RESOURCE MATERIAL SERIES No. 53

GROUP 3ISSUES CONCERNING PROSECUTION IN RELATION TO
CONVICTION, SPEEDY TRIAL AND SENTENCING
Chairperson
Co-Chairperson
Rapporteurs

Members

AdviserMr. Kyoji Ishikawa
Ms. Pauline Christine Ngo Mandeng
Mr. Madan Lal Sharma
Mr. Jonathan John Mwalili
Dr. Meen Bahadur Poudyal Chhetri
Mr. Mohamed Jameel Ahmed
Mr. Yutaka Kubo
Mr. Takahiro Ueda
Professor Yuzuru Takahashi

I. INTRODUCTION
The main objective of the criminal trial
is to determine whether an accused person
has violated the penal law and where foundguilty, to prescribe the appropriate
sanction. Prosecution is an executivefunction of the state and is usuallydischarged through the institution of theprosecutor. The burden of proof rests on theprosecution as per the prescribed standardof proof. The prosecutor faces several
problems in proving the guilt of the accused
person. Some of these problems fall beyond
the scope of his duties and responsibilities.
The legal framework, the law enforcement
infrastructure and the quality of thepersonnel operating within the legal
system, amongst other factors,
considerably affect the conviction rate. In
the first part of the paper, our group has
defined conviction rate, and analyzed thereasons for variation in rates in different
countries. The group has discussed someof the problems which may arise in proving
the case in a court from the perspective of
the prosecutor under four categories
relating to investigation, prosecution, trial,
and legal and systemic factors. The group
has also proposed solutions to some of these
problems.

348(Japan)(Cameroon)(India)(Kenya)(Nepal)(Maldives)(Japan)(Japan)(UNAFEI)

The right to a speedy trial is afundamental human right. It has been
affirmed in the Universal Declaration of
Human Rights 1948 and enshrined in theconsitutions and statutes of somecountries. Speedy trial is a vital elementin the administration of criminal justice.
In fact, unnecessary delay in the trial
constitutes a denial of justice. The
prevention and control of crime as well as
the effective rehabilitation of the convict
are enhanced by speedy trial. The
prosecutor is at the center stage of acriminal trial and plays a leading role inits conduct. In the second part of the paper,
the group has examined some of the laws
and practices which prevail in different
countries where this right is guaranteed.
Factors affecting the realization of a speedy
trial have also been discussed from theperspective of the prosecutor.
Sentencing is the final stage of a criminal
trial. An appropriate sentence is one which
strikes a balance between the preservationof social order and the rehabilitation of theconvict. The participation of the prosecutor
in sentencing and the stage of the suchparticipation differ depending on the legal
systems as practiced in different countries.
Sentencing remains the prerogative of the107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
presiding judge/magistrate who usually
enjoys wide discretion, and therecommendations of the prosecutor are notbinding on him. In the third part of thispaper, the group discussions revealed
problems which may arise in thesentencing process. The countermeasures
proposed therein, are intended to ensurethat the prosecutor effectively assists thecourt in arriving at an appropriate
sentence.
II. HOW WELL DOES THE
PROSECUTION ESTABLISH ITSCASE AGAINST THE DEFENDANT?
A. Preface
The preservation of life and property is
one of the fundamental functions of thestate. Over the millennia, the state has
endeavored to perform this function
through various institutions. Crime andcriminality are as old as humanity itself
and their total elimination appears to beb e y o n d h u m a n i n g e n u i t y. T h e
investigative, prosecutorial, adjudicatory
and correctional institutions aim atcontaining criminality within sociallyacceptable limits. The state causes
sanctions to be imposed upon the criminals
commensurate with the gravity of theircrimes.
Any violation of the law is investigatedby the competent agencies and if a prima
facie case is made out, a charge sheet/billof indictment is filed in the competentcourt. Prosecution is conducted by theprosecutor on behalf of the state. The court
adjudicates the case on the basis ofevidence adduced and either convicts theoffender or acquits him. The court imposes
the sentence on the convict after it hasheard him and the prosecutor. The
aforesaid procedure is followed in mostjurisdictions, with occasional variations topunish the offender as per the procedure
established by law. The correctional
services attempt to rehabilitate him.

B. Conviction Rate
The conviction rate may be taken tomean the ratio of cases convicted out of thetotal number of cases decided in a given
year.
Our group is of the view that theconviction rate is a reasonably good
indicator of the efficiency and efficacy ofthe criminal justice system prevailing in acountry. Of course, there is a limitation to
the significance of the conviction rate as
an indicator of prosecutorial efficacy.
Distinctive conviction rates are caused by
the differences in the evidential standard
required at the initiation of prosecution,
more fundamentally the differences in therole of investigators and prosecutors torefer cases to the court. In countries wherea considerably low evidential standard isrequired to send a case to court, it should
be tasked to pass judgement of conviction
or non-conviction based on suchprosecution, the conviction rate issystematically lower than the countries
requiring a higher evidentiary standard.
A high conviction rate, however, is not the
primary objective of the criminal justicesystem.
Notwithstanding the aforesaid, a highconviction rate may be indicative of
methodical and painstaking investigations
and effective prosecution. On the contrary,an excessively low conviction rate definitely
indicates unsuccessful and ineffective
prosecution.
It should be made clear, however, that it
is not the mandate of the prosecutor tosecure conviction at any cost. He is required
to be fair, impartial and must present all
the facts, including facts and circumstancesfavorable to the offender, before the court
for an appropriate decision. This is thegeneral practice in most common law
countries, where the prosecutor does nothave the authority to withhold a case fromprosecution.
Our group realizes that no conviction
handed down by the court of first instance349

RESOURCE MATERIAL SERIES No. 53
is final until confirmed by the highest courtin the event of an appeal. However, as no
published data is available in relation to
the decisions of appellate courts, data
regarding the convictions as rendered by
the courts of first instance is used.
Similarly, the convictions obtained throughthe plea bargaining process shall be dealt
with in this paper.
C. Overview of Conviction Rate inSome Countries
1. England and Wales1
The conviction rate in England andWales was 90.6 percent in 1992-93; 90.2
percent in 1993-94 and 90.3 percent in
1994-95. It may, however, be added that the
newly created Crown Prosecution Service
has the power to withdraw a case fromprosecution under certain circumstances.
Further, about 85 percent defendants
pleaded guilty.
2. India2
Under the Indian Penal Code offences,the conviction rate was 47.8 percent in 1991
and 42.1 percent in 1995. In 1995, theconviction rate for grave offences was asfollows: murder, 37.0 percent; culpable
homicide not amounting to murder, 36.3
percent; rape, 30 percent; kidnapping andabduction, 30.3 percent; robbery, 34.1
percent; and burglary, 42.7 percent.
However, for the Special and Local Laws,
the conviction rate was 85.8 percent in1995. This is largely explained by a highconviction rate in traffic related offences
i.e., 90.4 percent.

3. Indonesia3
The overall conviction rate was 98.4
percent in 1994. Of offenders, 84.17 percent
were sentenced to terms of imprisonmentand others were fined/paroled or given
minor sentences.
4. Nepal4
According to a survey conducted in 20
districts of Nepal in 1996, the averageconviction rate was found to be 16 percent.
5. Japan5
The conviction rate in Japan isextremely high. In District Courts, it was
99.91 percent in 1994; 99.92 percent in1995 and 99.94 percent in 1996 in cases
wherein the defendant had pleaded guilty.
In cases wherein the defendant had notpleaded guilty, the conviction rate was
97.73 percent in 1994; 97.92 percent in1995 and 98.01 percent in 1996. In
Summary Courts, the conviction rate was
99.79 percent in 1996 wherein the
defendant had pleaded guilty and 94.90
percent in cases wherein the defendant had
not pleaded guilty. In grave offences suchas homicide, robbery, bodily injury, rape orlarceny, the acquittal rate is as low as
between 0.1 to 0.3 percent.
6. Republic of Korea6
Conviction rate in 1993 was 99.5
percent. It was 99.11 percent in murder;
99.87 percent in robbery; 99.74 percent inrape and 99.59 percent in bodily injury
cases. In special code offences, conviction
rate was 99.61 percent.
3

1

Mr. G.D. Ethrington’s paper on “The Crown
Prosecution Service and the Public Interest”
published in UNAFEI Resource Material Series
No.49, p. 93.
2 As per data published by National Crime Records
Bureau, Ministry of Home Affairs, Govt. of India,
in Crime in India, 1995.

350

Bureau of Central Statistics, Government ofIndonesia, 1994, p. 26.
4 As per country paper presented by the participantof Nepal in this course.
5 The White Paper on Crime, 1996, Research andTraining Institute, Ministry of Justice, Governmentof Japan, p. 112.
6 The White Paper on Crime published by theGovernment of Korea, 1993, p. 182.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
7. Thailand
The conviction rate ranges between 97
to 98.40 percent from 1991 to 1993, as per
statistics published by the Attorney
General’s Office. However, we have been
informed that a large proportion of theseconvictions are reversed by the appellate
courts.
8. United States of America7
The conviction rate turned by the federal
courts in the U.S.A. was 82.7 percent for
all offences in 1993. The rate in grave
offences was as follows: murder, 78.6
percent; negligent manslaughter, 78.3
percent; assault, 76.3 percent; robbery, 92.5
percent; rape, 80.2 percent; andkidnapping, 64.0 percent. It may, however,be added that 90 percent of the convicts
pleaded guilty and another 1 percent
pleaded nolo contendere. The remaining 9
percent were convicted at trial.
9. Others
No published data is readily available
about Costa Rica and China. Our group is,
however, informed that the conviction ratein Costa Rica was 56 percent in 1996. In
China, it was 99.75 percent in 1994 and99.5 percent in 19958.
In Sri Lanka, the conviction rate was
86 percent in grave crimes in 19969 .
In the Sindh Province of Pakistan, theconviction rate was 40.96 percent in 1993;
36.86 percent in 1994 and 50.88 percent in199510.

7Compendium of Federal Justice Statistics, 1993,
U.S. Department of Justice, p. 43.
8 As per responses to our questionnaire received fromthe participants from China and Costa Rica.
9 As per the lecture paper presented by Mr. D. P.
Kumarsingha, Additional Solicitor-General,
Attorney-General’s Department, Sri Lanka, in thiscourse.
10 As per the country paper presented by theparticipant of Pakistan in this course.

D. Analysis of Conviction Rates
The conviction rate is largely affected by
the quality of investigation and thestandard of proof prescribed by law to send
the case to trial. The propensity of offenders
to plead guilty also has a significant
bearing on the conviction rate.
In Japan and the Republic of Korea, theconviction rates are extremely high. In
these countries, prosecutors have thestatutory discretion not to initiate
prosecution due to insufficiency of evidence.
They also have the authority to conduct
investigation in addition to directing,guiding and supervising investigations
conducted by the police. Resultantly, only
strong cases are sent up to the courts.
Further, in Japan 92 percent of offenders
plead guilty, and the Japanese Criminal
Procedure Code provides for exceptions to
the hearsay rule in certain circumstances,which help in proving the cases. These
factors largely explain the high conviction
rate. In Indonesia, the conviction rate isalso extremely high. This is largely
explained by strict screening made byprosecutors at the pre-trial stage.
The conviction rates turned out by the
U.S. federal courts are fairly high, eventhough 90 percent of convictions (including
murder cases) are based on pleas of guilt.
The same is true of England and Wales.
At the other end of the spectrum arecountries like India and Sri Lanka. The
conviction rate in Penal Code Offences inIndia was as low as 42.1 percent in 1995.
The conviction rate in the Sindh Provinceof Pakistan is also comparatively low. In
these countries, the standard of proof
required for conviction is much higher thanthe one required for sending a case to thecourt. In most countries, cases are sent fortrial on the basis of “prima facie” evidence.
At the same time, the cases should be sent
to the court where there exists “prima facie”
evidence. The evidence should be such thatthe defendant has a case to answer.

351

RESOURCE MATERIAL SERIES No. 53
However, the case is required to be
proved “beyond reasonable doubt” in court
to secure a conviction. The evidence
required should be conclusive in nature andinconsistent with the innocence of the
defendant. Furthermore in most countries,
the defendant is presumed to be innocent
until proved guilty. The burden of proof
wholly rests on the prosecution and only
shifts as per the conditions prescribed bylaw.
This low conviction rate is also due tothe inadmissibility of confessions madebefore the police; the lack of binding legal
provisions for compelling the suspect/defendant to give samples of his blood,
handwriting and fingerprints, etc. and thenegligible percentage of offenders who
plead guilty unlike the practice prevailingin England, Japan, the Republic of Korea,
the U.S.A., etc.
Our group discussed whether
prosecution initiated by police prosecutors
undermines their capacity to establish thecase against the defendant. There wereseveral opinions about the validity of police
prosecution.
E. Problems in Proving the Guilt of
the Defendant
The conviction rate in countries likeIndonesia, Japan and the Republic of Korea
is very high, whereas in countries like India
it is relatively low. It is now proposed to
examine problems in proving guilt
particularly in the context of countries
having a low conviction rate. The problems
are divided in four categories, namely; (a)investigation; (b) prosecution; (c) trial; and(d) legal and systemic problems.

11 Hereinafter, we use the word “police” as a typicalexample of investigating agencies.

352

1. Investigation-relateda) Insufficiency of evidence due
to poor investigation
The investigating agencies are required
to collect all available evidence during
investigations. If painstaking and timely
investigations are not conducted, valuableevidence maybe lost. Sometimes the police11
fail to collect vital evidence from the site
such as blood stains, fingerprints and otherevidence in cases of physical violence, due
either to lack of training or inefficiency. At
times, the statements of key witnesses are
not recorded as their importance in proving
the case is not understood. Statements may
also be recorded in a casual and slipshodmanner by the investigating officer whichleaves gaps in the evidence. Occasionally,
the police fail to work in collaboration withforensic experts. As a result, forensic
evidence is not collected for use against theoffender. The police may send cases to thecourt even when the evidence is insufficient
for reasons of expediency.
b) Inexperience and inadequate
qualification of investigating
officers
Investigations are often conducted by
low-ranking officers who are new in service
and lack experience. As the caliber of suchofficers is not high, they may be deficientin procedures. Hence their inability to
conduct quality investigations. The lacunae
left are often harmful in trial.
c) Non-separation of
investigative staff
Even though some countries have set
up specialized investigative agencies tohandle specific category of crimes, thepolice still remains the main investigating
agency to handle general crimes. In mostcountries, investigations are conducted atpolice stations where the police handle bothinvestigations and duties to maintain social
order. No staff is earmarked exclusively forinvestigative work. Generally, the police

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
gives preference to activities related to thepreservation of social order which resultsin lack of sustained and systemic
investigation, inordinate delay and theconsequential loss of valuable evidence.
d) Poor supervision by thesuperiors
Sometimes senior officers are unable tomonitor and supervise investigations in atimely manner due to heavy work load or
indifference. Hence, vital lacunae are left
in cases and are exploited at the trial stage.
e) Lack of qualified personnel,
logistics and financial
resources
Investigating agencies do not have wellqualified officers in sufficient numbers.
Often they after have excessive work load
and the quality of investigation is adversely
affected. Efficient investigationnecessitates qualified personnel
commensurate with the work load. Besides,
lack of resources such as transportation,communication and office equipment may
affect the quality of investigations.
Investigating agencies suffer from these
constraints in some countries.
f) Lack of cooperation andcoordination withprosecutors
The prosecution is separate from thepolice in most countries and they often
function under separate ministries. In
countries where the prosecutors do not
enjoy the statutory authority to guide andsupervise police investigations, they are
not usually consulted by the police during
investigation even when legal advice isnecessary. Sometimes, prosecutors are
consulted but their directions are notcomplied with due to departmentalized
perceptions.

g) Lack of transparency andother forms of malpractice
In some countries, investigations are notalways conducted in a fair and just manner
due to extraneous factors such as lack ofprobity amongst the investigators, politicalpressures, etc. This leads to various formsof malpractice which include the failure torecord statements from key witnesses orthe intentional manipulation of statementswith a view to screening the offenders.
2. Prosecution-related
Public prosecution is an executivefunction of the state which is conducted byt h e p r o s e c u t o r. I t i s h i s p r i m a r y
responsibility to prove the guilt of the
defendant. Public prosecution, inter alia,
has a significant bearing on the conviction
rate. The problems in efficient prosecution
are enumerated hereinafter.
a) Inadequate or delayed
scrutiny by the prosecutor
In Indonesia, Japan, Maldives, Nepal,
the Republic of Korea and Sri Lanka, theprosecutor has absolute authority todetermine whether a case should be sent
for trial or not, and he alone determines if
the evidence is sufficient. In somecountries, the case file is sent to theprosecutor for screening at the pre-trial
stage, even though he does not make thefinal decision. Sometimes, the prosecutor
does not conduct proper screening due toheavy work load or other extraneous
factors. In Sri Lanka, the police sends thecase file to the Attorney General’s Office
for advice. Scrutiny may take a long time,and it may be too late for the State Counsel
to make any meaningful suggestion to thepolice, to improve the quality ofinvestigations. Hence, relatively weakcases are sent to court.

353

RESOURCE MATERIAL SERIES No. 53b) Inadequate supervision of
investigations
In countries where the prosecutor isvested with the authority to supervise
investigations, he may not exercise it
sufficiently due to heavy work load or
indifference. There is not always adequate
cooperation with the police in the dischargeof supervisory functions.
c) Inadequate preparation fortrial
To conduct a trial is one of the mostimportant functions of the prosecutor. It isobserved that sometimes the prosecutors
are not prepared for the trial and fail to
examine the witnesses in a professionalmanner. As a result, court time is wasted.
d) Delay in trial
This is a serious problem in somecountries and may be fatal to theprosecution. Due to delayed trials, some
witnesses may die, suffer from memory
loss, or lose all interest in prosecution.
Some defense counsels apply for
adjournments on flimsy grounds further
contributing to unnecessary delay in trials.
The prosecutor should oppose suchapplications.
e) Reluctance of witnesses totestify
It is a serious problem in crimes relating
to organized gangs, terrorist groups anddrug offenders. The witnesses are often
reluctant to testify due to fear of reprisals
or because they are compromised
themselves with the defendant.
f) Difficulties in obtaining andadducing forensic evidence
Forensic evidence is extremely useful inproving the guilt of the defendant. The
reports prepared by experts should betendered in court and used with thetestimonies of the said experts. Sometimes
these reports are not available when354

needed court. It is not always easy to secure
the presence of the experts in court as they
have other functions.
g) Non-cooperation of victims
Victims may not cooperate with theprosecution and sometimes retract theirprevious statements.
h) Lack of cooperation between
the prosecution and thepoliceFor successful prosecution, the need forcooperation and understanding between
these agencies which cannot be overemphasized. The police is required tosecure the presence of witnesses when they
are needed in court. Generally, theprosecutor also ensures the execution of
court orders through the police agency. Anylack of cooperation may result in inefficient
prosecution and delayed trial.
i) Quality of prosecution
For efficient prosecution, it is importantthat the prosecutor be preferably a law
graduate, have adequate experience and agood command of the law.
3. Trial-relateda) Inadequate court structures
In some countries, the problem of“docket explosion” is very serious. The
courts are overburdened and their number
not commensurate with the needs. This
often results in delayed trials, which may
be prejudicial to the prosecution.
b) Lack of resources—human orotherwise
In some countries, the courts do not haveadequate support services such as
stenographers, typists and interpreters,
modern office equipment (i.e., computers)
and telephones, which consequently affects
the work of the courts.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEc) Numerous and unnecessary
adjournments
Cases are adjourned on flimsy grounds,
often at the request of defense counsel.
Sometimes prosecutors do not oppose theseapplications. This impedes the trial
process.
d) Stay on trial by the appellate
courts
It is a serious problem in somecountries. Stays disrupt the court scheduleand delay trials.
e) Political pressures and otherextraneous factors
The court may not conduct fair andimpartial trials due to political pressureand other extraneous factors. Judgements
may be intentionally delayed.
4. Legal and Systemic Factors
Apart from the problems enumerated
above, there are some problems which are
inherent with the legal structures andsystems prevailing in certain countries.
These problems are as follows:a) Exclusion of evidence
In some countries, confessions madebefore police officers are not admissible inevidence irrespective of the rank of theofficer. Due to this legal disability, valuableevidence against the defendant is lost.
Furthermore, in some countries, thedefendant is not legally bound to give his
fingerprints, handwritings or blood
samples, etc., either during investigationor the trial. Valuable forensic evidence isthus precluded, which makes theprosecution’s task all the more difficult.
b) Inadequate salaries andstatus of criminal justicesystem authorities
The salary scales of the police,prosecutors and judges in some countries
are relatively low. This makes it difficult

to attract suitable hands in these
professions. Investigations conducted by
low-ranking police officers do not invoke
the confidence of the public at large.
c) Lack of coordination
between the police,prosecution and prison
authorities
In some countries, these departments
are placed in different ministries. Prisoners
are not produced in court on the appointed
dates because of lack of coordination. Lackof cooperation between the prosecutors andthe police officers is prejudicial to theprosecution case, as mentioned earlier.
F. Solutions to the Problems
Our group has discussed in detail thecountermeasures to overcome the problems
enumerated above. Solutions to these
problems are as follows:
1. Investigation-relateda) Investigation by experienced
and qualified police officers
Investigations, particularly of grave
crimes, should be conducted byexperienced, well-trained and senior police
officers. Certain statutes do prescribe therank of officers competent to conduct
investigations under special laws.
However, our group suggests thatinvestigations for serious offences be
conducted by senior officers. The
supervisory officers should be deeply
involved in investigations from theinception to the end of the case.
b) Use of scientific methods ofinvestigation
Forensic evidence is often conclusive innature and difficult to rebut. Police officers
should be trained to collect forensic
evidence and to use other modern scientificmethods of investigation.

355

RESOURCE MATERIAL SERIES No. 53c) Separation of investigating
staff
Our group feels that specialization
within the police force is essential for
improving the quality of investigations.
The group recommends the creation of aseparate cadre of investigating officers ineach police force.
d) Adequate logistical andfinancial resources
To improve the quality and speed ofinvestigations, it is imperative that
adequate resources—human andmaterial—are made available to the police.
Adequate budgetary provisions should bemade for this purpose by the competentauthorities.
e) The prosecutor and police
should act in harmony on thebasis of mutual trust andconfidence
Our group feels that prosecutors should
be involved in investigations as this may
improve their overall quality.
f) Others
Political interference in the activities ofthe police is a fact in some countries, eventhough the degree may vary from country
to country. The police needs to be insulated
from political influence by creating a buffer
between it and the political authority. The
police also needs to improve its ethicalstandards and enhance its professional
skills to better invoke greater publicconfidence.
2. Prosecution- and Trial-relateda) Thorough screening by theprosecutor
The prosecutor needs to meticulously
screen cases so that only legally viable
cases are sent up for trial. This would
reduce the chances of acquittal and savethe defendant from avoidable harassment(incarceration in some cases) and financial

356

liability. In countries, where the prosecutor
does not have the authority to drop
prosecution of his own level, he should
record his candid and categorical opinion
in the case file so as to enable thecompetent authority make an appropriate
decision. Strict scrutiny by the prosecutor
would definitely lessen the burden of thecourts.
b) Meticulous preparation anddiligent production ofparties during trial
The prosecutor should meticulously
prepare both the facts and law in everycase. He should review the case file,
exhibits and also test witnesses, if
necessary. In this regard, the ways andmeans of prosecutor’s preparation vary,depending on the differences in the legal
framework of the disclosure or discoveryof evidence. Irrespective of the degree of
one party’s duty to disclose evidence to theother, it is always recommendable for theprosecutor to expect the potential defense
and try to eliminate the room forreasonable doubt about his case. He should
also secure police cooperation to ensure theproduction of witnesses in court on theappointed dates. The work load of theprosecutor should be kept withinreasonable limits so that the quality of his
output is not adversely affected.
c) Improving the court
structure
In those countries that suffer from the
problem of “docket explosion”, the numberof courts should be increased. Also,
adequate secretarial services and otherlogistical support should be provided.
d) Strict attitude toward
adjournments
The prosecutor should vehemently
oppose frivolous applications by the defense
counsel.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEe) Improving the quality ofprosecutors
Prosecutors should have a goodcommand of the law, procedure and enoughexperience for effective prosecution. It is,therefore, essential that qualified
personnel be inducted into the profession
from the open market. This would
necessitate improving the salary scales,
perks and status of prosecutors.
3. Legal and Systemic Factorsa) Amendments in laws
In some countries, the law expressly
excludes the admissibility of confessions
made before police officers. Also in somecountries, the witness statements before
investigators may never be admissible as
incriminating evidence (not merely as
impeachment evidence) in the court
without the defense’s consent. Suchprovisions, apart from being out of line withthe laws applicable in other countries,
preclude valuable evidence from being
adduced in court. These provisions should
be considered for review by the competentauthority12. Similarly provisions need to be
12 For reference, Article 322, paragraph 1 of the Codeof Criminal Procedure of Japan provides as follows:“A written statement made by the accused or adocument which contains his statement and issigned and sealed by him may be used as evidence
against him, if the statement contains as admission
by the accused of the fact which is adverse to hisinterests, or if the statement was made under suchcircumstances as secure a special credibility.
However, where the written statement or document
contains an admission by the accused of the factwhich is adverse to his interests and there exists
any suspicion that the admission has not been madevoluntarily, it shall not be used as evidence against
the accused as well as in cases prescribed by Article
319, even though the admission is not a confessionof a crime.”
Also, Article 321, paragraph 1, item 2 of the same
Code provides for the exception to hearsay rules,
approving on the following conditions theincorporated in the procedural laws of somecountries to compel suspects to give
samples of handwriting, fingerprints,blood, etc., to the investigating agencies.
b) Mobile courts
In some jurisdictions, the transportation
network is not well developed, and parties
find it very difficult to attend court
sessions. Besides, such travel involves
extra expenditure. Setting up mobile courts
in such jurisdictions may be a way of taking
justice closer to the people and reducing
expenditure.
c) Witness protection program
Witnesses who are reluctant to depose
in court for fear of reprisals need protection
from the state. In the U.S.A., there are legal
provisions for the protection of witnesses,
which also permit a change of their identity,
their relocation and financial support until
such time that they become self-reliant.
This program has yielded good results inthat several gangsters have been convictedon the basis of the testimony of suchprotected witnesses. A similar witness
admissibility of a written statement made by aperson other than the accused, or a document whichcontains his statement and is signed and sealed byhim:“As regards the document which contains astatement of a person given before a publicprosecutor, where he does not appear or testify on
the date either for the preparation for public trial
or for the public trial because of death, unsoundnessof mental condition, missing, staying outside ofJapan or being so physically incapacitated that hecannot testify, or where he, appearing on the dateabove mentioned, has given a testimony contrary
to or materially different from his previous
statements; however, in the last case this shallapply only where there exist special circumstances,because of which the court may find that theprevious statements are more credible than thetestimony given in the course of interrogation on
the date above mentioned.”

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RESOURCE MATERIAL SERIES No. 53
protection program may be launched incountries affected by organized crime andterrorism.
III. IS SPEEDY TRIAL REALIZED?
A. Preface
Courts are the citadels of justice—they
are the vanguards of life, liberty andproperty. They radiate the last ray of hopeto those in despair.
Indeed courts perform a very vital rolein society. They have the enormous task ofdeciding cases and controversies so thatjustice may be rendered. The fulfillment of
this duty by the court in promptly resolving
controversies is necessary for the people’s
continued belief in them and respect for thelaw.
B. What is Speedy Trial?
Speedy trial is considered a fair process
conducted within a reasonable period oftime. Our group considered speedy trial anindicator of the efficiency of a criminal
justice system because where it exists:• There is a faster flow of cases.
• It may facilitate the writing of court
judgements.
• There will resultantly be more cases
heard and disposed of.
• Litigation expenses are reduced ascases may be heard and completed in
one or more court sessions.
• Tension on the part of the parties,
especially those in police or prison
custody, will be eased, since thependency of a case is reduced to theminimum period. People will, thus,
resort to the judicial process insteadof taking the law into their hands.
“Justice delayed is justice denied” runs
the proverb. Delay in the criminal justicesystem is a matter of major concern. It
raises a number of issues of legal
significance, some constitutional, others ofstatutory dimensions.

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It cannot be denied that speedy trial isin the interest of both the defendant andthe society. It is a guarantee to thedefendant against his infinite incarceration
without trial, (if he is in custody) and tends
to minimize anxiety if he is admitted bail.
Speedy trial serves the public interest inthat it minimizes the possibility of the
defendant jumping bail or influencing
witnesses. Besides, pre-trial incarcerationis costly and delayed trial may cause key
witnesses to suffer from memory loss, or
become unavailable.
It is difficult to determine a precise timeframe for a speedy trial. However, speedy
trial not only means the commencement of
trial within a statutory prescribed timeframe from the time the suspect is arrested,
it also encompasses the completion of thetrial within the legally prescribed timeframe. It is the endeavor of our group toaddress these issues in the light of legal
and constitutional provisions prevailing insome countries.
C. Present Situation in Some
Countries
The legal and constitutional provisions
prevailing in some of the countries are as
follows:
1. India
Article 21 of the Constitution of India
guarantees the right to life, which has beeninterpreted by the Supreme Court of India
to mean right to speedy trial.
According to section 167 of the Criminal
Procedure Code, the charge sheet must be
filed against the defendant within 90 days
from the date of arrest in offences
punishable with death, imprisonment forlife or imprisonment of not less than 10
years, and within 60 days in other offences,failing which he will be released on bail.
The failure to file the charge sheet in the
afore time frame, however, does notprejudice the trial. Besides, there is no law
in India which prescribes a time frame forthe completion of trial.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
2. Indonesia
The Indonesian Criminal Procedure
Code prescribes the time frame of detentionof a suspect at pre-trial stage. If the arrestis made by police, the maximum detention
period is 20 days, which may be extended
to 40 days by the prosecutor and another60 days by the District Court, the total
being 120 days. Detention is ordered by
the District Judge is 150 days. The Codealso prescribes the maximum period ofdetention by the High Court to 150 days
and the Supreme Court to 170 days. If thetrial or appeal is not finalized within theabove time frame, the defendant has thestatutory right to be released on bail but itwould not prejudice the ongoing trial.
3. Japan13
Article 37-1 of the Constitution of Japanguarantees the right to a speedy trial.
Furthermore, Article 253-2 of the Public
O f f i c e r s E l e c t i o n L a w, m a n d a t e scompletion of the trial within 100 days fromthe date of the institution of a case inrespect of election fraud and other election
related offences.
As per the statistics published by theSupreme Court of Japan, the average time
for the completion of trials by district courts
was 3.3 months in 1994 and 1995, while in1996 it was 3.2 months. The average
number of trial dates was 2.8 months. In
summary courts, the average time taken
for trial was 2.3 months in the aforesaid
years. The average number of trial dates
was 2.4 months. This means that thedisposal in summary courts was faster thanin the district courts.
4. Nepal
The Common Code (“Muluki Ain”) of
Nepal (Part II, Section 14) prescribes thetime frame for the completion of a trial by
the court. If the case pertains to an area
13 The White Paper on Crime, 1996, Government ofJapan, p. 7.

located adjacent the court; the time limit
is 6 months. This may be extended to 1 year
for cases wherein the cause of action lies
in remote and distant areas.
The Public Offences Act, 1972, empowers
the police to arrest a suspect without
warrant if he is found to be indulging instreet violence, teasing or the molestationof women, obstructing public servants intheir duties; disrupting public
transportation; power supply lines or postal
services; illegally occupying public property
or indulging in any acts harmful to thesociety, etc. The police are mandated to filethe charge sheet against the arrested
person within 7 days of arrest in the courtof Chief District Officer. As per this Act, if
the Chief District Officer does not complete
the trial within 90 days, the defendant will
be released on bail but the trial will not be
prejudiced. Section 6 of the Act, however,mandates the completion of trial within 90
days.
5. Republic of Korea14
The Republic of Korea has enacted a law,
the Special Act for Speedy Proceedings,
1981, which prescribes a time frame of six
months for the completion of a trial. The
Appellate Courts have four months within
which to complete the proceedings15.
It may be pointed out that noncompletion of trial in the above time frame
does not prejudice the trial. The available
data shows that only 55.3 percent of cases
were disposed of by the District Courts
within three months. This disposal was
70.6 percent in the Summary Courts.
However, within six months the disposal
14 The White Paper on Crime, 1993, Government of

Korea, p. 181.
15 Article 22 of said Act reads, “A judgement must be

pronounced within six months in the court of thefirst instance calculated from the day when the
public action was instituted, and within fourmonths in the court of other levels calculated fromthe day when the record of proceedings was sent”.

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RESOURCE MATERIAL SERIES No. 53
in both the courts went up to, 97 percent
and 96.47 percent respectively.
6. United States of America16
The right to a speedy trial has beenguaranteed by the sixth Amendment in theConstitution of the U.S.A. It was followedby the Federal Speedy Trial Act, 197417.
According to the aforesaid Act, an
indictment or information is to bepresented to the defendant within 30 days
from arrest or issuance of summons, witha 30-day extension if no grand jury is insession. If the accused person pleads not
guilty, he must be brought to trial within
70 days, but not less than 30 day from thedate of information or indictment or fromthe date he appeared before a judicial
officer of the court in which the charge ispending, whichever of the dates occurs last.
In computing this time period, the Act
specifically excludes any period of delay
resulting from other proceedings
concerning the accused person, etc. The
U.S. Supreme Court while interpreting thelaw has recognized the right to a speedy
trial to be a relative one18.
The statistics published by the JusticeDepartment indicate that the average time
for trial disposal in U.S. federal courts was
8.2 months in 1993. Felony cases on
average took 9.5 months; violent offences
7.8 months; property offences 8.4 months;
drug offences 10.8 months; andmisdemeanors only 3.3 months. The time
taken was less in cases wherein a plea of
guilty was entered.

16 Compendium of Federal Justice Statistics, 1993,

In some countries, the law prescribes thetime frame for the commencement of thetrial from the time of arrest of the suspect.
There are also laws which set a time limit
for completion of trial. Our group is of theview that speedy trial is in the interest ofjustice and also protective of the humanrights of the defendant. It reflects on theefficiency of the criminal justice system.
The group feels that trials must becompleted with utmost speed but refrained
from prescribing any time frame as thiswould depend on the nature of the case,the legal framework, in which the trial isbeing conducted, geographical andinfrastructure-related factors.
In some of the countries where a common
law system is predominant, it inevitably
takes a certain period of time to completea trial by adversarial court proceedings.
Due process requires a hearing whereinboth parties present evidence to establish
the facts of the case, and the burden of
proof, lies with the prosecutor. It has been
observed however, that while “the search
for truth is best aided by allowing bothparties to argue the same question, theprocess is time-consuming”.
The group also emphasizes that thequality of trials should not be compromised,
for the sake of speed.
D. Causes of Delays in Trials
Our group in its deliberations consideredthat delays may be classified under four
categories:• court-related,• prosecution-related,• defense counsel-related, and• general.

U.S. Department of Justice, p. 44.
17 18 U.S.C.A. sections 1361-3174.
18 Criminal Justice Administration, by Frank. W.

Miller and Robert O. Dawson, p. 752, “The right ofspeedy trial is necessarily relative. It is consistent
with delays and depends upon circumstances. It
secures rights to a defendant. It does not preclude
the rights of public justice.”

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1. Court-related Factorsa) The split trial process
Cases are generally tried on a piecemeal
basis. This means that the trial proceedings
are conducted in sessions spread out overa period of time. Usually one witness
testifies for an hour or less in one hearing

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
and then continues at the next hearing for“lack of material time”, a stereotype reason
stated.
b) Incompetence and ignoranceof the law
As a factor in unnecessary delay, ourgroup has considered the incompetence ofsome judges/magistrates. The failure tokeep abreast with the law andjurisprudence also causes undue delay,
particularly when a judge is unfamiliar
with the rules of procedure.
c) Heavy case load and poorcase flow management
Due to the increase in the population inmost countries and the deterioration of
economic conditions, considerable numberof new cases are added yearly to the alreadyovercrowded dockets of the courts. Thereseems to be a tendency to schedule cases
over a long lapse of time. This is so because
there are too many cases scheduled for agiven trial date and it is impossible for thetrial judge to hear them all. Those thatcannot be called are re-scheduled for someother date. As a result, only a few cases
are heard on any given trial date.
d) Delay caused by court
personnel
Delay may be caused by court personnel
who are unprofessional or who lack proper
managerial and technical skills. The
scheduling of cases, issuance of summons,record keeping, the retrieval of informationand the docketing of cases are done by court
staff, thus relieving the judges/magistratesof the “house keeping” chores of the court.
Since the jobs of court staff are interrelated,
the absence or incompetence of any one ofthem can scuttle trial proceedings, e.g., theabsence of a court stenographer will cause
the postponement of all the cases scheduled
for hearing and may delay the completionof records of proceedings for those casesthat are appeal.

2. Prosecution-related Factorsa) Inadequate preparation andlack of evaluation ofevidence
The excessive workload of a prosecutor
may result in inadequate preparation fortrial. Additionally, the lack of cooperation
between the prosecution and theinvestigating agencies would undoubtedly
result in non-production of exhibits and/or
witnesses during the trial date, hence
leading to adjournment.
b) Failure to show a clear
outline of proving cases
Failure by prosecutors to show a clear
outline as to how they intend to present
their cases, makes it difficult for the court
to allocate sufficient time to hear anddetermine cases. Factors such as
documentary evidence, statements of
witnesses and of the defendant should
enable prosecutor to calculate the numberof witnesses and the length of timenecessary for their respective testimonies.
3. Defense Counsel-related
Factorsa) Abuse of court process
Defense counsel are known to use
dilatory tactics to gain an advantage over
the opposing party. By filing unnecessary
motions for the review of court orders, a
defense counsel hopes that the prosecution
may lose interest in the case. Defense
counsel think that by prolonging the crossexamination of a material witness, he may
become tired and will simply disappear.
Other dilatory tactics include thepresentation of corroborative witnesses toprove matters that have already been
established; filing of writs for certiorari,mandamus or prohibition; and seeking areview of orders by a trial court.
b) Heavy volume of cases
The heavy volume of cases handled by adefense counsel eventually leads to361

RESOURCE MATERIAL SERIES No. 53
scheduling conflicts which, may result in
adjournments, thereby inadvertently
delaying court proceedings.
c) Incompetence and failure toprepareThe heavy case load of the defense
counsel may result in inadequate
preparation for trial. The defense counsel
thus unprepared for the trial may ask fora adjournment, thereby delaying thedisposition of the case.
4. Generala) Our group considered other generalfactors such as lack of discipline and moral
probity in the execution of different
functions. External pressure andinterference from politicians and/or othersenior government officials with vested
interests in particular cases and otherforms of malpractice such as corruption
within the criminal justice system werealso considered contributory tounnecessary delay in trials. In addition, thegroup observed that sufficient initial andcontinued professional training waslacking in the judiciary and theprosecution.
b) Our group observed that there is
wide-spread poverty and ignorance of thelaw in many developing countries, which
was identified as one of the factors
contributing to the delay in trials. The
group cited examples where a defendantor a witness could not travel to court due
to lack of bus fare or a means oftransportation. In some countries where
defense counsel is not provided thedefendant by the state, they apply for
adjournment on the ground that they werestill making arrangements for such defense
counsel. In this respect, the courts found it
difficult to deny them their constitutionalright to defense counsel and grant suchapplications.

362

E. Measures to Be Taken for the
Realization of Speedy Trial
To combat delay and reduce the court
backlog, our group considered the following
measures:1. To exercise better case control, thetrial court judges should conduct aninventory of their cases to determine
the actual number of cases pending
in their respective courts. The cases
could then be categorized into thosewhich are pending trial, thoseadjourned for judgement and thosewhich have been completed but are
pending appeal. It is, therefore,
important for judges to allocate theirtime so as not only hear anddetermine cases but also to disposeof pending cases.
2. With regard to effective court
management, the Supreme Court
should urge judges to observe strict
rules of punctuality and minimum
hours of daily work. The presiding
judges should closely supervise theirclerks of court to ensure that they
perform their functions in an
appropriate manner.
3. Judges should observe the rules ofprocedure regarding issues such as
restraining orders or preliminary
objections, and act promptly on all
motions and interlocutory
applications before the courts.
4. The courts should make appropriate
schedules for trials by seeking thecooperation of the parties concerned.
More than one court session shouldbe allocated in advance and mostdesirably on consecutive trial dates.
5. The prosecutor should be able tocalculate the time necessary topresent his case, and propose aconcrete schedule for the case. This
will enable the court to plan the timeframe for the cases with a view to
avoiding unnecessary delay in trial.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
6. Witnesses and exhibits should be
produced and tendered on therelevant dates. This objective may beachieved with the cooperation
between prosecutors and theinvestigating agencies. Additionally,
prosecutors must assure the securityof witnesses by ensuring that theirlegal rights are strictly observed
during their respective testimonies.
This security should be extended to
the witnesses before and even after
testimony to avoid possible
intimidation. Prosecutors should
therefore liaise with the investigating
agencies dealing with the case toachieve this objective.
7. O u r g r o u p o b s e r v e d t h a t f o reffectiveness and efficiency in theadministration of justice, there is aneed for professional training of
judges/magistrates and prosecutors
before they join their respective
professions. This will ensure that alllegal issues are addressed in view ofa fair application of the law.
8. The prosecutor should scrutinize thecase files by anticipating the rebuttalof the case by defense counsel.
IV. IS THE APPROPRIATESENTENCE IMPOSED ON
DEFENDANTS?
A. What Is Appropriate Sentence?
Appropriate sentence should reflect the
major objectives of punishment which
include retribution, general and specificdeterrence and rehabilitation.
The court has wide discretionary powers
in the selection of the type of punishment
considering the gravity of the offence andpersonality of the convict. The prosecutor
has professional duties as a representativeof the public interest to ensure that theappropriate sentence is meted out by the
court. It is for this reason that prosecutors
in most jurisdictions are required to assist
the court by disclosing as much informationas possible relating to sentencing, that is,the circumstances of the commission of theoffence and the personality of the convict.
B. Present Situation
1. An Overview of Sentencing
Process
The degree of involvement and the timeof such involvement by prosecutors insentencing, varies depending on the system
in application in different countries. In
some common law countries, the prosecutor
makes general recommendations relating
to sentencing at the end of the trial during
the closing statement/argument. Following
conviction, he is only expected to disclose
the past criminal record of the convict tothe court. In countries following the civil
law system, the prosecutor makes
recommendations which may be detailed
or not in his submissions to the court at
the end of the trial. The past criminal
record of the convict is contained in the casefile, which is transmitted to the trial judge
or magistrate before the commencement of
the trial.
Before imposing sentence, the court shallprovide the defense counsel an opportunity
to speak on behalf of the defendant andshall address the defendant personally to
ask him if he wishes to make a statement
or to present any information in mitigationof punishment. In some common law
countries, the pre-sentence inquiry is aprocedural step prior to sentencing at
which the judge of a court may examine
the pre-sentence report and all otherrelevant documents before imposing
sentence. Sentencing is a crucial stage ofcriminal prosecution requiring theassistance of an appointed defense counsel.
The prosecutor shall also have an
opportunity to speak to the court.
In Japan, during the trial, mitigating
circumstances are presented to the court
by the prosecutor and the defense counsel
respectively. The prosecutor submits, inaddition to the charge, any other363

RESOURCE MATERIAL SERIES No. 53
aggravating evidence such as the pastcriminal record of the defendant. On theother hand, the defense counsel may
produce witnesses to present mitigating
circumstances. In this case, the defense
counsel examines the witnesses in relation
to mitigating circumstances. In his closing
argument, the prosecutor makes a detailed
recommendation for specific punishment tobe determined by the court.
2. Involvement of Prosecutors
The prosecutor may be involved atvarious stages of criminal proceedings frominvestigation to sentencing:a) Plea bargaining
Plea bargaining in a criminal case is theprocess whereby the defendant and theprosecutor work out a mutuallysatisfactory disposition of the case subject
to court approval, which usually involves
the defendant’s pleading guilty to a lesser
charge or to only one or more of the countsof an indictment in return for a lighter
sentence than that possible for the graver
charge.

imposed on him. At this stage, in somecountries like Japan, the prosecutor
recommends specific punishment, that is,
the type of penalty, the nature and durationof the term of imprisonment and/or the sumof the fine.
d) Victim Impact Statement
In cases where the victim experiences
loss over and above the ordinary pain andsuffering, this fact may be revealed to thejudge after the defense has pleaded for
mitigation. The judge may take this into
consideration in sentencing. This is toensure a fair and equitable sentence. Thissystem is in practice in New Zealand andSingapore.

b) Examination of witnesses
As mentioned above, in some countries
like Japan, the defense counsel calls
witnesses (relatives, employers, friends,etc.) only to disclose mitigating
circumstances to the court. By examining
the witnesses, the prosecutor can ascertain
whether they present sufficient guarantees
that they will care for the convict.

e) Appeal
In most countries, the prosecutor canappeal to the higher court if the sentencepassed by the lower court is insufficient orexcessive in proportion of the gravity of theoffence. In case the defendant wassentenced to excessive punishment when
he was not represented at trial, theprosecutor may, to discharge his duty
impartially, appeal the sentence. In somecountries, namely, the Philippines and the
U.S.A., to protect the defendant fromdouble jeopardy, the prosecutor cannot
appeal in the event of an acquittal.
In addition to the above involvement,
prosecutors may collect evidence relating
to sentencing and select the appropriate
procedure and competent courts for
initiating prosecution.

c) Closing argument
The closing argument is the final
statement made by the prosecutor and thedefense counsel respectively to a jury, or
the court summing up the evidence thatthey think the other has failed to establish.
The prosecutor may disclose the pastcriminal record of the defendant and argue
that the defendant’s past record is not good,
therefore, maximum punishment should be

C. Problems in Obtaining
Appropriate Sentence
The following are some problems, which
adversely affect the appropriate sentence:
1. In some countries, the opinion of theprosecutor is not considered.
Opinions are divided as to whether
the prosecutor should participate in
the sentencing process. Our group
discussed the pros and cons of the364

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
matter and is generally of the viewthat the prosecutor should partake inthe process. This is because he is aunique position to provide the court
the viewpoints not only of the victim
but also the law enforcement
agencies. His intervention is alsoessential as he may restrain a judge
with a propensity for leniency. The
group was the opinion that legislativereform may be necessary in thosecountries where the prosecutor does
not enjoy such authority.
2. The prosecutor always requests forthe maximum punishment. In somecountries, especially in thosecountries where the prosecutor enjoys
enormous authority, he always
requests for the maximum
punishment for the defendant. Thisis a serious problem in sentencing.
Because of the system, someprosecutors cannot participate insentencing even when they wish to
do so.
3. The police and the prosecutor may
lack information about the pastcriminal record of the defendant. In
some developing countries, theprosecutor may find it difficult toobtain the past criminal record ofsome convicts due to poor
conservation of such records or lackof cooperation with the police.
4. Some prosecutors may be too ardent,
rigid and overzealous, thereby
affecting sentencing.
5. Prosecutors and judges face political,
social and other problems in somecountries in the form of undue
pressure and external interference.
Moreover, some of them purposely
involve themselves in various formsof malpractice, which adversely
affects sentencing.
6. The untimely and sudden transfer ofprosecutors is a problem in somecountries. In such a situation, theprosecutor handling a case may not
be able to complete the case, and may
not have the opportunity to brief theincoming prosecutor. The newprosecutor may not understand thecase so as to conduct the prosecution
efficiently.
7. It has been observed that the court
may impose heavy punishment on
one defendant and a lighter
punishment on another defendant,
even when they committed the sameoffences and they are similarly placedin life. When the convicts compare
notes with each other, such disparity
in sentencing may cause them somefrustration and bring into focus
discrimination in the sentencing
process.
D. Countermeasures
As underlined above, our group revealed
several problems in relation to appropriate
sentencing. In a country where the abovementioned problems prevail, necessary
measures should be taken for the effective
and efficient administration of criminal
justice. Bearing in mind the gravity of theabove problems, the group suggests thefollowing countermeasures from theperspective of the prosecutor, the defense
counsel and the court:
1. Adduce Sufficient Evidence,
Disclose Mitigating
Circumstances and Other
Information About the
Defendant to the Court
To assist the court in sentencing, theprosecutor should adduce sufficientevidence and disclose all information about
the defendant and the offence he is alleged
to have committed. It has been noted thatprosecutors often lack information about
the defendant’s past criminal record.
Similarly, the defense counsel may
contribute to a greater extent in obtaining
appropriate sentencing by disclosing all

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RESOURCE MATERIAL SERIES No. 53
possible mitigating factors favorable to thedefendant. In some countries such as New
Zealand, Singapore and the U.S.A., thevictim of an offence is allowed to make astatement to the court as to the loss he has
suffered as a result of the commission of
the offence. The court may take theaforementioned statement into
consideration to determine the appropriate
sentence.
2. The Prosecutor Should File an
AppealWhere the prosecutor is dissatisfied withthe sentence of the trial court, he may
consider an appeal to the appellate courtwith a view to securing the appropriate
sentence for the convict. Such legal
provisions do exist in most jurisdictions andshould be used to as a remedy to disparity
in sentencing or to realize the objectives ofpunishment.
3. To Resist Undue Pressure andOther Forms of Malpractice
The prosecutor, the defense counsel andthe judge should resist undue pressure andall interference in a case. None of themshould try to take undue advantage. All ofthem should honestly adhere to the ethicsof their professions.
4. To Work in Good Harmony
The prosecutor and the defense counsel
usually resist till the end of a case in favorof their party, which is quite natural tosome extent. But, to obtain an appropriate
sentence, they should cooperate and work
together, instead of being rigid. They
should be flexible and objective.
5. Avoid Disparity in Sentencing
Disparity in sentencing is a serious
problem and may occur due to the personal
predilections of judges. The lack ofsentencing guidelines and the
nonavailability of data on sentencing by
superior courts aggravates the problem. It

366

is suggested that national training
programs and seminars should beorganized for judges, focusing on this
aspect. It may be useful to widely publish
important decisions in the media for judges
and prosecutors. Research is necessary to
determine the dimensions of the problem.
The issuance of sentencing guidelines by
the legislature or apex to the courts is
another viable option. Available data in
relation to sentencing should becomputerized for easy access to judges andprosecutors. Furthermore, as prosecutors
play an important role in sentencing, theyshould be conversant with sentencing
standards and assist the court in thisregard.
V. CONCLUSION
The importance of the role played by theprosecutor in a criminal trial cannot be
overemphasized. Adequate initial andcontinued professional training arenecessary for the efficient and diligent
performance of prosecutorial functions.
Furthermore, probity should be a requisite
for admission into the profession. The
prosecutor should adhere to theprofessional ethics throughout his career.
There is a need for sustained cooperation
between the prosecutor, the investigating
agencies, defense counsel, judges,
supporting staff and all persons involvedin the administration of criminal justice.
The quality of investigations, prosecution
and trial in some jurisdictions needs to be
improved.
The legal framework may require
substantial reforms to better respond toprevailing circumstances in different
countries, so as to meet the challenges
posed by the sophistication of crime andits transnational character resulting fromtechnological advancement. These reforms
can only materialize where there is a firm
political commitment and necessary funds
are made available by the competentauthorities.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
The group fully understands andrespects the systems prevailing in different
countries. The political, social andeconomic conditions of some countries may
not be conducive to the implementation ofsome of the measures proposed. The
intention of the group is to makemeaningful contributions with a view to
optimizing the efficacy of the different
systems and practices.

367