICY, Vol .1 (Fall 1999) http://www.jrsainfo.org/pubs/journal/past_issues/Fall1999/police_salaries.htm.
15 Frank L. Perry, Repairing Broken Windows: Preventing Police Corruption with Our Ranks, FBI LAW ENFORCEMENT BULLETIN, Vol. 70(February 2001), pp. 23 - 26.

133

RESOURCE MATERIAL SERIES No. 60
guarantee of a job, often on the police department. While this practice has diminished considerably in most large agencies,
it is still found in smaller departments across the country, where hiring and promotion are based on whom you know, notwhat you know. When a law enforcement officer is beholden to a politician or other community influential for his or her
position, it is highly unlikely that the administration of justice can be administered impartially. Police enforcement canbe and is affected significantly by political concerns.
F. Corruption and Deviance in Law Enforcement
One must first define “corruption” in the law enforcement context before discussing the concept. For purposes ofthis paper, “police corruption” refers to police officers accepting money or goods in return for engaging in activities they
are obliged to do under terms of their employment, for activities that are prohibited under the terms of their employment,or for improper exercise of legitimate discretion.16 It does not include acts that are criminal, such as burglary or theft,
nor does it include deviant acts performed within the law enforcement environment.
Corruption in law enforcement was widespread during certain periods in U.S. history, especially among larger
agencies in the East and Midwest. Such corruption reached it peak during prohibition, that period in U.S. history extending
from 1919 through 1933, during which time the manufacture, sale, importation, and transportation of intoxicating liquors
was illegal.17 The same period saw the rise of organized crime in the U.S., another factor which increased corruption inlaw enforcement. Many police officers were paid to ignore violations of the laws relating to alcohol, and some evenprovided armed escorts for those transporting illegal alcohol.
As a result of public outrage and resulting reform movements, however, law enforcement corruption in recent years
has been significantly reduced. In 1997, for example, the FBI, often in cooperation with local agencies, opened 190 casesof law enforcement corruption, 48% of which were drug-related. During the same year, 150 law enforcement officers
were convicted of corruption-related offenses, 53% of which involved drugs.18 It is very likely that there were more cases
than these figures indicate, as some could have been classified as theft or perjury, and many cases of corruption weredealt with at the local level rather than by the FBI. It is safe to say, however, that law enforcement corruption in the U.S.,
while not widespread, is still of great concern to the public. It should be noted, however, that one form of corruption –“gratuities” – is still widespread among law enforcement personnel. These gratuities include free or discounted food inrestaurants, discount prices for cleaning uniforms, and other discounts given by local businesses to law enforcement
personnel. While most, if not all, law enforcement agencies have rules prohibiting the acceptance of gratuities, few officers
are disciplined for violation of the rules, primarily because there are very few complaints from the public. Debate continues
on whether acceptance of gratuities constitutes corruption.
Police deviance and criminal activity are difficult to measure, as no national or state records are kept of such activity
specifically involving police officers. When a police officer commits a crime which is not job-related, such as armed
robbery, theft, or murder, it is newsworthy because of the occupation of the perpetrator. And sentences may be harsher
for police officers than for civilians charged with the same offense, as most judges feel that police officers are held to ahigher standard of conduct than the average citizen. But judging by news accounts, such offenses are rare, even taking
into consideration such widespread corruption and criminal activity as took place in the gang unit of the Los Angeles
Police Department several years ago. Crimes committed by police officers that are job-related, such as assaulting anotherofficer, stealing money from funds to pay informants, or assaulting suspects in custody, are punished internally and,usually, externally as well. Again, however, statistics on such offenses are difficult, if not impossible, to obtain, as internal
discipline is usually protected administratively from being released to the media, while prosecutions of officers who
committed job-related offenses are not listed separately from such offenses committed by civilians.
Police deviance, or occupational deviance,19 may be defined as acts that contravene agency rules and regulations.
They may be divided into two sub-categories: simple rule violations and violations involving due process. The firstcategory includes such violations as rude behavior toward citizens, improper wearing of the uniform, use of a police
vehicle for personal purposes, while the second category involves such due process violations as planting evidence,
writing false reports, or perjury. While some of these activities may constitute criminal behavior, they are not includedin that category because they are not for self-gain but rather are motivated by a misguided effort to enforce the law. This
16 This is a variation of the definition used by M.McMullen, “A Theory of Corruption,” SOCIOLOGICAL REVIEW, vol. 9 (1961), pp. 181-201.
17 Amendment XVIII to the U.S. Constitution.
18 FBI figures.
19 See Victor E.Kappeler, et.al., FORCES OF DEVIANCE: UNDERSTANDING THE DARK SIDE OF POLICING. Prospect Heights, Il: Waveland

Press, 1998, p. 22.

134

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
form of deviance is particularly troubling because it may result in the conviction of innocent citizens. And while there isno collected source of statistics on this form of deviance, newspaper report would lead one to believe that it is not rare.20
A recent example of planting or falsifying evidence illustrates this type of deviance. At least 18 narcotics cases filedby the Dallas (Texas) police department were dismissed in January 2002 because what police alleged to be cocaine, basedon field tests, turned out to be powdered sheetrock, a substance used in wallboards which, when ground up, resembles
powdered cocaine. Almost 700 pounds (320 kilos) of crushed sheetrock was involved, and all of those arrested were
Mexican immigrants. Most of the arrests were made by two narcotics officers, using an informant who was paid over
$200,000 during the past two years for information provided in at least 70 cases. The two officers were suspended pending
an investigation into the cases.21
Most law enforcement agencies in the U.S. have individuals or a unit responsible for internal discipline. Such units
are commonly called “internal affairs,” and have the responsibility of investigating violations of policy and law by police
officers. Virtually all U.S. law enforcement agencies have written “general orders,” which describe the structure andfunction of the organization as well as specific policies on administrative and operational matters. Operational policies
frequently deal with such issues as vehicle pursuits, use of force, handling of domestic abuse cases and juveniles, andpatrol procedures. Violations of these policies are dealt with by internal affairs, even if the conduct in question may beof a criminal nature, as administrative sanctions may be imposed regardless of the outcome of a criminal investigation.
It is quite possible to be fired for violation of department regulations even though there is no criminal liability. Officers
who are questioned by internal affairs have no right to silence – they must answer questions – but their answers cannot
be used against them in criminal prosecutions.22 Some larger cities utilize civilian review commissions or boards toperform the same function, as many citizens do not trust law enforcement agencies to police themselves, but such boards
or commissions are not substitutes for internal procedures.
An especially difficult problem in law enforcement is obtaining evidence from one officer against another. There isa well-known “code of silence” in law enforcement, much like that found in prisons, which is part of the police culture,
and which requires that law enforcement officers always back each other and never report deviant acts to supervisors.
This code is based on trust, which is essential to survival in the law enforcement environment. Inasmuch as most officers
do not work with partners, at least in all but very large agencies, one’s safety is often a function of the closest officer tothe potentially dangerous situation. When an officer finds himself or herself in a situation which might be dangerous –making a traffic stop on a stolen car full of young males in a poor area of town, for example – the officer will normallycall for a back-up (the assistance of the closest officer to the scene). The speed with which the second officer responds
may often make the difference between life and death for the first officer. Thus, trust is essential. It is not unheard of for
officers who violate the code of silence, or who do not accept the law enforcement culture, to call for backup and receive
no response. In other words, their fellow officers will not protect them because they have violated the informal code of
ethics of that particular agency.
What is frequently lacking in law enforcement agencies with problems of corruption or widespread violations ofrules and regulations is leadership. Law enforcement agencies in the U.S. are structured much like the military, and use
many of the same terms for ranks (i.e., sergeant, lieutenant, captain, etc.). Under such an organizational structure, thereis theoretically a clear chain of command, with each level of leadership responsible for those at the next lower level andreporting to the next higher level. Sergeants, therefore, are responsible for patrolmen, and sergeants report to lieutenants,
who report to captains, with the pattern repeating itself all the way to the top, which is usually the police chief, police
commission, or sheriff. The major difference between law enforcement agencies and the military, however, is that while
the military works in groups, such as platoons, squadrons, and companies, police usually work alone (even though they
may be assigned to a platoon, squad, or company for organizational purposes). This means that police administrators inleadership positions rarely observe or work directly with those under them. The first police officer on the scene of a crimeis almost always the patrolman, who may have to make important decisions without any supervision. Cases can be wonor lost and lives saved or lost based on these decisions.
The lack of immediate supervision makes it difficult for leaders to effectively evaluate and guide their subordinates.
Police officers are usually evaluated by their written reports and the number of traffic citations issued rather than on how
they interact with the public, how they deal with suspects, and how they gather evidence. Sergeants are considered
20 Kappeler, supra., p. 24.
21 Paul Duggan, “‘Sheetrock Scandal’ hits Dallas Police,” THE WASHINGTON POST, Friday, January 18, 2002, p. A12.
22 See Garrity v. New Jersey, 385 U.S. 493 (1967).

135

RESOURCE MATERIAL SERIES No. 60
effective if their officers make enough arrests, issue enough citations, and generally stay out of trouble. And so the patterngoes throughout the ranks. Leadership skills are often learned on the job, and while this may work in some departments
it does not work in all. Leadership must also be taught, and leaders must be held accountable for their subordinates.
Promotion to leadership positions must be based on more than passing an examination, the primary criterion in mostagencies, including some objective measures of leadership and effectiveness.
G. How to Fix the Problems
The most obvious way to deal with many of the problems affecting law enforcement in the U.S. is to consolidate
agencies under some form of centralized control, probably at the state level. It is virtually impossible to bring about
federal control of law enforcement due to the principle of federalism, which is deeply engrained in both the Constitutionof the U.S. as well as history and tradition. But it may be possible to establish state control over hiring, training, pay, andmajor policies. This would eliminate the disparities between and among departments that seriously hamper effective law
enforcement and breed corruption. A state commission would set hiring, training, and promotion standards, as well as
being responsible for hiring regional law enforcement commanders. Existing facilities would very likely remain, and all
existing personnel would be transitioned into the new agency.
Minimum standards for employment of police officers should be raised. While it is not clear that college-educatedpolice officers are more effective than those without such an education, it is clear that the four years of college required
for a bachelor’s degree would produce a more mature person with a broader perspective. In 1967 the President’s
Commission on Law Enforcement and the Administration of Justice recommended that “police departments should take
immediate steps to establish a minimum requirement of a baccalaureate degree for all supervisory and executive
positions.”23 To date, as we have seen above, very few law enforcement agencies have established that standard.
It would be politically impossible to establish federal minimum standards for training of law enforcement officers,
but the federal government could make accreditation a requirement for federal funds, and license agencies who accredit,
much as is now the case with respect to accreditation of institutions of higher education. Accreditation would include
minimum hiring and training standards and establish deadlines for compliance as well as frequent monitoring. Those
agencies who did not apply for accreditation or who applied but did not meet the standards would not be eligible forfederal funds. While police departments, as noted above, are primarily funded by the city, county, or state, there are manyfederal grants available as well, allowing agencies to purchase equipment or hire personnel they would not ordinarily beable to afford. At present , the primary accrediting agency is CALEA (Commission on Accreditation for Law Enforcement
Agency), which is not licensed by the federal government but is an independent organization. As of early 2001, CALEA
had accredited about 600 law enforcement agencies.24 CALEA requirements list 439 standards, some of which aremandatory and some of which are “other than mandatory.” In order to be accredited, the agency must meet all mandatory
standards and 80% of the “other than mandatory” standards. Standards vary by size of department.25 The fact that fewer
than 4% of law enforcement agencies in the U.S. are accredited by CALEA is an indication that there is little incentive
at present to achieve this status. Making federal funding dependent upon accreditation may provide the needed incentive
for many agencies, but those most in need of upgrading – small departments and agencies in poor communities – rarely
apply for federal grants and are therefore not likely to be affected.
Accreditation and federal funding will not solve all of the problems of policing, but they are a start. There are many
political and economic obstacles to overcome. The history and traditions of law enforcement in the U.S. point to politicalsolutions to most of the problems in law, which places the burden for solving problems on the electorate, which must
demand improvement in law enforcement, hold politicians accountable, and be willing to pay additional taxes to bringabout that improvement. At the same time, law enforcement must be removed from politics. Heads of law enforcement
agencies should not be elected, nor should they be appointed by political figures or bodies, but instead by non-partisancommissions whose members are representative of the community served by the law enforcement agency. The
commissions should make use of professional organizations to recruit new police chiefs and sheriffs, and focus on
management skills rather than law enforcement experience. What is being said here is not new. A great deal has been
23 President’s Commission on Law Enforcement and the Administration of Justice, THE CHALLENGE OF CRIME IN A FREE SOCIETY. Washington,

D.C., 1967, p. 110.
24 “Police Professionalism and Accreditation,”

http://www.faculty.ncwc.edu/toconnor/417/417lect08.htm(North Carolina Wesleyan College).
25 CALEA standards – http://www.calea.org/newweb/accreditation%20Info/standards.htm

136

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
written about reform in law enforcement but it seemingly has had little effect. Only a major restructuring of law enforcement
can bring about the needed changes, and that will come only when the public wants it badly enough.
II. PROSECUTION
A. The Prosecutorial Function
The function of the prosecutor is essentially the same throughout the modern world: to represent the people byprosecuting those who have committed crimes. In the U.S., prosecutors are either elected or appointed. As elected or
appointed officials, chief prosecutors play an important role in the community, a role that often extends beyond theirprimary function of prosecution. They are often spokespersons on issues involving crime, lobbyists before legislatures
on a variety of matters involving criminal justice, and administrators who make important policy decisions with very
little, if any, oversight. Prosecutorial decision-making as a whole is generally of low visibility; only crimes which receive
a great deal of publicity are of interest to the general public. There is, therefore, no practical way for the public to haveknowledge of or to evaluate a prosecutor’s decision-making.
B. Becoming a Prosecutor
Prior to graduation from a U.S. law school one must look for work. The best students at the best schools will havebeen recruited by major firms before graduation, but the rest will have to actively seek employment. If one wants tobecome a prosecutor one will have to apply for that position. It should be noted that in the U.S., criminal law is one of
the least respected areas in the legal profession; most law school graduates aspire to working in large, prestigious private
firms, where starting salaries can be in the $70,000 to $80,000 range. New prosecutors in the U.S. rarely start at salaries
over $35,000 per year. Therefore, the top graduates of better law schools rarely end up in prosecutor’s offices.
In the U.S., the appointment of a new deputy or assistant prosecutor will depend on local requirements. The vast
majority of prosecutors in the U.S., over 71,000, work for counties. They are almost always appointed by the head or
chief prosecutor, although some qualify through a civil service system. Over 95% of head prosecutors are elected. There
were 2,343 separate prosecutors’ offices in the U.S. in 1996, most of them serving only one county.26
In the U.S., newly graduated attorneys rarely join a prosecutor’s office with the intention of making prosecution acareer but instead use the job as a stepping stone into private practice or the judiciary. In 1996, the median length ofservice for chief prosecutors was 6 years, with 25% having served 12 years or longer; data for assistant or deputy prosecutors
are not available.27 Almost all training of prosecutors in the U.S. is done on-the-job. One is not prepared to practice inany area of law upon graduation from a law school, primarily because law schools tend to focus more on theory than onpractice, and because law schools generally do not teach the law of the states in which they are located, since their students
will have come from many different states. There is usually some form of in-service training for prosecutors, and may
be local or regional seminars for prosecutors of various levels or experience, but it is not always possible to send prosecutors
to training due to budget or operational constraints. So prosecutors in the U.S. learn their profession primarily by working
with more experienced prosecutors, and by starting with relatively simple cases under close supervision. Large offices
will normally have a formal training programme, while smaller offices will not.
C. Working as a Prosecutor
As might be expected, prosecutors in small offices must be generalists, handling all kinds of criminal cases, whereas
prosecutors in large offices may specialize in specific types of crimes, such as sexual assault or homicide. While it isgenerally true that smaller jurisdictions do not have as much crime or as complicated cases as larger jurisdictions, this is
not always true, as may be seen in the widely-publicized 1996 murder of JonBonet Ramsey, which occurred in Boulder,
Colorado, a town with a low crime rate and few homicides. It has been widely alleged that neither the police nor theprosecutors had sufficient experience to handle such a case. In situations such as this, an agency will usually request
assistance in both the investigative and prosecutorial phases of a case, either from the county within which the city is
located, or from the state. To do so, however, is to admit that one’s own jurisdiction cannot deal with such cases. This,of course, has political implications.
It is possible for a prosecutors office to hire a private attorney with prosecutorial experience to take the lead, or toassist, in an important case, but this is expensive and done infrequently. Offices need a core of experienced prosecutors,
which means that they must carefully recruit prosecutors and provide incentives for them to stay. This may be difficult
26 All figures from Bureau of Justice Statistics, PROSECUTORS IN STATE COURTS, 1996. Document NCJ 170092, July 1998.
27 Ibid., p. 3.

137

RESOURCE MATERIAL SERIES No. 60
or impossible for some jurisdictions due to budget constraints, resulting in a rather steady turnover of new prosecutors.
Large jurisdictions rarely have such problems, as they have depth of experience and competitive pay. Effectiveness,therefore, may be strongly related to size.
D. The Decision to Charge
The decision to charge an individual is one of the most important decisions made by a prosecutor in any country. In
the U.S., the process is often complicated. Prosecutors must make an initial determination regarding sufficiency ofevidence and desirability of prosecution. They are not necessarily the same, as sufficiency of evidence alone does notalways result in prosecution. But assuming that mitigating factors are either weak or absent, and a decision is made toprosecute, the prosecutor in the U.S. must then decide what the charges will be.
Most crimes in the U.S. have degrees of seriousness. In Hawaii, for example, there five degrees of sexual assault,
and under the general label of criminal homicide there are two degrees of murder, three degrees of negligent homicide,and the offense of manslaughter. The elements of each degree of a crime differ. And where the same act establishes anelement of more than one offense, the defendant may be prosecuted for each offense.28 A defendant may also convictedof a lesser included offense, so if a prosecutor charges a defendant with second degree sexual assault, the jury may findthe person guilty of third, fourth, of fifth degree sexual assault instead. Another factor complicating the charging decision
is plea bargaining, which will be discussed in more detail below. Prosecutors may charge defendants with as many offenses
arising out of the same act as possible, or may charge a person with a more serious degree of an offense than is justified
by the evidence, for plea bargaining purposes. Overcharging, however, carries with it the risk that the charge will notsurvive the grand jury or preliminary hearing processes.
E. The Grand Jury
About one-half of the states, and the federal government, require indictment by a grand jury, whereas other statesallow a person to be charged through a preliminary hearing. Some states use both the grand jury and the preliminary
hearing. The grand jury had its origins in medieval England, where it was developed to counter the almost absolute powerof the King. Then and now, it consists of citizens who are charged with examining the evidence against an accused todetermine whether such evidence is sufficient for the case to go to trial. Most grand juries in the U.S. have an investigative
function as well. Investigative grand juries have the power to subpoena witnesses, and are frequently used to investigate
suspected cases of official corruption. Here, however, we will focus on the power of the grand jury to indict. Grand jury
composition varies from state to state and from the states to the federal government, but in general a gradn jury is composedof from 16 to 23 citizens who have the same qualifications as those selected for trial juries: U.S. citizenship, adult, residein the jurisdiction, have no felony convictions, read and speak English, etc. As is the case for trial juries, grand jurors
must have no conflicts of interest that would interfere with their ability to be impartial, but grand juries are not subject
to the same rigorous requirements regarding being a cross-section of the community as apply to trial juries.
Evidence is presented to the grand jury by the prosecutor. The evidence may be in form of physical evidence (i.e.,the murder weapon) or testimony by witnesses, but grand jury proceedings are all one-sided and non-adversarial, in thatneither attorneys for the accused nor for witnesses may appear before the grand jury. The proceedings are secret, and notopen to the press or the public. In some jurisdictions, grand jurors may question witnesses directly, while in others theymust ask questions through the prosecutor. After all of the evidence has been presented, the grand jury is given an
indictment form by the prosecutor. It may return a “true bill” of indictment, or it may refuse to do so (no-bill). As should
be obvious from the composition of the grand jury and its domination by the prosecutor, the vast majority of cases
presented result in indictments. Once the indictment is handed down by the grand jury, the prosecutor is free to proceedwith the case.
F. The Preliminary Hearing
The preliminary hearing is similar to a trial, in that it is adversarial in nature and is open to the press and the public.
Evidence is presented by the prosecution, and may be challenged by the defense. The goal of the prosecution is to convince
the judge (preliminary hearings do not involve juries) that there is sufficient evidence to bind the case over for trial.
Courts generally adhere to the standard of “probable cause” in determining whether the evidence is sufficient: probablecause that a crime was committed and that the accused committed it. If the case is bound over for trial, the prosecutor
prepares an “information,” which is roughly equivalent to an indictment. Preliminary hearings are not as formal as trials,
especially as regards evidence. Since there is no right to a preliminary hearing under the U.S. Constitution, the rules ofevidence are relaxed in many states, allowing evidence to be presented that would not be admissible at trial. In those
28 Hawaii Revised Statutes (HRS) §701-109.

138

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
states where the state constitution provides such a right, however, the rules of evidence tend to be more strictly interpreted.
Regardless of whether the preliminary hearing itself is a right or not, there is a right to counsel at a preliminary hearing.
The preliminary hearing not only determines whether there is sufficient evidence for a case to go to trial, but also
allows the defense access to the prosecution’s evidence before the official discovery process takes place. This can bevery beneficial for the defendant, as it allows the defense attorney to hear and to cross-examine, and possibly impeach,prosecution witnesses. Finally, the preliminary hearing may act to narrow the issues to be dealt with at trial, or to reduce
the likelihood of a trial taking place by facilitating plea bargaining, which will be discussed below. The function of the
grand jury and/or preliminary hearing, then, is to make sure that prosecutors have sufficient evidence to bring a case totrial. It allows judicial oversight in the case of the preliminary hearing and citizen oversight in the case of the grand jury,and by so doing is supposed to prevent abuse of authority by prosecutors. These additional steps that are required of U.S.
prosecutors may also have the effect of lengthening the time period between arrest and trial, although the constitutional
guarantee of a speedy trial is vigorously applied.
G. Checks on Prosecutorial Discretion
In the U.S. the grand jury and/or preliminary hearing does exercise some oversight on the charging decision. The
fact that some decisions to charge are not agreed to by a grand jury, or judge in a preliminary hearing, means thatprosecutors do consider such oversight when making a charging decision, although political concerns may on occasion
outweigh legal concerns. And while there are safeguards against overcharging or charging with insufficient evidence,
there are virtually no procedural safeguards against a failure to charge. Nobody, including a judge, may require a prosecutor
to charge a defendant. While there is recourse for citizens who are adversely affected by a decision not to charge in somecountries, the only recourse a citizen in the U.S. has is political – bringing political pressure to bear on the prosecutor.
This is rarely effective. Even though there is sufficient evidence to charge and to convict, there may be reasons that theprosecutor feels that prosecution is not appropriate, and the law and tradition leave that decision solely to the prosecutor.
There are important constitutional issues involved in decisions to charge as well. Most crimes have a statute oflimitations that requires charges to be brought within a specified period of time after commission of the offense. Charging
a person before there is sufficient evidence to convict, however, may result in losing the case, which precludes further
prosecution of that defendant for that offense.29 In the case of murder, which has no statute of limitations, prosecution
may take place years after the commission of the offense, often helped by technology not available at the time the crime
was committed. In most cases, however, charges either take place within months after the commission of the offense or
not at all.
H. Plea Bargaining
Very few defendants in the U.S. initially plead guilty to felony offenses. Defense attorneys will virtually always tell
defendants to plead not guilty even if there is overwhelming evidence against them. The burden, of course, is on thegovernment to prove a defendant guilty beyond a reasonable doubt, and defense attorneys try to use that burden to theiradvantage. More importantly, however, both defense counsel and prosecutors try to avoid trials if possible. Trials aretime-consuming and therefore expensive, and juries are often unpredictable. Judges, too, dislike trials for the same reasons.
In the U.S., only about 10% of criminal cases go to trial, so trials are the exception rather than the rule.
Trials are avoided through plea bargaining. There are essentially two types of bargaining: charge bargaining andsentence bargaining. In charge bargaining, the prosecutor will drop a charge or charges, or reduce charges, in return fora guilty plea. Since most defendants are charged with more than one offense, there is usually room for negotiation. The
bargain might be the dropping of the most serious count of a multiple count indictment, or dropping one offense arisingout of the same act.. Should this be mutually agreed to, the defense attorney will file a motion to withdraw the not guilty
plea and the defendant will go before the judge to plead guilty to the agreed upon charges. The judge will make sure thatthe defendant understands the implication of the change of plea before accepting it.
Sentence bargaining involves a guilty plea in return for a reduced sentence, or the prosecutor’s recommendation fora reduced sentence. In some jurisdictions judges are part of the plea bargaining process, and can guarantee a specificsentence in return for a guilty plea, while in others they are not and the prosecutor cannot promise the judge will accept
the sentence recommendation (although they almost always do in such situations). The process of plea bargaining varies
from jurisdiction to jurisdiction, but plea bargaining itself is the norm in the U.S. criminal justice system.

29 Subsequent prosecution is barred by the double jeopardy provisions of the Fifth Amendment to the U.S. Constitution.

139

RESOURCE MATERIAL SERIES No. 60
The problems associated with plea bargaining are obvious. Because there is no trial, the facts of a case may not
become public. One of the most well-known examples of this was the plea bargain made by James Earl Ray, the killerof Martin Luther King, Jr. Because there was no opportunity for the public to hear evidence in the case, rumors havepersisted about conspiracies at high levels of government. From the perspective of the Constitution and the defendant, aserious problem with plea bargaining is that there is substantial pressure to plead guilty, even in cases where a trial might
result in an acquittal. With a plea bargain the outcome is usually certain, so there is a great deal of temptation to engage
in that practice. If one goes to trial, one may be exonerated or one may face a more serious penalty than would be thecase in a plea bargain. A defendant must waive the right to a public trial by a jury – basic constitutional guarantees –because that defendant’s attorney feels that the plea bargain is the best outcome. Plea bargaining might be considered anecessary evil. Necessary because the system is based on it – the criminal justice system could not guarantee all defendants
a speedy trial. It is evil for the reasons stated above.
1. How to Solve the Problems
Just as is the case with law enforcement, there is no standard for hiring or training of prosecutors. For the same
reasons discussed above with respect to law enforcement, however, it is highly unlikely that any national standards could
be established for prosecutors. In theory, the democratic process maintains standards. Head prosecutors who are ineffectiveor who have ineffective subordinates can be voted out of office or not reappointed. In practice, however, prosecutorial
decision-making is of such low visibility that the general public has very little knowledge of what takes place in theprosecutor’s office. In addition, prosecutorial statistics with regard to cases won may be misleading if most cases are plea
bargained for greatly reduced charges or sentences and there is no accounting of how many defendants are not charged
due to lack of evidence that might well be available if enough effort is expended.
Political influence over prosecution is a problem of unknown dimensions. Because most prosecutors must run for
office every 4 years, money must be expended for campaigns. For those who are appointed rather than elected, politicalalliances are important. In both cases, incumbent head prosecutors and prospective head prosecutors are indebted to thosewith money or influence or both. How likely is it that a prosecutor will file charges against a key campaign contributor?
Or if filing of charges cannot be avoided, how likely is it that the maximum number and severity of charges will be made?
How much influence will a major campaign contributor have on decisions to file charges against a relative or a friend?
This is not to suggest that many prosecutors are corrupt but simply that as long as becoming a head prosecutor is a politicalprocess, there will be political influence on prosecutorial decision-making. So one obvious to the question of how to fix
the problems would be to eliminate politics from prosecution.
Politics cannot be eliminated altogether from prosecution because the prosecutor represents the public and theprosecutor must depend upon the political process for funding, but running for office requires that money be raised, which
in turn makes a prosecutor beholden to those who financed his or her campaign. A prosecutor should not be beholden toanyone. There is no reason that prosecutor could not be appointed in the same manner suggested for police chiefs – by
non-partisan commission of qualified citizens.
III. POLICE-PROSECUTOR RELATIONS
A. Mutual Dependence
The relationship between law enforcement and prosecution is mutually dependent – police are dependent upon theprosecutor to prosecute, and the prosecutor is dependent upon the police for evidence. While it is true that many prosecutors
have their own investigators, their primary source of evidence is the police. County prosecutors in the U.S. do not playa significant investigative role, rarely personally engaging in investigation and using their investigators largely tosupplement police investigations. This relationship is made difficult by the differences in educational level between policeand prosecutors and by the fact that a county prosecutor will work with many different law enforcement agencies; as wehave seen above, the Los Angeles County Prosecutor must work with over 80 individual police agencies.
Despite these obstacles, most law enforcement agencies have functional relationships with the prosecutors with whomthey work. There is mutual trust and both focus on convicting criminals. Prosecutors often work closely with their law
enforcement counterparts from the very beginning of an investigation, offering advice and researching the law to ensurethat all evidence will be admissible. If a case comes to trial, prosecutors and officers work together closely with regard
to testimony. Prosecutors may not tell officers what to say, but they may and do tell officers how to say what they aregoing to say. They will also coach them with regard to cross-examination, preparing them for the difficult questions that
may be asked by defense attorneys. These working relationships make both police and prosecution operate more efficiently.

140120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Law enforcement knowledge of prosecutorial policies allows and encourages effective law enforcement screening ofcases, for example.
B. Problems in the Relationship
One of the major problems facing the administration of justice in the U.S. is perhaps too much trust between policeand prosecutors. Prosecutors may not thoroughly review cases forwarded to them by law enforcement agencies because
they have developed mutual trust over time, and this may result in wasted effort by prosecutors or even worse, theconviction of the innocent. As of the end of January 2002, 100 convictions in the U.S. had been overturned as a result of
DNA testing which proved that the convicted person could not have committed the crime for which they were foundguilty. A number of these individuals had been sentenced to death, and many had served decades in prison.
Miscarriages of justice occur for many reasons. Eyewitnesses are notoriously unreliable, yet many defendants areconvicted primarily, if not solely, on the basis of such identification.30 False confessions are also major problems. Some
individuals with psychological problems will confess to crimes they had nothing they had to do with, while others will
confess as a result of relentless questioning by police. Forensic evidence can be fabricated, such as the sheetrock thatwas represented as cocaine in Dallas recently. The Dallas case also points to the dangers of relying on informants; suchreliance is common in the U.S., but requires police and prosecutors to deal with known criminals who may inform in
return for leniency in their own criminal activity. Recent examples of forensic laboratory technicians who falsified
evidence, including fingerprints, hair samples, blood types, and paint samples, may indicate a problem that is morewidespread than thought. The “Innocence Project” of the Cardozo School of Law of Yeshiva University is well known
in the U.S. for addressing these problems, especially those involving DNA. Professors and students from Cardozo have
filed appeals on behalf of many individuals who have been wrongly convicted and won reversals of most of thoseconvictions. Their efforts have given rise to similar programmes at other law schools.31
C. Resolving the Conflicts in Prosecution
Conviction of the innocent is the prosecutor’s worst nightmare, yet there is ample evidence that this does occur, as
we have seen above. One of the reasons that this may occur is that the role of the prosecutor is a complex one. The
prosecutor must zealously represent the people in convicting criminals, while at the same time, as an officer of the court,
act in the interests of justice. It is because of this dual role that prosecutors are given so much discretion. Without substantial
discretion they would be unable to dismiss cases and reduce charges in the “interests of justice” nor would they be able
to plea bargain. So prosecutors must be on guard against over zealousness. And they must be on guard against complacency
in reviewing evidence. The miscarriage of justice in Dallas occurred because prosecutors accepted the alleged results ofa police field test on what was purported to be cocaine. When prosecutors accept confessions given to police, eyewitness
testimony given to police, information from police informants, and police field tests of substances without independent
verification, they risk both conviction of the innocent and loss of a good case.
The prosecutor must, therefore, rigorously screen all cases, not just for sufficiency of evidence but for validity andtruthfulness of evidence as well. No case should go forward based on a police field test; tests must be conducted by acertified laboratory. This may take more time and money, but it is the only way to guarantee that the substance is what
it is purported to be. Prosecutors must be especially vigilant in reading police reports and alleged confessions to determine
if there are inconsistencies, evidence of coercion, or other factors that could lead to a miscarriage of justice. Prosecutors
in the U.S. are handicapped by rarely being able to talk to defendants,32 so they must try to understand the defendant
based on reports rather than direct contact. Prosecutors must also be certain to talk to all potential witnesses before charges
are filed, a practice that does not always take place due to time constraints.
Finally, the practice of placing new, inexperienced, prosecutors in a screening capacity so that the more experienced
prosecutors are free to prepare and try cases should end. Screening should be done by, or under the close supervision of,experienced prosecutors. Strong arguments can be made for eliminating the separation of functions in a prosecutors officeso that experienced prosecutors take a case from initial screening through to trial with assistance from more inexperienced
prosecutors rather than screening, preparation, and trial being separate functions carried out by different prosecutors.
30 See B. L. Cutler and S. D. Penrod, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW. New York: Cambridge

University Press, 1995.
31 Eric Slater, “DNA Proves What Man Long Insisted,” LOS ANGELES TIMES, January 21, 2002, via www. http://www.latimes.com/news/

nationworld/nation/la-000005490jan21.story
32 This is the case for two reasons: defense attorneys will rarely allow their clients to talk to prosecutors, and if the defendant is not represented bycounsel when the conversation takes place the prosecutor may end up being a defense witness to a statement made by the defendant.

141

RESOURCE MATERIAL SERIES No. 60
Prosecutors are the most important figures in the criminal justice system – the system cannot work effectively or fairly
if prosecutors are not rigorous in their practices – so the burden of policing the police as well as convicting the guilty
falls to them. The burden is heavy but it is a burden that must be met.

142

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

143

PARTICIPANTS’ PAPERSEFFECTIVE MANAGEMENT OF THE POLICE AND THE
PROSECUTION IN CRIMINAL JUSTICE
Nobuyuki Kawai*
I. BACKGROUND
A. The Police of Japan
In Japan, the Police Law empowers each prefecture to carry out police duties to “protect life, person and property”
and “maintain public safety and order by preventing, suppressing and investigating crimes, apprehending suspects andcontrolling traffic”. Accordingly, the authority to execute police duties in the field is geographically divided into 47
prefectural jurisdictions, each of which is supervised by respective Prefectural Public Safety Commission. The total
prefectural police force numbers approximately 260,000, including 230,000 ranked police officers and 30,000 civilian
experts and clerks.
The law also empowers the national government to establish a central police organization to control and supervise
prefectual police organizations. The National Police Agency, supervised by the National Public Safety Commission, isserving this role.
The police responsibility varies from crime prevention in general to protection of citizen’s life and property, counterintelligence against terrorism and espionage, the fight against organized crime, traffic control and issuing driver’s licenses,
administrative control over private businesses such as entertainment businesses, private security and pawnshops,
protection of victims and firearms control.
B. Criminal Investigation
As for criminal investigation, the Code of Criminal Procedure states that “when a police officer deems an offense
has been committed, he shall investigate the offender and evidence thereof.” Accordingly, the police are empowered toinvestigate all illegal acts punishable under Japan’s judicial system, fulfilling the primary responsibility for criminal
investigation in the country.
C. Political Neutrality
In order to ensure the political neutrality of the police, the Police Law put police organization under the supervisionof public administrative commissions.
At the local level, the Prefectural Public Safety Commission exerts administrative authority over the respective
prefectural police. Members of each Commission are appointed by the respective prefectural governor with the consent
of the respective prefectural assembly. Each Commission exercises administrative supervision over its prefectural policeby formulating basic policy and regulations for police operations. However, neither the Commissions nor the prefectural
governors or elected assemblies may interfere with individual cases or specific law enforcement operations of theprefectural police. Prefectural police chiefs are appointed and dismissed by the National Public Safety Commission withthe consent of their Prefectural Public Safety Commissions.
At the national level, the National Public Safety Commission exercises administrative supervision over the National
Police Agency. While the Commission is under the jurisdiction of the Cabinet Office, the Prime Minister is not empowered
to exercise direct command or control over the Agency. This guarantees the Commission’s independence and ensures its
political neutrality. The Commission supervises police by formulating basic policies and regulations, coordinating police
administration in various fields, and supervising internal inspection of police activities. The Commission also appoints
the Chief of the National Police Agency and other senior officers of prefectural police organizations. The Commission
consists of a chairman and five members. The chairman is a state minister who presides over Commission meetings.
Members, who serve five-year terms, are appointed by the prime minister with the consent of both houses of the Diet.
They must be persons who have not served within five years of appointment as police officers or public prosecutors. To
ensure political neutrality, no more than two members may belong to the same political party.
* Deputy Director, Firearms Division,Community Safety Bureau,
National Police Agency, Japan

144

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
II. EFFECTIVE MANAGEMENT OF THE POLICE INVESTIGATION
A. Morality, Integrity and Motivation Inspired and Tested by Various Challenges
The institutional setting alone does not necessarily guarantee the effectiveness of any organization. In order for an
organization to be truly effective, its members must be aware of the importance of their responsibility to do the job, andbecome inspired and motivated to improve the efficiency of their own performance. The key to effective managementof an organization is its independence continuously tested by positive challenges from outside of the organization.
Historically, the Japanese police had developed a strong sense of responsibility in the struggle to cope with various
challenges as explained below. Its positive reaction to the constant pressure from those challenges has improved thecapability and fidelity of the Japanese police. In order to fulfill its responsibility while maintaining its independence, thepolice have constantly been inspiring themselves.
B. Challenge in the Course of Collaborating with Prosecutors
It is the prosecutors who directly challenge and inspire the police in their role as prosecutors and investigators. In
collaborating with prosecutors, the police are repeatedly inspired to realize the importance of their responsibility as theprimary authority in criminal investigation.
1. Collaboration to Sustain Prosecutions at the Courts
In Japan, prosecutors bear exclusive responsibility to file and sustain prosecutions in the court. Needless to say, thepurpose of police investigation is to identify the suspect and gather evidence which can lead to a conviction in court. The
police strive to fulfill its responsibility as a primary authority for criminal investigation, by effectively identifying thesuspect and gathering evidence while protecting the due process of law so as to support prosecutors’ successful
management of prosecutions. This challenge, coming from the prosecution, has always been one of major factors tostimulate the police to improve their capability and fidelity.
2. Cooperation as Investigators
While the primary duties of public prosecutors are to determine case dispositions and file and sustain prosecution,
they are also empowered to conduct investigations.
In this context, it has to be pointed out that prosecutors have indeed excellent investigating capabilities, especially,
when they initiate their own investigations on large scale intellectual crimes and political corruption cases. Prosecutors’
successful investigations of such cases always inspire and motivate the police to improve their own skills and to challenge
more and more difficult cases.
The prosecutors’ investigations are generally supplementary. As the primary investigation authority, police managers
try to perfect their investigations so that there is least amount of needs for the prosecutors to investigate the same caseseven in supplementary manner.
C. Challenges from Citizens as to their Confidence in the Police
Police activities, including criminal investigations, can’t be successful without support from citizens. Police will not
get public support unless the citizens have confidence in the police’s capability and fidelity.
1. Capability to Detect and Investigate Crimes Effectively
The police have to identify suspects effectively at the same time following the due process of law. This simple but
basic point should not be overlooked. Prosecution of criminals is the most effective way to deter crimes. At the sametime, any violation of legal or human rights, at any level, leads directly to a distrust, by citizens, of the justice system as
a whole. To a lesser degree, the more incidents of unsolved crimes increase, the more the distrust and lack of faith in thepolice abilities grows.
2. Systematic Self-inspection
The police must be seen as an authority upholding law and order, protecting the rights and property of all citizens
equally without bias or favor. Any mishandling of cases could trigger public questioning of police abilities and integrity.
This could lead to instability in the police authority as a whole.

145

RESOURCE MATERIAL SERIES No. 60
In order to maintain the integrity of the police officers, police exercise systematic self-inspection under the supervisionof national and prefectural level public safety commissions. The police also disclose information concerning police
misconduct to the public, laying itself open to public criticism.
D. Latest Challenges
It is becoming more and more difficult to conduct criminal investigation successfully because of the challenges
mentioned below. The clearance rate of crimes continues to decrease. In order to fulfill the responsibility as a primary
investigation authority and to meet citizen’s expectations in maintaining safety on the streets, the police have to copewith many challenges caused by the modernization of society.
1. Increasing Anonymity in Society
In modern society especially in big cities, the old fashioned sense of “community” does not exist any more. People
do not know nor care who is living next door. With such increasing anonymity in society, it is becoming more and moredifficult for police to find witnesses to crime. The police have to identify suspects relying on material evidence supported
by scientific analysis and gathered strictly following the due process of law.
In order to cope with this challenge, the Japanese police have been developing scientific capabilities for investigation,
which include fingerprint identification, footprint identification, photograph identification, analysis of minute object
gathered at the crime scene, and engagement of police sniffing dogs. More advanced forensic examination such as theexamination and analysis of bloodstains, hair, drugs and DNA are available at the Criminal Investigation Laboratory ineach Prefectural Police. Furthermore, at the national level, the National Research Institute of Police Science is promoting
the development of cutting edge science in support of police activities.
Attention has been also paid to the legal implication of utilizing modern technologies in investigation, with a viewto protect the due process of law and to avoid unintentionally violating human rights of crime suspects.
2. High-tech Crimes
High-tech crimes are increasing rapidly as Japan moves toward an information-oriented society. Computer hacking
grows in sophistication as quickly as new computer technology develops. Almost as soon as safeguards are establishedto protect data systems, criminals are finding ways to breach those safeguards. A perpetrator is generally anonymous andoften traces of an intrusion are difficult to detect. Not only is data pirated but also damage to multiple systems can beachieved through a single intrusion using a “virus” that can spread from one computer to another indiscriminately. In
addition, due to the international nature of the Internet and other web-based networks, cross-border intrusions occur ona frequent basis.
Besides computer intrusions, analysis of data stored on computer hard drives, in peripheral components, onelectromagnetic data storage disks, is becoming a critical aspect in the investigative process.
In the course of investigating high-tech crime, data retrieval is often difficult, especially if the data has been encrypted,
deleted or destroyed. The National Police Agency established the High-tech Crime Technology Division to provide
technical support to the prefectural police involved in high-tech crime investigation.
3. Internationalization of Society
Recent technology has enhanced transnational trade, commerce and transportation. Consequently, criminal activities
such as terrorism, transnational organized crime and money laundering have flourished by this globalization. The rapid
development of information technology has also created a borderless cyber space. Criminals can crack and attack computer
systems, commit Internet fraud, and deliver illegal contents through the Internet beyond national borders.
In the fight against transnational crimes, there should be neither safe havens nor loopholes for either criminals or
their illegal proceeds. In this regard, international cooperation among the law enforcement authorities is indispensable.
Accordingly, the National Police Agency actively participates in international forums such as the UN, Interpol, G8 and
FATF, which deal with these common issues throughout the world. The Agency is also promoting bi-lateral cooperation
with relevant authorities in neighboring countries.

146

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
E. Police Training
In order to maintain a reliable police force, individual police officers have to be trained properly in order to copewith the latest challenges. Training is vitally important in effective police management, and for maintaining high moral
standards of the individual officer. Thus, much time and resources are put into training programmes as follows.
1. Regular Training for Police Officers
Newly recruited prefectural police officers undergo a twenty one-month initial training programme at prefectural
police academies. When promoted to a new rank, police officers again receive training, six weeks for new police sergeantsand eight weeks for new assistant inspectors, so that they will be prepared for their new responsibilities.
2. Training of Police Managers
Officers promoted to the rank of police inspector enter the National Police Academy in Tokyo for a three or sixmonth training programme. They must master management and leadership skills and develop practical abilities to serve
as managers in the police activities in the field. The Academy also provides training for officers of the rank of police
superintendent to be prepared for assignments as the chief of police stations.
3. Training Specializing in Advanced Skills in Criminal Investigation
The National Police Academy also provides advanced training programmes for officers specializing in criminal
investigation activities and who are expected to play managerial roles in the operations. The curriculum includes
leadership, management skills and advanced techniques and technologies concerning criminal investigation.
III. COOPERATION BETWEEN THE POLICE AND THE PROSECUTORS
A. Cooperation in General
The police and the prosecutors cooperate closely and well in Japan. Police begin consulting with the prosecutors as
appropriate in the early stages of investigation, to establish close collaboration.
As previously mentioned, the positively stimulating relationship between the police and prosecutors in theircollaboration encourages each side to remain aware of the importance of each other’s responsibility. It is the aim of theJapanese criminal procedure that, in all stages of investigation, either police or prosecutors will exercise their authority
in paying due respect to each other’s responsibility.
1. For the Prosecution
As for the prosecution, the Code of Criminal Procedure empowers the prosecutors to make general suggestions to
the police, by setting forth standards for the essential requirements of criminal investigation needed to institute and support
public prosecution.
Various standards for investigation, after informal consultation with the police at the national level, have beensuggested by prosecutors and utilized in everyday-investigation.
2. For the Investigation of Prosecutors
As for the investigation of prosecutors, the Code of Criminal Procedure states that the prosecutors and police shallcooperate with each other in their investigations. Accordingly, the Code empowers prosecutors to issue general instructions
to the police to mediate conflicts over jurisdiction on certain cases among different law-enforcement authorities including
the prosecutors themselves. The Code also empowers the prosecutors, in the course of their own investigations, to instruct
the police to provide assistance.
B. Effective Screening of Cases in Collaboration with Prosecutors
1. Effective Clearance of Crimes Following the Due Process of Law
False criminal charges against innocent suspects should by all means be avoided, and those innocents should be
released from the scope of criminal investigations as early as possible. In this context, it should be pointed out that
effective identification of suspects based on reliable evidence gathered in the due process of law is one of the mostimportant screening methods in criminal procedure. With close collaboration with prosecutors, police are carrying out
this task as a matter of prime interest.

147

RESOURCE MATERIAL SERIES No. 60
2. Diversion of Minor Offenses Through a Simplified Process
Based on the general standards suggested by prosecutors, the police are disposing of certain minor property offenses
without referring to prosecutors. As for juvenile offenses, police refer certain minor offenses to prosecutors with certain
simplified procedures so that the offenses are diverted from the process of probation or conviction. Accordingly, thepolice play a major role in the early stage of screening minor offenses.
3. Collaboration with Prosecutors in Non-indictment Dispositions
In 1993, the National Police Agency prepared a bill to amend the Firearms Control Law so that the mitigation of, or
exemption from, criminal sanctions for the voluntary surrendering of illegal firearms was introduced. The bill was passed
in both houses of the Diet in the same year, and the motivation for illegal possessors to surrender their firearms to theappropriate authority was legislatively institutionalized.
To realize the aim of this amendment, the police are keeping close contact with prosecutors in handling such casesof voluntary surrender of firearms, and the prosecutors are exercising non-indictment disposition in many of such cases.
Such collaboration makes it possible to collect many illegal firearms and to reveal the illegal distribution chains. In theyear 2001, about 14 % of confiscated illegal firearms were those voluntarily surrendered.

148

EFFECTIVE ADMINISTRATION OF THE POLICE AND THE
PROSECUTION IN CRIMINAL JUSTICE IN MALAYSIA
Azmi Bin Ariffin*
I. INTRODUCTION
The fundamental principle underlying the criminal justice system in Malaysia is that an accused person is innocent
until proven guilty. Consonant with this principle, the criminal justice system of Malaysia provides various safeguards
to protect accused persons.
Some legislation, like the Dangerous Drugs Act and the Anti Corruption Act, contains certain statutory presumptions
that can be invoked against the accused. Thus, when a person is charged for an offence under these laws, the burden isshifted on to the accused to rebut the presumptions.
The criminal justice system in Malaysia also ensures that a person who is guilty of an offence is punished in accordancewith the law. It is also in the public interest that the police force maintains law and order in the country.
The duty to investigate an offence is with the police, and the duty to decide whether a person ought to be charged
lies with the Attorney-General, who is also the Public Prosecutor. Lawyers bears the duty to defend an accused person
and the court adjudicates.
II. THE SYSTEM OF ADMINISTRATION OF CRIMINAL JUSTICE IN MALAYSIA
In the realm of administration of criminal justice in Malaysia, the approach is two pronged. They are Investigationof crimes and Prosecution of criminal cases in court. The investigation of crimes is the responsibility of the enforcement
agencies, namely, the Royal Malaysian Police, Anti Corruption Agency, Royal Customs and Excise, Securities
Commission, Central Bank of Malaysia etc. whilst prosecution is solely in the hands of the Attorney General, who has
the power exercisable at her discretion to institute, conduct or discontinue any criminal proceedings.
The general law governing investigation is the Criminal Procedure Code [Act 593]. Apart from that there are otherspecial laws governing investigation, namely, Anti Corruption Act 1997 [Act 575], Securities Commission Act 1993
[Act 498], Securities Industry Act 1983 [Act 280], Banking and Financial Institutions Act 1989 [Act 372], etc. The law
enables investigators inter alia, to trace and apprehend offenders, gather oral and documentary evidence for purposes of
proof of an offence in court.
In terms of prosecution, the power is bestowed upon the Attorney General. This is categorically spelt out in theFederal Constitution, which is the supreme law of Malaysia. Clause 3 of Article 145 of the Federal Constitution provides
that the Attorney General shall have the power, exercisable at her discretion, to institute, conduct or discontinue any
criminal prosecution. Further subsection 1 of section 376 of the Criminal Procedure Code provides that the Attorney
General shall be the Public Prosecutor who shall have control and direction of all criminal prosecutions. In the exerciseof her discretion, the Attorney General is empowered to act of her own accord and is not subject to any control. The
general principles that the Attorney General must, in performing her duties, act in the public interest applies with particularforce to her powers under clause 3 of Article 145.
Nevertheless, the discretion by the Attorney General can only be exercised based on the outcome of the investigation
undertaken by the relevant enforcement agency. Upon receipt of the result of investigation from the enforcement agency,
the Attorney General will decide whether to institute prosecution against a perpetrator of crime. In arriving at the saiddecision the Attorney General is always guided by legal principles. Public interest shall also be the paramountconsideration.

* Deputy Public Prosecutor,State Legal Advisor’s Office,Kelantan,
Malaysia

149

RESOURCE MATERIAL SERIES No. 60
III. CURRENT LAWS, REGULATIONS AND DIRECTIVES GOVERNING THE CONDUCT OF
PROSECUTORS
A. Laws And Regulations
1. The Federal Constitution of Malaysia, the Supreme Law(i) Clause 3 of Article 145• The prosecutor may institute and conduct any proceedings for a criminal offence.
• May discontinue criminal proceedings that are instituted.
• May amend a charge at any point of time during the conduct of a prosecution, if there is proper basis.
• Courts cannot compel the Attorney General to institute prosecution which he does not intend to institute or toproceed with any criminal proceedings which are to be discontinued.
• Courts cannot compel the Attorney General to enhance a charge when he is content to proceed on a lesser
charge.
(ii) Clause (1) of Article 5• No person shall be deprived of his life or personal liberty save in accordance with law.
Prosecutors are to ensure that this fundamental liberty is strictly observed.
(iii) Article 7• No person shall be punished for an act or omission which was not punishable by law when it was not done or
made, and no person shall suffer greater punishment for an offence that was prescribed by law at the time it wascommitted.
• A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except
where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he
was acquitted or convicted.
Prosecutors are to observe the above principle against double jeopardy before making a decision to prosecute.
(iv) Article 8• All persons are equal before the law and entitled to the equal protection of the law.
Prosecutors are to observe this principle of equality before the law before embarking on a decision to prosecute. The
principle underlying Article 8 is that law must operate alike on all persons under like circumstances, not simply that it
must operate alike on all persons in any circumstance, nor that it must be general in character and universal in applicationand that the State is no longer to have the power of distinguishing and classifying persons for the purpose of legislation.
(v) Article 121• A prosecutor has to ensure compliance with this Constitutional provision which caters for the judicial power
vested in the various courts in the country.
• Together with this provision, a prosecutor’s role in instituting criminal prosecution is regulated by the other laws
made pursuant to the Federal Constitution with regards to the jurisdiction and workings of the superior andinferior courts. Examples of such legislation are Courts of Judicature Act 1964 [Act 91], Rules of the Federal
Court 1980 [P.U. (A) 33], Rules of the Court of Appeal 1994 [P.U. (A) 524], Rules of the High Court 1980 [P.U.
(A) 50], Subordinate Courts Act 1948 [Act 92], Subordinate Courts Rules Act 1955 [Act 55] and theSubordinate Courts Rules 1980 [P.U. (A) 328]
• The jurisdiction of the criminal courts has to be in consonance with the penal provisions providing for theparticular offence.

150

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
2. Criminal Procedure Code and other Written Law Governing the Procedure for the Manner or Place of Inquiring
into or Trying of the Relevant Offences• A prosecutor has to be fully appraised of the provisions of these laws. These laws regulate the prosecution of
offences in a court of law.
3. Evidence Act 1950 [Act 56]• This Act defines the law of evidence. The basic analysis of the process of criminal prosecution expresses theneed for an understanding of the law of evidence.
• Evidence may be defined as material which persuades the court of the truth or probability of some fact asserted
before it.
• Hence the need for a prosecutor to appraise of the mechanics of the law of evidence in order to convince thecourt to receive and admit a piece of evidence.
• For a prosecutor evidence must be seen not only in the context of the mechanics by which it is to be presented,
but first and foremost, in the context of the law which allows the evidence to be tendered/adduced.
4. Directives
Public Prosecutor’s Directives made from time to time to regulate manner and conduct of prosecutions in court.
IV. THE PROSECUTION DIVISION OF THE ATTORNEY GENERAL’S CHAMBERS
In exercising the prosecutorial discretion, the Attorney-General functions via the Prosecution Division of his
Chambers. The Division is headed by a Senior Deputy Public Prosecutor (SDPP), deputized by also another SDPP.
Complementing them are Deputy Public Prosecutors (DPPs) and Assistant Public Prosecutors (APPs). They are fit andproper persons appointed by the Public Prosecutor, and at all times under the general control and direction of the Public
Prosecutor. They exercise all or any of the rights or powers exercisable by the Public Prosecutor except rights and powers
which are to be exercised by the Public Prosecutor personally.
The Prosecution Division comprises the Headquarters Unit and the State Prosecution Units. There are twelve (12)State Prosecution Units. The Headquarters Unit comprises the following sub units:•

Appeals•

Research and International Criminal Law•

Classified and Sexual Crimes•

Commercial Crimes•

Narcotics and Forfeiture of Property

Apart from the above, there are also Deputy Public Prosecutors assigned to the Anti Corruption Agency, Royal
Customs and Excise Department, Securities Commission and Central Bank of Malaysia. The SDPPs, DPPs and APPs
appear in all courts in the country to conduct prosecution. There are also prosecuting officers from inter alia the Royal
Malaysian Police, Royal Customs and Excise Department, Ministry of Domestic Trade and Industry, Securities
Commission, Central Bank of Malaysia, who appears in court to conduct prosecution. Apart from the SDPPs, DPPs andthe APPs the other prosecution officers are authorized in writing by the Public Prosecutor to appear in a court to conduct
prosecutions. Administratively, the Headquarters Unit of the Division monitors and supervises the various prosecution
units in the country. It is also responsible for the formulation of prosecution policies nationwide.
V. POLICE INVESTIGATIONS
The police, as an investigating agency, is generally empowered under the Police Act 1967 to investigate thecommission of any offence and to apprehend the suspect(s) responsible. The Criminal Procedure Code spells out in detailthe procedure for investigating all offences and the manner and place of trying offences.

151

RESOURCE MATERIAL SERIES No. 60
The preliminary investigation of any offence is carried out by the police. Such investigation may commerce either
as a consequence of a complaint received for an offence alleged to have been committed, or in certain circumstances asa result of information obtained by the police. Upon completion of investigation, the relevant Investigation paper is sent
to the Attorney-General’s Chambers. The Deputy Public Prosecutor will study the relevant investigation paper submitted
by the police. If he is satisfied that sufficient evidence is available to prosecute a person for a particular offence, then hewill direct prosecution. A charge is then framed against the suspect.
VI. THE ROLE OF PROSECUTORS IN CRIMINAL INVESTIGATIONS
Prosecutors are hired to represent the rakyat and to act as the people’s advocate. But prosecutors fulfill a second,
equally important function. An honest prosecutor is the strongest fortress and protection for the integrity of the Federal
Constitution. The role of a prosecutor, then, serves two masters. First, the prosecutor has an obligation to attempt topresent evidence to courts advocating the people’s position, upholding the law, and obtaining convictions for violationsof the law. Second, and no less importantly, the prosecutor has an obligation to ensure proper and candid investigationof crime. Where it appears that the investigation has violated the constitutional rights of suspects, the prosecutor then has
an obligation to the public to take whatever action is necessary and appropriate to remedy those violations of individual
rights. This is called prosecutorial discretion. Prosecutorial discretion may also include the power to conduct a prosecution,
to prefer a charge, to proceed with multiple offences, to make submissions, to withdraw charges and powers to appeal.
The crucial decision which has to be made by prosecutors having conduct of criminal cases, is as to whether or nota charge should be preferred. Naturally the degree of importance depends to some extent on the gravity of the offence
but a wrong decision either way can have disastrous consequences affecting not only the suspect but, in certain
circumstances, the whole community. If a guilty man is not prosecuted, he may go on to cause untold further harm; yet
if an innocent man is prosecuted, he and his family may be seriously affected even if the offence is comparatively minor
and he is ultimately acquitted.
The prosecutor must not act as a private attorney on behalf of victims of crime, but rather, as an objective advocate
on behalf of the interests of the society itself and all the people.
The paramount purpose of prosecution is the attainment of justice and to ensure that in the interest of justice theaccused is punished for the crime he has committed.
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay
before a judge what the prosecution considers to be credible evidence relevant to the alleged crime. Prosecutors have aduty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate
strength, but it must also be done fairly.
The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty. It is tobe efficiently performed with an ingrained sense of dignity, bearing in mind the seriousness of the offence and the justnessof judicial proceedings.
When a courtroom setting is adversarial, the prosecutor must ensure that the criminal justice system functions in amanner that is scrupulously fair. Justice is an ideal that requires strict adherence to the principles of fairness and impartiality.
The prosecutor as the representative of the State is responsible for seeing that the system for law enforcement works fairly.
In the exercise of their prosecutorial discretion Prosecutors are expected:•

To act in the exercise of any prosecutorial function including the exercise of discretion, fairly and dispassionately;•

To act in the spirit to seek justice, not merely to obtain a conviction and to present to the court in a firm and fairmanner evidence that the lawyer considers to be credible and relevant;•Not to prevent or impede one charged with an offence or in peril of such a charge from being represented by counsel
or from communicating at reasonable times with counsel;•

To ensure that the right person is prosecuted for the right offence and that all relevant and admissible evidence istendered in court.

152

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS•

To be fair minded and independent. Decisions made must be free and not biased or tending on race, creed or religion
nor affected by improper or undue pressure from any quarters.

•

To review evidence and decisions from time to time, so that prosecutors can take into account any change incircumstances. Upon review prosecutors can advise on further investigations, if necessary or may decide to amend
the charges or discontinue prosecution.

•

To be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against an accused on aparticular charge. They must consider what the defense case is/may be and how it is likely to affect the prosecution case.

•

When deciding whether there is sufficient evidence to prosecute, to scrutinize the reliability and admissibility of such
evidence. There may be instances in which the evidence may not be as strong as it first appears. In such instances,prosecutors must ask themselves the following questions:
Can the evidence be used in court?
•

Is it likely for the evidence to be excluded by the court?

•

There are certain legal rules which disallows relevant evidence to be adduced at the trial. For example, is it
likely that the evidence will be excluded because of the way in which it was gathered or because of the ruleagainst hearsay evidence?

•

If so, is there other sufficient evidence for a realistic prospect of conviction?

Is the evidence credible?
•

Is it likely that a confession is unreliable?

•

Is the witness background likely to weaken the prosecution case? This may involve treatment of evidence of an
accomplice, hostile witnesses etc.

•

Having satisfied that the evidence itself can justify criminal prosecution, the prosecutor must then consider
whether public interest demands prosecution. The public interest criteria that can affect the decision toprosecute depend on the seriousness of the offence or the circumstances of the offender. Regard must be had tothe effect the prosecution, would have upon public morale and order, and on other matters affecting public
policy. Some factors may increase the need to prosecute but others may suggest that another course of action
would be more appropriate. Such a course of action may include disciplinary action.

•

To ensure sufficient copies of documents such as bank statements, resolutions, and other documents should be madeavailable to be given to the opponents and the court as and when the originals are tendered in court. This step too
will avoid unnecessary delay of a criminal trial.

•

Not to initiate or indulge in unilateral communications with the court concerning the matter currently before the court
without the consent of all other counsel involved or the accused, if unrepresented. Delivery of pre-trial memoranda
or other material to the court without contemporaneously making reasonable efforts to forward it to other counsel orthe accused, if unrepresented, is a violation of this duty.

•

Not to negotiate and recommend a plea agreement if the defense, by such an agreement, is obliged to plead guilty to
an offence or charge not reasonably supported by the facts.

•

To take extra caution when engaging in discussions with defense counsel pertaining to the prosecution at hand. This
will ensure that the prosecution is not jeopardized in any way.

•

To conduct themselves professionally in all their undertakings. They are required to comply with the highest standardsof morality and integrity. They must comply with all laws and regulations with regard to their conduct as a public
officer.

153

RESOURCE MATERIAL SERIES No. 60
In Malaysia prosecutors are not investigators. They are not involved in criminal investigation because they cannot
investigate crimes on their own. In term of the investigation the prosecutors’ role only extend to the following matters:•

To hold consultative meetings with investigating officers periodically. The purpose is to manage and eventually
solved any problems faced by investigating officers with regard to criminal investigation. By clarifying and analyzing
the actual situation and problems, prosecutors may advise the Investigating officer on their respective investigation.

•

To scrutinize the Investigation papers thoroughly and to decide whether or not to prosecute the suspect based on theevidence available.

•

To give legal advice and instructions to the police to connect certain facts in issue so as to complete the chain ofevidence. This is for the purpose of proof in the court of law.

•

To advise on further investigation so as to ensure that the prosecution has sufficient evidence.

•

Not to coach witnesses or fabricate evidence with the sole intent of procuring a conviction. Liaison with witnesses
must be through the Investigating Officers. This will avoid any form of aspersions on the prosecutors. With regard
to commercial fraud cases, prosecutors can seek clarification from bankers and other expert witnesses, with the sole
purpose of an insight understanding of the mechanics of the system in which fraud has been perpetrated. This will
facilitate prosecutors whilst examining such witnesses.
VII. COOPERATION BETWEEN THE POLICE AND THE PROSECUTORSThe police and prosecutors play an important role in the administration of criminal justice in the country. The police
use their skill, largely derived from training and experience when conducting investigation of crimes. They initiate thecriminal justice process when they set the investigation process in motion. The investigation process involves gatheringof evidence, recording statements from witnesses and apprehending suspects.
Prosecutors rely on the evidence gathered by the police to obtain a conviction against an accused person in a courtof law. Save for non-seizable offences, wherein a prosecutor may order for investigation to be carried out, investigationof crimes is not within the realm of the prosecutors.
It is at this juncture the cooperation between the police and the prosecutors is necessary. Upon completion of aninvestigation, the police refer the Investigation paper to the prosecutor, who is in a position to advise the police on further
investigation, if necessary. This is beneficial to both the police and the prosecutor. The advice rendered may tantamountto concretizing the evidence available for purposes of proof in a court of law and ultimately to obtain a conviction. In theabsence of such advice, the evidence gathered may fall short of concrete proof in a court of law, tending to an acquittalof an accused person. This may well result in a miscarriage of justice, as the accused person is purely acquitted on technicalgrounds, although he may have been criminally culpable. Thus cooperation in such a form of discourse is paramount tomeet the ends of justice. This illustrates the bondage shared by both the police and prosecutor will the ultimate aim of
securing justice.
Criminal investigation essentially involve statements from witnesses, real evidence in the form of property, document
and other implements of criminal activity which may complement the statements of witnesses. It is normal for certain
material and relevant witnesses not traceable. These witnesses may be essential to connect the accused with the crime.
The availability of those witnesses may also ensure completion of the chain of evidence, essential for proof of the offence
committed by the accused person in a court of law.
The prosecution may have to proceed with its case in the absence of those witnesses. This is consonant with theprovisions of the Malaysian Evidence Act which allows the prosecution to put in statements written or verbal made bya person who is dead or who cannot be found or who has become incapable of giving evidence, or whose attendancecannot be procured without an amount of delay or expense. In receiving this evidence, the court may be circumspect,since the maker of the statements are not available for cross-examination. In this regard the cooperation of the police isnecessary so as to ensure that proper attempts are made to trace the witnesses. Evidence of the attempts is necessary
before the prosecutor can convince the court to have the evidence admitted as otherwise an adverse presumption may be
drawn against the prosecutor for withholding evidence.

154

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
VIII. ARBITRARY POLITICAL AND EXTERNAL INFLUENCE(i)

The Attorney General decides to prosecute based on evidence available and submitted in the form of an
Investigation Paper by the relevant enforcement agency, be it by the Police or the Anti Corruption Agency. The
decision is made notwithstanding the fact that the accused person may be a leader of the ruling party, opposition
party, a top civil servant or even a leading corporate figure in the country.

(ii)

If the investigation reveals insufficient evidence to prosecute the suspect, the Attorney General will choose notto prosecute.

(iii) It is a policy that a decision to prosecute is made based only the evidence available and no person enjoys any
form of immunity from prosecution. The decision is also not influenced by any form of arbitrary factors be it
political or any other extraneous matters. The decision to prosecute is solely legal, with public interest as theparamount consideration.

155

RESOURCE MATERIAL SERIES No. 60
IX. EFFECTIVE CASE SCREENING BY PROSECUTOROR OTHER COMPETENT AGENCIES
Movement of the Police Investigation Papers
Commission of Offence↓
Report Lodged↓
Police Investigation and Arrest↓
Investigation Papers Send to Senior Investigation Officer (SIO)↓
Investigation Papers Send to OCCI
↓
DPP
↓
A-G
(Public Interest Case)
Positive: To certain extent the case screening is good because no innocent person is charged.
Negative: There may be an element of delay in the decision making process.
Counter measures to improve case screening (police)
Report lodged↓
IO open IP↓
IP send to OCCI↓DPP
X. OTHER RELEVANT ENFORCEMENT AGENCIES
Example: (i) Anti Corruption Agency(ii) Royal Customs and Excise Departments(iii) Securities Commission

156

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS(iv) Central Bank of Malaysia
There are Deputy Public Prosecutors assigned to these four agencies. All investigation papers investigated by theseagencies will be submitted to the DPP’s of that particular agencies for direction or decision.

157

EFFECTIVE ADMINISTRATION OF THE POLICE AND PROSECUTION IN
CRIMINAL JUSTICE OF PAPUA NEW GUINEAJohn Maru*
The criminal justice system of any society depends very much on the thorough, efficient and effective functioningof its pillars that are involved in the dispensation of justice.
As these pillars are separate entities the efficiency and effectiveness of one can easily be hampered by the inefficiency
and incompetence of the other. Therefore in order for the system to operate smoothly, co-operation, coordination andconcerted efforts of the pillars, namely the police, the prosecutors, the judiciary as well as the correctional services isnecessary.
Unfortunately this is easier said than done especially in a country like Papua New Guinea (PNG) where thegovernmental agencies are beset by financial, technological and other institutional restraints and where the citizenry are
increasingly becoming alienated from each other.
I. SEPARATION OF POWERSThe Constitution of PNG divides the government into three equal and coordinated branches, namely the legislative,
executive and the judiciary, each of which is supreme within their respective spheres. Neither of them may encroach
upon the function or domain of the other.
The law-making function is lodged with the National Parliament of PNG, whose members are elected by the peopleof the whole country. The executive function whose duty it is to enforce the laws falls on the Prime Minister of thecountry. It is to the Supreme Court and the other courts created by law that the judicial functions are lodged.
Among these three branches, those that are directly involved in the administration of justice are the executive branchthrough the police and the other numerous law enforcement and prosecution agencies, as well the correctional institutions,and the judiciary.
The agency that is primarily in charge of law enforcement is the Royal Papua New Guinea Constabulary and thecontrol comes under the Minister for Police in political matters and the Commissioner of Police for all its day-to-day
operational requirements.
The Public Prosecutor’s office is the principal agency in charge of the prosecution of offenders and comes under thecontrol of the Minister for Justice. There is however, a unique agency of the government, which is the Office of the
Ombudsman, charged with the investigation and prosecution of certain crimes involving public officials or those connectedwith the performance of public functions.
II. THE FIVE PILLARS OF THE CRIMINAL JUSTICE SYSTEM
A. The Law Enforcement
The law enforcers are at the forefront of the criminal justice system of the country. They are the ones that directly
deal with the citizens and are directly exposed to the criminal elements. There is, therefore, the necessity for the membersof these law enforcement agencies to be well oriented with, and trained in the ways of the civil society.
Thus, the Royal PNG Constabulary is charged with the duties of crime prevention, law enforcement, preservationof peace and order, and as well as the internal security of the government of the day.

* Director Prosecution,
Royal Papua New Guinea Constabulary,
Papua New Guinea

158120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
Also within the police organizations, there is an Internal Affairs directorate tasked with the investigations of complaints
against erring officers. The efficiency and effectiveness of this directorate help polish the image of the police organization
as a body that people can rely on.
B. The Public Prosecutor
The prosecution function is lodged mainly with the Public Prosecutor’s office, under Department of Justice. It is
composed of the Public Prosecutor’s office, regional and provincial prosecutor’s offices. The Office of Public Prosecutor
has the following functions:
a)
b)
c)

Receive files from law enforcement and other investigative bodies and prosecute crimes
Decide appeals from decisions of the regional and provincial prosecutors
Investigate administrative charges against prosecutors

The regional and provincial prosecutor’s office is charged with the administrative task of supervising and coordinatingprosecutions within the region and the provinces.
There has been innovations instituted by the prosecution department with regard to the handling of cases involving
different crimes, particularly in terms of specialization in the handling of criminal cases, however dire shortages of
manpower experienced by the department, has had prosecutors handling variety of criminal matters as they become
available. This has led to prosecutors being assigned cases that they are not familiar with, particularly the intricacies andstrategies in handling of such cases.
The Public Prosecutor is also involved in special cases that are referred from the Office of the Ombudsman. The
office of the Ombudsman is created under the Constitution of PNG and is independent of the executive branch of thegovernment. This office is mandated among others, to investigate and refer to the prosecutor’s office cases involving
public officials and employees who have committed crimes in relation to their employment. It is because of this functionthat its independence is of paramount importance - reason being to insulate it from the political branches of the government.
The other agency is the Electoral Commission. This agency is charged with the investigation and the enforcementof all election related matters. Matters related to electoral offences are also referred to the public prosecutor’s office fordetermination as to whether or not offenders be charged or prosecuted. This office is also independent of the three mainbranches of the government.
There is also an Office of the Public Solicitor. They are paid by the government to provide legal assistance to thegeneral public who cannot afford to pay their own legal costs. Financial and other institutional restraints like staff shortages,
however limits the number of the cases defended by this office. Accordingly the Public Solicitor is quite stringent as towhich cases are to be defended. Their setup in the regional and provincial level is similar to that of the Public Prosecutors.
There are also institutions or individuals outside the government that are offering legal assistance to the needy, likethe PNG Law society and the legal aid programmes of the law school at University of PNG.
These benevolent institutions and the individuals help immensely in the administration of justice, as they facilitate
the disposition of cases before the prosecutors or the courts and safeguard the constitutional rights of their clients.
C. The Judiciary
The judiciary is the final arbiter of controversies, of competing claims and interests, including the determination of
guilt or innocence of a person charged with the commission of a crime. The judiciary in PNG is composed of a Supreme
Court, which is at the top of the hierarchy, and the other courts created by law.
The judiciary is independent and has it’s own fiscal autonomy. The Chief Justice is charged with the responsibility
to oversee its functions. The executive branch of the government appoints the members of the bench with the Prime
Minister of PNG as the chairman. The Judges are only removable from office by a serious breach and conviction of a
culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.
The other courts are the National Court, District Courts, Local Courts, village courts and the ‘special courts’. Dueto the diverse nature of the country with its many cultures and a little over 700 different language groups, there is acombination of traditional and imported court systems.

159

RESOURCE MATERIAL SERIES No. 60
The Supreme Court, the National Court, and the District Courts are based on European models and have many formal
rules. Appearances at these courts normally require assistance of lawyers to present arguments because of the laws andthe legal procedures involved. The Local Courts and Village Courts however are more informal and are intended to deal
with customary complaints between citizens.
Village Courts normally take cares of problems of 5 or 6 nearby villages or settlements. The magistrate is normallya local resident appointed by the people of the area covered by the court. The aim is to have people settle local disputes
in their own way.
Then we have the Special Courts. These courts have limited powers. Examples of these courts are: Land courts,
Juvenile courts, Coroners court, Wardens court and finally the Court of Disputed Returns.
D. Correctional Institutions
The agencies involved in the punishment of convicts fall under the Ministry of Correctional Services. The
Commissioner of Corrective Services is charged with the operational and administrative responsibilities of the services.
E. The Community
The members of the community also play a very important role in the criminal justice system. It is from their ranks
that the offenders come and it is with them that they will end up. The involvement of these people in the programmes
and projects of the government, even those that are not necessarily connected with the administration of justice, contributeto the lessening of crimes, as their efforts are diverted to more productive matters. They can also contribute immensely
in solving crimes by assisting police in investigations, giving testimonies, providing leads and the arrests of criminals.
Included as part of the communities are government agencies not involved with the administration of justice, as well as
the members of the private sectors.
III. PROCEDURES IN THE ADMINISTRATION OF JUSTICE IN PNG
Majority of the crimes committed in main urban centers of PNG are property related. Car jacking, break-enter andstealing, and armed robberies top the country’s list everyday. Rapes, murders and drugs related matters are also common
occurrences.
Regardless however of the types of the crimes committed, be they heinous, serious or light, the procedure for theinvestigation, prosecution and trial of the cases is more or less the same, except for those triable under the rules of summary
procedures.
A. The Law Enforcement Process
The enforcement process begins the moment the crime is reported or a complaint is filed before the police. The policethen conduct an investigation of the crime, take testimonies of witnesses, collect available evidences and take steps toapprehend the offender.
In cases where the police in the act of committing the crime, attempting to commit or having just committed theoffence catch the offender, the suspect is detained. The arresting officer than decides if a crime has been committed ornot. If he is satisfied than he/she prepares the appropriate paper work and information to have suspect processed.
If on the other hand there exists some doubt as to the proof of his case, then the member has to arrange for the releaseof the suspect. The decision as to whether or not to charge is made on the ground by the general duty members attending
to complaints or CID members following a case.
If in the event that a decision to charge has been taken, then appropriate paper works or the complete file is thenforwarded on to the prosecution section of the police Force who will then have suspect arraigned the next (working) day
at a courthouse.
B. The Prosecution Process
Once the investigating officer is through with the investigation of his case, he forwards his findings to the OIC ofthe police prosecution unit for the proper procedures. If the OIC is satisfied with the file, the matter is then filed at the
courthouse. Police prosecutors handle all minor criminal matters at the local or the district court level. Serious criminal
matters are normally referred as an ‘hand-up briefs’ through a grade 5 District court magistrate to the Public Prosecutor’s

160

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
office for election as to whether the matter be referred to a National court for a trial. If the public prosecutor is of theopinion that the matter can be tried successfully at the National court his office takes over the file and his aides handle
the matter.
C. The Judicial Process
Criminal matters in PNG are cited as The STATE versus (name of the accused). Once the Public Prosecutor’s officetakes carriage of the matter it is then filed at the National Court with a date set for the arraignment of the accused. At theset date the charges are read to the accused that then takes a plea. If he pleas guilty the matter is concluded without aprolonged trial, however if the accused pleas not guilty, then the matter is adjourned for a date where the trial will takeplace with appropriate witnesses from both sides in place to give their testimonies.
During the adjournment period normally a Pre-Trial conference (PTC) takes place between the prosecutor and theaccused’s counsel to sort out all the minor details so that a speedy trial will ensure at the date of trial. Matters dealt withand agreed upon at the PTC are inadmissible as evidence against the accused. Unless the same is reduced to writing andsigned by the accused and their counsel. Many judges are particular about PTCs and its importance and therefore nonattendance to a PTC by counsels can become a subject for sanction at the discretion of the Judge.
At the trial the prosecution witnesses are individually dealt with first and cross examined by the defence counsel,
followed by re-examination by the prosecutor. After all the prosecution witnesses have been through, the defence brings
his witnesses to the box after the accused had given his side of the story. Defence witnesses are then cross examined by
the prosecutor, followed by re examination by the defence counsel should there be any damage caused by the crossexamination.
After the judge has heard all the witnesses from both sides, submissions are made by both the prosecution and thedefence. The matter is normally adjourned at this stage for a decision to be made by the judge.
During the trial rules of evidence is of paramount importance. PNG has not yet gone into the use of technology inthe courtroom but several systems have been looked at, which will no doubt speed up trials because accused do not need
to be personally in the court room to have their matters heard. This will no doubt save the judiciary system a lot of timeand monies in moving prisoners from one location to another.
D. Remedies For The Accused
When the court finds that the evidence against the accused is insufficient to convict, the accused is acquitted and noaccusation based on the same act(s) can be filed against him, nor can any appeal be therefrom because of the principleof double jeopardy.
If on the other hand the court is satisfied beyond reasonable doubt with the evidence presented to him by theprosecution, he will convict the accused and sentenced him accordingly after the counsels have addressed on the sentence.
The accused has a right to appeal to the Supreme Court on the following grounds:a)b)that errors of law or irregularities have been committed during the trial prejudicial to the substantial rights of theaccused.
that new and material evidence has been discovered which the accused could not, with reasonable diligence, havediscovered and produced at the trial, and which if introduced and admitted, would probably change the judgmentof the court.

E. Inefficiency in Court Proceedings
The following have been identified to be the cause for delays:
a)
b)
c)
d)
e)

Increase in number of cases filed at courts due to the general population becoming more aware of their legal
rights.
Lack of courts and slowness in filling up vacancies on the bench.
Budget allocations by the government do not meet needs.
The complexity of the rules of the procedure.
Failure in the cooperation of court related agencies

161

RESOURCE MATERIAL SERIES No. 60
F. Overcrowding of Jails
As the National and the Supreme Court diaries become increasingly filled with backlog of cases from the past years,
the jails throughout the country are beginning to overcrowd into dangerous proportions.
In the last few years there has been a numerous breakouts from jails through out the country, with the latest one in
June/July of last year 2001, where little over fifty prisoners dashed for freedom from an overcrowded jail just outside of
the country’s capital city. At the time of this writing less than 15 escapees from this breakout have been recaptured. Someof those still at large are hardcore and quite notorious criminals.
Constant requests to the government from the police, the public prosecutor, the judiciary and the correctional services
for additional funding to meet respective needs have fallen by the wayside. This has not been by choice. The governmentof PNG in the last 10 years or so has been faced with some trying economical situations. During these times many
departments had huge financial cuts in their budget allocations and had to make do with whatever was allocated. The
effects of these are now becoming apparent.
G. Strategies
Towards the end of last year (2001) representatives from all the pillars of criminal justice system met at various
locations to discuss strategies as to how to deal with the concerns of overcrowding jails, the Constitutional rights
infringements, the health concerns and mass breakouts resulting therefrom.
The following matters were raised:
a)
b)
c)

d)
e)

f)

g)
h)

Unnecessary arrests for trivial matters. The police through the appropriate commanders to bring to the attention of
their men and women to use more discretion in assessing situations before arrests are made.
Police Bails. Discretion on police bails should be encouraged wherever possible except for serious crimes.
Court Bails. Courts have been overly concerned at the number of absconders and have on many occasions issued
warrant of arrests, even in minor matters, rather then just having the bail forfeited. These have resulted in creating
backlog of cases all listed on the court diaries. In the event that the absconder is arrested he is remanded incustody for lengthy period of time waiting for his matter to come to court. Courts are encouraged to use discretion
particularly in minor and trivial matters.
Mediation. Police and courts to encourage mediation between parties to have matter dealt with according tocustoms to prevent workload for police, courts and the overcrowding of jails.
Indictable offences. In many instances police are to eager to have person arrested even before adequate evidence
is collected, resulting in suspects remanded for lengthy periods awaiting his file to be completed. Police
commanders to advise men to stop this illegal practice.
Indictable offences that can be tried summarily. District Court magistrates should use more discretion to havematters, which in their opinion can be dealt with in their court, finalized at the time it comes before them rather
than referring it to a committal court. They can take a plea so that the file is referred immediately to the publicprosecutor’s office for election, rather than await going before a grade 5-committal hearing, which could takemonths. Chief magistrate is tasked to discuss with his lower court magistrates.
Election responsibilities. This task is delegated by the public prosecutor to the senior police prosecutors toalleviate workload on his office.
Sentencing of prisoners. Magistrates should look at alternatives forms of punishment rather than having every
convicted offender for minor offences sent to jail. Community services or other informal punishment at thesupervision of police station commanders could be looked at.

H. Recommendationsa) Decriminalise some minor offencesb) Encourage out of court settlements such as mediation, counseling.
c) Police training to include mediation and counseling techniques.
d) Police to improve system of adjudication of court files to ensure sufficient evidence is on hand before charges arelaid.
e) Current procedure of issuing certificate of election be delegated to senior police prosecutors.
f)
Police and courts to encourage bails.
g) Call over and PTC between magistrates and counsels be introduced in lower courts.
h) Custodial sentencing to be discouraged for minor offences, particularly, first time offenders.
i)
Separate jail facilities for remandees and convicted prisoners.

162

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
IV. CONCLUSION
As in any emerging society, our democracy cannot work unless the rule of law is objectively and impartially observed.
If the government do not themselves observe the rule of law, then our society is headed for disaster.
I believe that it is up to us, the disciplines that form the pillars of the criminal justice of our society. Our cooperation
with each other, regardless of the hard economical times that we are going through in limited resources, from finances
to manpower to infrastructures, absolute cooperation, coordination and concerted efforts will get us there.
I believe PNG is heading in the right direction by coming together to discuss its criminal justice issues and I lookforward to be part of that team.

163

EFFECTIVE ADMINISTRATION OF THE POLICE AND PROSECUTION IN
CRIMINAL JUSTICE:
THE PRACTICE AND EXPERIENCE OF THE UNITED REPUBLIC OF TANZANIA
Laurean Mutahunwa Tibasana*
I. INTRODUCTION
The goal and principal objective of any criminal justice system is the effective and efficient delivery of justice. The
Administration of the Police and Prosecution, central players, in the justice delivery system must be guided by the cardinalmaxim that justice must be manifestly seen to be done at all times. This principle however is more easily stated thanapplied to a set of facts in a given case. A supposedly just outcome of a case could be viewed with criticism or open
controversy by different people. In developing countries where the principles governing the criminal justice system weremodeled on the practices and principles acceptable to the former colonial rulers, the criminal justice system, the laws andprinciples governing it may remain an incomprehensible complexity for the majority of the rural uneducated people. In
such a case it is more likely the perception of justice of such people would vary markedly from the official position. In
most jurisdictions the police or equivalent institutions have the monopoly of the investigative process mainly because
the bulk of crimes are reported to the police. In some jurisdictions the police in addition to investigation undertake theprosecution of suspects as in the case of Tanzania and some common law jurisdictions. Yet in other jurisdictions thefunctions of investigation and prosecution are carried out by different organs. In England and Wales where since theemergence of statutory police forces in 1829, the police until recent years, handled both the investigation and prosecutionof suspects; a constantly voiced criticism was that the police responsibility for investigation and prosecution could leadto over-vigorous and one sided preparation and conduct of prosecution (Hetherington 1989:4).
Since 1986, in England and Wales prosecution is the responsibility of an independent Crown Prosecution Agency
clearly separated from the investigative role of the police.
On the other hand the very role of prosecution does raise a number of issues. What role should a public prosecutor
play? Should he/she be an investigator in the sense that the prosecutor takes part in the investigation as well as theprosecution of offenders? Under the Inquisitorial System Prosecution Agencies routinely participate in investigations
alongside the police, a practice which would be frowned upon in common law (Adversary System) jurisdictions. A
legitimate question would be which system (Adversary/Inquisitorial) best responds to the delivery of justice? Is an
objective answer possible to this question?
These are but a few of the complex issues likely to arise when considering the investigative as well as prosecution
roles. We would be over-ambitions to promise to undertake a detailed examination of all of them. Though where wedeem fit some of them may be broached over, this paper has a more modest objective.
It sets out to examine the practice and experience of the United Republic of Tanzania in relation to the structuring,organization as well as management of two crucial processes in the justice delivery system namely the investigative andprosecution processes. In part one we discuss the functions of the Police in Tanzania as well as its administrative structure.
Since the police essentially deal with crime we also take some time off to examine the crime situation in the country
generally in order to acquaint ourselves with the magnitude of the task of dealing with crime which faces the police aswell as the citizens’ assessment and reaction to crime. Since our examination of the police organizational and administrative
structure points out some outstanding problems we address these in the final section of this part. In part two we examine
the investigation machinery of the police essentially exercised through its Criminal Investigation Department. We takea detailed look at the mandate of the Criminal Investigation Department as well as its place in the administrative structureof the Tanzania Police Force. The investigation of crime gives rise to complex issues and problems. We examine thesein the final section of this part.
Since the purpose of investigation is among other things to determine whether a prosecution will be instituted or not
we discuss the process of prosecutions in Part three of this paper. Here we have occasion to examine the central role of* Commissioner of Police Operations,
Training Tanzania Police Force,
Tanzania

164

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
the state in relation to criminal prosecutions, the control of public prosecutions by the Director of Public Prosecutions aswell as some inherent problems in the set up and execution of the prosecution process.
In the Tanzania set up the Public Prosecutors belong to and are employed by the investigative agency – the police
and are thus subject to the same disciplinary and supervisory control by their superiors like other police officers. In thiscontext it may be said to be more of a situation of interaction between the public prosecutor and the police officer
investigating a particular a case than that of co-operation between the prosecutor and the police where the assumption isthat the two belong to different agencies.
This unique position notwithstanding there are issues which merit consideration within the context of the set up. We
address these issues in Part Four of this paper which for want of a better term we reluctantly title co-operation between
the prosecutor and the investigator. This leads us to Part five where we briefly examine the question of independence
from arbitrary political and external influence or indeed the absence of it, where the process of investigation and prosecution
is concerned. Finally we attempt to weigh up a number of propositions in relation to the future of the criminal justicesystem in Tanzania.
II. THE POLICE: ITS FUNCTIONS AND ADMINISTRATIVE STRUCTURE
A. Functions
The Tanzania Police Force is a national police force. The functions of the Police Force are stated thus in the Police
Force Ordinance.
“The Force shall be employed in and throughout the United Republic for the preservation of peace, themaintenance of law and order, the prevention and detection of crime, the apprehension and guarding of offenders
and the protection of property, and for the performance of all such duties shall be entitled to carry arms.” (s.5 of
the Police Force Ordinance Cap.322).
The Inspector General of Police has overall command and superintendence of the Tanzania Police Force subject togeneral directions of the Minister for Home Affairs. In the administration of the Police Force the Inspector General isassisted by four Commissioners, heading the departments of: Administration and Finance, Operations and Training,
Criminal Investigation and the fourth commanding the Police force deployed in Zanzibar. For administrative purposes
Tanzania is divided into twenty five regions: twenty on Mainland Tanzania and five in Zanzibar. A Regional Police
Commander is appointed by the Inspector General to command the Police Officers deployed in each region. In turn eachregion is divided into a number of districts and an officer is appointed by the Inspector General to command each district
for which responsibility he/she is answerable to the Regional Police Commander. Though Administrative districts do notalways coincide with police operational districts particularly in large urban areas like the commercial capital of Dar es
Salaam, suffice to note that there are 123 Administrative districts countrywide with 113 on Mainland Tanzania and 10
in Zanzibar. Districts have a number of police stations each under their command and an officer of appropriate rank isappointed to command each police station. In urban areas as well as some police stations with extensive jurisdictional
areas, police posts, which serve as initial reporting and crime processing centres have been established. Police posts
usually have a strength of a few police officers under the command of an Inspector or a senior NCO, depending on size,
location and frequency of crime in the area.
We noted earlier the functions of the police force. In practical terms, it may be said to be the duty of the police within
the context of maintaining law and order to prevent the commission of offences, to apprehend those believed to becommitting, about to commit, or to have committed offences with the object of bringing them to justice. The extent towhich the police will perform their crime control function efficiently and effectively is influenced by among other factors
the prevalence or extent of crime.
B. The Crime Situation
For the past five years (1996-2000) an average of about half a million crimes are reported to the Police in Tanzania.
Figure one illustrates the crimes reported to police over the past eleven years and it is clear that over that period there
has been a steady rise of crimes reported to police every year albeit with slight fluctuations in certain years. The increasein the number of crimes reported to police may not be a bad thing in itself. The fluctuation in the statistics of crime
reported to police may be a function of the adoption of a particular policing style by the police at a given time. If thepolice remain in their station houses (reactive style) and wait for victims to report crimes, they may well record fewer
crimes as citizens (victims) may for one reason or another neglect to report to police crimes they have been victims of165

RESOURCE MATERIAL SERIES No. 60
particularly if they consider the crimes to be minor and thus not worth reporting. On the other hand if the police get outof their station houses onto the street or thoroughfare (proactive style) they may end up viewing more crimes and booking
more offenders. While the former (reactive style) may have the effect of reducing the statistical figures, the latter (proactive
style) may have the opposite effect.
While we consider the statistics of crimes reported to police to be the best illustration of the crime situation whencompared to records held by other organs e.g. the Judiciary or the Prisons Departments for that matter, we are not unawareof their vulnerability to non reporting, which contributes to be the ‘dark figure’ of crime. Studies carried out in the USA
have put the dark figure as high as 35% of recorded crime in relation to specified offences (Ennis 1967). Another study
carried out in three London boroughs concluded that only 10% of crime that had occurred was reported to police (Sparks,
Genn and Dodd 1977). Closer to home a recent victim survey carried out in the City of Dar es Salaam (Robertshaw,
Louw and Mtani 2001) concluded that there was low reportability rates for particular crimes and high reportability rates
for others. Thus while 83% of victims of car theft filed a report with the police, the reporting rates for violent crimes
were relatively low with only 47% of victims of robbery and 45% of victims of assault reporting to police, respectively.
The researchers further found that other crimes like crop theft and simple theft were unlikely to be reported to police.
Among the factors identified to be at the core of non reporting are: the distance to be covered to reach the police reporting
facility, the perceived seriousness of the crime by the victim, a perception that the police would not be interested or would
not treat the crime as worth their effort to solve, fear of reprisals where the perpetrator of the crime and the victim were
known to each other or were in an intimate relationship and a perception that the police are too corrupt and may require
the victim to pay for the assistance they will give him/her.
The Police function of dealing with crime involves the making of choices. The police have to decide when, how andwhere to enforce which law and to what extent. We shall for convenience call the making of such choices the exercise
of discretion. The discretion to enforce the law is separable into two categories: administrative and functional discretion.
1. Administrative Discretion
The territory of the United Republic of Tanzania covers an area of 945,037sq.km (equivalent to 364,881sq.mi.). It
has a population of 32 million as estimated in 1998. Within that context, at the present police strength a police officer is
responsible for an area equivalent to 45sq km. and the ratio of police to population is presently 1:1200 persons. Becauseof the paucity of police officers compared to the area of the country the police have to be stationed in various places invarying degrees of numerical strength. The power to decide on the number of police officers to be posted in any area ofthe country and that of deciding who to post where is what we call the administrative discretion. This has effect on thework of the police. More police officers deployed to one area may result in booking more criminals and thus higher crime
statistics while the converse has the opposite effect.
2. Functional Discretion
While administrative discretion is exercised by the police leadership: the Inspector General, his immediate assistants
and heads of units at various levels, functional discretion is exercisable by every police officer of whatever rank. Facedwith various criminal incidents for example a police officer attending a road accident has to decide whether to continue
to deal with the accident or pursue a pick pocket who is getting away with loot from the accident victims. In a similar
dilemma an officer has to decide whether to go after remandees escaping in a stolen motor vehicle or to respond to a callfrom a night guard at a shop where a burglary has taken place. These are instances of the exercise of functional discretion.
Whichever way functional discretion is exercised, it has an effect on the work of the police and its outcome.
C. Public Reaction to Crime
Our purpose for examining the crime situation and crime rates in particular in relation to the police organizational
structure and administration is twofold. Increasing crime rates have a negative impact on the quality of life. The prevalenceof particular incidences of crime give rise to fear of victimisation among members of the public.
In a study on robbery in London, Sir Leon Radzinowicz made the following succinct observation:“In the general increase in crime over recent years there are certain offences which have given rise to more
public alarm than others and of these robbery is one.” (Radzinowicz 1961).
In another study carried out in the United States of America Hunt (1973) was led to the following conclusion: “Askvirtually any American city dweller today what crime he (she) is most apt to be a victim of some day. In all likelihood
he (she) would answer “mugging”.

166

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
A more recent crime victimization survey carried out in Dar Es Salaam (Robertshaw et.al 2001:95) found that there
was a general feeling among the respondents that crime had increased generally and nearly two thirds of those interviewed(61%) felt unsafe in their areas after dark. The survey further reveals that women, young people between 15-25 years,
those with the least education and those living in new and established suburbs felt unsafe after dark in their areas ofresidence.
Fear of crime may lead members of the public to take extraordinary measures in self-protection. More importantly
however prevalence of crime leads the citizens to question the efficiency and effectiveness of crime control strategies
adopted by the police. This is our second reason for examining crime rates.
The administration of the police has to be structured in such a way as to be able to control crime. Crime is perhaps
the stock in trade and raison d’etre of police organizations. Which police organizational structure and administrative set
up best responds to the crime control mission will definitely be determined by the prevailing conditions in an area, thepolitical set up, the culture and customs of the people etc. Nevertheless the top leadership as well as middle managementof police organizations must constantly keep in focus the principal mission of the organizations they lead. We shall haveoccasion to return to this aspect later on in this paper.
D. Functions of the Police: Problems and Future Prospects
The problems faced by the police are many. Problems related to the investigative function shall be dealt with in thenext part following. We shall for the purpose of this section address problems related to the management and administrationof the police, which in turn militate against its effectiveness.
1. Budgetary Problems
The Police Force has serious budgetary constraints. These problems affect the efficiency and effectiveness of thepolice in terms of its management, administration and above all its ability to discharge its mission i.e controlling crime.
In particular budgetary constraints have brought about persistent shortages of personnel, inadequate skills and mobility
problems.
(i) Failure to Recruit New Personnel
With the ratio of police to population standing at 1 to more than 1200 population and one police officer being
responsible for more than 45 sq km, the need to recruit new police officers in order to reduce the high ratio is obvious.
It is only when there is an adequate number of police officers patrolling the streets that the deterrent effect to crime canbe seen and felt by members of the public. Consequently the fear of crime may be reduced and the quality of life enhanced.
To this effect the failure to recruit sufficient personnel due to budgetary constraints has affected the effectiveness andefficiency of the police negatively.
(ii) Training
In the present century when crime is becoming more and more sophisticated the police need new skills in order tomeet the challenges of crime. New skills may be transmitted to police officers through training. Budgetary constraints
however have made it difficult for the police force to put in place the requisite training to transmit the necessary skills
to its officers particularly when the required training is only available in an overseas country. country. The level of skillsof police officers therefore leaves a lot to be desired. Unfortunately a low level of professional skills makes it difficult
to sustain high ethical standards which creates fertile grounds for corruption.
(iii) Inadequate Mobility
Budgetary constraints also restrict the police force’s ability to acquire mobility resources like vehicles, motor-cycles,
etc. Lack of mobility cripples the police forces ability to respond timely to calls for assistance by the public thus eroding
the confidence of the people in the police force, exacerbates the fear of crime thus lowering the quality of life and the
public rating of the effectiveness of the police.
2. Conceivable Measures and Prospects for the Future
Budgetary problems may take time to resolve as they depend on the economic ability of the country. The following
are however the various measures taken and to be taken in particular to resolve the manpower constraints by tapping on
available resources i.e the citizens.

167

RESOURCE MATERIAL SERIES No. 60(i) Auxiliary Police Units
Assisted by the police declared areas with special policing needs for their areas of undertaking e.g. agricultural,mining concerns or local governments are being encouraged to establish Auxiliary Police Units. Such units are under thecommand and supervision of the Inspector General of Police although they remain employees of the concerns in question.
An application for declaration as a special area has to be submitted to the President of the United Republic through theInspector General by the management of the concerns involved.
(ii) Community Policing
This is a policing strategy aiming at involving the community actively in being responsible for the security of theirneighborhood. Initiated on experimental basis a few years ago it is expected to be inaugurated officially on Police Day
in July this year.
(iii) Special Constabulary
The Special Constabulary system which had been allowed to lapse some years ago will be revived. Negotiations areunder way with the Government to fix a rate of allowance to be paid to these citizen volunteers who will assist the police
when called upon to do so.
(iv) Private Security Companies
Some 200 private security companies have been licensed to provide security to willing customers. However there isat present no law regulating private security companies. In the meantime the Inspector General has issued some guidelines
to regulate their activities. Some problems have began to emerge in the form of breach of trust by some employees ofsome of the private security companies.
III. THE INVESTIGATION MACHINERY
A. The Criminal Investigation Department and its Mandate
We noted earlier that one of the four principal assistants to the Inspector General of Police is the Commissioner of
Police in charge of the Criminal Investigation Department. More commonly known as the Director of Criminal
Investigation (DCI), he/she is answerable to the Inspector General of Police for the proper administration of, and thecontrol of personnel in the Criminal Investigation Department. The Police General Orders (subsidiary legislation issued
by the Inspector General to provide for administration and control of the Police Force) sets out the general responsibilitiesof the Criminal Investigation Department (CID) as follows in order No. 3:
a)
b)
c)
d)
e)
f)

The prevention of crime.
The efficient investigation and detection of serious crime and incidents.
The collection and collation of all information regarding crime in the country so that the Inspector General and theGovernment may be kept informed in all matters of criminal interest.
The maintenance of close and effective liaison with all branches of the Force and, in particular with the General
Duties Branch.
The maintenance of criminal records and statistics.
The provision of advice and assistance in all investigations giving rise to difficulty or doubt and the seeking of legal
advice as may be necessary.

B. Serious Crimes
The Criminal Investigation Department is the organ most concerned with the investigation of crime in the United
Republic of Tanzania. It may be instructive to note however as we have just seen that the Criminal Investigation Department
is mostly concerned with the investigation of serious crime and incidents. The Criminal Investigation Department may
thus be said to be a specialised organ for the investigation of serious crimes and incidents. Its personnel must thus possess
specialist investigative skills. This also means that the investigation into minor offences – not meriting the classification‘serious’ is left to the General Duties Branch of the police.

168

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
The table below is a statistical comparison between serious and minor offences reported to police between 1996 and2000.
Table 1 Statistical comparison between total crime and serious crime/incidents
reported to the police 1996 - 2000
Year

Annual Total
Crime Reported

Annual Serious
Crime/Incidents

1996

507,507

97,065

19.1%

1997

528,710110,026

20.8%

1998

517,078

105,738

20.4%

1999

531,202113,147

21.3%

2000

510,875

101,984

19.9%

Source:Statistical

Comparison

Police Annual Crime Statistics.

Statistically, serious crimes/incidents in any one year are likely to form a small percentage of total crime reported
and recorded by Police. This is not however to understate the magnitude of work at the hands of the Criminal Investigation
Department. Serious crimes/incidents are not only complex but also are likely to be the ones that provoke the outcry of
citizens for police action and are the likeliest to give rise to fear of crime.
An overview of the nature of serious crime/incidents will illustrate this point. Serious crimes reported to the Policein Tanzania are broadly classified into three types or categories. These categories or types are crimes against the person,
crimes related to property and crimes against social order. Accidents involving rail, air and all forms of marine transport
are also classified as serious incidents.
•

Crimes against the person are those which injure or affect the person of an individual. They include homicide, rape,sodomy, infanticide and crimes against children or infants e.g. child stealing etc..

•

Property crimes are those committed for economic or property gain. They include robbery with violence (mugging)
and armed robbery, theft of motor vehicles, frauds against the government, public corporations and private commercial
or financial institutions, counterfeiting offences, burglary and stealing involving high value property, theft/illegal
possession of firearms and cattle theft.

•

Crimes against social order is a rather broad category taking account of the so called victimless crimes like illicit
drug abuse, illicit drug trafficking, possession of illicit drugs like cocaine, heroin, cannabis etc... smuggling, possessionof illicit liquor, illegal possession of government trophies. Corruption and offences related to the gemstone andprecious stones industry also fall under this broad category.

•

Accidents involving rail, air and all forms of marine transport viz. ships, steamers, boats, dhows etc.. are also classified
as serious incidents because of their potential impact in terms of loss of or injury to life. Road traffic accidents are
not included in this category.

Our purpose for examining the categories of serious crimes is threefold. First to illustrate the magnitude of the
responsibility of the Criminal Investigation Department. It handles the bulk of investigation into the crimes/incidents atthe core of the perception by society as to the effectiveness and efficiency of the police force. The CID is therefore acrucial department for that purpose. Secondly the nature of crimes which are dealt with by the Criminal Investigation
Department points to the quality of skills the personnel of the department possess or must possess. We will return to thispoint elsewhere in this paper. Thirdly by examining these categories of serious crimes/incidents we hope to put inperspective some of the problems we will identify later in relation to the investigative process.
The Criminal Investigation Department is structured in the same way as the rest of the police force it forms part of.
At Regional and District levels the CID units are headed by Regional Crime Officers and District Officers in charge of
Criminal Investigation respectively. Regional Crime Officers are answerable to Regional Police Commanders andsimilarly District officers in charge of Criminal Investigation are answerable to District Police Commanders.

169

RESOURCE MATERIAL SERIES No. 60
C. The Machinery of Investigation: Problems and Future Prospects
We noted earlier the problems affecting the Police Force in their generality. The Criminal Investigation Department
as part of the police force is also vulnerable to the problems we examined. In this section we shall concentrate on problems
considered unique to the Criminal Investigation Department.
The Judicial Review Commission in its report published in 1977 identified the following major problems in relation
to the Criminal Investigation Department. Unfortunately more than two decades later, today, the findings of the Judicial
Review Commission still ring true.
The Commission found that:a) The system for training investigators was inadequate.
b)

The Police use a chemical/pathological laboratory owned and controlled by the Ministry of Health which is too
pre-occupied with matters other than those which relate to criminal investigation to be able to render speedy andprompt services to police cases.

c)

The present ballistic laboratory is inadequate.

d)

The police are not adequately provided with law books, copies of Acts and other material necessary for their work.

e)

The standard and methods of selection and recruitment of trainee police investigators is too haphazard and unlikely
to provide the force in general and the Criminal Investigation Department in particular with persons of a highintegrity and acumen.

Some of the above problems have good prospects for resolution in future. The selection and training of investigatorsin specified fields like the investigation of terrorism and related acts has been undertaken. Similarly there are on goingnegotiations with friendly countries which may result in a lasting solution to the problem of the Forensic Laboratory forthe police.
IV. THE PROCESS OF PROSECUTION
A. The Role of the State“Every act which the law constitutes to be a crime is, as such, an offence not against the individual who may
have been injured by it, but against the community or the State. Where, therefore, an offence has been committed,
it ought not be left to the will or the ability of an individual to institute a prosecution, but such a prosecution
should be instituted by, and on behalf of the State through (an) appointed officer.”per Lord Chief Justice Lockburn (Hetherington 1989:9)
The quotation above now in essence of historical importance only, serves to illustrate the central role of the State in
the prosecution of offenders. The prosecution of persons suspected of having violated the law is part of the measures
which the government undertakes to ensure on behalf of the State the preservation of peace and order. Indeed theprosecution of suspects forms part of the criminal justice process. The general aim of that process is to punish the guilty
and protect the innocent or those whose guilt is not proved beyond reasonable doubt.
B. The Control of Criminal Prosecutions
In Tanzania, except in the Primary Court the task of prosecuting persons suspected of having violated the law isalmost entirely undertaken by specific organs of government on behalf of the State. All criminal prosecutions are thedirect concern of the Director of Public Prosecutions (DPP). He/she is appointed by the President of the United Republicfrom among persons qualified to practice as advocates of the High Court of the United Republic and have been so qualified
for not less than five years prior to appointment (s. 89 Criminal Procedure Act No. 9/1985, henceforth cited CPA).
The Director of Public Prosecutions has powers in any case in which he/she considers it desirable so to do: (s.90 CPA)a)170

to institute and undertake criminal proceedings against any person before any court (other than a court martial) inrespect of any offence alleged to have been committed by that person.

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERSb)

to take over and continue any such criminal proceedings, that have been instituted or undertaken by any other person
or authority, andc)to discontinue any such criminal proceedings instituted or undertaken by him (her) or any other authority or person.

The power of the Director of Public Prosecutions to institute or take over criminal proceedings begun by any otherperson is exercisable by the holder of that office alone or persons acting under his/her direction or authority. However a
person or authority that has instituted criminal proceedings may with leave of the court withdraw the proceedings(s.90(3)CPA). Further the Director of Public Prosecutions enjoys full independence and discretion in the exercise of his/her powers. The DPP may not receive any directions from any other person except the President of the United Republic(s.90(5)CPA).
The Director of Public Prosecutions is assisted in the discharge of his/her functions by lawyers (State Attorneys)
based at the Chambers in Dar Es Salaam as well as in the zones, of whom however there are too few. We shall revert tothis aspect later on.
C. Appointment of Public Prosecutors
In order for the process of prosecution of suspects to function effectively and because of the paucity of state attorneys
the Director of Public Prosecutions has been vested with powers to appoint public prosecutors for Tanzania generally or
for any specified area of Tanzania or for any specified category of cases (s.95 CPA). It is in the exercise of these powersthat the Director of Public Prosecutions has appointed every police officer not below the rank of Assistant Inspector of
Police to be a Public Prosecutor. (Criminal Procedure (Public Prosecutors) Order. Government Notice No. 382 of 1943).
In exercise of the same powers referred to above the Director of Public Prosecutions has appointed various otherpublic officers to be Public Prosecutors. As such Labour Officers, Health Inspectors, Postal officials and other public
officers prosecute cases related to their occupations. Public Prosecutors so appointed however remain subject to thedirections of the Director of Public Prosecutions in the conduct of the prosecution. In Tanzania there is room for a private
person to conduct a private prosecution provided he/she seeks and obtains leave from the magistrate inquiring into thecase. The private prosecutor may after obtaining such leave conduct the prosecution in person or by an advocate. A private
prosecutor may also withdraw from the conduct of prosecution so begun. It must be noted however that a private
prosecution so instituted may be taken over or discontinued by the Director of Public Prosecutions as we saw earlier. It
is clear therefore that the right of a private person to maintain the conduct of a prosecution is not absolute.
D. Supervision of Prosecution by the Director of Public Prosecutions
It may be argued that all the prosecutions in Tanzania are the business of the Director of Public Prosecutions. In
theory, this may be true at least for two reasons. First because the law as we saw it gives power to the Director of Public
Prosecutions to initiate prosecutions or criminal proceedings against any person, take over any criminal proceedings
begun by any person or authority whatsoever and to discontinue any criminal proceedings whether initiated by his/her
office or any other person or authority. The second reason for the theoretical truth of the argument is that all publicprosecutors are appointed by the Director of Public Prosecutions and thus subject to his/her control and supervision.
Theoretical truth however sometimes belies the practical truth on the ground. In Tanzania except for those cases
where his/her explicit consent is required by law before a criminal proceeding is instituted and prosecution undertaken,
the Director of Public Prosecutions may never see or know anything about a case. In cases where the consent of the
Director of Public Prosecutions is required before the institution of criminal proceedings not only would he/she demand
to see the investigation file and thus evaluate the evidence, but also he/she may give guidance to the investigative agencies.
Cases requiring the consent of the Director of Public Prosecutions in Tanzania are in our submission few and far between.
The reason is that they comprise offences like raising discontent and ill will among the inhabitants (s.63B of the Penal
Code), incest by males or females (s. 158 and 160 of the Penal Code), abuse of office by public officials (s. 96 of thePenal Code) and a handful of other offences, which in reality are not the most common offences.
It is also worth of note in this context that the powers of appointment of Public Prosecutors by the Director of Public
Prosecutions are exercised more in generic terms than in specificity. Except in rare cases where specific named persons
are appointed Public Prosecutors such appointment is more likely than not to take the form of holders of named offices,or ranks as is the case of appointment of all Police officers holding the rank of Assistant Inspector and above to be Public
Prosecutors. While the Director of Public Prosecutions may possibly insist on the basis of law that only Police officersof the appropriate rank act as Public Prosecutors, the decision as to who becomes promoted to that rank is clearly not

171

RESOURCE MATERIAL SERIES No. 60that of the Director of Public Prosecutions but that of the Police Force – the agency which employes the public prosecutor.
This is not a position unique to the Police agency, it is also true for other government departments where the appointmentof Prosecutors is done in generic terms rather than specific named persons. Need we point out here, however, that genericappointment has the convenience of perpetuity when compared to appointment of named individuals. A balance may
have to be struck between the perceived advantage and certainty.
In spite of the above limitations the Director of Public Prosecutions does exercise a limited screening in at least three
instances: serious cases of particular legal difficulty in the course of investigation of which the Director of Criminal
Investigation has found it necessary to seek his opinion, cases in which the consent of the DPP is required before aprosecution may be instituted and cases triable on indictment by the High Court. In all three instances the DPP would be
able to scrutinise the case file and guide the investigation where there was a need and finally make the decision toprosecute. In up-country stations the screening would be done by State Attorneys in the Zonal Chambers of which there
are nine in conformity with the High Court Registries.
E. The Prosecution Process: Problems and Prospects for the Future
We have somewhat at length noted some inherent problems associated with the process of prosecution. In this section
we shall examine problems related to the control and supervision role of the Director of Public Prosecutions while thoserelated to prosecution by the Police are examined in the next part.
1. Inadequate Personnel
The Chambers of the Director of Public Prosecutions has a serious problem of shortage of personnel at the Headquartersin Dar Es Salaam and at Zonal Chambers up country. This problem was identified as early as 1977 by the Judicial Review
Commission. It has no been satisfactorily resolved to day. Shortage of personnel may affect the ability of the DPP to
exercise his supervisory powers over Public Prosecutions.
2. Budgetary Constraints
The office of the DPP is under the Ministry of Justice. For a long time this Ministry has had budgetary problems
which have threatened to cripple the justice delivery system. The Judicial Review Commission in 1977 pointed out the
shortage of law books and law journals at the DPP’s Chambers, possibly the outcome of budgetary constraints. Without
sufficient materials for reference the very quality and reliability of the decision or opinion of the DPP may be in jeopardy.
3. Conceivable Measures to Resolve the Problems(i) An Independent Prosecution Service
The establishment of an independent Public Prosecution Service under the office of the DPP was one of therecommendations of the Judicial Review Commission in 1977. It has no been established to date. In our view its
establishment would go a certain extent some of the problems related to the DPP’s supervisory role over publicprosecutions.
(ii) The Legal Sector Reform Programme
A reform programme in the legal sector was launched in 1993. Among its terms of reference was an examination of
the terms and conditions of service of personnel in the Legal Sector. We are in no doubt it has more work ahead since
the terms and conditions of service in the Legal Sector to day do not seem to attract sufficient personnel to be able toresolve the endemic shortages of personnel.
(iii) The Commission on Human Rights and Good Governance
The establishment of a Commission on Human Rights and Good Governance is an important contribution to thecriminal justice system of Tanzania as it will play an important role in educating people as to their rights in addition tolistening to their grievances.
(iv) Private Prosecution
As part of the recommendations of the Judicial Review Commission in 1977 the right to private prosecution was
retained. Under s. 99 CPA a private citizen may with leave of the Magistrate institute a prosecution in person or throughan advocate. It is an important right provided it does not amount to an abuse of court process, a possible defect curable
by the DPP’s power to take over and discontinue proceedings.

172

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
V. CO-OPERATION BETWEEN THE POLICE AND PROSECUTORS OR CO-ORDINATION BETWEEN
THE INVESTIGATORS AND PROSECUTORS
A. A Preliminary Issue
It may sound somewhat enigmatic in the case of Tanzania to talk of co-operation between the police and the prosecutor.
In our view the term co-operation in this sense assumes that the police and the prosecutor act for or are employed byseparate or different agencies. In Tanzania where the bulk of prosecutions are conducted by police officers of the rankof Assistant Inspector and above, who are employees of the Police Force, the same agency which undertakes investigation;
the optimum approach would be to discuss coordination rather than co-operation. For this reason and for avoidance of
doubt we felt we needed to dispose of this as a preliminary issue; hence our phrasing of the sub-theme in this part in thealternative. In this part therefore we discuss the question of co-ordination of the functions of the public prosecutor andthe functions of the investigator as well as other issues incidental thereto. In particular we examine how the work of the
public prosecutor is supervised and co-ordinated with that of the investigator, the capacity or preparation of publicprosecutors and the inputs into the making of the decision to prosecute.
B. Supervision and Co-ordination
We saw earlier the structure of the Criminal Investigation Department, and noted that at regional and district levels
a Regional Crime Officer and District officer in charge of Criminal Investigation respectively, supervise the criminal
investigation units, answerable of course to the Regional Police Commander. Public Prosecutors in the police force fallunder the general supervision of Regional Crime Officers, the principal supervisors of crime investigation at regional
level. They are however expected to co-ordinate their work with other officers such as officers in charge of Police Stations
where the cases submitted to them for prosecution originate directly from police stations as in the case of offences triablein summary proceedings by Subordinate Courts.
There are two categories of investigators. Minor offences are normally investigated by investigators from the General
Duties Branch i.e. uniformed officers. Serious offences are investigated by detectives from CID units. While the coordination of the investigation into minor offences where such need arises will be the responsibility of the officers incharge of stations, protracted investigations requiring the meticulous collection of evidence will be done by CID units.
It is thus not uncommon for cases begun by the uniformed branch to be transferred to detectives in the CID units. Indeed
one of the terms of the mandate of the Director of Criminal Investigation in exercise of his/her discretion is to take overthe investigation of any crime where deemed expedient to do so. The Director of Criminal Investigation will in befittingcases instruct Regional Crime Officers to act in that regard. This perhaps ties up the equation. With the Public Prosecutor
and the investigator both falling under the supervision of the Regional Crime Officer, we may conclude that it is his/herduty to co-ordinate both the process of investigation and the conduct of the prosecution.
C. Capacity Building
We borrow this term for its convenience and currency in management jargon. We intend here to address the questionof what it takes to make a Public Prosecutor in Tanzania. Mr. Justice Chipeta made this succinct observation regarding
the qualities of a public prosecutor:“Like many occupations the job of a public prosecutor demands intelligence, training, courage, common sense,
tact, patience, capacity for hard work and an interest in the job. A public prosecutor with these qualities iscertain to derive pleasure and satisfaction from the work, and is an asset to the administration of criminal
justice”. (Chipeta 1982:xiii)
The bulk of prosecutions in Tanzania is handled by the Police countrywide. This is a challenge to the administrationof the police to ensure that persons assigned the job of public prosecutor have relevant skills. It is a policy of the Tanzania
Police Force that prior to assignment to a particular job or function the candidate must undergo training to acquire therelevant skills. A police officer assigned the function of public prosecution will have undertaken at least one of thefollowing five courses: a degree course in law which is a four year programme administered by the Faculty of Law of
the University of Dar es Salaam, leading to the award of a Bachelor of Laws degree, a Certificate Course in Law also
administered by the same University for at least one year whereby the candidate becomes qualified as a para legal officer,
a one year course on Public Prosecution administered by the Institute of Development Management at Mzumbe under
the auspices of the University of Dar es Salaam, or a three month Public Prosecution course organized at the Police
College, one of the training institutions owned by the Police Force. This course is administered to Police Officers who
have previously undergone a six month course covering Criminal Procedure, Criminal Law, the Law of Evidence and173

RESOURCE MATERIAL SERIES No. 60
handful of other disciplines. The Public Prosecution course focuses specifically on prosecution skills viz ethics, advocacy
in general and court etiquette, hence its short duration.
In appreciation of the need for well skilled public prosecutors the Tanzania Police Force in 1972 sought and obtained
leave of the Faculty of Law of the University of Dar es Salaam to organize the para legal Certificate Course in Law within
the Police Force using the classroom, library and other facilities of the Police College at Dar es Salaam. This arrangement
was necessitated by the fact that similar courses organized by the Faculty of Law which were also open to other government
departments admitted but too few police officers. Further this Faculty of Law administered course had anotherdisadvantage. Because it was administered on a part time basis it lasted for two years. Two years was considered too longto wait before qualifying just a few public prosecutors. After agreement was obtained to run the Certificate in Law Course
at the Police College on a full time basis, now the course runs for one year on a residential basis with an average of 35
police officers participating every year. Lectures are given by qualified lawyers from the Police Force while the Facultyof Law administers the examinations in order to ascertain the quality of teaching and maintain the requisite high standardsof the University. The successful candidates become qualified para legal officers ready for deployment as Public
Prosecutors and investigators.
Our purpose in dealing at length with capacity building for Police Public Prosecutors in Tanzania is threefold. First
to dispel any lingering doubts as to the skills possessed by them to discharge their duties. With the level of training theprospective public prosecutors receive there can be no doubt that they have the requisite skills to discharge their duties
in professional style. The second reason is to commend the wisdom and foresight of the top administration of the Police
Force. With the bulk of prosecutions, being undertaken by the police and the Director of Public Prosecution’s Chambers
being unable to offer adequate due to being understaffed, the gap left by this malfunctioning of the DPP’s Chambers had
to be filled and by personnel with relevant skills and competence. This is what is done by the capacity building scheme
for police public prosecutors. The third reason is to lay a foundation for our examination of the integrated roles ofinvestigation, screening of cases and decision to prosecute which we do presently.
D. Police Screening of Cases and the Decision to Prosecute
The trajectory of a case in Tanzania will normally go through four main stages: reporting by the victim of the crime,
gathering of evidence by the investigators, the reading or study of the case file and the making of the decision to prosecute.
Each is characterized by the number of activities. On receiving a report by the victim or any person who may be awareof the crime the police officer receiving the report will have to decide whether the report discloses any offence and if so
which offence. To initiate the collection of evidence the scene of crime will have to be visited by a senior officer in order
to appreciate the circumstances of the event since he/she will be the one to supervise and guide the investigation byissuing appropriate instructions to the investigator. Depending on the complexity of the case the collection of evidence
will take a long or short time and at some stage the suspect will be arrested if he/she was not arrested immediately after
the commission of the crime. The arrested suspect will be presented to a magistrate’s court with a charge on the basis ofwhat appears to be the offence committed after initial inquiries. In any case the suspect may not remain under police
custody for more than twenty four hours without appearing before a court. Samples from the scene requiring examinationby the Government Chemist will be presented for examination at some stage and the report placed on the case file. Afterthe collection of what appears to be sufficient evidence, the investigator will present the case file to his/her immediate
supervisor for preliminary scrutiny and further guidance if necessary. If the supervisor is satisfied the case file will bepresented to the Regional Crime Officer who will study the case file in minute detail. This stage sometimes called‘screening’ will be done meticulously weighing provisions of the law against the facts as discovered by the investigator.
Need we mention at this stage that Regional Crime Officers have the necessary skills and competence to carry out
the screening function. Of the twenty five Regional Crime Officers country wide at least 25% of them are qualified
lawyers, the remaining are para legal officers having attended the certificate course in law we described earlier. Their
immediate assistants also have similar qualifications in the majority. In Tanzania therefore there is no shortage of legal
skills where the study and evaluation of available evidence in a case file is concerned.
After evaluation by the Regional Crime Officer of the evidence on the case file and weighing it up against the law
three possible courses of action may follow. The first is the decision to prosecute. It is made where the case has no complex
issues requiring superior guidance. In such an instance the local Public Prosecutor is instructed by the Regional Crime
Officer to proceed with the prosecution on the basis of the charge as laid earlier or an amended one where appropriate.
Where the Regional Crime Officer is of the view that further evidence ought to be collected the case file is returnedto the supervisor of the investigating officer with detailed instructions as to what further action need to be taken and the174

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
specific pieces of evidence which need to be collected. The third course of action relates to cases with complex issues,
cases requiring the consent of the Director of Public Prosecutions, and cases triable on indictment by the High Court.
Cases with complex issues are referred to the Director of Criminal Investigation for perusal and guidance. In turn the
DCI may seek the guidance of the Director of Public Prosecutions where he/she sees it necessary or give the guidance
himself/herself. Cases requiring the consent of the DPP prior to prosecution are also submitted to the Director of Criminal
Investigations for perusal. On satisfaction that all the necessary evidence has been collected, the DCI submits the casefile to the Director of Public Prosecutions with views and opinion regarding the merits of the case.
All cases triable on indictment by the High Court are submitted to the Director of Public Prosecutions for perusal aswell as guidance. More importantly however is that Police Public Prosecutors have no locus standi to appear before theHigh Court. Appearance for prosecution before the High Court is the preserve the State Attorneys. After perusal of suchcases where the Director of Public Prosecutions is satisfied that all the relevant evidence has been collected he/she will
instruct a State Attorney to appear before the High Court and prosecute the case. Where the DPP or a Zonal State Attorney
is of the view that further evidence ought to be gathered the case file will be returned to the Director of Criminal
Investigation or the Regional Crime Officer, as the case may be, with such instructions.
E. The Investigation and Prosecution Roles: Problems and Future Prospects
The system where the police investigate and prosecute suspects was possibly a result of expediency. It has not been
without critics at home and abroad. Critics for example point to the importance of objectivity in deciding whether or not
to prosecute. They argue that where the same agency which investigates crimes also makes the decision to prosecute
objectivity may be compromised. The Criminal Justice Committee for England and Wales thus observed:“The honest, zealous and conscientious police officer who has satisfied himself that the suspect is guilty becomes
psychologically committed to prosecution and thus to successful prosecution. He wants to prosecute and wants towin. (Criminal Law Review” (1970:668)
Among the critics of the set up in Tanzania for almost the same reasons was the Judicial Commission Review Reportpublished in 1977. The Commission wondered whether the appearance of impartiality by the court does not sufferconsiderably where the officer who conducts prosecution before the court is a member of the organ which investigatedthe case. In somewhat dramatic conclusion the Commission opined that an accused person brought before the court where
the prosecutor, the dock officer and the court orderly are dressed in police uniform may have reason to think that the
courts are run by the police. “Am I before a police court?” the accused may well wonder. (Judicial Commission 1977:95).
The Judicial Commission recommended the abolition of the system whereby the decision whether to prosecute or
not is made by the same organ – the police which also investigates crimes. Twenty four years later today the system set
up almost six decades ago has not been changed.
It is worth of note however here that the administration of the police in Tanzania remains wide awake to the needfor objectivity on the part of the police prosecutor while in court. Police General Orders No. 243 directs thus in paragraph
4 (c):“Prosecutors may and if the accused is not represented must bring out any facts and make any objective
comment which the facts justify which may tend to mitigate the seriousness of the offence. If the accused isrepresented, they will ensure that all the facts which may assist the defense advocate in mitigation are known tohim” (PGO No. 243 para 4(c) (emphasis supplied)With those lucid directives to Police Prosecutors it is clear that the police force’s policy is to ensure impartiality andobjectivity. Two other problems associated with the integrated system are the apparent delays between first appearance
and eventual disposal of the case. In part the delay may be a function of the integrated system and also the irregularityof High Court sessions due to budgetary constraints of the Judiciary. As a result of the delays remand prisoners sufferconsiderable congestion. In some cases suspects awaiting trial by the High Court have remained in remand prison for up
to five years.

175

RESOURCE MATERIAL SERIES No. 60
1. Conceivable Measures to Resolve the Problems(i) An Independent Public Prosecution Service
The establishment of an Independent Public Prosecution Service as recommended by the Judicial Review Commission
in 1977 would go a great extent in relieving the police of the triple role of investigating, deciding to prosecute and actively
prosecute. It will also render the impartiality of the court more apparent in our criminal justice system.
(ii) The Sixty Day Rule
In order to minimize delays a rule requiring the final disposal of a case within sixty days from the date of its inception
was incorporated in the Criminal Procedure Act s.225(4) being part of the recommendations of the Judicial Review
Commission in 1977
(iii) Case Flow Management Committees
Case Flow Management Committees have been established at Regional and District level to oversee and speed up
the trial of cases. Though it has had limited success for budgetary constraints it has the potential for minimizing delays
in trials and should have all the support it requires.
(iv) Parole
A Parole Law was enacted a few years ago. The concept of parole is however still new in the Tanzania Criminal
Justice system. With time and experience the parole system should go some way in reducing overcrowding in the prisons
which is considerably serious.
(v) Checks and Balances
An important check on the monopoly of functions inherent in the integrated system is the residual power of the
Director of Public Prosecutions to take over and withdraw criminal proceedings instituted by any person or authority. It
is an important potential balance of the powers exercised by other organs usually without the DPP’s knowledge particularlyin the decision to prosecute.
VI. INDEPENDENCE FROM ARBITRARY INFLUENCE
A. The Setting
We chose to address this sub-theme at this stage of our paper in order to place it in a proper setting after examining
the role of police in the investigation and prosecution of crimes. We take independence in this context to mean the absenceof external or political formal control or influence brought to bear on the police functions of investigation and prosecution.
Independence for this purpose takes two forms: organic independence and structural independence. Organic independence
is said to exist where the agency in question is separate from political institutions and thus not subject to their control or
influence. We shall take structural independence to be seen to be present where matters before the police for action ordecision are attended to on the basis of law alone without any extraneous consideration or influence. This may also becalled functional independence.
B. Absence of Political Influence
In a multi-party democracy it is imperative that police agencies remain separate from politics. It is the only way toensure that the decisions of such agencies are based on law and law alone. In Tanzania Article 147 (3) of the Constitutionof the United Republic prohibits any member of the armed forces including the Police Force to subscribe to or be amember of any political party. It is contended that by this provision of the Constitution members of the police force areunlikely to be influenced by any political considerations and neither may they be dictated to by any political functionary
in the discharge of their investigative or prosecution function.
C. Organizational and Structural Independence
The policing of the United Republic of Tanzania including Zanzibar falls squarely on the shoulders of the Tanzania
Police which as we saw is a national Police Force. The Inspector General has overall command of the Police Force.
Though the Police Force falls under this Ministry of Home Affairs, it is contended that this is essentially for politicalaccountability only. The Minister for Home Affairs is the parliamentary spokes person for the Police Force and otherdepartments falling under this Ministry of Home Affairs. Further the Minister where need arises may issue general
directions to the Inspector General. However, the operational command and superintendence of the Police Force is the
responsibility of the Inspector General of Police.

176

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
We may make one observation before leaving this part. Given the set up we briefly examined police action whether
related to investigation or prosecution is unlikely to be influenced arbitrarily by politicians or other external organs. The
legal setting where police officers are clearly separate from politics and political influence lays a firm foundation for
their actions in relation to investigation and the decision to prosecute for that matter to be based on legal considerations
alone. Perhaps the para-military command structure of the police force further buttresses this position. A uniform command
structure runs from the top command: The Inspector General all the way to the lowest ranking officer: the Police Constableor Detective Constable. In this context police officers at all levels take commands and instructions from their superiors
in rank alone which in our view leaves little room, if any, for any extraneous influence, political or arbitrary to be brought
to bear on the actions of the police force.
D. Independence from Arbitrary Influence: Problems and Future Prospects
The Constitution excludes the police from politics. That may be a guarantee that their operational decisions including
the decision to prosecute will not be politically influenced. Similarly the DPP may not receive directions from any otherperson except the President of the United Republic. That is as far as guarantees can go at law. There are likely problems
however. Like other Public Servants senior police officers have no security of tenure of office. On the other hand the
DPP is structurally under the Attorney General, an ex officio Member of Parliament. The Attorney General ceases to holdoffice with the dissolution of Parliament and has to be reappointed every five years by an in coming President.
In order to resolve the problem of potential arbitrary influence in the exercise of Police functions there should becertain safeguards. Such safeguards could take the form of clear provisions regarding the tenure of office of specified
officers, procedures and mechanisms for their appointment and removal from office as well as their superannuation
schemes.
VII. CONCLUSION
We have examined in some detail the administrative structure of the Tanzania Police Force in the light of its functionsof investigation and prosecution of suspects. This set up where the Police exercise both functions: investigation andprosecution and hence the decision to prosecute has been in existence for more than five decades – since 1943 when the
Director of Public Prosecutions appointed Police Inspectors to be Public Prosecutors. We saw the limitations of thisarrangement and those of the office of the Director of Public Prosecutions in exercising the decision to prosecute in full.
In part the problems we saw may be resolved by establishing an independent Public Prosecution Service under the officeof the DPP as recommended since 1977 by the Judicial Review Commission. It should however be established under alaw which among other matters shall stipulate its powers, relations with investigative agencies, code of conduct andtenure for its senior officers.
In the year 2000, the Government launched a Public Service Reform programme which is to last through to 2011.
The programme admits the constraints under which it has been launched as its slogan runs ‘In pursuit of Quality PublicServices under severe Budgetary constraints.’ In our humble opinion, budgetary constraints notwithstanding, the deliveryof justice is an important public service. It is our hope that at an appropriate future time the delivery of criminal justicein all its ramifications will be addressed under the programme.
Finally it is our opinion that the newly established Commission on Human Rights and Good Governance is an
important instrument for laying a foundation for reforms in the Criminal Justice system of Tanzania. Concerned as it will
be with the education of the public as to their rights as well as listening to their complaints in relation to acts of public
officials that infringe good governance principles including corruption it will provide a link to justice for the common
man which even the criminal justice system could not provide.
TABLES OF STATUTES CITED
Constitution of the United Republic of Tanzania 1977
Criminal Procedure Act No. 9 of 1986
Penal Code Cap. 16
Police Force Ordinance Cap. 32

177

RESOURCE MATERIAL SERIES No. 60
REFERENCES
Chipeta, B D (1982) The Public Prosecutor and the Law of Criminal Procedure: A handbook for Public Prosecutors.
Eastern Africa Publications Limited. Arusha. Dar Es Salaam.
Criminal Law Review (1970) ‘The Prosecution Process in England and Wales’: The majority report of the Criminal
Justice Committee.
Ennis, P H (1967) ‘Criminal Victimization in the United States. A Report of a National Survey.’ Washington D.C., U.S.
Government Printing Office.
Hetherington, T. (1989) Prosecution and the Public Interest. Waterloo Publishers. London.
Hunt, M (1973) The mugging: quoted in Sutton, Ed. (1977) op. cit.
Judicial Commission (1977). The Report of the Judicial System Review Commission. Government Printer. Dar es Salaam.
Mc Clintock F.H. Gibson, E (1961) Robbery in London. Macmillan and Co. Ltd.
Radzinowicz, L. (1961) Preface. In McClintock and Gibson 1961 op. cit.
Robertshaw, R; Louw, A and Mtani, AW (2001) Crime in Dar es Salaam: Results of a City Victim Survey. A study
sponsored by the United Nations Centre for Human Settlements (UNCHS) – Habitat and the Institute for Security Studies(ISS) Pretoria South Africa.
Sparks, R F, Genn, H and Dodd, D (1977) Surveying Victims, London. Wiley.
Sutton, A J (1977) Armed Robbery. Research Project 2. December 1977. Department of the Attorney General and of
Justice, New South Wales Bureau of Crime Statistics and Research. Australia.

178

-

100,000

200,000

300,000

400,000

500,000

600,000

1990

289,9921991

326,669

1993

390,892

1994
1995

463,079

1996

1997

528,710

1998

517,078

FIGURE 1: CRIMES REPORTED TO THE POLICE 1990 - 2000
SOURCE: Police Annual Crime Statistics

1992

359,001

460,578

507,507

CRIMES REPORTED TO THE POLICE 1990 - 2000

1999

531,2022

51

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
APPENDIX 1

179

180

PUBLIC RELATIONSPUBLIC RELATIONSPUBLIC RELATIONFIELD FORCE UNIT

PUBLIC RELATION

CRIM. INVEST.

DEVEL & PLANN.

TRAINING & MANP. DEVOPERATIONSFINANCE & ADMINOPERATIONSOPERATION AND TRANING(COMMISSIONER)ZANZIBAR POLICE(COMMISSIONER)POLICE POSTSOFFICER INCHARGE STATION (OCS)

SIGNAL (RSO)CENTRAL ARMS REGISTRYADMINISTRATIONIDENTIFICATION BUREAU (IB)CRIMINAL INTELLEGENCE, DRUG
UNIT STATISTICS & INTERPOLOFFENCE AGAINST SECURITY OF
STATE AND PUBLIC TRANSQUILLITY

OFFENCE AGAINST PERSONOFFENCE AGAINST PROPERTYCRIMINAL INVESTIGATION DEPT.
(COMMISSIONER)

CRIM. INVEST. (RCO)OFFICER INCHARGE (OC - CID)

FINANCE & ADMINFORCE OPERATION

PLANING & DEVOLOPMENTFINANCEPERSON & ADMISTRATIONFINANCE AND ADMISTRATION(COMMISSIONER)RESEARCH AND LEGAL MATTERS

OFFICER COMMANDING DISTRICT (OCD)REGIONAL POLICE COMMANDER

INSPECTOR GENERAL OF POLICEPERMANENT SECRETARYMINISTRY OF HOME AFFAIRSRESOURCE MATERIAL SERIES No. 60
APPENDIX 2

120TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

181

REPORTS OF THE COURSEGROUP 1
EFFECTIVE ADMINISTRATION OF THE POLICE SYSTEM
Chairperson

Mr. Laurean M. Tibasana(Tanzania)

Co-Chairperson

Mr. Marcos Aurélio Vitoriano Matias(Brazil)Rapporteur

Mr. Maninder Singh Sandhu(India)Co-Rapporteur

Mr. Rosendo Armando Vásquez Bonilla(El Salvador)

Advisers

Professor Yasuhiro Tanabe(Japan)Professor Hiroshi Tsutomi(Japan)Professor Mikiko Kakihara(Japan)I. INTRODUCTION
The eleventh session of the United Nations Commission on Crime Prevention and Criminal Justice will, among othermatters, discuss the question of “Criminal Justice Reform”. It is thus an appropriate moment to discuss police systems,
their effectiveness in achieving the goals for which they are established, the problems faced by the various police systemsof the world and the ways and means to resolve those problems. Police institutions under whatever form or organization
or administration play an important role in the overall criminal justice system of any country. In tune with the moment
and the times they have to undergo reforms with the object of rendering them more efficient and effective in the deliveryof their services to the people who look upon them to do so.
This is a report of a general discussion on effective police systems. In the discussion we examined selected police
systems of the world, addressed their effectiveness in the achievement of their objectives, and the problems they encounter
which may militate against the attainment of their goals. Finally we examined a number of measures, which we suggest
may be adopted to resolve the perceived as well as existing problems in order to render the police systems more effective
and efficient.
We should mention here that this paper does not have the purpose of offering a termination of the discussion on thesubject, and that it is related to the reality of the involved countries, the analysis presented herewith may not represent
the reality of other countries.
The analyses presented within this paper is oriented and pertaining to the existing situation in the involved countries,
therefore, when taking into consideration the conclusions and recommendations pointed out such circumstances should
be taken into account.
For purposes of discussion and clarity of approach the police systems of the countries under review have beenclassified into three types or systems, namely:
A. Centralized or National Police Systems
B. Semi-centralized (Dual Control) Police Systems, and
C. Decentralized Police Systems.
This classification however has been adopted for purposes of discussion only. It is not an exclusive or rigidclassification for, depending on the vision and perspective of a country, one police system may overlap or fall into morethan one classification or be a mixture of two or more systems. We hasten to point out, for avoidance of doubt that thisclassification is in no way an indicator of the preference of the participants as to any one policing system, since the choiceof a policing system is a prerogative of the country concerned and a sovereign decision.
II. DEFINITIONS
The following terms used in this report shall have the meanings ascribed to them as below.

182

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
A. Centralized Police System — Shall mean a police system in which there is a national police agency or police
institution which is centrally commanded and controlled through a vertical chain of command and such police institution
has unlimited jurisdiction throughout the territory of the country.
B. Semi-Centralized Police System — Means a police system in a federal system of government or similar
constitutional arrangement where the responsibility for law and order is vested in the governments of the component
states, provinces or prefectures and the control of the police agencies in the states, provinces or prefectures vests in both
the Federal (Central) government as well as the governments of the component states, provinces or prefectures irrespectiveof the extent and measure of control exercised by either organ.
C. Decentralized Police System — Means a police system in a federal, union or similar form of political orconstitutional arrangement, where responsibility for law and order and consequently the operational control, management,
and superintendence of the police agencies or institutions is the exclusive responsibility of the governments of the states
or provinces; components of the federal or union arrangement as the case may be.
III. CLASSIFICATION OF THE POLICE SYSTEMSNations have varying police systems. Some countries like Chile, El Salvador, Indonesia, Kenya, Malaysia, Nepal,
Papua New Guinea, Tanzania, Thailand and Uganda have centrally controlled or national police systems. Generally suchcountries are characterized by a single designated national police chief who has overall command, superintendence andmanagement of the national police agency. Some countries like Brazil and Japan have Semi-centralized or dually controlled
police systems. Generally in such countries national bodies in the form of Public Safety commissions or similar form ofdesignation exercise indirect powers of supervision over police agencies in the states or prefectures through appointments
and the formulation of policies while the operational command and control remains the responsibility of the states,
prefectures or provinces. Some countries like India and Pakistan have decentralized police systems. In such countries
law and order is a state subject and consequently the operational command and control of the police agencies in the statesis the exclusive responsibility of the state governments concerned while the role of the central (national) government islimited to financial support only.
A. Countries With a Centralized (National) Police System
1. Chile
The Political Constitution of the Republic of Chile states that The Forces of Order and Public Security comprise the
Carabineros de Chile and Policia de Investigaciones. Accordingly the Chilean police forces are entrusted with law
enforcement, public order and internal security throughout the country. The Forces of Order and Public Security fallunder the Ministry of National Defence.
2. El Salvador
According to the Constitution of the Republic of El Salvador the responsibility to maintain public security and internal
peace throughout the country is assigned to the Civil National Police (Policia Nacional Civil — PNC), which is headed
by a General Director, appointed by the President of the Republic.
For the past ten years, due to peace agreements signed after the war the PNC has been under several ministries(Ministry of Interior and Public Security, Ministry of Public Security and by a recent reorganization the newly created
Ministry of Government).
3. Indonesia
The national police force of Indonesia comes under the office of the President. It is headed by the Chief of Indonesian
National Police with the rank of General, who is assisted by subordinate commanders deployed in formations and units
throughout the country and answerable to the Police General.
4. Kenya
The Kenya Police Force comes under the President’s office. It has jurisdiction throughout the whole country and isheaded by the Commissioner of Police, assisted by three Senior Deputy Commissioners responsible for Administration,
the Criminal Investigation Department and the General Service Unit.

183

RESOURCE MATERIAL SERIES No. 60
5. Malaysia
The National Police Force of Malaysia comes under the Ministry of Home Affairs. It is headed by the Inspector
General of Police and has jurisdiction throughout the country.
6. Nepal
The Kingdom of Nepal’s National Police Force comes under the Minister of Home Affairs. The Inspector Generalof Police heads it. The commanders of formation and units throughout the country are responsible to the Inspector Generalof Police.
7. Papua New Guinea
The National Police Force of Papua New Guinea comes under the Minister for Police. It is headed by the Commissionerof Police. The PNG Police Force has jurisdiction throughout the country and the unit and formation commanders deployedthroughout the country are answerable to the Commissioner of Police.
8. St. Christopher and Nevis
The National Police Force of St. Christopher and Nevis comes under the Ministry of National Security, which is inturn under the Prime Minister. The Police Force is headed by the Commissioner of Police and has jurisdiction throughout
the country. Subordinate commanders in charge of formations or units throughout the country are answerable to theCommissioner.
9. Tanzania
The United Republic of Tanzania has a national police force—the Tanzania Police Force, which has jurisdiction inboth parts of the Union namely mainland Tanzania and the islands of Zanzibar. The police force comes under the Ministryof Home Affairs. It is headed by the Inspector General of Police assisted by four Commissioners, one of whom is
responsible for the formations and units of the police force deployed on the isles of Zanzibar and is answerable to theInspector General.
10. Thailand
The National Police Agency of the Kingdom of Thailand is an independent unit under the office of the Prime Minster.
It has jurisdiction throughout the Kingdom of Thailand and it is headed by an officer with the rank of Police General who
is assisted by commanders of formations and units deployed throughout the Kingdom and answerable to the General
Command for the proper administration of their respective units and formations.
11. Uganda
The National Police Force of Uganda comes under the Interior Ministry. It has jurisdiction throughout the Republicof Uganda. It is headed by the Inspector General who is assisted by a deputy inspector general and other subordinate
commanders deployed in the formations and units and answerable to the Inspector General for the proper administrationof their respective commands.
B. Countries With a Semi-Centralized (Dual Control) Police System
1. Brazil
The function of policing in Brazil, according to the provision given by the Federal Constitution, is distributed among
the Union Government and the Federal States. The Constitution assigns responsibility for public safety in their respective
territories to the Federal States. As such each of the 26 Federal States and the Federal District controls two police agencies
namely the Military Police and the Civil Police. The Union Government controls the Federal Police, which among othertasks exercises functions as federal judiciary police. The Union Government is also responsible for the control of
specialized police formations like the Federal Highway Police and the Federal Rail Police. Under the constitutionalarrangement of Brazil the Federal Police under the Union have responsibility for crime with interstate, national orinternational implications e.g. drug trafficking while the police formations under the Federal States and the Federal District
have responsibility for public safety, in general, comprising crime prevention, law enforcement and maintenance of order
within their respective territories and any other crime not under the responsibility of the Union formations.
2. Japan
The best example of a Semi Centralized (dual control) Police System, Japan’s police administration and organization
is an embodiment of two concepts: political neutrality and democratic control; the latter being implemented throughdelegation of authority to local levels. The police organization of Japan comprises the National Public Safety Commission

184

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
under the jurisdiction of the Cabinet office and the National Police Agency. The National Public Safety Commission
issues general guidelines, and appoints the Commissioner General of National police Agency, as well as other senior
officials of the prefectural police organizations. Public Safety and the policing of the prefectures is vested in the respective
prefectures. The National Public Safety Commission however exercises indirect supervisory power over policing activities
in the prefectures through the National Police Agency.
C. Countries With Decentralized Police System
1. India
The Constitution of the Republic of India designates law and order as a state subject. The police agencies in the 28
states are under the control of the respective state governments. However the police force in the 07 Union Territory
Administrations function under the Ministry of Home Affairs of the central government, which also control specialized
investigation agency, the CBI — Central Bureau of Investigation, as well as several central police organizations, which
are often deployed to assist the state police in the event of emergency. The Central Government’s role is restricted to thefinancial support of the states and the issue of general administrative guidelines and policies.
2. Pakistan
Under the Federal Constitution of the Islamic Republic of Pakistan police and consequently law and order is aprovincial subject. Each of the four provinces has its own police agency. The provincial police agencies are headed by
an officer with the rank of Inspector General appointed by the provincial government who is answerable to the respective
provincial government for the proper administration of the police agency. The Federal Government’s role in relation to
the provincial police force is limited to the issuing of general policy guidelines while the operational control remains in
the provincial government.
IV. PROBLEMS IDENTIFIED IN RELATION TO THE POLICE SYSTEM
A. Budgetary Problems Affecting Efficiency
Proper recruitment, selection, education and training of officers are important aspects to be considered in respect ofpolicing. Moreover, police officers engaged in police duties under law enforcement agencies require to be supplied withother particular logistic items, such as: equipment, vehicles, weaponry, uniforms and reasonable pay, etc.
There are two stages in a police officer’s career: First, when they are training in a police academy or school; and,second, the life that starts when they incorporate and go to work dealing with crime. In both of these cases, there areinsufficient budgetary appropriations by governments or institutions in charge.
Even when most of its needs are satisfactorily supplied, the budget is not enough for the police to provide the welfare
conditions for their families, as for good education, security and access to health, a good pay, good pension and adequate
rest time.
If these needs are fulfilled we could expect optimum efficiency from the entire law enforcement organ.
B. Lack of Training
1. Qualification
As a matter of fact, many police officers are never involved in a crisis situation, most of them never fire a gun in theline of duty. Much of their time is spent in routine activities related to social services, such as attending domestic brawls,
etc, as some research studies have indicated.
Many police agencies do not focus their training on important qualities, because they assume their personnel havedeveloped these skills prior to joining the agency. For instance, many law enforcement officers have deficient skills in
relation to tact, physical courage, emotional stability, impartiality and honesty.
2. Education
What level of education is most appropriate for a new entrant to join a police agency is a sensitive and controversial
issue.

185

RESOURCE MATERIAL SERIES No. 60
Although, it might be assumed that higher education is important, that is not necessarily the case as research studies
have indicated. However, education increases police officers’ sensitivity and gives additional qualities to face problems
on duty.
3. Training
In fact, many fields of training focused on technical courses are wasted because they are neglected. In other cases
many police officers are trained on particular law enforcement and other professional skills but they are not being deployed
to areas that require and can use their new skills and knowledge.
C. Lack of Cooperation
In many cases, there is a lack of cooperation between police agencies or between departments within a same agency
due to;1. Creation of too much bureaucracy in police organizations because each section perceives itself as better than the other,
2. Lack of technology to share information, especially when it needs scientific methods to collect, collate official dataand put it to appropriate use. That is why collecting official data and using them is difficult,
3. They think that developing secrecy is one of their most effective sources of power and to share such information
would weaken their power base.
D. Corruption
In fact, most misbehaviour by police officers does not differ significantly from the normal citizens’ conduct, however,people expect much more from police; and many people think that police corruption is pervasive within the organization.
It is impossible to deny that corruption exists among police agencies at various levels of magnitude. Many police officers
are subjected to such strong pressures to which they succumb and become corrupt. In some countries corruption ischaracterized by the following factors;
1. Acts of corruption are not exposed due to a kind of “Code of Silence” among officers,
2. Some officers are charged with acts of theft and violation of drug related laws,
3. The media occasionally reveals that even the highest-ranking officers have participated in cases of corruption, more
often in drug related cases,
4. There are two types of corrupt police officers, on one hand there are those who take bribes routinely from organizedcrime gangs in order to protect such criminal gangs from arrest and prosecution, on the other hand there are those
who take bribes occasionally and persistently keep seeking opportunities to demand and take bribes. In both cases,
i.e. the regular bribe takers and the occasional bribe takers become dependant on corruption for their life styles.
E. Arbitrary External InterferenceThis is a difficult matter to deal with, because it involves real problems within the police system. In fact, arbitrary
external interference symbolizes abuse of power be it by the government, high-ranking officers or influential people
within the political or social set up of a country.
As a matter of fact, those who seek to exert arbitrary influence view themselves to be above the law. As a result,powerful people can commit serious crimes using police institutions. In many cases it ends up as a violation of civilrights. Even while society is determined to make reforms to improve the independence of the police system, unfortunately
in several countries, the police is forced to abandon their roles of law enforcement, order maintenance and service.
F. Lack of Personnel
In many situations, some countries are facing crime without the required quality and quantity of police officers. But
even when the quality attained is of a high level there are not enough personnel to perform such police functions, asgathering information, attending crime scenes, inspecting victimised premises and performing other tasks needed toregister criminal complaints. Sometimes many people do not feel attracted to become police officers, as there areinsufficient incentives to do so. However, in most cases, the problem is the budget. Irrespective of the type of policing
system lack of personnel affects efficiency and effectiveness.

186

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
G. Lack of Accountability
People may lose confidence in a police agency for various reasons. Loss of confidence is not occurring in all countries,
however it is affecting those countries that have problems dealing with corruption, abuse of power and institutional
crimes. It is hard to trust police officers whose private lives are not in conformity with their professional ethics. In thesame way, people are not going to have accountability when those who are in charge of law enforcement, break the rules,
even it be relatively inconsequential rules like jumping a red light.
Common people do not tolerate excessive use of force, even if police use of force is lawful. In addition, lack of
accountability is likely to increase in case police agencies do not emphasize community relations, if they embracecorruption and failure to observe exemplary private life styles among some of the police officers.
V. CONCEIVABLE MEASURES
A. Budgetary Constraints
The constraint of budget is one of the factors that can effect many areas of the police organizations, leading up tosituations that inevitably harm police effectiveness, such as: lack of skills, caused by insufficient training; lack ofappropriate or insufficiency of equipment, and lack of logistic support, which deteriorates their operational capacity andaffects the police officer’s motivation; as well as low pay, which in the same way leads to lack of motivation of personnel,
and as a reflection makes the police service less attractive for recruitment of personnel.
Insufficient budgetary allocation for supporting police needs and expenses is commonly found in countries under
severe conditions of social and economical development.
Besides being a result of the establishment of administrative and governmental priorities, the shortage of budgetary
allocation for police forces, as a matter of fact, also seems to be related to the economic capacity of the country.
In this sense, for the purpose of providing satisfactory financial support for police forces, special attention by theGovernment is required, in order to fairly attend the institutional needs of the police, the social expectations on public
safety and the sustainment of the required level of provision of service to the people.
B. Accountability of the Police
The awesome powers given to the police must be matched with the proper system of accountability to ensure thatthe powers given to the police are not misused. The way accountability is enforced presently is very diffused and vague.
Presently there is no outside assessment of various aspects related to the functions of the police in order to determine
whether police is efficient and effective.
The responsible ministries or other bodies under which the police fall have neither the expertise nor wherewithal andsometimes not even the time to properly evaluate the working of the police. In some countries commissions, like thehuman rights commission, or commission for women only look into specific aspects of police work. Therefore there isa need for periodical inspections of the police to be carried out by an independent governmental organ, similar to Her
Majesty’s Inspectorate of Constabulary, in the UK, and report to the concerned ministry whether the police is functioning
efficiently and effectively. The head of the police would be required to offer his comments on the reports of such anorgan. Thereafter these reports should be published and laid before the Legislature.
To enable the designated organ to assess the work of the police the government should define a certain limited numberof key objectives for the police force to be accomplished during the year. Similarly for each police formation or unit
certain local key objectives should be defined. To assess the performance of the formation or unit certain performanceindicators/indices need to be developed and proper information on those needs to be gathered on the basis of surveys.
Proper evaluation criteria should be developed to judge the performance of a formation or a subdivision of it, up to
the lowest level, e.g. a police station. Similarly, there is a need to evolve proper evaluation criteria to judge the performanceof individual officers who head these formations or units. The evaluation criteria need to be understood by all membersof the police and published for information.
Complaint Authorities should be set up in accordance with the customs and practice of each country, preferably
headed by persons with judicial experience. Investigation into all complaints against police would in the first instance,
be done by the superiors in the police department or agency itself. Those who do not find satisfaction can approach the187

RESOURCE MATERIAL SERIES No. 60
Local Complaint Authority, which should have power to direct the police to reinvestigate the complaints. There should
be a mandatory judicial inquiry into all cases of: alleged rape of a woman in police custody, and death of suspects whilein police custody.
Transparency of police agencies is important in order to win the confidence of the citizens they serve. Police agencies
should therefore establish an internal section or department whose function among other should be to release information
on a routine basis regarding actions taken by the police against officers engaging in acts of misconduct.
C. Arbitrary Political Interference
Arbitrary external and political influence is an unfortunate reality in many countries. The level of interference varies
from country to country but all in all where it takes place, it leads the police forces to deviate from the public interest. It
is one of the factors that certainly cause inefficiency and ineffectiveness in the functioning of the police.
In democratic states the principal functions of the police forces are to enforce the law and the protection of thecommunity, acting according to the rule of law. For this purpose the police have to function under the politicians, in orderto receive guidance and keep the sense of orientation on the public interest. On the other hand, politicians are the ones
entrusted to get the views and aspirations of the people, playing the role of issuing general policies, on behalf of thepeople’s interest.
As a distortion of what is mentioned, there are instances where politicians take advantage of the police forces, by
getting them to act for private or personal interests. As the police is normally one part of the executive branch of thegovernment, functioning under the politicians and consequently in a relation of hierarchical obedience, it becomes aneasy way to intervene internally in the police forces. In addition, the selection of the police chiefs is normally made under
the discretion of one individual politician.
Police forces are, in this sense, highly vulnerable to external pressures, particularly those of a political nature, due
to the fact that the police chiefs are subordinated to the political authorities that have put them in the position they are
vested in. In such circumstances a vitiated relationship might be set, as the police heads may feel morally in debt to thepoliticians and obliged to do particular favors for them. In cases where the police chief refuses to stoop to this kind of
relationship he will then be likely to be removed.
In several countries, in addition to nomination of the police chiefs, political authorities are also given the power todecide promotions and posting of high ranking officers, as well as to determine disciplinary sanctions; such powers enable
them to strongly interfere in police matters in several ways.
As a result, some police institutions are affected in their performance, in situations such as: frequently posting andremoval of personnel, harming the continuity of programmes and actions; unreasonable political recommendations that
harm their recruitment processes, leading them to incorporate personnel with low or unsuitable qualifications; making
decisions on promotions based on political criteria, rather than the evaluation of the performance and other legal
requirements; misuse of the police force for attending personal or private and political purposes; as well as unlawfulinterference in investigations and directions given to the police forces.
Since it is obliged to strictly take the rule of law into account, as matter of principle, police must stand apart frompolitics. On the contrary, what has been seen in some countries is a tightening of the relationship between politics andpolice, and a steady increase of the politicization of police officers.
When police organizations have deviated from their real objectives, it is most likely they will experience declining
standards of their component units and individual police officers. Such a situation leads invariably to public outrage
manifested in diverse ways.
Certainly the solution to the problem of external and political arbitrary interference is not easy work, however it
could be appropriate to consider the invigoration of the police organizations and an increase of its autonomy, as relevant
inputs in this regard.
In this sense, the central idea is to keep the police functions insulated from external and arbitrary pressures, by way
of providing structural safeguards, in order to ensure that the police functions are conducted strictly in accordance to thelaw. The executive branch may have demands in regard of preventive police actions and issue guidance on administrative/

188

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
regulatory functions of the police; however, the investigative functions of police should be totally preserved from any
external interference. Presently in some instances investigations of cases involving high political and governmental
authorities, and other VIPs, can not succeed, due to the existing control over the police apparatus.
Police officers must be shielded from undesirable and unwanted interference in posting and transfers. There must be
some neutral mechanism to ensure it. In this regard, the adoption of a police organization in which the control over thepolice by the executive branch is exercised by way of an organ that can ensure its impartiality and political neutrality
seems to be the most important recommendation.
For that purpose, the Japanese police system based on political neutrality and democratic control is fit for consideration,
as it is built in such a way as to ensure absence of arbitrary and political interference. This system may be suitable forsome countries in either its entirety or with minor modifications.
The following is a brief description of the main characteristics of the Japanese police system:1“The National Public Safety Commission and the National Police Agency constitute Japan’s national police
organization. The National Public Safety Commission exercises administrative supervision over the National
Police Agency. While the Commission is under the jurisdiction of the Cabinet Office, the Prime Minister is not
empowered to exercise direct command or control. This guarantees the Commission’s independence and ensures
its political neutrality.
The Commission formulates basic policies and regulations, coordinates police administration on matters ofnational concern and authorizes general standards for training, communication, criminal identification, criminal
statistics and equipment.
The Commission appoints the National Police Agency’s Commissioner General and other senior officials ofprefectural police organization. The Commission indirectly supervises prefectural police organizations throughthe National Police Agency.
The Commission consists of a Chairman and five members. The chairman is a state minister who presides overCommission meetings. Members, who serve five-year term, are appointed by the Prime Minister with the consent
of both houses of the Diet. They must be persons who have not served as police officers or public prosecutors
within five years of appointment. To ensure political neutrality, no more than two members may belong to thesame political party.”
Providing a reasonable tenure for officers at senior levels is an important step to improve police performance. In
order to ensure that the office of the police is independent, another recommendation that could be considered is to grantsecurity of the tenure for the police chiefs, at national and state/provincial level. By way of having a fixed tenure thepolice chiefs will have no fear in the exercise of their functions, as they do not have to be under the threat of beingtransferred or removed. Clear provisions should however be laid down for the removal from office of police chiefs. They
should be removable for unsuitability or other causes or proven misconduct.
This treatment is similar to what is done for the prosecution service in various countries, where prosecutors are given
certain prerogatives such that they may be removed only under certain circumstances.
In Japan, for instance, prosecutors may only be removed in circumstances, such as: voluntary resignation, reachingretirement age, found unsuitable for the position by the public prosecutors qualifications examinations committee, anddisciplinary action. Other countries such as Germany and Brazil, similarly, have successfully granted strong prerogatives
for prosecutors, in order to immunize them from external influence.
Matters of promotions and disciplinary actions related to police chiefs and high rank police officers in order to insulatethem from external and political arbitrary interference should be dealt with by a constituted organ (as per the previous
recommendation), which exercises control over the police. In the same way, this measure aims to strengthen the selfconfidence of police chiefs and police officers in order to keep the functioning of the police according to the rule of law,with no fear of retaliation.
1

Text extracted from the magazine Police of Japan 2001, issued by the National Police Agency of Japan, page 02.

189

RESOURCE MATERIAL SERIES No. 60
D. Politicization of Police Officers
It has to be mentioned that the politicization of police officers can strongly harm the performance of the police
agencies. In this context the intrusion of politics into police forces may give rise to negative consequences. Among suchnegative consequences: police officers showing lack of professional standards, more concerned with their own interests;
lack of commitment with police duties and low level of discipline, resulting in a weak chain of command.
The gravity of the involvement of politics into police forces can be more clearly understood if the perceived connection
between politicians and organized crime is taken into consideration. In this regard the existing police apparatus cannot
oppose such kinds of coalition, when the police itself is already contaminated.
E. Police Corruption
Police corruption is widely accepted as being a matter of concern on police management, since police officers are
known to serve in a very sensitive and peculiar environment, subjecting them to rather potentially corrupting situations.
However, corruption is not considered an endemic occurrence in some countries.
The causes of corruption of police officers in addition to the environmental conditions of the police service are also
related to other circumstances, such as: lack of ethical standards, which is the foundation of professional conduct; long
periods of service exercising the same functions, which makes an officer develop overrated self confidence in his/her
own capacity; social environmental conditions; as well as low level of training and education.
Police corruption, understood as the dishonesty within the law enforcement function, is the conduit pipe throughwhich criminalization and politicization of police officers passes. It is a complex and harmful situation, which requires
special attention of police management at the governmental level, since its occurrence leads to the development of mistrustof the police organization.
In this regard, for purposes of improving the situation, some practical measures are recommended, as follows:
1. Ethical standards
The establishment of internal regulations on ethics set up by a code of conduct for police stipulating the standards
expected of the police and its officers in the performance of their duties is highly necessary. Such provision shouldemphasize honesty, dedication to duty, exemplary behavior in public, service to people, the rights of private citizens andhuman rights. Such provisions should also put in place the necessary sanctions to be imposed in case of misconduct. The
administration of the disciplinary sanctions should be charged to senior police officers within the police department.
It would also be necessary that a similar code of conduct, both for the government servants as well as the elected
representatives at the various levels be provided, as well as strictly enforced, and not remain on paper only.
2. Training
By way of proper training the Code of Conduct and its ethical values have to be drilled into the minds of police
personnel during the initial training as well as in-service training. As part of the continuous training of the police regular
ethics courses should also be conducted.
3. Punishment
The punishment for proven corruption should be dismissal from service and nothing less. Assets acquired throughcorrupt means need to be forfeited. Procedures for holding departmental enquiries should be simple and fast.
4. Social/Economical support
Police officers have to be granted reasonable conditions for supporting their individual and family needs; withparticular attention to the lower ranking police officers’ working conditions, living conditions, such as: proper housing,schooling for their children and medical assistance.
5. Other measures
Making it compulsory to file annual property returns by all ranks of police, which after submission are scrutinized
and analyzed properly would make it unattractive for police officers to amass wealth through corruption.
To improve in-house vigilance, confidential reports on supervising officers should contain a paragraph regarding
efforts made by the officer to control and curb corruption in the subordinate staff.

190

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
Regular inspections, visits and supervision by senior officers should be done in order to discourage various formsof police misconduct and acts of indiscipline.
Occupational deviance, like the falsification of evidence, planting of evidence in order to secure conviction should
be discouraged and perpetrators of such acts should be punished in accordance with the disciplinary code.
Police agencies serve in given contextual settings. In situations where police corruption is pervasive it is also possiblethat acts of corruption exist in other sectors of the public service. This calls upon a holistic approach to fight corruption
in other sectors of the public service. Countries should therefore consider seriously the setting up of independent anticorruption organs/agencies to investigate acts of corruption among the other members of the public service.
F. Lack of Training
Training is at the very heart of effective and responsible policing. While a lot of lip service is paid to it, in reality it
is a rather neglected area. Training institutions are not given the importance they deserve nor the resources they require.
A very small percentage of the total police budget is spent on training. It is mostly unwanted persons who are posted toa training institute, on occasions as punishment posting. Lack of interest on the part of police chiefs in the matter oftraining and the budgetary constraint, are the major inhibiting factors. Training should not be treated as an end in itself.
The real challenge is to translate the best possible training into the best possible police performance.
There has to be a co-relation between training undergone by the officer and his posting. No officer should be posted
to a new discipline unless he has undergone the requisite training. Promotion should be linked to the training and passingof certain departmental examinations. As such training should not be considered as once-in-lifetime affair at the beginningof the career. In-service training needs to be given greater attention. There is a need for total reorientation in the approachfor training. All training needs to be subdivided in two areas: one that is basic, is motivational; value based which enhancesdiscipline and communications skills; the second area of training should have its objectives, acquisition of specializedskills and professional expertise. Training in both these areas together should achieve two purposes, namely: an attitudinaltransformation and development of skills.
Each police chief should constitute an in-house “committee on training”. The committee should prepare a panel ofcompetent trainers without whom the training programme would receive a set back.
Police behavior, image, public relations and efficiency are inter-related areas. Of this, police behavior is the mostvital parameter and critical variant causing positive or negative impact on the remaining three areas. Police in each country
should adopt the concept of “change-agent-action plan” like a part of the UNDP (United Nations Development Programme)
project on Improving the Organization and Law Enforcement System and train the required number of change agents at
various levels of police hierarchy. More international cooperation including funding is required to boost the training
programmes in the developing countries.
The impact of training needs to be evaluated properly. There should be a method of such evaluation of each person
who has undergone a training programme at the end of one year after the training. Relevant entries should be made in
the officers’ evaluation report by the superior officer about the use of skills acquired in the training.
There must be greater emphasis on joint training of officers belonging to various components of the criminal justicesystem. Such joint training programmes, including participants from police, prosecution, judiciary, correctional
institutions and prison are very useful for effective coordination and development of mutual understanding among thevarious wings of the system. Perhaps it would be still more useful if some members of the community with relevant
expertise who are in a position to give good feedback about police work are also included in the joint training programmes
as participants as well as guest lecturers or resource persons as the case may be.
Facilities available at police training institutes need to be up dated. The need for improving the infrastructure at thetraining institutes, improving the quality of trainers and provision of incentive to trainers is to be recognized andimplemented with proper allocation of budget.
G. The Role of Police Associations
In some countries Police Associations bringing together various levels of police officers have been established, whichhave played a considerable role in the improvement of the conditions of service for police officers, and raising ethical191

RESOURCE MATERIAL SERIES No. 60
standards, which has in turn raised the officers’ morale and consequently their efficiency. There is however no practiceor custom of establishing such associations in some countries and therefore this recommendation may be of limited utility.
Hence we recommend that in the countries where local custom, practice or law permits the establishment of police
associations, consideration should be given to establishing them, so that they may assist in various areas of police reform.

192

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE

193

GROUP 2
COOPERATION BETWEEN THE POLICE AND PROSECUTORSChairperson

Mr. John Maru

(Papua New Guinea)

Co-Chairperson

Mr. Ejaz Husain Malik(Pakistan)

Rapporteur

Ms. Nassuna Juliet(Uganda)Co-Rapporteur

Mr. Nobuyuki Kawai(Japan)Advisers

Prof. Kei Someda(Japan)Prof. Yuichiro Tachi(Japan)I. INTRODUCTION
At the 120th UNAFEI International Senior Seminar, the participants from fifteen countries1 discussed a topic of“Cooperation between the Police and Prosecutors” in their consideration of “Effective Administration of the Police and
the Prosecution in Criminal Justice”. The purpose of the discussion was to suggest possible directions with which thepolice and prosecutors can work together to improve effectiveness in the investigation and the prosecution while
maintaining accountability of the criminal justice system.
This report is the result of the above-mentioned discussion and was also facilitated by valuable contributions fromthe participants and the visiting experts.2 As to the definition of basic terms used in the report, reference was made to thereport of the 107th International Training Course of UNAFEI.3 Reference was also made to various resource materials,
which were available to all of the participants.
II. BACKGROUND
A. Establishment of the Rule of Law
In the course of the discussion, the common roles of the police and prosecutors in criminal justice system wasrecognized and confirmed by the participants as follows:
The purpose of the criminal justice system is to realize the rule of law, which is one of the most fundamental conditions
for the sustainable development of societies. For this purpose, justice has to be given to those who have broken the law
while protecting due process of law. Accordingly, the police are empowered to conduct investigations to give justice tosuspects, whereas prosecutors are empowered to check the investigation conducted by the police and to dispose the casefor the prosecution, following the due process of law. In other words, prosecutors are vested with the responsibility ofchecking the police investigation against due process of law.
B. Consideration of EffectivenessAs was stipulated in the theme of the Seminar, participants’ attention was drawn to the importance of effectiveness.
Effectiveness is indeed relevant to the issue of the cooperation between the police and prosecutors because of their everincreasing workload especially in terms of the circumstances as follows:
1. Growing Challenges from Crime in Terms of Complexity and Multitude
Increasing complexity, diversity and multitude of crime in this modern society has been giving more and morechallenges to criminal justice authorities, especially to the police and prosecutors.
For example, it was reported that, even in Germany where prosecutors have vested responsibility to take the lead in
all investigation proceedings, the multitude of both criminal offences committed and of investigatory acts needed in
1

Brazil, Chili, El Salvador, India, Indonesia, Japan, Kenya, Malaysia, Nepal, Pakistan, Papua New Genie, St. Christopher Nevis, Tanzania, Thailand,and Uganda

2

Mr. Kim from the Judicial Research and Training Institute of Korea, Mr. Boeuf from the Crown Prosecution Service London, Mr. Siegismund fromthe Justice Ministry of Germany, Dr. Kittayarak from the Ministry of Justice of Thailand, Professor Castberg from the University of Hawaii, and
Dr. Suddle from Police Balochistan Quetta of Pakistan.

3

Reports of the Course, 107th International Training Course

194120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
connection therewith make it actually impossible for the public prosecution office to fulfill this obligation. It is well
imaginable that, at least in Germany, investigations of prosecutors can be conducted almost entirely from their desk, withmore intensive use of the telephone. This way of performing the work is frequently found in practice in Germany, because
the enormous workload seldom allows prosecutors time for external investigatory acts.
On the other hand, such circumstances require the police to improve their capability in scientific analysis, informationand data processing, international cooperation and so forth, which results in, at least to some extent, prosecutors’
dependency on the specialized knowledge of the police. The police are also expected to react flexibly and expeditiously
to the modern forms of crime, which calls for more discretion of the police in the criminal proceedings.
2. Increasing Responsibility in Terms of De-regulation
Currently, some countries including Japan are in the process of transition from societies of preconditioned ambiguous
governmental regulations into societies of de-regulation with clearly stipulated rules and strict individual responsibility
especially in the area of business activities. In such a society of de-regulation, law enforcement authorities should be
expected to take more responsibilities in giving justice to those who violate the rules. Given the circumstances as such,urgent attention should be paid to the effectiveness of the process of investigation and prosecution.
III. ROLE OF PROSECUTORS IN INVESTIGATIONSApart from their responsibility to dispose criminal cases for prosecution, prosecutors in every country play some
important roles in criminal investigation despite the differences in basic legal principles. In some countries, prosecutors
have an overall responsibility over investigation, while in others they have a limited role in carrying out investigation.
In Germany, prosecutors are by law responsible for leading investigations by themselves and the police are only an
investigatory body of the public prosecution office, whereas in reality it is the police who are actually leading investigations
in most cases. Prosecutors are vested with similar responsibility in Korea. In Japan, prosecutors are also empowered tocarry out investigations, but at the same time, the Code of Criminal Procedure states that the primary responsibility ofinvestigation lies with the police. On the contrary, in other countries with common law traditions such as Kenya, Pakistan,
Papua New Guinea, Tanzania and the United Kingdom, prosecutors play no role in investigation as such, but do exercise
their advisory or supervisory authority to guide the police investigation in such ways as advising or instructing the police
to carry out their investigation to certain direction.
A. Giving Guidance/Instructions to Police Investigators
One of the most important and common roles of prosecutors is to check police investigations against due process oflaw, while keeping the effectiveness of police investigation. In order to meet the rule of law standards, promote acceptanceof court decisions by the accused and strengthen public confidence in the police’s right to conduct searches and seizuresin private premises, the investigation work of the police should be, at least in principle, critically monitored. Prosecutors’authorities in supervising and giving advice/instructions to police investigators can be viewed in this regard. The extent
of such authorities varies from country to country, from non-binding advice to complete control over police investigation.
However, it should be noted that, in countries where prosecutors exercise complete control over police investigations,prosecutors tend to be directly responsible for police investigations themselves, rather than just checking police
investigations, resulting in the loss of sense of responsibility among the police investigators.
In this context, it is also worth noting that, in the countries with common law tradition, there is a concern over theprosecutors’ involvement in police investigation at the early stage of an enquiry, even though it is at the same time no
doubt considered useful in improving good working relationships with the police. It was reported that, in the investigationof a murder in Wales in the United Kingdom, a prosecutor became engaged in the enquiry at an early stage advising on
what powers the police had and how they might execute these powers. At the trial when cross-examined about a courseof investigative action taken, one of the police officers responded to the effect that he had acted on the advice of theprosecutor. In due course the prosecutor concerned found himself in the unfamiliar position of being in the witness box
being examined and cross-examined vigorously on his role in the investigation. Therefore, consideration should be given
to the proper degree to which the division between the responsibilities for investigation can be kept apart from theresponsibility for independent conduct of the prosecution. It was also reported that, because of the similar concern,
prosecutors in the United States seldom interview witnesses directly especially in the case the witness is at the same time
the accused.

195

RESOURCE MATERIAL SERIES No. 60
It was suggested that, at least in those countries with common law tradition, while prosecutors need to be sensitized
to the operational and strategic plans of police; they should not assume the “policing” role in general and restrict themselvesto screening the police information in a more legal manner.
B. Supplementing Police Investigations
In the countries where prosecutors are empowered to conduct investigations, prosecutors, if needed so as to ensureconvictions in court, can supplement police investigations. In some countries, prosecutors are empowered to instruct
police officials to assist their investigations. In this context, some participants pointed out that a conflict could occur
between such an instruction to the police officer from prosecutors and the organizational chain of command of the police.
C. Conducting their Own Investigations
In the countries where prosecutors are empowered to conduct investigations, prosecutors can initiate their own
investigations. In many cases, prosecutors conduct their own investigations in such areas that prosecutors have competitive
advantage over the police. Those areas include large-scale economic crime, political corruption cases, and so forth.
For example, in Hanover Germany, the public prosecution office set up a pilot investigation unit where investigation
relating to property assets is conducted separately from other investigations. This unit has the sole task of tracing criminallytainted assets and of freezing them for the benefit of the state or of the victims of the offences concerned. The classicalfunctions of clearing up the offence and conducting the criminal prosecution are the responsibility of other prosecutors
acting in the same case. This central office for “organized crime and corruption” principally has a coordinating andresponse function for legal and organizational questions. It is also responsible for organizing and coordinating supradepartmental training events and exchanges of experience, the drafting of forms, and the assessment of success, including
securing the assets frozen.
It is worth noting that, even in the jurisdiction of England and Wales of the United Kingdom where the principles ofseparating strictly the responsibility for investigation and prosecution was established in 1986 on the creation of the
Crown Prosecution Service, such principles were swiftly jettisoned in relation to serious fraud offences. The Serious
Fraud Office, which is staffed by lawyers, accountants and others with relevant experience, was created in 1988. It is a
unified organization properly resourced with statutory powers of investigation. Working closely with the police, this
Office controls investigation and prosecution.
Similarly in Thailand, where the prosecutors are not empowered to investigate by themselves, an establishment of
the Special Investigation Bureau was recommended in 2001, by the Committee for the reorganization of the Ministry ofJustice, which was chaired by the Deputy Prime Minister. The Special Investigation Bureau will have the jurisdiction toinvestigate “sophisticated crimes” as will be defined by law. The establishment of this Bureau will provide a scheme forprosecutors to work closely with the special investigators from the start so as to make more effective investigation andprosecution of such “sophisticated crimes”.
IV. PROBLEMS DISCUSSED
A. Psychological Traits of the Police and Prosecutors
After undergoing lengthy, laborious and complicated investigation process, police investigators generally tend todevelop a feeling of exclusiveness, and feel that the entire investigation domain is their responsibility. As a result any
sort of advice and instruction from outside is taken as interference and unnecessary. Resistance is shown if they are told
to bring more substantial evidence, or amend or improve the evidence collected. Police officers and organizations tend
to take their entire work and especially the case handling as a professional and skilled job. Though they work and do theinvestigation within their own legal, and procedural codes, their practical and operational framework makes them believethat they have their own chain of command system which works as efficiently as prosecutorial agencies and which they
believe, can provide them guidance and instructions.
With academic background in jurisprudence hence having greater sensitivity to human rights, rule of law and due
process, prosecutors tend to develop more legalistic approach in handling police files. Prosecutors will first examine theappropriateness of evidence and will then evaluate its fitness for the court proceedings. Pressure from colleagues in an
investigating agency for prosecution may embarrass him in case his disposition appears to lead to acquittal. Similarly,
as is the case in Nepal, investigators may bring applications for arrest warrants to a prosecutor even at midnight and ask
for speedy scrutiny, which will put pressure and strain on the prosecutor.

196

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
These mutually repellant psyches of investigators and prosecutors have hampered the smooth working relationshipbetween the two.
B. Conflicting Views over Case Disposition
Despite the difference in the legal system of each country, which governs the relationship between the police andprosecutors, most of the participants reported that the police feel frustrated when the prosecutors’ case-disposition conflicts
with the expectations of the police. It is totally disappointing for investigators if an arrested suspect is set free by prosecutors
on the ground that the prerequisites have not been fulfilled for keeping the suspect in custody, or where investigatory
activity despite the great deal of time and effort involved leads to the termination of the proceedings.
It was pointed out that in such cases prosecutors also feel stress, which may lead to negative influence on the working
relation between the police and prosecutors.
C. Lack of Shared Common Goals
It was reported that, in England and Wales of the United Kingdom, there had been a lack of confluence in the aims
and objectives of the police and the Crown Prosecution Service. The conviction of charged defendants had not been
considered as a priority in the policing plan. A lack of sharing common goals with prosecutors as such can cause difficulty
for prosecutors to motivate police to produce quality files on their investigations, especially in some of the countries with
common law traditions where the prosecutors are empowered only to prosecute, but not to investigate.
In such cases where the police and prosecutors do not share the common goals in criminal proceedings, the police
may develop practices, which are not compatible with the prosecutorial purposes, such as relying only on informationthat is not admissible as evidence in the court.
D. Lack of Objectivity
In some of the countries with common law traditions such as Australia,4 Kenya, Pakistan, Papua New Guinea andTanzania, most criminal prosecutions in the lower courts are conducted by prosecutors who are full-time serving membersof the police force. Even though there should be no disagreement between police investigators and prosecutors on thedisposition of cases in such a system, several participants from those countries reported that a lack of independence ofprosecutions in such a system leads to a lack of objectivity among prosecutors, which results in inappropriately screened
prosecutions. As prosecutors are full time members of the police department themselves, and in some countries they wear
the same police uniforms and share the same hierarchical chain of command structure as their colleague investigators,
they feel inhibited to write an advice, which may substantially affect the investigations. A lack of appropriate supervisionof and guidance to investigations in such a system may also result in a low conviction rate in the court.
It is also reported that, in some of these countries, there is a case in which those lawyers who otherwise do not foresee
any future for themselves in private practices join the police as prosecutors. Such police prosecutors in some cases do
not possess sufficient knowledge and ability to furnish appropriate guidance to police investigators. Moreover, in suchcountries, these prosecutors are sometimes unsatisfied with their promotion, pays and other facilities in the police
organization. Accordingly, violation of due process, regulations and laws by the vested interests can go unchecked, as
prosecutors does not possess enough skill and authority to caution or challenge any wrongdoing.
E. Lack of Discretion in Police Investigations
In the countries with civil law traditions such as Brazil, Chile, El Salvador, Germany, Indonesia, Italy, Japan and
Korea, prosecutors are entrusted authorities concerning investigations, which include authority to implement
investigations of its own, and authority to supervise, at least to some extent, police investigations.
In almost all civil law countries the entrustment of investigation and supervision of investigation to prosecutors havehistorical connotations. In some countries irrelevance of the police to human rights at certain times in the past or aparticular event like arrest of a suspect who was later acquitted, lead to greater involvement of prosecutors in the courseof investigations. On the other hand, events have taken place where the police have taken refuge behind the argumentthat their failure or inefficiency is due to interferences by prosecutors.
Some of the participants from those countries, however, reported their concerns over the excessive interference ofprosecutors into police investigations. In some of those countries, the police are given very little discretion in the course
4

Chris Corns, Police Summary Prosecutions: The Past, Present and Future (1999)

197

RESOURCE MATERIAL SERIES No. 60of their investigation, resulting in a lack of flexibility in police investigation. In this context, it is worth noting that, in
Italy, there is an argument that the police’s stifling dependence on prosecutors is gravely undermining the professional
competence of the police in the conduct of investigation.5 It was also pointed out that the increase of both complexity
and multitude of crime is making prosecutors’ complete supervision over all aspects of police investigation more andmore unrealistic and ineffective.
It was also suggested that the establishment of a supervising organ such as a coordinating committee might bebeneficial to mediate and coordinate the discretionary authorities of the police and prosecutors.
In Germany, the police are now intensifying their demands for an expansion of their police powers in criminal
proceedings at the expense of the functions exercised by the public prosecution office and by judges, which were greetedwith extreme caution by the judiciary. There is an opinion in Germany that, even though it is often considered appropriate
to limit the power of prosecutors supervising investigations to the basic issues and central aspects of the investigation
proceedings, and to give the police a free hand with regard to the detail, the police authorities should only be given
additional powers if there is no doubt that they are fully capable of exercising them.
V. SYSTEMATIC RELATIONSHIP BETWEEN THE POLICE AND PROSECUTORS
A. Systematic Checks and Balance Mechanism of Criminal JusticeParticipants were of the view that, it is rather natural and desirable for the two organizations, which bear different
responsibilities to have conflicting views over certain case dispositions. Such conflicts between the police and prosecutors
should be considered as evidence for the proper functioning of the checks and balances mechanism of the criminal justicesystem. Accordingly, the police should welcome, or at least try not to avoid, such checks from prosecutors. On the other
hand, the prosecutors’ supervisory functions such as giving advice/instructions to police investigators should always be
accompanied with clear and reasonable explanations of their grounds.
It was pointed out that, in order to make such a relationship more effective, both sides should make efforts to understandand respect each other’s responsibility in criminal procedure. The police should respect the prosecutors’ advice with aview to sustain successful prosecution, and try their best to protect the due process of law in the course of their investigation.
Prosecutors should try to understand the difficulty the police are facing in the course of police investigations and to pay
as much respect as possible, within existing legal framework of each country, to the discretion of the police in theirinvestigation.
B. Elaboration of the RelationshipWith a view to enhancing the effectiveness in the collaboration between the police and prosecutors, several suggestions
were discussed. Since there is no single clear solution to improve such a relationship, each country, depending on thecircumstances and practical realities, can adopt one or a combination of the below stated models to improve the working
relationship which, all the participants acknowledged, is inevitable for the systematic checks and balances mechanism
between the police and prosecutors to effectively function in the modern society.
1. Sharing Common Values
Effective criminal justice management requires concerted action of all relevant authorities in the government, whichhave the same ultimate goal of realization of the rule of law. Those authorities should share substantial common values
which are supported by strong political will, such as the “Joint Business Plan for the Criminal Justice System” in Englandand Wales of the United Kingdom. Such notion of “joined-up working” should surely promote practical cooperation
between the police and prosecutors.
It was pointed out that, insofar as the prosecution concepts and investigation strategies of the police can have an
impact on criminal prosecution, involvement of the public prosecution office in the form of mutual consultation andcoordination seems to be effective. There might otherwise be a reason to fear that the measures taken by the police would
not be followed up by prosecutors and would thus prove fruitless. In Germany, the arrangement spelled out from the“Joint Guideline of the Ministers of Justice and Ministers of the Interior to Cooperation between the Public Prosecution
Office and the Police in the Prosecution of Organized Crime” is a prime example of how to structure cooperation extending
beyond individual cases between the public prosecution office and the police to combat organized crime. Strategies forcombating domestic violence have also been developed in Germany by the public prosecution office and the police in
5Giuseppe Di Federico, Prosecutorial Independence and the Democratic Requirement of Accountability in Italy (1998)

198

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
collaboration with other authorities, in order to effectively protect women and children against violence, and to impose
appropriate sanctions for offences and prevent recidivism.
2. More Communication
Participants were of the view that the key to the good working relation between the police and prosecutors is thepromotion of mutual understanding through informal person-to-person contact.
(i) Intensive Early Stage Consultation
Intensive consultation with the police about matters arising in connection with a particular investigation reduces
police frustration about releasing the accused or about subsequent termination of the proceedings, and leads to better
results in the investigation, because there can then be precise determination in advance of what is actually needed for the
purpose of preparing the main hearing. The motivation for efficient collaboration between police investigators andprosecutors cannot be overestimated in relation to the goal of avoiding, or at least reducing, frustration experienced by
the police.
The same approach can be observed in the countries of common law tradition. In England and Wales of the United
Kingdom, special ad hoc Crown Prosecution Service units are set up in such events as riots. After first successful
arrangement of this kind in 1990 in London, in which prosecutors with police officers analyzed the available material
identifying perpetrators of crime and advising the police which of those identified as being involved should be the focus
of attention. Prosecutors were not only able to guide the police to those most culpable, but also to indicate some sort offramework around which potential interviews could be built. The approach undoubtedly assisted in focusing on what had
to be done and eliminated much effort, which might otherwise have been wasted. Similar tactics are being adopted inother riot cases after football matches, and May Day, thus economies of effort and improved chances of successfulconvictions were prompted. As London has been subjected to May Day riots aimed at centers of commerce, the degreeof liaison between police officers in devising strategies to deal with those arrested has been a feature and planning meeting
now regularly take place in the weeks preceding May Day.
(ii) Regular Meetings, Workshops, Seminars
Several participants suggested that regular meetings at least once a month would be beneficial. It was pointed outthat regular joint official discussion between the police and prosecutors might lead to coordinated and simplified
investigations.
Apart from regular meetings, it was further suggested that regular workshops and seminar should be used to exchange
views on areas of contention in order to forge closer working relationship. During these seminars, sensitization should
be done to ensure that both prosecutors and the police understand that they are set up for the same purpose to combat crime.
(iii) Close Liaison
Some participants emphasized the benefit of sending liaison to each other’s office. In this context, it is worth noting
that, in the United Kingdom, the placement of prosecutors in police stations, even though the efforts to offer pre-charge
advice to police investigators was not proven to be effective, indeed produced an improved working relationship between
the police and the prosecutors.6 Furthermore, consideration should be given to the secondment of personnel between thepolice organization and the prosecutors’ office.
Also in the countries of civil law tradition, relocation of offices such as having the police criminal investigation
department at the prosecutors’ office, or else having prosecutors at the police criminal investigation department is
considered useful for intensifying cooperation and reduce bureaucratic sequences as a result of the closer proximity. It
is considered to be obvious that adjacent accommodation for the prosecutors’ office and the police may also be beneficial.
In fact, the police headquarters of some of the large German cities have made an office available on their premises toprosecutors.
In Germany, there is also a police project where they have established “the House of Juvenile Justice” where theyouth welfare office, the police and prosecutors are under one roof and the nearby local court keeps time slots for hearing
the cases. All institutions involved exchange their knowledge and coordinate assistance measures in the event ofinvestigations or sanctions.

6John Baldwin and Adrian Hunt, Prosecutors Advising in Police Stations (1998)

199

RESOURCE MATERIAL SERIES No. 60
3. Legislation
Some participants were of the view that there should be legal provisions to clearly provide the role of prosecutors
and the police. For example, in Brazil, after the promulgation of the constitution in 1988, the power of prosecutors wasincreased and prosecutors were given supervisory powers over the police. As a result the police have since lost discretionas to the extent of their responsibility or duty toward prosecution, creating imbalances between the police and prosecutors.
One of the problems here is a lack of a provision with a clear definition of the authority of prosecutors in these criteria.
4. Cooperation Models for Simplified Proceedings/Diversion
It was suggested that consideration should be given to the question of whether closer cooperation between the policeand prosecutors in the form of delegation of responsibilities or preliminary examinations could simplify and speed up
the conclusive handling of criminal proceedings.
An example of such cooperation is seen in Germany where cooperation models are used to simplify proceedings incertain cases. In juvenile delinquency cases there are guidelines for combating juvenile delinquency that assign a broad
range of responsibilities to the police in order to reduce the burden on the judicial authorities without encroaching on theauthority of the public prosecution office. The term “diversion” used in this context means a deviation in sanction practicefrom the classic formal procedure involving the judicial authorities in favor of an informal, swift and flexible response.
Accordingly, preference of charges and conviction may, following the exercise of socio-educational influence or
implementation of socio-educational measures, be replaced by termination of the proceedings. The prerequisite for suchflexible handling of proceedings is that it applies only to criminal offences of a minor nature. In order to submit only
really suitable cases to prosecutors or the court, the police must determine in their investigations whether the accusedhas already voluntarily rendered meaningful socio-educational accomplishments or voluntarily suggests or actuallyrenders such accomplishments. In such cases, the distribution of labor between the police and the public prosecution
office is advantageous for all the parties involved, including the young person concerned. The aim of such administrative
provisions is to provide and improve cooperation between the police and prosecutors, the youth welfare authorities andthe court among others.
There are similar guidelines for mediation between the perpetrator and the victim in Germany, which instruct thepolice to submit a case they deem suitable for mediation between the perpetrator and the victim to the public prosecution
office without delay. Insofar as the accused and the person harmed agree to such mediation, the public prosecution officerequests a conflict mediation agency to carry it out. Upon conclusion of mediation between the perpetrator and the victim,
the files are submitted to the public prosecution office, which then decides, with the involvement of the court if necessary,whether the proceeding should be terminated or whether the circumstances of the act nevertheless give cause for prefermentof charges.
Models for more efficient efforts to combat shoplifting are being developed also in Germany, for efficient cooperation
between the police and the public prosecution office. In the case of loot with a value of less than fifty dollars and if theperpetrator does not already have a theft record, the police offer the accused the option of terminating the proceedings
upon payment of a regulatory fine. It is the decision of the public prosecution office whether to decide the proceedings
should be terminated, but usually it concludes the proceedings.
V. CONCLUSION
In order to realize the rule of law, the prosecutors’ guidance to the police investigation is sine-qua-non for civilized
and democratic society. Modern police forces are highly professional, well trained and well equipped while prosecutors
on the other hand are highly qualified legal brains. It is apparent that the police and prosecutors are getting more andmore mutually dependent due to the increasing complexity, multitude and other challenges of crime emerging in modern
societies. Considering the heavy workload the police and prosecutors are facing, it is quite understandable that, in somecountries, various ways of effective distribution of labor between the two organizations are being experimented.
Given such circumstances, it is not surprising that, despite the difference in the basic legal principles in criminal
proceedings, or historical background relating to the relation between the police and prosecutors, most of the countries
seem to be heading to the same direction, where closer collaboration between the police and prosecutors is emphasized.
In this context, it should be kept in mind that the development of new forms of cooperation between the police andprosecutors should not be viewed as just an adjustment for the sake of convenience, on the contrary, such developments
in many countries are structured upon the deep consideration as to the independently entrusted roles of the police and200

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
prosecutors in the course of realizing the rule of law. The relationship between the police and prosecutors inevitably anddesirably involves, to some extent, a conflicting nature. Accordingly, close collaboration between the police andprosecutors should be only developed on such a challenging, though positively stimulating, relationship.

201

GROUP 3
EFFECTIVE CASE SCREENING BY PROSECUTORSOR OTHER COMPETENT AGENCIES
Chairperson

Mr. Azmi Bin Ariffin(Malaysia)

Co-Chairperson

Ms. Titiek Syamsiar Mokodompit(Indonesia)

Rapporteur

Mr. Merton Meredith Charles(Saint Christopher and Nevis)

Co-Rapporteur

Mr. Takashi Yamashita(Japan)Advisers

Prof. Toru Miura(UNAFEI)

Prof. Kenji Teramura(UNAFEI)

Prof. Sue Takasu(UNAFEI)

I. INTRODUCTION
A. Definition
According to the Longman Dictionary of Contemporary English, screening means “to test in order to find out ability,
health, suitability, loyalty, etc. and so be able to remove those that do not reach the proper standard.” In our context, casescreening can be said to be a process of vetting relevant documents to see whether there is sufficient evidence to chargea person in court or otherwise. In certain countries, case screenings are done through vetting the investigation papers
submitted by the police and to decide whether or not to prosecute the suspect based on the evidence available. If he/she
is satisfied that sufficient evidence is available to prosecute a person for a particular offense then he/she will directprosecution. However in some countries like Japan and Korea, prosecutors have a discretionary power to suspend aprosecution even if there is sufficient evidence to guarantee a conviction. This is classifiable as case screening merely
because in those instances the prosecutor expunge cases from the ordinary criminal procedure. Apart from that, there isanother method of case screening conducted in Japan known as summary proceedings.
B. Necessity and Importance of Case Screening
The importance and necessity of case screening is the interests of justice. There are two types of case screening. One
is the test whether there is sufficient evidence to obtain conviction. This case screening ensures expeditious prosecutionof cases, helps to ensure that no innocent person is charged and where appropriate the accused is punished for the crime
he/she committed. Another case screening is the test whether or not to prosecute even when there is sufficient evidence.
This test helps to reduce overloading of the court with trivial or minor cases, and in other cases where it would not be in
the public interest to prosecute all of them but only the most serious cases. When the courts are overloaded with criminalcases, the consequential effect would be delayed trials. Justice delayed is justice denied. Effective case screening helps
to reduce government expenditures and can ease the problems of overcrowding in prisons. As far as the accused isconcerned, it ensures the right of the accused to a speedy trial so that the stress that the accused has to undergo would be
obviated. In addition, prosecutors can consider diversion as so-called “restorative justice” at the case screening.
C. Who Conducts Case Screening
According to various criminal justice systems adopted by different jurisdictions of the world, case screening is
conducted by different authorities at different stages of the procedure. In some countries, the court is also involved inthis process. Since the main theme of this seminar is effective administration of the police and the prosecution in criminal
justice, therefore we would like to focus our attention solely on the case screening segment which is conducted by thepolice and prosecutors.
II. HOW CASE SCREENING IS DONE
A. Case Screening by Prosecutors
1. Authority Given to Investigate or Otherwise
In Brazil, El Salvador, India, Kenya, Malaysia, Pakistan, Papua New Guinea, Saint Christopher and Nevis, Tanzania,
Thailand, Uganda, England as well as other countries, prosecutors are not investigators. They are not involved in criminal
investigations because they do not have the authority to investigate crimes on their own. Upon completion of an202

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
investigation, in these countries the police refer the investigation report to the prosecutor who will then scrutinize or
screen the investigation paper thoroughly and decide whether or not to prosecute the suspects based on the evidence
available. The prosecutors would then be in a position to advise the police on further investigation, if necessary, so as toensure that the prosecution has adequate and tangible evidence for prosecution.
In Chile, Nepal, Japan, Korea, Germany, and other nations, prosecutors play a significant role in the investigation.
In Indonesia, however, prosecutors can only investigate corruption cases. Prosecutors in these countries other thanIndonesia can initiate investigation or direct the police regarding all crimes. Prosecutors can conduct investigations
including interviewing witnesses and suspects. Therefore, they are able to supervise the legality of the investigations andthus the screening by the prosecutor can be said to be more accurate. Due to this rigorous screening, the conviction rate
is normally high. For example, in Korea and Japan the conviction rate is constantly more than 99 percent. But we should
admit that the conviction rate is not the only barometer of efficiency of a criminal justice system.
2. Suspension of Prosecution
In some countries, prosecutors have the discretionary power to suspend or not initiate prosecution even if there issufficient evidence to convict a suspect. This is called the Principle of Discretionary Prosecution. The prosecutor may
decide not to prosecute a suspect taking into account the suspect’s age, character, criminal records, circumstances, his/her relationship with the victim, etc. In Japan and Korea, suspension of prosecution is specifically provided for in the
Code of Criminal Procedure. The rate of suspension of prosecution is approximately 60 percent in Korea, and 40 percent
in Japan. In Korea, suspension of prosecution applies both to juveniles and to adult offenders, and they are entrusted tothe protection and guidance of a member of the Crime Prevention Volunteers Committee for a period of 6 to 12 months,
taking into account the possibility of committing a crime in the future. This system was introduced so as to prevent
juvenile and adult offenders from being repeat offenders and to rehabilitate them into sound and reasonable citizens.
3. Evidentiary Test and Public Interest Test to Initiate Prosecution
In the common law countries, there are two tests applied by the prosecutors in making a decision to prosecute. The
first test is the evidential test. If the case does not pass the evidential test, it must not go ahead, no matter how importantor serious it may be. If the case does meet the evidential test, prosecutors must decide if a prosecution is needed in the
public interest. The second test is the public interest test. Public Prosecutors will only start or continue with a prosecution
when the case has passed both tests. Japanese prosecutors also actually practice in the same way.
The Code for Crown Prosecutors in England and Wales regarding case screening is as follows;
The evidential test
a. Prosecutors must be satisfied that there is enough evidence to prove a “realistic prospect of conviction” against
each accused on each charge. They must consider what the defense case may be, and how that is likely to affect theprosecution cases.
b. A realistic prospect of conviction is an objective test. It means that the court must be properly directed inaccordance with the law, and is more likely to convict the defendant of the charge alleged.
c.

When deciding whether there is enough evidence to prosecute, Prosecutors must consider whether the evidence canbe used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But
there will also be cases in which the evidence may not be as strong as it first appears.
Prosecutors must ask themselves the following questions.

Can the evidence be used in court?
(i) Is it likely that the evidence will be excluded by the court? There are certain legal rules which might mean that
evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be
excluded because of the way in which it was gathered or because of the rule against using hearsay as evidence?
If so, is there enough other evidence for a realistic prospect of conviction?
Is the evidence reliable?
(i) Is there evidence which might support or detract from the reliability of a confession? Is the reliability affectedby factors such as the accused’s age, intelligence or level of understanding?

203

RESOURCE MATERIAL SERIES No. 60(ii)What explanation has the accused given? Is a court likely to find it credible in the light of the evidence as awhole? Does it support an innocent explanation?

(iii) If the identity of the accused is likely to be questioned, is the evidence about this strong enough?
(iv) Are there concerns over the accuracy or credibility of a witness? Are these concerns based on evidence orsimply information with nothing to support it? Is there further evidence which the police should be asked toseek out which may support or detract from the account of the witness?
The Public Interest Test
a. The public interest must be considered in each case where there is enough evidence to provide a realistic prospectof conviction. A prosecution will usually take place unless there are public interest factors tending against
prosecution which clearly outweigh those tending favour. Although there may be public interest factors against
prosecution in a particular case, often the prosecution should consider when sentence is being passed.
b. Prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that canaffect the decision to prosecute usually depend on the seriousness of the offense or the circumstances of thesuspect. Some factors may increase the need to prosecute but others may take another course of action which would
be better.
c.

The following lists of some common public interest factors, both for and against prosecution, are not exhaustive.
The factors that apply will depend on the facts in each case.

d. The more serious the offense, the more likely it is that a prosecution will be needed in the public interest. A
prosecution is likely to be needed if:(i)a weapon was used or violence was threatened during the commission of the offence;(ii) the evidence shows that the defendant was a ringleader or an organizer of the offence;(iii) there is evidence that the offence was premeditated;(iv) there is evidence that the offense was carried out by a group
4. Plea Bargaining
In Kenya, Papua New Guinea, Tanzania, Saint Christopher and Nevis, India, etc., plea bargaining is an acceptable
practice but must be exercised in a very cautious manner. The process of plea bargaining varies from jurisdiction tojurisdiction, but plea bargaining itself is the norm in the U.S. criminal justice system. Plea bargaining is done solely
between the prosecution and the defense for an amendment/reduction to a less serious charge in exchange for the guilty
plea. Normally, this is taken up/discussed after the formal charging of the accused where the prosecution and the defense
can compromise on this aspect. In certain countries, Prosecutors are entitled to plea bargain any case, while in Pakistan
the system is limited to economic crime cases only. Prosecutors normally consider plea bargaining, after consultation
with the police and on completion of their investigation. To prevent the abuse of power especially in serious crimes andpublic interest cases, prosecutors will have to lay down the reasons for reduction or amendment of charges before theinvestigation papers is submitted to their superiors for the approval. Only with the approval of the superior can the charge
be amended or reduced.
5. Victim’s Request
In some countries, there are times where a victim will lodge a police report against the suspect but later decide notto pursue the matter. The victim will write to the Public Prosecutor informing them that he/she has no further intention
to proceed with the report. The Public Prosecutor usually requests the investigation papers or file, screen it and decide
whether to allow the application or otherwise. Normally such application is allowed only in petty or minor cases. However,it’s exercised only when the interest of justice demands.
6. Summary Proceedings
Summary Proceedings are proceedings in some countries such as Korea and Japan whereby the court usually imposesa fine on the accused. In such countries, the public prosecutors have the authority to screen and to decide whether to204120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
proceed with the case to the court, by summary or formal proceedings. In summary proceeding, a single judge adjudicatesthe case based on documentary evidence, and is applied only in cases where the suspect admits to his/her guilt, and accepts
a monetary sentence. In most cases of summary proceedings, the ordinary trial does not take place. In Germany, there
are also penal order proceedings to dispose criminal cases. Public prosecutors may apply for issuance of a penal order if
a main hearing does not seem necessary and a prison sentence is to be expected not exceeding one year (with suspensionof sentence on probation). These procedures are also expeditious and reduce the burden on the accused.
B. Case Screening by the Police
The police screen the case through evidence gathered by way of conducting investigations before the case file areforwarded to the prosecutor for his/her direction or decision. There are 3 methods of screening conducted by the police.
1. Non-recognition of the Offense
When a report is lodged by the complainant at the police station, the police will review the report and the evidence
to determine whether any specific offense has been disclosed. If there is no offense disclosed on the surface of it and it
involved only minor/trivial offenses and can be settled between the conflicting parties, the police will not pursue thematter further. In other words the police will not open the investigation paper. Normally, the decision not to take further
action will be decided by the senior police officer after the report is referred to them by their subordinate officers.
2. Fine/Pecuniary Penalty by the Police
In Malaysia, Indonesia, Saint Christopher and Nevis, Japan and some other countries, for minor cases such as traffic
offenses, the police will issue a ticket to the offender who has committed the offense. The offender is being informedthat he/she is being offered a fine/pecuniary penalty. If he/she pays the fine or pecuniary penalty within a certain period,
the offense is considered settled. In cases where the offender does not agree with the imposed fine or challenge the breachof offense, the case will be prosecuted in the court as an ordinary case.
3. Incompletion of the Investigation
When investigation papers are completed, the investigative officers will submit the papers (with the evidence gathered)to their superior for their opinion or further screening. The senior officers will then review the evidence collected so as
to determine whether there is sufficient evidence to charge or prosecute a person. After being satisfied that the investigationis completed and have gone through the screening process, the papers will then be sent to the prosecutor for screening
direction/decision. The final screening is now in the hands of the Public Prosecutor.
III. PROBLEMS IN CASE SCREENING
A. Prosecutor
1. Lack of Knowledge, Skill and Expertise
With the increase of sophisticated, ingenious and technically advanced crimes such as computer crime, security
industry crime, etc., the prosecutors are expected to screen cases which are very complex in nature. Some of these cases
may require very specialized fields of knowledge, skill and expertise. Hence a lack of knowledge due to insufficienttraining or inexperience in this complex area, may affect the screening process.
2. Delay in Receiving Files from the Police
Cooperation and coordination between the police and the prosecutors are most important especially in countries
where the powers of investigation are vested solely in the hands of the police and not the prosecutor. There are cases
where investigation papers are often not sent on time to the prosecutor’s office. This is due to the fact that no time frame
is given to the investigative officers to complete their investigation papers except in certain countries where the time limit
is fixed. Delay in completing and submitting investigation papers could be due to excessive workloads and complexityof the case or too many investigation papers to handle. As such this makes it difficult for the prosecutor to play a supervisoryrole over the movement of the investigation paper. In such cases where the prosecution has little control over the movementof the investigation papers, screening is lacking as compared to cases where the prosecution undertakes the investigation
on its own.
3. Abuse of Power and Corruption
Extensive discretion can lead to abuse of power and corruption, and this can disrupt the screening process and there
are incidents where prosecutors have been charged with corruption.

205

RESOURCE MATERIAL SERIES No. 60
4. Political Influence
Prosecution in most countries is part of the executive branch of the government. Therefore the prosecution can be
influenced by political pressure not to prosecute even if there is sufficient evidence against the accused person or viceversa. The prosecution may be pressured to continue or discontinue the case or withdrawal of prosecution. Such external
influences can affect the screening process.
5. Lack of Manpower
In countries where prosecutors have the power to investigate crimes, there is a limited number of prosecutors in the
Public Prosecutors office. At the same time, the number of cases that must be handled has been increasing. This problem
is more serious when the prosecutors office has to deal with prosecution in the court and supervise the police investigation.
This excessive workload can to certain extent hamper the screening process.
6. Lack of Budget for the Public Prosecutors Office
It’s sad to say that in some countries, there are not even enough law books and journals in the public prosecutors
office, not enough supporting staff, not enough computers, etc., whereas the government is fully aware that the publicprosecutors office play an important role in the administration of criminal justice. How does one expect a prosecutor toperform screenings well without enough law books or latest case law in their hands. Hence it’s a very difficult task to
perform.
B. Problems Faced by the Police In Case Screening
1. Lack Of Manpower And Management
There are insufficient police officers to handle too many investigations. Sometimes low motivation in the police
force and lack of incentives for officers to work make life more difficult for them. They are also problems with recruitment
as the salaries given are not lucrative enough compared to the work done. Sometimes the organization of the personnel
is ineffectively managed. Such problems can give rise to ineffective investigation, and can also hamper the proper screeningof cases.
2. Lack of Budget, Equipment and other Resources
Lack of equipment and other resources due to budgetary constraints will hamper the effectiveness to the required
standard. Budgetary constrains affect training programme, level of skill and thus the efficiency and performances of thepolice officers.
3. Inadequate Legal and Investigative Knowledge
Some investigators lack adequate knowledge during investigations. They do not know what evidence to look for,how to interrogate the suspects, etc. This could be due to short training at the Police Academy and therefore they become
ill-equipped for the job that they take on. Due to advancements in technologies, organized criminals use the modern
techniques for which the police are not much trained. Consequently, they face difficulty in completing investigations into
offenses committed by use of such modern technologies, thus screening becomes more difficult.
4. Lack of Co-ordination between Prosecutor, Police and other Enforcement Agencies
This will effect the screening process between the relevant agencies.
5. Political Influence
These influences may develp in the course of investigations when high ranking government officials and politicians
have direct or indirect interest in the case. Thus their hand becomes very tight and this could prejudice their mind whenscreening the case.
6. Lack of Legal Materials
It’s essential for the police to be updated with the latest legal developments, whether it’s case law or a new enactmentby the legislature. In some countries, legal materials such as books and other facilities are lacking. As a consequence
they may hamper case screening.
7. Abuse of Power
Abuse of power by certain individuals especially senior police officers who handle investigation papers would resultin inaccurate screening.

206

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE
8. Lack of Cooperation from the Public and Witnesses
Witnesses are often unwilling to give cooperation and assistance to the police due to fear, or being intimidated by
the accused family, friends, etc. Lack of cooperation will thus make the investigation fruitless.
IV. RECOMMENDATIONS TO IMPROVE CASE SCREENING
A. Sufficient Budget for the Police and Prosecution
Sufficient budget should be given by the government to the police and to the public prosecutors office to improve
facilities, salaries, manpower, equipment, and training in the required fields, etc. They should enjoy, not only greater
goodwill but also greater financial support. To enhance the skill and expertise, foreign and local experts should be invited
to give lectures and guidance to police officers and prosecutors on highly technically-related offenses.
Police officers and prosecutors should be sent to foreign countries for training in complex cases, where such facilities
do not exist locally.
Longer periods of training for the prosecutor and the police should be given so that they are able to perform theirduties effectively and efficiently.
In Malaysia, police officers who are qualified (after certain years in service and manage to pass certain examinations)
are given a place in the faculty of law in various universities.
Apart from that, the government of Malaysia has also set up a Judicial and Legal Training Institute to train not only
judicial and legal officers but also other relevant enforcement agencies including police officers to know in depth thelegal aspect in discharging their duties. Judges of the High Court, and experts in certain specialized fields are always
invited to give a discourse.
B. Independency of Prosecution
In order to ensure that the prosecution is independent, the office of the Public Prosecutor should be guaranteed byhaving its status protected by law. Having such security, the prosecutor will have no fear to exercise the powers ofscreening. In some countries, prosecutors can be removed from office through an impeachment process before an
appropriate Court or upon conviction of crimes punishable with imprisonment. The term of office of Prosecutor Generals
or their equivalent should be established so as to balance the need for continuity with the avoidance of susceptibility topolitical influence. In addition, upon retirement these officials should be prohibited from running for elective office orfrom employment with any company which supplies goods or services to the government for a period specified by thelaw. When the prosecutor exercises his/her case screening discretion in a legitimate fashion, he/she should be immune
from criminal or civil sanctions incurred simply as a result of the exercise of that discretion.
C. Checks and Controls on Prosecutors’ Decisions
To prevent the abuse of power by prosecutors during the screening of cases, there need to be some checks and controls.
One is internal and the other is external.
1. Internal Controls
By superiors, general and special guidelines in performing their duties found in a prosecutors manual, appeal ofdecisions of non-prosecution to High Public Prosecutors office and appeal to the courts for abuse of prosecutorial
discretion, such as selective prosecution.
2. External Controls
In Japan, if the prosecutor decides not to prosecute and the victim is not satisfied with this decision, the latter canapply to the Committee for Inquest of Prosecution. If the Committee rules that the non-prosecution is not proper, thePublic Prosecutors office has to re-examine its original position. Also the prosecutor has to give reasons to the victims
and other enforcement agencies of his decision not to prosecute.
In the interests of justice, the Public Prosecutor should give reasons for any amendment, reduction or withdrawal of
charges in every case. This is important for the purpose of accountability and transparency.
Apart from that, in Japan there is a system which is called quasi-prosecution. The system of quasi-prosecution is asfollows: when a complaint or accuser is dissatisfied with the disposition of non-prosecution by a public prosecutor for207

RESOURCE MATERIAL SERIES No. 60
an offense of abuse of authority by public officer or violence and cruelty by a special public officer, he/she apply to a
district court for a trial. If the application is well-founded, the court must designate an attorney in private practice for the
maintenance of public prosecution, who assumes the function of public prosecutor. It can also prevent the prosecutors
from abusing their discretionary power which was given to them.
D. Time Frame to Complete Investigation
The investigation and screening of the cases should be undertaken as rapidly as possible, taking into consideration
the rights of the suspect, the feelings of the victim, and the overall interests of justice.
E. Increase in the Number of Prosecutors
As for the prosecutor who conducts investigations, to overcome the problem of overwork, it’s suggested that the
number of prosecutors be increased and prosecutors only investigate selected cases such as corruption against politicians,
cases of national interest or other high profile cases
F. Adopt the Variety of Proceedings other than the Trial
Trials are time-consuming and expensive, therefore in order to maintain the efficiency of the criminal justice system
as a whole, we should avoid trials if the suspect is prepared to accept his/her guilt, and try to proceed with other procedures
when appropriate. As we mentioned before, in Japan there is a summary proceeding, but it is only available when theoffender deserves a fine and agrees to the process. If this summary proceeding is applied even when the suspect should
receive a sentence of imprisonment, like a penal order proceeding in Germany, taking into due consideration the right ofdefendant, then only few cases go to trials. Therefore it will contribute to keep the criminal justice system more effective.
It is also useful to introduce the mediation process between the perpetrator and the victim that is practiced in Germany.
In Germany, if mediation between the perpetrator and the victim is successful, the files are submitted to the publicprosecutors office and the prosecutor can terminate the criminal proceedings or the court can mitigate or dispense withpunishment. Thus the mediation process helps to avoid trials, provides an efficient process to settle criminal cases, andestablish restorative justice.
G. Coordination between Prosecutors, the Police and other Enforcement Agencies
Coordination between prosecutors, police and other enforcement agencies are important. Police should begin
consulting with the prosecutor in early stages of the investigation to establish close collaboration and to solve problems
faced by them with regard to criminal investigation. Discussion and meetings should take place more frequently between
them. The purpose is to manage and eventually solve any problems faced by investigating officers with regard to criminal
investigation. By clarifying and analyzing the actual situation and problems, prosecutors may advise the Investigating
Officer of their respective investigation. Thus cooperation in such a form of discourse is paramount to meet the ultimate
aim of securing justice.

208

120TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE COURSE

209

RESOURCE MATERIAL SERIES No. 60

210

APPENDIXCOMMEMORATIVE PHOTOGRAPHS• 120th International Senior Seminar

UNAFEIThe 120th International Senior Seminar

Left to Right:
Above:
Mr. Kim(Korea), Prof. Tachi
4th Row:
Mr. Takagi(Chef), Mr. Inoue(Staff), Mr. Suga(Staff), Mr. Iida(Staff), Mr.
Tanaka(Staff), Ms. Nagaoka(Staff), Ms. Yoshida(Staff), Ms. Tsubouchi(Staff), Mr.
Nakayama(Staff), Mr. Koike(Staff), Ms. Saito (Staff)
3rd Row:
Mr. Kai(Staff), Mr. Iwakura(Japan), Mr. Yamane(Japan), Mr. Yamashita(Japan),
Mr. Itaya(Japan), Mr. Vasquez(El Salvador), Mr. Charles(St. Christopher andNevis), Mr. Sandhu(India), Mr. Shah(Nepal), Mr. Chesimet(Kenya), Ms.
Mitani(JICA), Ms. Hayashi(Staff)
2nd Row:
Prof. Kakihara, Mr. Takeishi(Japan), Mr. Kawai(Japan), Mr. Maru(Papua New
Guinea), Mr. Marcos(Brazil), Mr. Azmi(Malaysia), Mr. Seni(Thailand), Ms.
Titiek(Indonesia), Mr. Gaguk(Indonesia), Mr. Malik(Pakistan), Ms.
Nassuna(Uganda), Mr. Munoz(Chile), Mr. Tibasana(Tanzania), Prof. Teramura,
Ms. Matsushita(Staff), Mr. Suzuki(Staff)
1st Row:
Prof. Takasu, Prof. Tanabe, Dr. Suddle(Pakistan), Dr. Kittipong(Thailand), Mr.
Boeuf(U.K.), Director Kitada, Mr. Siegismund(Germany), Ms.
Siegismund(Germany), Prof. Castberg(U.S.A.), Dep. Director Aizawa, Prof. Miura,
Prof. Tsutomi, Prof. Someda, Mr. Miyamoto(Staff), Mr. Eratt(L.A.)