RESOURCE MATERIAL SERIES No. 53

GROUP 2
THE ROLE OF PROSECUTION IN THE SCREENING OF
CRIMINAL CASES
Chairperson
Co-Chairperson
Rapporteurs

Members

AdviserMr. Suhada Kalyana Gamalath(Sri Lanka)
Mr. Hiroki Yamanishi(Japan)Mr. Winston Cheng Howe Ming
(Singapore)
Mr. Abdul Razak Bin Haji Mohamad Hassan (Malaysia)
Mr. Menrado Vall Corpuz(Philippines)
Ms. Somjai Kesornsiricharoen(Thailand)
Ms. Patricia Cordero Vargas(Costa Rica)
Mr. Yoshitaka Izumi(Japan)Mr. Hideki Kurashige(Japan)Mr. Yasuo Nakazawa(Japan)Ms. Lithnarong Pholsena(Laos)
Professor Tomoko Akane(UNAFEI)

I. INTRODUCTION
1. As an introduction, a few preliminary
issues such as the definition of screening,
the importance and necessity of screening
and who conducts screening have to beconsidered.
A. Definition
2. No legal definition to the phrase “casescreening” is found in any of the legal
lexicons or any dictionaries that wereferred to. Hence, for the purpose of thisreport, the group has decided to define theword to give it a meaning that can bring
forth the practical realities behind theprocess of case screening.
3. Case screening connotes a series ofprocedural steps that have to be followed
at different stages of a criminal case by any
body, be it an executive or a judicial
authority, to determine the fate of acriminal case. It is a sieving process
followed by a decision as to whether toproceed with the criminal case in a courtof law or whether it should be concluded
by any other means such as composition,discharge, nolle prosequi, suspension of
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prosecution, etc. In essence, this process
is sine quo non to due process of law.
According to Blacks Law Dictionary thedefinition of due process of law implies “theright of a person affected thereby to bepresent before a court or tribunal which
pronounces judgement upon the questionof life, liberty or property in its mostcomprehensive sense.”
B. Necessity and Importance of
Screening
4. The importance and the necessity of
having a system of case screening is
manifold. First, the system will enable thecompetent authorities to properly marshal
and vet the evidence of a case before
referring it to a court of law. Consequently
the authorities will be able to keep a tab
on all trial cases pending before that court
and to minimize the delay in disposing ofsuch cases. Secondly, case screening isimportant in order to meet the ends ofjustice. A criminal case which has not been
properly screened may result in having thewrong person being accused of a crime or
the actual culprit being discharged fromfurther proceedings. This would stultify

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the essence of due process of law. As aresult of case screening, the harassmentthat an accused has to undergo by facing
frivolous or vexatious cases would be
obviated. Therefore, case screening
essentially is a device adopted to preserve
the quality of justice in any society. Thirdly,case screening also prevents overloadingof the courts with trivial and unimportant
cases. This would speed up the trial
process, preserving the true quality ofjustice. Lastly, screening can resolve theproblems of prison overcrowding.
C. Who Conducts Screening?
5. According to various procedures adopted
by different jurisdictions of the world,screening is done by different authorities
at different stages of a case. In somecountries where cases are tried exclusively
by a magistrate court or a sessions court,
the police is entrusted with the powers ofscreening. Sometimes, such screenings are
subject to the scrutiny of the prosecution.
In some jurisdictions, the court is also
involved in this process. For example,
where preliminary inquiry is recognized bylaw, case screening is being done by thepresiding magistrate.
6. The role of a prosecutor in casescreening is one of the most importantduties entailed to his job. From the very
inception of his career, he is required tomaster this method by properly studying
all the case records and investigation
records submitted to him for scrutiny andmaking determination as to whether thematter should be tried by a court of law orwhether other means of disposing the caseshould be employed. In some countries like
Kenya, Malaysia and Singapore, police
officers are employed as prosecutors. For
the purpose of this report, police
prosecutors will be considered as part ofthe prosecution.

7. The intention of this report is to discuss“case screening” in detail. In addition,
attention will also be paid to the problems
relating to case screening and we would
endeavor to find practical solutions to the
problems relating to the subject. New
suggestions to find safeguards to protect
and preserve the case screening system will
also be discussed herewith.
II. SCREENING BY THE POLICE1
8. In addition to investigations, the police
may in some instances screens cases.
A. Investigations and Screening
9. In almost every criminal justice system,
the police plays a leading role in theinvestigation of criminal cases. The
respective legislation on criminal
procedure lays down the police powers toreceive reports from any aggrieved party,
record statements from witnesses, visit
scene of crime, collect exhibits, records theinvestigation diary, arrest, search andsummons, etc. In most countries
influenced by the civil law, the powers ofinvestigation are also bestowed on the
public prosecutors. However, the initialinvestigations are usually carried out by
the police.
10. The way investigations is conducted by
the police has an important effect on thequality of screening conducted by thepolice, prosecution and the court. In ascreening process, the agency that conducts
screening has to review all the evidence
that has been gathered throughout theinvestigations. An assessment of the cases
is made based on the available evidence.
Therefore, to a large extent, the accuracyof screening will depend on how well theinvestigations have been conducted. If theinvestigations are lacking, the screening
will be less accurate.

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RESOURCE MATERIAL SERIES No. 53
B. How Screening is Done
11. There are two possible levels of
screening by the police. The first level isat the initial stage when the first
information report is received from any
person, particularly the victim of the crime.
The report is recorded in writing in thebook maintained by the police for thispurpose and the police reviews the evidence
to determine whether any specific offence
has being disclosed. If there is an offence
disclosed, then the report is classified
according to the specific section of the law.
However, if there is no offence, the report
may be closed and no further action istaken. Normally, screening at this stage
is done by the senior officer at the police
station or the officer in charge of the police
station. This form of case screening isfound in most countries.
12. The second level of screening occurs at
a later stage practiced in several countries,
which are influenced by the common law
system. A report that discloses a specificcriminal offence is referred to theinvestigation officer, who will take theappropriate action to investigate the casewith the ultimate aim of solving it andarresting the offender. On completion of
the investigations, he will submit his
investigation report to his superior officers,
who are experienced investigatorsthemselves having served many years as
investigators. The latter will peruse thereport to determine whether or not there
is sufficient evidence to substantiate theingredients of the charge relating to thealleged offence committed by the offender.
If there is a need to obtain further evidence
or when further clarification is required,
the report is returned to the investigation
officer with the appropriate instructions to
do so. If by then a suspect is under custody,
he may be released on police bail orproduced in the court for order of remand
to facilitate further investigation by thepolice. If the investigation officer still328

cannot obtain any further evidence tosupplement the earlier evidence hecollected and that the earlier evidencecollected is too weak to substantiate thecharge, the police may then decide to closethe case. In some countries, this applies
to minor offences2.
13. In some countries, for minor cases, thepolice will refer to the cases to court fortrial after screening. However, if the police
is doubtful as to whether the action ofclosing the case is a correct one or not, it
may also seek the advice of the publicprosecutor for direction 3. In screening
cases, the police normally considers thestatements of witnesses and the accused,the documents including the expert reports
a n d t h e i n v e s t i g a t i o n d i a r y. A nexperienced officer will be able to detect
whether the investigation officer has
fabricated the evidence or not. This could
be done by verifying the investigation diaryof the investigation officer with that of his
official diary or pocket book.
14. The police in most countries influenced
by the civil law system such as Costa Rica,
Laos, the Philippines and Thailand, does
not screen cases at the second level. In
Japan, there is a system of disposition oftrivial cases by the police committed byadult offenders. These offences include
theft, fraud or embezzlement involving asmall amount of money. Instead ofreferring the case to the prosecution, thepolice will submit monthly reports. In the
Republic of Korea, for offences punishable
with imprisonment of less that 30 days ora fine of less than 200,000 won, the policemay, after investigations, send the casedirectly to the court for trial.
C. Evidentiary Standard
15. From the deliberation in our group
workshop, it is found that in most countries
where the police decides to submit a charge
to the court, the evidentiary standard of

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
proof required is “prima facie“ or“reasonable prospect of securing theconviction”4.
D. Relations with the Prosecution
and The Court
16. In general, the police maintains a goodand close relationship with the prosecution.
The prosecutor is the friend and counselorof the police and will always be consideredin that spirit. In addition to specific cases
in which the laws requires the police toreport to the prosecution, all other unusualcases and legal problems which present
difficulty and require legal advice will bereferred to the prosecution. The latter will
willingly assist the police at all times andat all stages of the investigation. As
regards the courts, the role of the police inscreening cases will ensure that the courts
are not clogged with unnecessary andtrivial cases.
III. SCREENING BY THE COURT
17. In some jurisdictions, the court screenscases prior to the actual hearing. However,in some other countries such as Cameroon,
China, Costa Rica, India, Indonesia, Japan,
Laos, Malaysia, Maldives, Nepal, Pakistan
and the Republic of Korea, the court does
not perform such a function. Screening by
the court can be done in the following ways:
A. Preliminary Inquiry or Hearing
18. A “Preliminary Inquiry” is a hearing
held prior to trial during which the state isrequired to produce sufficient evidence toestablish that there is probable cause tobelieve that a crime has been committed
and that defendant committed it5.
19. The presiding magistrate performs thefunction of screening6. Its function is not
to decide on the guilt of the defendant.
Hence, a different degree of proof or qualityof evidence from indictment or conviction
at trial is required. Preliminary inquiryor hearing by the court is observed in
Ghana, Kenya, Singapore, Sri Lanka andThailand. The majority of these countries
conduct such proceedings to determine
whether there is sufficient evidence toproceed with the trial or refer or commit
the case to the High Courts for trial. For
some of these countries, the purpose is todetermine the truth or falsehood of thecomplaint against the offender.
20. The quantum of evidence to attain suchobjectives differs also in these countries.
In some countries, the standard of prima
facie is used, whilst in others, it is less thanthe proof of beyond reasonable doubt. In
Kenya, Subordinate Courts conduct a
preliminary inquiry in murder and treason
only. For Ghana, a preliminary hearing is
conducted by a community tribunal
consisting of a judge and two lay persons
in cases punishable by death and in firstdegree felonies. Singapore and Sri Lanka
limit such inquires to cases that are triableby the High Court such as murder,
trafficking in drugs and rape. In Thailand,a preliminary hearing is, in practice,
conducted only for private and not publicprosecution.
21. The mechanics of the proceeding also
vary in these countries because in some, it
is akin to a trial whereby the prosecution
and the defense present their evidence insupport of their cause. In others, it issummary in nature because no evidence ispresented by the contending parties andthe court merely relies on the documents
submitted by the police, the investigating
officer or the prosecution. In somecountries, a mere request to the magistrate
for the transmittal of the case to the High
Court will suffice.

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RESOURCE MATERIAL SERIES No. 53
B. Summary Proceedings7
22. Another form of screening by the courtis the so-called “Summary Proceedings”
which is practiced in Sri Lanka. These
proceedings are not actual trials. During
this process, the Magistrate Court
examines the complaint filed by the police,
the investigating officer or the privatecomplainant. It will then determine foritself whether or not there are well-founded
allegations to proceed with the trial of theperson complained of. If there is none, theMagistrate Court will dismiss the case.
Otherwise, it will issue a summon to theaccused for him to answer the charge. The
magistrate also drafts the charge against
the accused.
C. Pre-trial Conference8
23. In Philippines, the court conducts
screening by way of pre-trial conference.
This is conducted before trial to consider
the possibility of a plea bargain, thestipulation of facts, the marking for
identification of evidence by the parties, thewaiver of objections to admissibility ofevidence and such other matters as will
promote a fair and expeditious trial9.
24. One of the purposes of such conferenceis plea bargaining, which is the process
whereby the accused and the prosecution
in a criminal case work out a mutuallysatisfactory disposition of the case subject
to court approval. It usually involves thedefendant pleading guilty to a lesser
offense or to only one or some of the counts
of a multi-count indictment in return for alighter sentence than that for the grave
charge. It takes place when an Information(charge sheet or bill of indictment in othercountries) is already filed in court and theaccused had already been arraigned(reading of the Information to the accused
and asking him how he pleads). If hepleads not guilty, the case shall be then set
for pre-trial conference where thepossibility of plea bargaining may be

330

discussed. However, the conduct of a pretrial conference is not mandatory because
it may be held only by the court when theaccused and his counsel agree. Should theaccused opt to plead guilty to a lesser
offense during the pre-trial conference, theapproval of the prosecutor and the victim
or offended party must also be sought
before the court approves the same10.
D. Plea Bargaining Proceedings11
25. In Sri Lanka, there is a plea bargaining
system where the prosecution and thedefense discuss the possibility of theaccused pleading guilty to a lesser offense.
The approval of the court is required.
However, unlike in the Philippines where
the matter is discussed during the pre-trial
stage, in Sri Lanka it is taken up before oreven during the trial where the prosecution
and defense can compromise on this aspect.
IV. SCREENING BY THE
PROSECUTION
26. In various legal systems, like in Costa
Rica, Indonesia, Japan, Laos, Maldives andthe Republic of Korea, public prosecutors
monopolize public prosecution. In otherwords, only public prosecutors can bringthe case to the court. In China andThailand, although public prosecutors caninitiate prosecution, private prosecution by
the injured party is also allowed. However,in reality, private prosecution in thosecountries is very limited.
27. It is noted that in countries influenced
by the common law system like Ghana,
India, Kenya, Malaysia, Singapore andZambia, police prosecutors can prosecutecases. However, they are generally limited
to less serious cases. While prosecuting, a
police officer is acting as the representativeof the Attorney General or the Director of
Public Prosecution. In his capacity as aprosecutor, he is subject to the directionsof the Attorney General or the Director of
Public Prosecution.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
28. Usually, in screening cases, theprosecution decides whether to prosecutebased on the sufficiency of evidence.
Additionally, it may exercise discretion towithdraw the prosecution or suspend
prosecution, to do plea bargaining, or toproceed the case through summary
proceedings for the interest of justice.
According to the United Nations Guidelines
on the Role of Prosecutors, the prosecutors
must not commence and proceed withprosecution if there is no basis to frame thecharge and in setting aside cases, theprosecutors must fully appreciate therights of the suspects and also the victims.
A. Evidentiary Standard for
Initiation of Prosecution
29. Generally, in all countries, one ofsignificant functions of the prosecution is
to make either a prosecution order against
alleged offenders or a non-prosecution
order. It is widely accepted that an
innocent person should not be tried incourt. Nonetheless, the evidentiarystandard for initiation of a criminal trial
varies from country to country. From theanalysis of the group, it was found thatdifferent terminology, such as “prima facie”
and “probable cause”, was used to describe
the different evidentiary standards.
However, the same term can be used todescribe different standards; for example,“prima facie” can mean less than a 50
percent chance of conviction in somecountries but more than a 50 percent inothers. Therefore, to analyze the level of
proof, the group will endeavor to use
percentages to explain the standard, which
is only an estimation.
30. In countries like, India, Pakistan,
Kenya, Malaysia, Pakistan and Sri Lanka,
the evidentiary standard is prima facie.
Nonetheless, based on the analysis of thegroup, it is interpreted that the standard
for a prima facie case in those countries
varies from a 50 percent to 60 percent

certainty of guilt. In Singapore, theprosecution must be satisfied that there isreasonable prospect of securing aconviction before referring the case to thecourt for trial. This is more than a 50
percent possible proof of guilt12. In Costa
Rica, a balance of probability of guilt or
more than a 50 percent certainty of guilt
obtained from the investigation is enoughto send a case to trial. In Philippines, theevidentiary standard for the charge
according to the law is also probable cause
which is defined roughly as a 40 to 50
percent possibility of guilt. In Thailand,
there is no written law identifying theevidentiary standard for the charge. In
practice, the prosecution normally applies
probable cause as a standard inprosecution. However, such standard, inpractice, as opposed to the standard in thePhilippines, accounts for more than a 70
percent prospect of a guilty verdict. In Sri
Lanka, about 10 percent of the cases areclosed at this stage for this reason.
31. In China, Indonesia, Japan and theRepublic of Korea, the laws do not clearlymention the evidentiary standard. In
practice, the standard is similar to thecourt in rendering a guilty verdict, which
is beyond a reasonable doubt. In Japan,
the percentage of cases closed byprosecution for insufficiency of the evidence
was 1.2 percent in 199613. In the Republicof Korea, the percentage of cases closed at
this stage for the same reason was 10.1
percent in 199414.
32. The group has found that thedifference in the standard used can be
attributed to several reasons such as social,political and cultural differences, including
the influence of the different legal systems.
For example, one factor may be whether
the prosecution is vested with the powers
of investigations. In Japan and theRepublic of Korea where a high standardof proof is used, the prosecution can conduct331

RESOURCE MATERIAL SERIES No. 53
investigations, including interviewing
witnesses and the accused person. The
prosecution can, therefore, decide whether
to proceed with the cases based on
additional facts and circumstances such as
the veracity of the witnesses.
Consequently, the standard used is higher
than in countries where prosecution is notvested with the powers of investigations.
In such instances, the prosecution cannot
determine the strength of the evidence
through investigations. The only way is torefer cases to court to have the evidence
tested in a trial. More cases are sent tocourt for adjudication as such.
B. Withdrawal of Prosecution
33. From our comparative study, theextent of discretionary power exercised byprosecution differs from one state toanother. In some countries like Costa Rica,
Laos and the Philippines, the initiation of
criminal trial is compulsory if there exists
sufficient evidence to prove that theoffender is guilty to the court. In thesecountries, the prosecution does not havethe discretionary power to withdraw ordiscontinue the prosecution. In Indonesia,
the prosecution is obliged to prosecute
regardless of whether the case is minor or
serious. One exception is that the Attorney
General of Indonesia himself can exercise
the discretion not to prosecute. In practice,
this discretion is rarely exercised.
34. On the other hand, in various legal
systems, the prosecution can be withdrawn
even if there is sufficient evidence toproceed for trial. For the purpose of thisreport, the phrase “withdrawal ofprosecution” is defined as:
Any screening process where case iswithdrawn by the prosecution before
filing the charges or during trial even
if there is sufficient evidence to provethe criminal guilt in view of thecircumstances of the case.

332

35. It will include the notion of“Suspension of Prosecution”, which is
uniquely used in Japan and the Republicof Korea, discontinuance of prosecution aspracticed in some countries and nolle
prosequi.
1. Suspension of Prosecution
36. In Japan, a system known as“Suspension of Prosecution” exists. The
prosecution in Japan has general and vast
discretion to decide whether to prosecute
suspects. If after considering the character,age and situation of the offender, thegravity of the offense, the circumstances
under which the offense was committed,
and the conditions subsequent to thecommission of the offense, prosecution isdeemed unnecessary, the prosecution may
decide to suspend the case. This practice
is consistent with the “Expediency” or“Opportunity” principle. The percentage
of cases closed by the system is 30.9 percent
or relatively one-third of all cases in 1996.15
37. Likewise, in the Republic of Korea, theprosecution may decide not to prosecute if
the criminal trial does not accord public
interest or is against the public morals ororder or affects national security orimportant national interests after taking
into account the suspect’s age, character,p a t t e r n o f b e h a v i o r, i n t e l l i g e n c e ,circumstance, relationship to the victim,
motive, and method for committing thecrime, results and circumstances after thecrime. In 1994, 10.8 percent of the total
cases were dropped by the publicprosecutors16. Moreover, the Republic ofKorea has two particular systems
concerning the suspension of prosecution:a) Suspension of prosecution:
Decision for juvenile
offenders on the “Fatherly
Guidance Condition”
38. Prosecution is suspended on thecondition that the offender, who is under

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the age of 18, is subject to the protection
and guidance of a member of the Crime
Prevention Volunteers Committee. This isfor a period of 6 to 12 months after thedecision, depending on the possibility ofcommitting a crime again in the future. To
make this decision, the prosecution will
select the person to protect the offenderamong the members to the Crime
Prevention Volunteers Committee. The
prosecution then hands in a referral
document to the person and receives fromthat person a certificate stating that he or
she has received the custody of the offender
and would bear the responsibility ofprotecting and guiding the offender. If theoffender does not comply with thevolunteer’s guidance or commits anothercrime, the prosecution may remand thesuspension of prosecution decision andprosecute the offender.
b) Suspension of prosecution:
Decision on the “Protectionand Surveillance Committee
Guidance Condition”
39. This is for adult offenders who need
protection and guidance by experts for aperiod of 6 to 12 months, depending upon
the possibility of the offenders committing
another crime in the future. The
prosecution entrusts the offender to amember of the Protection and SurveillanceCommittee. The offender is subject to theprotection and guidance of the committee.
40. The discretionary authority of theprosecution in Japan and the Republic ofKorea has proven to be a very useful meansin the correction of criminals, the protectionof society, alleviating the case loads of thecourt and preventing the overpopulation ofprisons. It has been widely accepted among
criminal justice agencies and the public.

2. Discontinuance of Prosecution
or Non-prosecution
41. In various legal systems such as China,
Maldives, Singapore and Thailand, theprosecution can withdraw prosecution even
if there is sufficient evidence to prove thecase. In other words, there is no mandatory
prosecution in those countries. However,the detailed practice relating to this process
still differs from one country to another.
The number of cases in Singapore where
the prosecution withdraws prosecution issmall. Most of them are petty or minor
cases. Likewise, in Maldives the cases arelimited. In Maldives, the Attorney General
can withdraw prosecution after writing tothe office of the President and on his
approval. In Thailand, according to theinternal regulation of the Office of the
Attorney General, the prosecution mustrefer the case to the Attorney General forfurther consideration as to whether
prosecution should be withdrawn.
However, in Thailand, this is rarely done.
In China, non-prosecution is allowed incases where the circumstances of offence
are minor.
3. Nolle Prosequi
42. In some countries like Ghana, Kenya
and Sri Lanka, there is power exercisableby the Attorney General to discontinue thecase from trial at any stage after
indictment and before judgment which istechnically known as nolle prosequi. In
general, it can only be exercised under the
direction of the Attorney General. In thesecountries, there is no obligation for the
Attorney General to mention any reason.
However, it is exercised only when theinterest of justice and state demands
recourse to such action.

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RESOURCE MATERIAL SERIES No. 53
43. The grounds for discontinuance orwithdrawal of proceedings are varied andmay include the following circumstances:(1) Additional evidence found later
proving the innocence of the
defendant;(2) Amnesty or pardon;(3) False implication of accused person
as a result of political and personal
vendetta;(4) Adverse effects that the continuationof prosecution will bring on public
interest in the light of changed
situation; and(5) Unavailability of a prosecution
witness.
C. Plea Bargaining
44. In most countries, plea bargaining is
not practiced. However, in Malaysia, thePhilippines, Singapore, Sri Lanka andZambia, plea bargaining is an acceptable
practice. In Sri Lanka and the Philippines,
plea bargaining is subject to the approvalof the court as seen from the part ofscreening of cases by the court. On thecontrary, in Malaysia and Singapore, theprosecution has the full authority to decideon plea bargaining matters to avoid
prejudicing the judge. Therefore plea
bargaining is done solely between theprosecution and the defense, and it usually
involves negotiations for a reduced numberof charges and or an amendment to lessserious charges in exchange for the guilty
plea. However, it should be noted that, as
compared to the practice in the UnitedStates, plea bargaining does not occur quite
often in such countries.
D. Alternatives to Ordinary Trial
Proceedings
45. Besides ordinary trial proceedings,
there exist some other alternatives asfollows:334

1. Summary Proceedings
46. Summary proceedings are proceedings
whereby the court will usually impose only
a fine on the accused as practiced in somecountries such as Japan and the Republicof Korea. In such countries, the publicprosecutors have the authority to decide
whether to proceed the case to the court bysummary proceedings or not17. Throughsuch proceedings, ordinary trial is notproceeded. In summary proceedings, a
single judge adjudicates the case based on
documentary evidence. It is noteworthy
that in Japan, only 4.7 percent of cases
were tried by formal procedure whereas thepercentage of summary procedure wasapproximately 49.2 percent in 1996 18.
Correspondingly, in the Republic of Korea,
only 7.4 percent of cases were prosecutedfor formal trial and 42.8 percent of cases
was prosecuted for summary trial in 199419.
2. Imposition of Fines by the
Police or Other Administrative
Officials
47. The method whereby the case is settled
outside the courtroom is applied in several
countries such as China, Malaysia,
Singapore, Sri Lanka and Thailand. In
China, a public security organ may imposea penalty, that is a warning, a fine from
one to 200 yuan and detention from 1 to 15
days, for petty offences as a final
disposition. In Malaysia, Singapore and
Sri Lanka, for minor cases such as traffic
offences, the police or other administrative
agencies will issue a summons to theoffender who has committed the offence.
The offender is informed that he is being
offered a composition fine. If he pays thefine within a certain period, the offense isconsidered settled. Correspondingly, inThailand, for trivial offenses punishable
with only with a fine and offenses
punishable with a maximum of one month’s
imprisonment or a small fine, the police can
impose fines on the offenders. In cases
where the accused does not agree with the

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
imposed fine, the cases will be prosecutedis the court as ordinary cases.
E. Relation with the Police
48. In most countries, the prosecution isvested with the power to require additional
investigation from the police before making
any decision on the case. The police isobliged to follow the prosecution’s
instructions regarding further
investigation to be completed. In general,the police is cooperative to such directions.
49. In most jurisdictions, the screening
authority of the prosecution is ultimate. As
a result, the police can not contest it.
However, there are some exceptions in a
few countries. For example, in Thailand,
the Chief of the Police Department canbalance the power of prosecution regarding
the non-prosecution order for cases
occurring in Metropolitan Bangkok. This
non-prosecution order, if not issued by the
Attorney General himself, is not final
unless concurred by the Director-Generalof Police. If he disagrees with the order,
the case will finally be reviewed by the
Attorney General and, therefore, his order,whether or not to prosecute, will be final.
In Indonesia, if the investigator stops
investigation, he shall inform the publicprosecutor; likewise, if the prosecutor stops
prosecution he shall inform theinvestigator. In India, if there is a conflictof opinions between the investigating
officer and the prosecution as to theviability of prosecution, the ultimate
decision whether to send a case for trial
lies with the police authority which is theDistrict Superintendent of Police.
V. PROBLEMS IN SCREENING
50. There are several factors, which canaffect the screening process. Some of thesefactors can cause a decrease in the numberof cases screened, resulting in an increasein the number of cases that are proceededwith in court. The net effect is an increasein the number of cases the court has tohandle. This has overloaded the courts insome countries. The conviction rate may
also be lower as a less stringent standardof proof is used in the screening process.
51. Excessive screening may result in
fewer cases. This means that less cases
are proceeded with to court for adjudication
as the evidentiary standard used in thescreening process is very high. The net
effect may be that the conviction rate isunusually high.
52. It is important to note that these effects
may not be considered a problem in acountry if the people of that country do not
perceive it as a problem.
53. For ease of discussion, the group has
divided the problems into two categories:
general problems and specific problems. In
the former, all three components can beaffected. In the latter category, these
problems are specific to each component.
A. General Problems
54. The following are some of the general
problems relating to screening for thepolice, the prosecution and the court:
1. Manpower and Management ofWorkforce
55. In some countries such as Laos and Sri
Lanka, there are insufficient police officers
to handle investigations. This could be due
to several reasons; for example, in somecountries, there is low motivation in thepolice force as there is a lack of incentives
for officers to work. There are also
problems with recruitment as not many
people are interested in joining the police
force. Sometimes, even if the manpower issufficient, the organization of the personnel
is ineffectively managed. Such problems
affecting investigations can also hamper
the proper screening of cases. A result of335

RESOURCE MATERIAL SERIES No. 53
such problems is to cause less screening.
Some countries face another related
problem: police officers that are alreadyexperienced in investigations aretransferred to another department. Thiscan create a depletion in the pool ofcompetent investigating officers, which isvery often hard to replace.
56. This problem affecting the police canalso affect prosecution. In some countries,
prosecution is viewed as a difficult job andhence, a lot of very competent graduates
are shying away from the profession.
Furthermore, in most jurisdictions,working as a private attorney in the private
sector yields more returns. Therefore,
some countries are experiencing a loss ofbright young talents to the private sectors,
resulting in an unbalance in the quality of
the workforce. This can affect effective andaccurate screening.
2. Facilities and Support
57. Several developing countries face
problems relating to technical support andfacilities, such as the availability ofcomputers. These are essential
requirements for the efficient dispositionof cases, including the sieving of theevidence and correct decision-making.
Undeserving cases or cases with weakevidence may be proceeded with in court
for trial due to the lack of such facilities.
For example, the police or the prosecutor
may be unable to determine theantecedents of the accused due to the lackof facilities and, therefore, be unable todecide properly whether to bring the caseto court.
58. It is essential for the police, theprosecution and the court to be updatedwith the latest legal developments,
whether it is case law or a new enactmentby the legislature. In some countries, legal
materials such as such books andperiodicals are not accessible as facilities

336

are lacking. As a consequence, there may
be less or inaccurate screening.
3. Abuse of Powers
59. Perhaps the greatest problem is theabuse of powers which can affect the fairand equitable screening of cases. Thispossibility exists whenever any agency isgiven the discretion to decide on suchmatters. In particular, problems such as
corruption can also disrupt the screening
process. In most jurisdictions, there havebeen incidents where police officers andprosecutors have been charged withcorruption. The prevalence of such
incidents will vary from one country toanother, depending on factors such aswhether the officers are satisfied with thesalary and other incentives that their jobs
provide. It also appears that corruption
occurs quite often in offences where thepublic officers and the accused have direct
dealings. There are also cases where thefabrication of evidence has occurred; forexample, drugs were placed in an accused’s
bag to secure a conviction. Hence, thisproblem can result in both excessive
screening as well as less screening.
B. Specific Problems
60. The group has identified several
problems affecting screening. Specifically,
they are:
1. The Police
61. The primary role of the police is toinvestigate. Hence, the problems inscreening for the police will inevitably
relate to the investigation process. Theseare:a) Education
62. Generally, in most countries, theeducational requirements for the
recruitment of police officers into the police
organization are less stringent than theprosecution. Unlike the prosecution, there

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
is also no requirement that they be law
graduates. During investigations, thepolice officer in charge has to know the legal
requirements for the particular offence
which he is investigating so that important
evidence is gathered and not missed. Thisis especially important for the screening
process by the police where it has to decide
whether to recommend suspension ofsentence as in some countries20. Without
adequate training in the law, the screening
process is likely to be hampered.
b) Political influence
63. The duty of the police is to maintainlaw and order in the country. To ensure
strong and effective command and control,
it is necessary that the police be a part ofthe executive. Hence, in most countries,
the police is the executive arm of thegovernment. Because of this, the likelihoodof political influence from the executive ishigher as compared to a body that is
independent of the executive 21 . The
screening of cases can be affected to someextent.
2. The Court
64. Similar problems that affect the police
and the prosecution may also affect the
courts in screening. These will include lackof technical expertise, logistics and legal
training.
65. Other specific problems that affect therole of the court in screening are as follows:a) Problems relating topreliminary inquiry
66. In some countries influenced by thecommon law system, the courts screen
cases by preliminary inquiry. However,there are several problems accompanying
the use of preliminary inquiry:(i) Inordinate Delay
67. Having another inquiry prior to thetrial proper can cause unnecessary delay,
since the inquiry is often a duplication of
the trial itself. In Sri Lanka, the need to
conduct preliminary inquiry for some cases
has caused significant delay amounting toabout one and a half years. Hence,preliminary inquiry can slow down
tremendously the whole judicial process.
(ii) Duplication
68. Related to the above point is that
preliminary inquiry creates a lot of
unnecessary work, which is a duplication
to the trial. This problem is compoundedby the fact that in most cases, the accused
will be committed for trial in the High
Court in any case.
(iii) Unfair advantage to thedefense
6 9 . I n a p r e l i m i n a r y i n q u i r y, t h eprosecution is expected to reveal a lot of
information regarding the case against theaccused. However, the accused need notreveal his defense at that stage. In fact, incertain countries, he is allowed to remainsilent. Hence, there is some unfair
advantage to the accused.
(iv) No avenue for appeal
70. In some countries, the decision of thejudge not to refer the case for trial cannot
be appealed or reviewed. This means thatthe aggrieved party does not have any
avenue to lodge his complaint.
b) Problems relating to
Summary Proceedings
71. In Sri Lanka, the Magistrate Courts
utilize summary proceedings as a way toscreen cases. The Magistrate Courts haveto determine the appropriate charges thatcan be preferred against the accused basedon the facts that are revealed in theproceedings. The problems relating to theuse of such proceedings are:337

RESOURCE MATERIAL SERIES No. 53(i) Overloading
72. In addition to the cases that theMagistrate’s Courts have to handle, they
have to deal with cases referred to them inthe summary proceedings. This
overburdens the courts and creates
unnecessary delays.
(ii) Duplication
73. Ordinarily, in such proceedings, thepolice will assist the Magistrate’s Courts
in drafting charges. The court then decides
on the charges based on these draft
charges. This is a duplication of the work.
(iii)Mere formalities
74. The Magistrate’s Courts usually will
adopt the charges that have been draftedby the police. Hence, having suchproceedings to determine the charges is infact unnecessary.
(iv) Prejudice
75. If the magistrate is of the view thatthe case should be proceeded with for trial,
the same magistrate will also hear the case.
This means that the magistrate may be
prejudiced by the previous knowledge of thecase.
3. The Prosecution
76. The prosecution in most countries istasked with the responsibility of examining
the evidence gathered to support the
charge. It is also involved in the screening
cases to determine whether the cases
should be proceeded with in court for trial.
The problems relating to this screening
process are as follows:a) Knowledge in other fields
77. With an increase in the sophisticationof the crimes being committed, theprosecution very often are expected toscreen cases which are very complex innature. Some of these cases may requirevery specialized fields of knowledge suchas money laundering, international crimes

338

and computer crimes. Even with the legal
training prosecutors received in law school,
it is impossible to be trained in every legal
and non-legal field. Hence, a lack ofknowledge due to insufficient training inthese areas may result in less screening.
Although this affects both the police andthe prosecution, this problem is perhaps
more serious for the prosecution as it has
a supervisory role over the police.
b) Investigative skills andexpertise
78. Prosecutors in countries which havebeen influenced by the common law system
are not vested with the powers ofinvestigation. As such, in countries suchas Singapore, Sri Lanka and Thailand, theprosecutors can only depend on the police’s
files in coming to a decision whether toprosecute or not. If the evidence of the caseis not accurately reflected, this caninfluence the decision-making process. In
addition, an understanding of theinvestigation process is essential to themaking of a proper and accurate decision,
especially if the prosecution does notinvestigate the case personally. Therefore,
it is important for prosecutors to be familiar
with the investigation process in order toproperly exercise the powers of discretionin the screening. Being handicapped in thisarea may affect the screening process.
c) Coordination with police
79. For the efficient disposition of cases by
the prosecution, the prosecutors have tomaintain a close working relationship withthe police to ensure proper coordination.
This is especially important in countries
where the powers of investigation are only
vested in the police and not the prosecution.
In some counties, investigation papers areoften not sent on time to the prosecutor’s
office. If there is insufficient time to screen,
the prosecutors can either suspend the caseor conduct a cursory examination of theevidence before sending the file for107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
prosecution in court. This can result in bothan increase or decrease in screening.
Having mentioned that there should be aclose liaison between the police and theprosecution, there can also be problems if
both these agencies become to familiar witheach other. Too much familiarity may cause
a lack of objectivity in the role of theprosecution in supervising theinvestigations and screening conducted by
the police.
d) Problems relating to theextent of discretionary
powers80. Although prosecution has to possess
some discretion to screen cases, the issue
is the degree. The problem is that the more
extensive discretion, the easier it is for
errant prosecutors to abuse theirdiscretion. The number of cases screened
may either be increased or decreased insuch a situation.
81. On the other hand, having a system ofcompulsory prosecution also poses someproblems. In such a system, cases arereferred to courts even if there are verystrong mitigating factors to warrant thecases to be dealt with differently; forexample, the accused is a first offender, thegravity of the offence is not serious or theaccused expresses remorse over his
misdeed. As a result, for some countries,
the courts are clogged with cases that are
trivial. Hence, precious court time, which
could have been used more productively, iswasted in dealing with these cases. In
addition, the prisons are overcrowded as aresult.
e) Political influence
82. Prosecution in most countries is partof the executive branch of the government.
Therefore, like the police, the prosecution
can be influenced by political pressure notto prosecute even if there is sufficientevidence against the accused or vice versa.

For example, a high-ranking political figure
is charged for a crime and pressure may
be put on the prosecutor to discontinue thecase. This problem can affect any
jurisdiction regardless of whether thecountry practices withdrawal ofprosecution or not. The prosecution may
be pressured to continue or discontinue thecase on the basis of insufficiency of evidenceor withdrawal of prosecution. Suchexternal influences can either cause anincrease or decrease in the number of cases
being screened.
f) Police prosecutors
83. In some countries, police prosecutors
are law graduates. However, in some otherjurisdictions, they are not. For the latter,
this may cause problems as screening acase to determine whether there issufficiency of evidence requires a goodk n o w l e d g e o f t h e l a w. I n s o m ejurisdictions, the promotion of police
prosecutors depends on the police force. As
a result, the exercise of their discretion
could be unconsciously hampered in favorof the police. As a consequence, there will
either be an increase or decrease in theamount of screening conducted by theprosecution.
g) Problems relating to private
prosecution
84. In countries such as Indonesia, Japanand the Republic of Korea, the prosecution
monopolizes prosecution; i.e., only
prosecutors can bring a criminal case to thecourts. On the other hand, in somejurisdictions such as Kenya, Singapore andThailand, there is a system of private
prosecution. In these proceedings, theinjured parties bring criminal cases to thecourts themselves. In some countries,
private prosecution is restricted to certain
offences, primarily those that violate
private rights, such as defamation or petty
bodily injuries. Elsewhere, the right ofprivate prosecution may be exercised only

339

RESOURCE MATERIAL SERIES No. 53
when the prosecution waives prosecution
in a case due lack of public interest or
insufficiency of evidence. In such cases
where the prosecution has little or no
actual control over the proceedings,
screenings are lacking as compared to cases
where the prosecution undertakes theprosecution on its own. There may be lessscreening.
VI. SAFEGUARDS AND
RECOMMENDATIONS
85. From the above analysis, it is clear thatsome of these problems are common to all
three components of the criminal justicesystem. These are:(1) lack of requisite knowledge andqualifications;(2) lack of technical facilities andsupport; and(3) manpower and personnel problems
86. For lack of knowledge andqualifications, there could be improvementin training in the required fields. The
qualifications of recruitment either to thepolice force or prosecution can also be
increased. Facilities can also be improved.
For example, in some countries where theuse of computers is highly encouraged,
latest case updates can be obtained very
easily with the use of advanced search tools
in computers. Manpower and personnel
issues can be resolved by proper
management of the workforce andincreasing productivity.
87. For problems in relation to external
influence and abuse of powers, one
important safeguard is having honorable
officers of high integrity. Hence, there is aneed to consider these factors during therecruitment process. Regular ethics
courses could also be conducted as part ofthe continuous legal training of the police
and the prosecution.

340

88. The other specific safeguards andrecommendations are as follows:
A. The Police
89. There are several ways to provide
safeguards for screening by the police.
1. Supervision by the Prosecution
90. In several countries, the prosecution
has a supervisory role over the police. The
police can refer the case to the prosecution
if the police wants to seek the advice of theprosecutors regarding difficult points oflaw. Sometimes, advice as regards further
investigations is sought. In somejurisdictions like Maldives and Singapore,
if the police wants to withdraw any case,the case has to be referred to theprosecution for concurrence. Therefore, forscreening by the police, the prosecution can
act as a check. This can further enhance
the screening process.
2. Improved Co-ordination with
the Prosecution
91. The primary responsibility of the police
is to investigate and to gather evidence forprosecution. One of the primary roles ofthe prosecution is to examine theseevidence to determine whether prosecution
should be proceeded. For effective
screening, the prosecution and the police
should maintain close ties with each other.
3. Limit the Powers of Police in
Screening Cases
92. In order to prevent possible abuses,
there are two recommendations consideredby the members of group. One of therecommendations is to abolish the powersof the police in screening cases22. The police
in such a case has to refer all cases to theprosecution for the prosecutors to decide
whether to proceed with the case. This isdone in several countries like Costa Rica,
Maldives and Thailand, where only theprosecutors have the power of screening.
The other recommendation is to limit the107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
powers of the police in screening cases tosome less serious offences. This has beencone in some countries such as Malaysia.
B. The Court
93. The opinion of the majority of the groupis that the court should conduct thescreening of cases. Screening by the court
should not be abolished as it serves as anadditional safeguard to the screening
conducted by the police and theprosecution 23 . However, the group
recommends enhancing the present
screening proceedings. The safeguards andrecommendations are:
1. Preliminary Inquiry
94. From the foregoing, it is clear that
there are problems relating to preliminary
inquiry. However, there are also someadvantages in that it can provide a sievein screening undeserving cases. It also
serves as an additional check by the courtson the prosecution and the police.
Therefore, in order to overcome some ofthese problems, some members of the group
recommend improvements to the existingprocedures; for example, disallow crossexamination at the stage of the preliminary
inquiry which is to be reserved for theproper trial. Preliminary inquiry can also
be restricted to complicated orcontroversial cases where re-screening isrequired. Other members are of the viewthat the preliminary inquiry should be
abolished 24 . This has been done in
Malaysia. It is noted that in Sri Lanka,
preliminary inquiry was abolished but
revived again subsequently. The reasonsare perhaps peculiar to the circumstancesof the county.
2. Appeal and Judicial Review
95. As a means of check on the powers of
the courts to screen cases, there should besome provisions in law to allow for appeal
and review to a higher court or body by the
aggrieved party. For example, in Thailand,

appeal procedures are available for casesthat are not referred to the court for trial.
3. Abolition of Screening by
Magistrates in Summary
Proceedings
96. In Sri Lanka, there is a move to abolishthe power of the magistrate to screen cases
by way of summary proceedings. Anotherprosecutorial body coming under thesupervision of the Attorney General will bevested with this power. This body willcomprise law graduates.
C. The Prosecution
1. Powers of Investigations
97. In order to resolve the problems of thelack of investigative skills on the part ofthe prosecution, the prosecution could bevested with the powers of investigation asin Japan and the Republic of Korea.
Alternatively, the prosecution could beallowed to investigate in some special
cases. This is the position of China andIndonesia. This will enhance the ability ofthe prosecutors in screening cases as they
can gain invaluable experience byunderstanding the investigation process.
They can also supervise the legality of theinvestigations more effectively. In addition,
if the prosecutor personally investigates,
he need not depend merely on the files of
the investigating officer to come to adecision. Hence, the screening by theprosecution is more accurate.
2. Security of Tenure
98. As mentioned before, the prosecution
to some extent is part of the executive armof the government. However, in theexecution of its duties, it has to uphold therule of law and protect the public interest.
In order to ensure that the office of theprosecution is independent, one
recommendation is to provide security oftenure for the prosecutors. Having securityof tenure means that prosecutors will haveno fear in the exercise of the powers of341

RESOURCE MATERIAL SERIES No. 53
screening. The office of the Attorney
General can be protected by having it
entrenched in the constitution. This has
been done in countries such as Singapore.
Other than constitutional protection, theremoval process could be made moredifficult by legislation or regulations. In
Japan, prosecutors can only be removed
under the following circumstances:(1) voluntary resignation;(2) reaching retirement age;(3) found unsuitable for the position by
the Public Prosecutors Qualifications
Examinations Committee; and(4) disciplinary action.
99. In the Republic of Korea, prosecutors
can be removed from office through an
impeachment process initiated before theConstitutional Court or upon conviction ofa crime punishable with imprisonment. In
the Philippines, the removal of the publicprosecutors rests with the President.
However, in practice, they are not usually
removed. In Thailand, public prosecutors
usually hold office until they reach theirretirement age of sixty. They can beremoved by the Public Prosecutor
Commission.
3. Checks and Control
100. To prevent possible abuses during thescreening of cases, there is a need to havesome checks and control. There are two
types of checks. One is external and theother is internal. External checks on theprosecution can include the following:a) Check by an independentbody
101. Abuses in the screening process could
be taken up to an independent body thatserves like an ombudsman. There areseveral examples in various countries. In
Japan, if the prosecutor decides not toprosecute and the victim is not satisfied
with this decision, the latter can appeal to
the Prosecution Review Committee, which342

consists of lay persons 25 . After theCommittee receives the application, it will
examine the case and return a verdict. If
the Committee rules that the nonprosecution is not proper, the prosecution
has to reconsider its original position. In
the Republic of Korea, a constitutional
petition may be made to the Constitutional
Court if the decision of the prosecution
amounts to a violation of fundamental
rights. In the Philippines, the appeal ismade directly to the Secretary of Justiceas to the propriety of non-prosecution. If
the decision of non-prosecution amounts toan abuse of discretion, the aggrieved party
can file a complaint to a Tanodbayan who
can sanction an erring public official. In
China, there exists a Standing Committeeof the People’s Congress which can review
cases if a complaint is made to theCommittee. A system of a slightly different
nature but similar in effect exists in the
United States. A “Grand Jury,” which
consists of lay persons representing thecommunity, decides whether a person
should be indicted after listening to theevidence as presented by the prosecution.
One of the functions of this system is toserve as a check on the prosecution’s
discretionary power.
b) Media scrutiny
102. The media plays a significant role inmodern criminal justice administration. In
reporting news about crimes, the media cancreate public interest and awareness which
in turn serves as a check on the prosecution
in the exercise of its discretion. Hence, asa result of media scrutiny, the prosecutionis accountable to the public in its decisionmaking process. In addition, in Thailand,
when there is a non-prosecution decision,
the Attorney General as a policy will makeavailable the reasons for non-prosecution
to the media. This will ensuretransparency. The group also holds theview that the media can protect theindependence of the prosecution. However,107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
there is a need to prevent
sensationalisation by the media. The
media should be responsible in its reportingof cases. In this respect, there are laws insome countries where the newspapers areprevented to report the names of thevictims of sexual offences.
c) Interdepartmental
consultation
103. Periodic interdepartmental
consultation should be conducted among
the institutions in the criminal justiceadministration. The aim is to develop
policies and guidelines to minimize or
eliminate interference or destruction as
well as to monitor and evaluate theimplementation of such policies andguidelines.
d) Judicial action
104. Another possible means of controllingthe use of discretion is to utilize judicial
proceedings. In Japan and the Republic ofKorea, the codes of criminal procedureprovide that if a prosecutor declines toprosecute an offender for an offence
relating to the abuse of official power orfor a violation against a citizen by a law
enforcement officer, the complainant canrequest the court to re-examine the caseand commit it for formal trial. If such
request is granted, a private lawyer will
be appointed by the court to exercise theprosecutor’s function.
e) Internal checks
105. Internal checks can include thefollowing:(i) Check by higher
authority
106. In most jurisdictions, there exist someform of internal control. Within theprosecution, there can be checks bysuperior officers. In Singapore and thePhilippines, junior officers are required toobtain the concurrence and approval ofsenior prosecutors in discontinuing cases.
Dissatisfied complainants can also appeal
to a competent High Public Prosecutor’s
Office or to the Attorney General for review.
In Japan, the public prosecutor generally
has to seek the approval of the senior publicprosecutor on whether to proceed withprosecution or not. If the aggrieved party
is still not satisfied, there is an additional
check of appeal to a higher supervisory
authority in the organizational structure.
In the Republic of Korea, if the decision of
non-prosecution by the District Public
Prosecutor’s Office is not satisfactory, there
can be an appeal to the High Public
Prosecutor’s Office. There can also be afurther appeal to the Supreme Public
Prosecutor’s Office. This system of appeal
is similar to the appeal in courts. An appeal
to the Constitutional Court is also possible
as a final resort. In China, the nonprosecution order made by the People’s
Procuratorate is delivered to the public
security organ, which can review thedecision.
(ii) Code of ethics
107. Drawing up a set of ethics (code or
regulation) for the prosecution stipulating
the standards expected of the prosecution
in the performance of its duties with thenecessary sanctions for its implementation
is highly recommended. Senior officers
within the department can administer the
sanctions.
4. Enhance the Discretion to
Withdraw Prosecution
108. As discussed previously, it appears
that if there is a system of withdrawal ofprosecution, there is a greater chance forabuse. For example, in coming to a decision
to withdraw prosecution even if there issufficient evidence, it may be difficult tounderstand the reasons why the case waswithdrawn. This means that theprosecution can consider factors not
relevant. The group, however, does not

343

RESOURCE MATERIAL SERIES No. 53
recommend abolition of withdrawal ofprosecution for the following reasons:(1) Sometimes, bringing a case to courtfor prosecution may not be the bestsolution in the view of thecircumstances of the case. These areminor offences or offences relating toyoung offenders. Withdrawing
prosecution in these cases could givea chance to the offender to reform andreintegrate into society;(2) Without withdrawal of prosecution,
all cases except those with weak or
no evidence are referred to court.
This would include minor cases suchas the theft of small items of
insignificant value. This will
overload the court with unnecessary
and trivial cases. In addition, thiswill increase the time frame forhearing cases; and(3) Having a system of withdrawal ofprosecution can prevent theovercrowding of prisons. Before
suspension of prosecution was
introduced in 1884 in Japan, theprisons were overcrowded and a greatamount of financial burden wascaused to the government. This
problem was resolved with theintroduction of this system.
109. From the above analysis, it is clearthat the benefits outweigh the possible
abuses. In Costa Rica where withdrawal
of prosecution is currently not practiced, a
new legislation providing for suspension ofprosecution will be in force in the nearf u t u r e 26. I n a n y c a s e , a b o l i s h i n g
withdrawal of prosecution may not preventthese abuses completely. The prosecution,
if corrupt, can have the case withdrawn on
the basis of no evidence even if there is infact sufficient evidence to proceed with thetrial. Hence, the group is of the view thatthe practice of withdrawal of prosecution
should continue with the additionalsafeguard that all decisions of the344

prosecutors be accompanied with reasons.
The reasons should be documented so that
if need be, the basis of withdrawal ofprosecution can be made known to thevictim or any other interested party. This
will ensure transparency andaccountability in the decision-making
process.
5. Police Prosecutors
110. In some countries where police
prosecutors are not law graduates, there
are steps to slowly reduce the number ofpolice prosecutors. This to achieve 100
percent legally trained prosecutors.
Additionally, it will also enhance thecontrol of the prosecution. However, thegroup also recognizes the importance of theinstitution of police prosecutors in somejurisdictions and the need to preserve it.
For these countries, it is recommended thatin order to further enhance screening,
police prosecutors should receive sufficientlegal training, especially if they are not law
graduates. The office of the police
prosecution should also be independent
from the police so that the discharge of its
duty is not faltered by loyalty issues.
6. Private Prosecution
111. The group is of the view that thesystem of private prosecution should be
retained for two reasons. First, it canresolve the manpower problems affecting
the prosecution. Secondly, private
prosecution can be considered a safeguard;
for example, when public prosecution isrefused, the injured party can instituteprivate prosecution. To resolve theproblems of private prosecution, it isrecommended that some improvements bemade to the existing system. For example,
in Thailand, all private prosecutions haveto be screened by a preliminary inquiry. Insuch a case, the court can provide thescreening which is lacking.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
VII. CONCLUSION
112. As discussed in this paper, casescreening is a practice sine quo non tobuilding up an effective criminal justicesystem in any society. It essentially helps
to reduce the workload of a criminal court
and consequently, prevents delay in thedisposition of cases. The foregoing chaptershave discussed, inter alia, the need and theimportance of having a proper screening
system, which authority should be vested
with the power to carry out screening in acriminal case and a comparative analysisof the different systems of screenings. It isindubitable that the prosecution in many
countries plays a very vital role in casescreening. The prosecution is acting as aquasi-judicial entity, operating at anintermediate position between theexecutive and the courts. The prosecution
with a proper legal background can decidebest what cases should be brought for trial.
At the same time, the prosecution is in thebest position to decide what cases should
be withheld from adjudication by the
courts. Since the prosecution has a direct
responsibility to a trial court, he is expected
to carry out the screening carefully. That
helps to save criticism and humiliation forbringing frivolous cases for trial. At thesame time, in the eye of the public, he will
be able to preserve his professional
integrity. Moreover, this will help to keepa firm tab on the cases pending for trial
before a court. Case load will be lessened.
Public funds will not be wasted.
G o v e r n m e n t ’s c o f f e r w i l l n o t b e
overburdened. The prisons will not be
overcrowded. Consequently, justice will
not only be done but seen to be done.
Hence, it is the consensus of the group thatthe power of the prosecution in casescreenings should be strengthened toenable the prosecution to discharge its
duties more professionally, objectively,
legally and independently. However, thisshould not be misapprehended as astatement to undermine the importance of
having the police and the court also
involved in case screenings at different
stages of a criminal case. After all, forscreening, the most important component
parts of the criminal justice system are thepolice, the prosecution and the court.
113. The final part of this report is devoted
to consider the various problems andsafeguards relating to case screening. In
considering the nature of the problems
relating to screening, what is easily
discernible is that the problems inscreening could be due to various reasons.
Sometimes, these reasons are peculiar to asociety. For instance, manpower problems,
problems relating to lack of technicalfacilities, etc. could be directly attributable
to the economic and social conditions ofeach society. In the circumstances, any
move to eliminate these problems should
be considered in the backdrop of theeconomic development of a society.
114. However, some other major ethicaland moral problems also have serious
impact on case screening. For instance, thenon-availability of constitutionalsafeguards providing an independent
position to the authorities involved in casescreening and the possibility of havingsome room for political or extraneous
influences on case screening authorities,
etc. are viewed as serious problems by thegroup. It is the consensus of the group thatthese problems can be resolved by making
a firm joint commitment by a society tofight these social evils. One effective wayof achieving this goal will be by introducing
firm legal safeguards and entrenchedclauses to the constitution to protect andnurture the case screening authorities. It
is important to acknowledge sincerely these
problems are not stemming out of basicsocial problems. Therefore, we believe thateach society and all governments shouldfind out the safeguards and

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RESOURCE MATERIAL SERIES No. 53
recommendations to make it possible.
These matters are discussed in the paper.
Of course, they are neither perfect nor
consummate the whole issue fully.
However, we hope that they may be of somehelp to find some realistic measuresestablish effective criminal justice systems
in the global village.
ENDNOTES
1 In this report, the word “Police” refers
to police officers only, excluding police
prosecutors.
2 In some countries, all serious cases arereferred to the public prosecutor for his
advice and approval to withdraw
prosecution. This means that theProsecution screens the case.
3 According to our definition, if theprosecution’s concurrence is needed towithdraw prosecution, screening is doneby the prosecution.
4 The group has found that even if thesame term is used in different countries,
the standard is not the same. Pleaserefer to discussion under the topic:
Evidential Standard for Initiation ofProsecution under Screening by theProsecution.
5 Definition in Black’s Legal Dictionary,
5th Edition.
6 In Costa Rica and France, an examining
judge plays a role in screening. Thisfunction is similar to the role of thepresiding magistrate conducting
preliminary inquiry.
7 Please note that the phrase “Summary
Proceedings” used in this context refers
to the procedures adopted by Sri
Lankan courts to screen cases. It isdifferent from the usual summary
proceedings as in Japan as it iscommonly known.
8 Please note that the phrase “Pre-trial
Conference” used in this context refers
to the procedures adopted by Philippine
courts to screen cases.

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9 Please refer to, Rule 118, section 1 of
the Rules on Criminal Procedure—
Philippines, which reads as follows:“Pre-trial when proper—To expedite thetrial, where the accused and counsel
agree, the court shall conduct a pre-trial
conference on the matters enumerated
in section 2 hereof, without impairing
the rights of the accused”. Further,
Rule 118, section 2, reads as follows:“Pre-trial conference; subjects—The
pre-trial conference shall consider thefollowing:(a) Plea bargaining;(b) Stipulator of facts;(c) Marking for identification of evidenceof the parties;(d) Waiver of objections to admissibilityof evidence; and(e) Such other matters as will promote afair and expeditious trial.
10 Rule 116, section 2, reads as follows:“Plea of guilt to as lesser offence—The
accused, with the consent of theoffended party and the fiscal, may beallowed by the trial court to plead guilty
to a lesser offence, regardless of whether
or not it is necessarily included in thecrime charged or is cognizable by a courtof lesser jurisdiction than the trial court.
No amendment of the complaint or
information is necessary. A conviction
under this plea shall be equivalent to aconviction of the offence charged for
purposed of double jeopardy.”
11 P l e a s e n o t e t h a t p h r a s e “ P l e a
Bargaining Proceedings” used in thiscontext refers to the procedures adopted
by Sri Lankan courts to screen cases.
The meaning may be different from theusual attached to it.
12 I n S i n g a p o r e , t h e m e a n i n g o f“reasonable prospect” is similar to thestandard of “prima facie” used in Sri
Lanka.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
13 This number represents the percentage
of all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statistics on
Prosecution for 1996 of Japan”(Research and Training Institute of the
Ministry of Justice).
14 This number represents the percentage
of all cases the prosecution disposed of,including the offenses such as traffic
professional negligence and road traffic
violations. Please see, “The White
Paper on Crime, 1995 of Korea”(Research and Training Institute of the
Ministry of Justice).
15 This number represents the percentage
of all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statistics on
Prosecution for 1996 of Japan”(Research and Training Institute of the
Ministry of Justice).
16 This number represents the percentage
of all cases the prosecution disposed of,including the offenses such as traffic
professional negligence and road traffic
violations. Please see, “The White
Paper on Crime, 1995 of Korea”(Research and Training Institute of the
Ministry of Justice).
17 In Japan, the defendant’s consent isrequired. Otherwise, the prosecution
cannot utilize the summary
proceedings.
18 This number represents the percentage
of all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statistics on
Prosecution for 1996 of Japan”(Research and Training Institute of the
Ministry of Justice).

19 This number represents the percentage
of all cases the prosecution disposed of,including the offenses such as traffic
professional negligence and road traffic
violations. Please see, “The White
Paper on Crime, 1995 of Korea”(Research and Training Institute of the
Ministry of Justice).
20 For example, in Singapore, the police
usually states its views as to whether
the cases should be suspended orproceeded with.
21 For example, the judiciary is anindependent organ.
22 According to our paper, this refers to thesecond stage of screening by the police.
The first part of the screening should
not be abolished.
23 In Costa Rica, there is a move to abolishscreening conducted by the courts.
24 I n F r a n c e a n d C o s t a R i c a , t h eexamining judge also acts like an
investigative agency during screening.
Such a procedure in Costa Rica will beabolished.
25 All non-prosecution decisions can beappealed to the Prosecution Review
Committee.
26 The new law is found in Articles 25 to
29, Law No. 7594 of the Criminal
Procedure Code.

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