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

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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?

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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.

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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.

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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

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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.

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