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• Discretion To Prosecute
• What Test Should Be Used For Decisions To Prosecute?

5. Prosecution decisions and
the discretion to prosecute

DISCRETION TO PROSECUTE

127 THE DISCRETION TO PROSECUTE is the means by which a

prosecutor can assess and balance competing facets of the public interest. Often there will be aspects of community interest that call for prosecution, such as the need to punish and deter, but also there will be factors that pull in the contrary direction; for example, where a young offender has good chances of rehabilitation if appropriately supported. The Discussion Paper asked whether the discretion to prosecute should be retained, given concerns about consistency and transparency of, and accountability for, prosecution decisions. The unanimous response of submissions was that the discretion must continue. The Commission agrees.

128 The discretion is a fundamental feature of our prosecution system. Mandatory formal prosecution for all reported offences is not in the public interest because:

• Automatic investigation and prosecution would put a much greater strain on the limited resources available for law enforcement. Resources will always be limited and discretions are necessary to enable the resources to be used effectively and efficiently.

• Beyond the issue of resources, there will be situations where there is clear evidence of an offence but it is not in the public interest to prosecute (for instance, where an undercover police officer has technically committed offences as a party during the course of an investigation). In other situations alternatives to prosecution, such as warnings or diversion, may often be more effective methods of promoting the aims of criminal justice.

A discretion to prosecute allows those alternatives to be considered.

Of course, the discretion is not and must not be unfettered. It should be exercised by the police, Crown Solicitors and prosecuting agencies in accordance with publicly available guidelines. This will promote consistency and fairness, and discourage arbitrary prosecutions.

What test should be used for decisions to prosecute?

A reasonable prospect of conviction?

129 The current test that prosecutors use to decide whether or not to prosecute is contained in the Guidelines.[63] The Guidelines set out a test with two limbs, both of which must be considered when deciding whether or not to prosecute:[64]

• First, the prosecutor must ask whether there is admissible and reliable evidence that an offence has been committed by an identifiable person, and whether that evidence is sufficiently strong to establish a prima facie case; that is, if the evidence is accepted by a properly directed jury it could find guilt proved beyond reasonable doubt (the evidential sufficiency limb).

• Secondly, if that evidential basis exists, the prosecutor should consider whether the public interest requires a prosecution to proceed (the public interest limb).

130 In the Discussion Paper, the Commission observed[65] that the public interest limb of the Guidelines seems to incorporate a more stringent test than the evidential sufficiency limb itself. The discussion in the Guidelines under the public interest limb states:

... ordinarily the public interest will not require a prosecution to proceed unless it is more likely than not it will result in a conviction [emphasis added].[66]

131 The Commission originally proposed[67] that the existing evidential sufficiency limb should be strengthened so that a prosecution should proceed only if there was a reasonable prospect of a reasonable jury convicting. This test would reflect the discussion in the Guidelines in relation to the public interest limb of the discretion.

132 In contrast, the Crown Law Office and Crown Solicitors submitted that assessment of a reasonable prospect of conviction would require a prosecutor to determine the credibility of the witnesses. In their view prosecutors should not be required to judge the credibility of witnesses because this is properly a function for the tribunal of fact (a point which seems to be implicitly recognised by paragraph 3.3.1 of the Guidelines). Particular concern was expressed in relation to those classes of case, such as historic sexual abuse, where credibility of the complainant was likely to be the ultimate issue presented to the jury. They supported the present prima facie test.[68]

133 Having considered the submissions, we consider that a change to the existing test is unnecessary. The ‘reasonable prospect of conviction’ test is vague; it would require prosecutors to assess the credibility of a witness, and determine whether the witness would be believed by the tribunal of fact. This would confer an undesirably wide discretion upon the prosecutor. It would also impose a higher onus than that imposed upon the court under section 347 of the Crimes Act 1961 (which is whether a jury properly directed could properly convict).[69] The existing test is flexible enough to allow consideration of the prospect of conviction, albeit within the context of the public interest limb. The reasonable prospect of conviction will no doubt be a significant consideration in cases where the prosecution evidence has inherent difficulties. However, it would be inappropriate in our view to elevate the prospect of conviction to the fundamental evidential sufficiency test, given the practical problems that are likely to arise from its rigid application.

Prima facie case alone sufficient to charge despite the prospect of conviction?

134 The Guidelines anticipate that the public interest in some classes of case (for instance, drink driving offences, or corruption of public officials) will warrant prosecution where the first limb of the test – a prima facie case – can be satisfied, even if the prosecutor considers conviction is unlikely under the public interest limb. The issue is whether this position is correct; we consider it is. There are types of offences where social considerations such as prevalence and societal harm are such as to justify a policy strongly in favour of prosecution notwithstanding a low prospect of conviction.

135 The Commission has considered whether it is desirable to catalogue in the Guidelines those offences where the public interest weighs heavily in favour of prosecution (where a prima facie case exists) irrespective of prospects of success. In our view this is undesirable; it is impossible to prescribe in advance the class of relevant offences, because social circumstances are constantly changing, and those offences will change with time as policy and public attitudes change. We also stress that prosecutors should consider actively the public interest in each and every case. There is a danger that a list of offences where a prosecution should almost always follow might encourage prosecutors to abdicate their important responsibility to weigh the public interest.

A review of public interest factors is warranted

136 As a related issue the Discussion Paper queried the utility of the public interest factors in the Guidelines, and asked whether they should be reviewed.

137 Those who commented (including the Crown Law Office) agreed that a review would be useful. The National Collective of Rape Crisis suggested that victims’ interests should be given more emphasis and, in particular, pointed out that the present Guidelines explicitly protect the defendant from discrimination but not the complainant.[70]

138 We recommend the factors should be reviewed with a view to increasing their relevance and utility. The Commission believes that the current public interest factors in the Guidelines are a useful non-exhaustive list that guides prosecutors to the kinds of matters that they should consider in weighing the public interest for or against prosecution. Specific changes to the Guidelines that we are able to recommend now are:

• the grounds of prohibited discrimination in paragraph 3.3.4 of the Guidelines should include the complainant;

• the prohibited grounds of discrimination (such as sexual orientation) should be the same as those in section 21 of the Human Rights Act 1993.