1

INTRODUCTION
The commission of a criminal act is commonly regarded as an offence against the State, to be dealt with by the criminal justice machinery of the State executive. Further, two essential components of any functioning system of criminal justice are the investigation of alleged offences, and their prosecution. Nevertheless, the nature of the relationship between the entities that investigate offences, those that prosecute them, and the State executive itself, remains a matter of controversy in India and elsewhere. The importance of understanding this relationship is highlighted in certain widely discussed judgments of the Supreme Court, which deal explicitly with the implications of a nexus developing between the processes of investigation, prosecution, and the executive.1 The first and most recent is Zahira Habibullah v. State of Gujarat,2 where the conduct of the Best Bakery case in the Gujarat High Court, involving the burning down of an establishment in Vadodara which caused the death of 14 persons, came up for consideration before the Supreme Court, leading to what Rajeev Dhavan has described as the severest indictment ever of the justice and governance system of any State. The Supreme Court, in ordering a retrial of the matter in the Maharashtra High Court, observed that in Gujarat, the public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court and castigated the State Government, for having subjected the criminal administration system to its own whimsical political wills. Similarly,
1

the other case where the importance of shielding the agencies charged with investigation and prosecution from extraneous influences, even of the controlling executive was noted, was Vineet Narain v. Union of India3, where the Court found that the CBI had failed to investigate properly offences involving high political dignitaries. The Court emphasized the need to ensure that there are no arbitrary restrictions to the initiation of investigations or launching of prosecutions. Finally, in 2000, in R. Sarala v. T.S. Velu,4 the Supreme Court ruled that any nexus between the prosecution and the investigative agency was also pernicious in law, and that the prosecutors place was inside the courtroom, not outside it. Prosecution has been defined as the institution or commencement of criminal proceedings, the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government. It is now widely accepted that although the prosecutor is formally engaged in adversarial proceedings against the accused, he in fact owes allegiance to a higher cause- the administration of justice. Further, in recent times the Courts in India have held that the public prosecutor who discharges this function is first and foremost an officer of the court, an agent of justice, who, though representing the State in criminal proceedings, is the independent holder of a public office. But although its most recent judgments do provide definite support to the idea of the independence of the prosecutor, from both the police and the State executive, the Supreme Court itself has over the years
3 4

see Smith and Hogan: criminal lawDavid th Ormerod (11 ed.)pg.59 2 AIR 2004SC O322

AIR 1998 SC 827 AIR 2000 SC 1731

expressed conflicting views on the status of the prosecutor and the degree, if any, to which he is subordinate to other authorities in his functioning. Further, opinions as to the extent to which the prosecutor should be linked to the investigation of offences, and how far he or she ought to be subject to the directions of the executive, in order to best fulfill his role, vary. The Law Commission5, in its 14th Report, argued strongly for a separation between the police- as the investigative agency- and the prosecutor, but several State Police Commissions have disagreed with this demarcation, as has the Malimath Commission in its recent report on criminal justice in India..

Aim of the Paper

The aim of this paper is to comparatively analyses the structure, role and function of the prosecuting agencies in india and England . This paper also analyses various provisions of law relating to prosecuting agencies in Indian as well as in English law. Further, It is the issues raised in the abovestated decisionsinsofar as they relate to the proper place of prosecution in Indias criminal procedure, and its relationship with both the investigative agency and the State executive- that form the subject matter of this paper This paper is primarily concerned with the structure, role and function of prosecuting agencies in India and England. For the preparation of this paper I have primarily relied on books and various statutes in operation in india and England . I have also used various journals,research papers and ariticles published in press and on internet for the purpose of this research paper.

14 report of the Law Commission on the Reform of the Judicial Administration

TH

INDIAN SYSTEM I. INTRODUCTION India is a Union of States and is governed by a written constitution which came into force on 26 November 1949. India consists of 25 states and 7 Union Territories. Due to its colonial heritage, India follows the Anglo-Saxon common law justice system. Article 2466 of the Constitution provides for three lists which are enumerated in 7th Schedule of the Constitution. List-1 is the Union List which enumerates the subjects on which the Parliament of India has exclusive power to make the laws. List-2 is the State List which enumerates the subjects on which the legislature of a state has the power to make laws. The third list is the Concurrent List which enumerates subjects on which both the Indian Parliament and the Legislatures of the state can enact laws, but if there is any conflict or inconsistency between the laws made by the Indian Parliament and the legislature of any state, the law enacted by the Union Parliament will have overriding effect. Importantly, the Public Order and the Police are enumerated in Entries 1 and 2 respectively of the State List, meaning thereby that all matters relating to the organisation, structure and regulation of the police force fall within the ambit of the states. However, the Criminal Lawsand the Criminal Procedure are enumerated in List-3, i.e., the Concurrent List. Both the Indian Parliament and state legislatures have the powers to make substantive and procedural laws in criminal matters. The states can also enact laws on local and special subjects. Thus,
6

under the constitutional scheme, the basic criminal laws, i.e., the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act have been enacted by the Indian Parliament. The Indian Police Act has also been enacted by the Indian Parliament. The states have also enacted laws on several local and special subjects. Some states in India have also enacted their own Police Acts. The Indian Police Act, 1861, however, is the basic statutory law governing the constitution and organisation of police forces in the states. Article 14 of the Constitution provides for equality before law. Article 21 guarantees protection of life and personal liberty. Article 20 provides protection against double jeopardy. No person can be prosecuted and punished for the same offence more than once. Article 39-A mandates the states to secure equal justice for all. It also provides for free legal aid in respect of indigent persons. Article 50 is important as it provides for the separation of the judiciary from the executive in the public services of states. II. DISTRICTTHE BASIC UNIT OF ADMINISTRATION In each state, there are a number of districts. The District is governed by a triumvirate consisting of the District Magistrate, the District Superintendent of Police and the District and Sessions Judge7. The District Magistrate is the chief executive officer of the district and he belongs to the Administrative Service. The police in the district functions under his general direction and control. The District
7

See also M.P.JAIN .constitutional law of india(9 ed.)wadhwa publicaations

th

See ICJ POSITION Paper on reform of cr. Justice system in india :review of recommendations of malimath committee.

Superintendent of Police is the head of the police force in a district. He is responsible for the prevention and detection of crime and the maintenance of law and order, subject to such directions as may be issued by the District Magistrate. In practical terms, the District Magistrate has no role in criminal investigations. The District and Sessions Judge is the head of the judiciary in a district. He belongs to the higher state judicial service. The entire magistracy in the district functions under his control and supervision. III. CRIMINAL JUSTICE SYSTEM The criminal justice system has four important components in India, namely, the Investigating Agency (Police), the Judiciary, the Prosecution Wing and the Prison and Correctional Services.8 A brief mention of their structure and their roles is made here below: A. Investigating Agency The police forces are raised by the state under the Indian Police Act, 1861. The basic duty of the police forces is to register cases, investigate them as per the procedure laid down in the Code of Criminal Procedure (to be referred to as the Code hereinafter) and to send them up for trial. In addition to the State Police Forces, the Government of India has constituted a central investigating agency called the Central Bureau of Investigation (CBI) under the special enactment called the Delhi Special Police Establishment Act, 1946. It has concurrent jurisdiction in the matters of investigation in the Union Territories. It can take up the investigation of cases falling within the jurisdiction of the states only with the prior consent of the state governments concerned.9 There are certain other specialised investigating agencies constituted by the central
8

government, in various departments, namely, the Customs Department, the Income Tax Department, the Enforcement Directorate, etc. They investigate cases falling within their jurisdictions and prosecute them in the courts of law. Thus, India has both the state police investigating agencies and a central investigating agencies as mentioned above. CBI, however, is the primary investigating agency of the central government. B. The Courts The cases instituted by the state police and the Central Investigating Agency are adjudicated by the courts. We have a fourtier structure of courts in India. At the bottom level is the Court of Judicial Magistrates. It is competent to try offences punishable with imprisonment of three years or less. Above it is the Court of Chief Judicial Magistrates, which tries offences punishable with less than 7 years. At the district level, there is the Court of District and Sessions Judge, which tries offences punishable with imprisonment of more than 7 years. In fact, the Code specifically enumerates offences which are exclusively triable by the Court of Sessions. The highest court in a state is the High Court. It is an appellate court and hears appeals against the orders of conviction or acquittal passed by the lower courts, apart from having writ jurisdiction. It is also a court of record. The law laid down by the High Court is binding on all the courts subordinate to it in a state.10 At the apex, there is the Supreme Court of India. It is the highest court in the country. All appeals against the orders of the High Courts in criminal, civil and other matters come to the Supreme Court. This Court, however, is selective in its approach in taking up cases.11 The law laid down by the Supreme Court is binding on all the
nd 10

See shamsul huda:principles of law of crime (2 edition) 9 0utlines of criminal procedure code : ND R.V.KELKAR(2 ED.1997)pg.15-31

Cr.p.c.;m.p. tendon and rajesh tendon (7 ed,)pg.6 -40 11 ibid

th

courts in the country12. C. Prosecution Wing It is the duty of the state to prosecute cases in the courts of law. The state governments have constituted cadres of public prosecutors to prosecute cases at various levels in the subordinate courts and the High Court.13 I will revert to the subject later when I discuss the structure and functioning of the prosecution wings in the states and the central governments. D. Prisons and Correctional Services This is the fourth important element in the criminal justice system. The prisons in India are under the control of the state governments and so are the correctional services. IV. CONSTITUTION AND STRUCTURE OF PROSECUTION WING14 As stated above, the police is a state subject in our constitutional scheme. The primary investigative unit is the police station in India.15 After due investigation, charge-sheets are filed in the courts concerned as per the provisions of the Code. The cases are prosecuted by the public prosecutors appointed by the state governments.16 Prior to the enactment of the Criminal Procedure Code of 1973, public prosecutors were attached to the police department and they were responsible to the District Superintendent of Police. However, after the new Code of Criminal Procedure came into force in 1973, the prosecution wing has been totally detached from the police department. The prosecution wing in a state17 is now headed by an officer designated
12 13

ibid ibid 14 Outlines of Cr.P.C:R.V.KELKAR CH.III Pg.15-31 15 ibid 16 nd Kelkars Lectures on cr.p.c. ch.ii (2 ed.1990) 17 Outlines of cr.p.c.R.V. kelkar PG 15-31

as the Director of Prosecutions. In some of the states, he is a senior police officer and in others, he is a judicial officer of the rank of District and Sessions Judge. He is assisted by a number of Additional Directors, Deputy Directors and Assistant Directors, etc. At the district level, there are two levels of public prosecutors, i.e., the Assistant Public Prosecutor, Grade-I and the Assistant Public Prosecutor, Grade-II. They appear in the Courts of Magistrates. The Director of Prosecutions is responsible for the prosecution of cases in the Magisterial Courts. In Sessions Courts, the cases are prosecuted by Public Prosecutors. The District Magistrate prepares a panel of suitable lawyers in consultation with the Sessions Judge to be appointed as public prosecutors. The state government appoints public prosecutors out of the panel prepared by the District Magistrate and the Sessions Judge. It is important to mention that public prosecutors who prosecute cases in the Sessions Courts do not fall under the jurisdiction and control of the Director of Prosecutions. The state government also appoints public prosecutors in the High Court. The appointments are made in consultation with the High Court as per section 24 of the Code. The most senior law officer in a state is the Advocate General who is a constitutional authority. He is appointed by the governor of a state under Article 165. He has the authority to address any court in the state18. Under section 24 of the Cr.P.C., the central government may also appoint one or more public prosecutors in the High Court or in the district courts for the purpose of conducting any case or class of cases in any district or local area19. The most
18 19

IBID ibid

senior law officer of the Government of India is the Attorney General for India, who is a presidential appointee under Article 76. He has the authority to address any court in the country.20 The Assistant Public Prosecutors, Grade-I and Grade-II, are appointed by a state government on the basis of a competitive examination conducted by the State Public Service Commission. They are law graduates falling within a specified age group. They join as Assistant Public Prosecutors Grade-II and appear in the Courts of Magistrates. They are promoted to Assistant Public Prosecutors, Grade-I, and generally appear in the Courts of Chief Judicial Magistrates. On further promotion, they become Assistant Directors of Prosecution and can go up to the level of Additional Director of Prosecution. They, however, do not appear in the Sessions Court. As mentioned above, the District Magistrate in consultation with the Sessions Judge prepares a panel of lawyers with a minimum of 7 years of experience to be appointed as public prosecutors. They are so appointed by the state government. They plead the cases on behalf of the state government in the Sessions Courts. They have tenure appointments and are not permanent employees of the state government21. They are paid an honorarium (not salary) by the state government. There is now a move to integrate the aforesaid two cadres of public prosecutors with the object to improving the promotion prospects of law officers who join at the lowest level, i.e., Assistant Public Prosecutor, Grade-II. The idea is to promote the Assistant Public Prosecutors, Grade-I to Additional Public Prosecutor or Public Prosecutor, as the case may be, to plead cases in the Sessions Court. If it comes about, this will obliterate the need for appointing lawyers from the open
20 21

market as public prosecutors to plead cases in the Sessions Courts22. V. PROSECUTION BY CBI The Central Bureau of Investigation has a Legal Division which plays an advisory and prosecutory role in the organisation. It is headed by a Legal Advisor, who is a deputationist from the Ministry of Law of the central government. This arrangement ensures objectivity of his office. He is assisted by a number of Law officers who are permanent employees of the CBI, namely, Additional Legal Advisor, Deputy Legal Advisors, Senior Public Prosecutors, Public Prosecutors, Assistant Public Prosecutors, etc.23 These are indicated in descending order of seniority and rank. These officers render legal advice to the investigating officers during the course of investigations as to the viability of proposed prosecutions. Their advice is taken seriously, but they can be over-ruled by the executive CBI officers. Multiple and hierarchical systems of legal advice prevails in the CBI. Legal advice is taken at least at three levels before deciding the fate of a case. After a decision has been taken to prosecute a case, the law officers conduct the prosecution of cases in the courts. The level of a law officer to prosecute a case is directly related to the level of the court, i.e., the higher the court, the higher the rank of a law officer to prosecute it. Besides, the CBI also engages Special Public Prosecutors from the bar on a daily fee basis in important and sensational cases. VI. THE DUTIES AND FUNCTIONS OF A PUBLIC PROSECUTOR Public prosecution is an important component of the public justice system. Prosecution of an offender is the duty of
22

IBID

IBID IBID

23

SEE the Delhi Special Police Establishment Act,1946.

the executive which is carried out through the institution of the Public Prosecutor. The public prosecutor is appointed by the State, and he conducts prosecution on behalf of the State. While it is the responsibility of the public prosecutor to see that the trial results in conviction, he need not be overwhelmingly concerned with the outcome of the trial. He is an officer of the court and is required to present a truthful picture before the court. Even though he appears on behalf of the State, it is equally his duty to see that the accused does not suffer in an unfair and unethical manner. The public prosecutor, though an executive officer, is an officer of the court and is duty bound to render assistance to the court. The public prosecutor represents the State and the State is committed to the administration of justice as against advancing the interest of one party at the cost of the other.24 He has to be truthful and impartial so that even the accused persons receive justice. The public prosecutor plays a dominant role in the withdrawal of a case from prosecution. He should withdraw from prosecution in rare cases lest the confidence of public in the efficacy of the administration of justice be shaken. The Supreme Court of India has defined the role and functions of a public prosecutor in Shiv Nandan Paswan vs. State of Bihar & Others25 as under: a) The Prosecution of an offender is the duty of the executive which is carried out through the institution of the Public Prosecutor. b) Withdrawal from prosecution is an executive function of the Public Prosecutor. c) Discretion to withdraw from prosecution is that of the Public Prosecutor and that of none else and
24

Outlines of cr.p.c.;R.V.KELKAR CH.III PG 15-31 ND ( 2 ED.1997)

25

AIR 1983 SC 1994

he cannot surrender this discretion to anyone. d) The Government may suggest to the Public Prosecutor to withdraw a case, but it cannot compel him and ultimately the discretion and judgement of the Public Prosecutor would prevail. e) The Public Prosecutor may withdraw from prosecution not only on the ground of paucity of evidence but also on other relevant grounds in order to further the broad ends of public justice, public order and peace. f) The Public Prosecutor is an officer of the Court and is responsible to it. VII. ROLE OF A PUBLIC PROSECUTOR IN INVESTIGATIONS Investigations in India are conducted as per provisions of Chapter XII of the Code. Cases are registered under section 154 of the Code. A police officer is competent to investigate only cognizable offences. Non cognizable offences cannot be investigated by the police without obtaining prior orders from the courts. A police officer can examine witnesses under section 161. However, the statements are not to be signed by the witnesses. Confessions of accused persons and statements of witnesses are recorded under section 164 of the Code. A police officer has the power to conduct searches in emergent situations without a warrant from the court under section 165. A police officer is competent to arrest an accused suspected to be involved in a cognizable offence without an order from the court in circumstances specified in section 41 of the Code. He is required to maintain a day to day account of the investigation conducted by him under section 172. After completion of investigation, a police officer is required to submit a final report to the court under section 173. If a prima facie case is made out, this final report is filed in the shape of a charge-sheet. The accused has,

thereafter, to face trial. If no cogent evidence comes on record, a closure report is filed in the Court.26 The public prosecutor plays the following role at the investigation stage: (1) He appears in the court and obtains arrest warrant against the accused; (2) He obtains search warrants from the court for searching specific premises for collecting evidence; (3) He obtains police custody remand for custodial interrogation of the accused (section 167); (4) If an accused is not traceable, he initiates proceedings in the court for getting him declared a proclaimed offender (section 82) and, thereafter, for the consfiscation of his movable and immovable assets (section 83); and (5) He records his advice in the police file regarding the viability/advisability of prosecution. After the completion of investigation, ifthe investigating agency comes to theconclusion that there is a prima facie caseagainst the accused, the charge-sheet is filed in the court through the public prosecutor. It is to be noted that the opinion of the public prosecutor is taken by the police before deciding whether a prima facie case is made out or not. The suggestions of the public prosecutor are also solicited to improve the quality of investigation and his suggestions are generally acted upon. However, the ultimate decision of whether to send up a case for trial or not lies with the police authorites. In case there is a difference of opinion between the investigating officer and the public prosecutor as to the viability of the prosecution, the decision of the District Superintendent of Police is final. VIII. THE ROLE OF A PUBLIC PROSECUTOR DURING TRIALS As stated above, the public prosecutor is
26

vested with the primary responsibility to prosecute cases in the court. After the charge-sheet is filed in the court, the original case papers are handed over to him. The cognizance of the case is taken by the courts under section 190 of the Code. The trial in India involves various stages. The first and foremost is the taking of cognizance of a case by the court. The second step is to frame charges against the accused, if there is a prima facie case against him. The third step is to record the prosecution evidence. The fourth step is to record the statement of the accused (section 313 of the Code). The fifth step is to record the defence evidence. The sixth step is to hear the final arguments from both sides, and the last step is the prouncement of judgement by the Court. The public prosecutor is the anchor man in all these stages. He has no authority to decide whether the case should be sent up for trial. His role is only advisory.27 However, once the case has been sent up for trial, it is for him to prosecute it successfully. A. Withdrawal from Prosecution The public prosecutor has the authority to withdraw a case from trial under section 321 of the Code. Under the case law, he and he alone has the ultimate authority to withdraw a case from prosecution (AIR 1983 SC 194). But the practice is that he receives instructions from the government and pursuant to those instructions, he withdraws the case from prosecution.28 The grounds of withdrawal could be many, including: (1) False implication of accused persons as a result of political and personal vendatta; (2) Inexpediency of the prosecution for the reasons of state and public policy; and (3) Adverse effects that the continuation
27

ND

SEE ALSO Outlines of cr.p.c.;R.V.KELKAR CH.III ( ED.1997)

See CODE OF CRIMINAL PROCEDURE CODE(as amended by Act of 1988):rattan lal and dhiraj th lal(15 ed.)ch.i,ii,andiii. 28 ibid

of prosecution will bring on public interest in the light of changed situation. B. Burden of Proof on Prosecution It is for the public prosecutor to establish the guilt against the accused in the court beyond a reasonable shadow of doubt. The evidence is in three forms, namely, oral evidence (i.e., statements of witnesses); documentary evidence; and circumstantial evidence. Forensic evidence also plays an important role in varied crimes. In the Indian system, the statement of a witness is recorded by the investigating officer29. The statement is not required to be signed by a witness under the law. The witness is required to appear in the court and prove the facts mentioned by him to the investigating officer at the pre-trial stage and to face cross-examination by the defence lawyer. The public prosecutor conducts the examination-in-chief of a witness and, thereafter, his reexamination, if need be, in order to clarify ambiguity, if any, after a witness cross examination. Similarly, the documents cited in evidence are required to be proved by the public prosecutor with the help of witnesses30. The forensic evidence is proved through the documents prepared by the experts and also by the testimony of the experts in the court. The experts are also liable to be cross-examined by the defence counsel. On the basis of the facts proved by the oral, documentary and forensic evidence, the public prosecutor tries to substantiate the charges against the accused and tries to drive home the guilt against him. If there is a statutory law regarding presumptions against the accused, the public prosecutor draws the courts attention towards that and meshes it with other evidence on record. While the law requires establishing a prima facie case for charge-sheet purposes, the law for
29

conviction is that the guilt should be proved beyond a reasonable shadow of doubt31. The standard of proof in Indian courts is quite high and that largely explains the low conviction rate, particularly in IPC offences. The prosecutor has an immense role. He has to prove the facts. He has to prove the circumstances, and then he has to draw the inferences and convince the court that the arraigned accused alone is guilty of the offences that he has been charged with. This is an onerous task and requires sound legal knowledge, the ability to handle witnesses and the capability to carry the court along with him. IX. SPEEDY TRIAL AND PUBLIC PROSECUTION The concept of speedy trial is enshrined in Article 21 of the Constitution of India.32 Article 21 reads as under: No person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court in 1997 CrLJ, page 195 has interpreted this Article to mean that right of speedy trial is also a fundamental right. Undeniably, the trials in India drag on for years together. There are several agencies responsible for delays, namely, the police, the lawyers, the accused and the courts. All of them play a contributory role in the delays. While the police agency may be responsible for 25 per cent of delays, non-police agencies are responsible for the rest of it. The public prosecutor, being an officer of the court, can play an important role in ensuring speedy trial. It is his duty to see that the adequate number of witnesses are called at each hearing and none of them goes back unexamined. Similarly, he is to ensure that the documents are put up to the court in time. He has also to ensure that police officers, who generally prevaricate in
31

Ibid 30 Ibid

ibid See V.N.SHUKLAs constitution of india(2010 ed.) part iii.

32

10

appearing in the courts, do appear as per the schedule fixed by the court. A good working relationship with the court may help in achieving this end. Not much cooperation can be expected from the defence counsel as experience shows that he is more interested in the delays than in speedy trial because delay means more hearings which, in turn, means more fee for him33. This behaviour may be unethical on his part, but this is the ground reality. In this scenario, the role of public prosecutor assumes special significance . X. PUBLIC PROSECUTION AND SENTENCING In the criminal statutes, varied sentences are provided for different offences. The most serious offence is the crime of murder for which life imprisonment or death is provided. A death sentence is, however, to be awarded in the rarest of rare cases. There are certain statutes which provide for minimum imprisonment, but may exceed the minimum imprisonment so provided. After the court has held the accused guilty, the defence counsel and the public prosecutor are called upon to argue on the quantum of punishment. The courts in India generally believe in the individualisation of sentences. The age, educational background, social status and liabilities of the accused such as infant children, dependent wife and other factors are considered by the court before imposing a sentence. The public prosecutor has to use his discretion in arguing for adequate punishment, keeping in view the circumstances mentioned above. He should exercise the discretion keeping in mind the gravity of the offence, and the facts and circumstances of the case.34
33 34

Besides, the court has the statutory authority to release a convict on probation in certain offences under the Probation of Offenders Act. The court can release a convict on admonition in cases where the punishment is not more than two years. The public prosecutor should guide the steps of the court in this regard. The court also has the discretion to release a convict on probation under section 360 of the Code35, in the following circumstances: (1) a convict of more than 21 years of age punished with fine or imprisonment of less than 7 years; and (2) a convict of less than 21 years of age or any woman not punished with life imprisonment or death. The court will take into consideration his age, character and antecedents and the fact that he is not a previous convict. The court can also release the offender on probation of good conduct in other offences excluding offences punishable with death or life imprisonment.36 The prosecutor is required to help the court in arriving at a fair and judicious finding in this matter. XI.CO-ORDINATION BETWEEN THE POLICE AND PUBLIC PROSECUTORS Before 1973, the Assistant Public Prosecutors (some of them were police officers) were under the direct control of the District Superintendent of Police. The public prosecutors appearing in the Sessions Courts were drawn from the open market on a tenure basis and they were responsible to the District Magistrates. After the amendment in the Code, Assistant Public Prosecutors have been totally detached from the police department. At present they report to the District Magistrate at the district level and

ibid See CODE OF CRIMINAL PROCEDURE CODE(as amended by Act of 1988):rattan lal and dhiraj th lal(15 ed.)ch.i,ii,andiii.

35 36

ibid ibid

11

to the Director of Prosecutions at the state level. The status of the public prosecutors appearing in the Sessions Courts remains unchanged. There is no institutionalized interaction or co-ordination between the investigating agency and the prosecuting agency. The police files are sent to the Assistant Public Prosecutors for their legal opinion at the pre-trial stage. As they are not responsible to the district police authorities, the legal advice is sometimes perfunctory and without depth. Further, the district police is totally in the dark as to the fate of cases pending in the courts. Even though there is a district level law officer (called District Attorney in some states), to supervise the work of the Assistant Public Prosecutors, he does not have the status and stature that the District Superintendent Police has. Whatever the reasons, as shown supra in Table 4, the conviction rate is falling over the years. Be that as it may, there is no immediate prospect of the Assistant Public Prosecutors being placed under the control of District Superintendent of Police. The Law Commission of India has also supported total separation between the police department and the prosecution agency. Even so, it would be desirable to make some institutional arrangement for proper co-ordination between the two agencies37. The following suggestions are being made in this regard: (1) The District Superintendent of Police should periodically review the work of the Assistant Public Prosecutors; (2) He should be authorised to call for information from the prosecution agency regarding the status of a particular case pending in the court; (3) The prosecution agency should send periodical returns to the District Superintendent of Police regarding disposal of cases in the courts; (4) The District Superintendent of Police
37

should send a note annually to the District Magistrate regarding the performance of each Assistant Public Prosecutor working in his district, which should be placed in his confidential annual report/dossier; and (5) On its part, the police department should make available certain facilities to the prosecutors such as housing, transport, and telephones.. Such an arrangement would go a long way in bringing about coordination between the police and the prosecution agency.38 XII. ROLE OF PUBLIC PROSECUTORS IN NATIONAL CRIMINAL JUSTICE POLICY The laws are enacted by the legislature, enforced by the police, and interpreted by the courts. Neither the police nor the prosecution agency has any say in the formulation of laws. The number of criminal laws is increasing by the day, but the quality of drafting shows definite deterioration and bristles with avoidable vagueness in construction. It is felt that a representative each of the police department and the prosecution agency should be associated with the formulation/ drafting of laws39. Their field experience would go a long way in improving the quality of laws enacted. Further, unlike the police, the prosecution agency does not have a national level body to watch its professional and service interests40. This is due to the fact that prosecution agencies are organised at the state level and not at the national level. Such an apex should be constituted by the government.

XIII.Notion of Prosecutorial Independence

38 39

ibid

ibid ibid 40 ibid

12

This section of the paper tries to examine the notion of prosecutorial independence, a notion that concerns the relationship of the prosecutor with both the investigative agency and the State executive, and to suggest how the law in India on this point can be improved, so as to enable the prosecutor to fulfill his role in the administration of justice. In specific, this section is concerned with the notion of prosecutorial independence, a notion that can be broken down into two fundamental dimensions: (i) the need for prosecution decisions to be made free from any political influence or considerations (ii) the need to clearly demarcate criminal investigations from prosecutions decisions41

i- Prosecutorial Independence In India Prior to the enactment of the Code of Criminal Procedure of 1973, the system of prosecution in India contained several elements that were criticized as weaknesses by the Law Commission, in its 14th Report on the Reform of the Judicial Administration. At the time, the Commission noted that there is no uniformity in the prosecuting organisation in India, but that generally speaking, prosecution in the magisterial courts is in the hands of either police officials or persons recruited from the Bar and styled Police Prosecutors or Assistant Public Prosecutors, who work under the directions of the Police department. This led to a setup where, as one commentator put it, the identity of the prosecuting agency was practically merged with that of the police and the prosecution branch was not recognized as a separate and distinct entity, independent of
41

police control. The Law Commission believed that such a setup was flawed, because the Police Department had neither the legal knowhow to conduct a prosecution, nor the degree of detachment necessary in a prosecutor. On a more general note, the Commission also criticized the overall subordination of the prosecutor, to the District Superintendent of Police (in cases before the magisterial courts) and to the District Magistrate (in prosecutions at the Sessions Courts), who controlled to a large extent the exercise of the prosecutors powers. As a result, it recommended not only that the prosecution agency be made separate from the police, but also that its subordination to the executive be reduced, and that it be given more independent powers in the actual conduct of the prosecution- for example, in deciding whether or not to withdraw prosecutions. To this end, the Commission suggested that a separate prosecution department be established in each district, headed by a Director of Public Prosecutions, who would, however, be responsible to the State Government. Clearly, therefore, although the Law Commissions report did continue to conceptualize the status of the prosecutor as an agent of the Government, responsible to it, it also noted the importance of his or her independence from both the police and the State executive. The Commissions recommendations were espoused, but only to some measure, and not in so many words, in the Code of Criminal Procedure of 1973 (hereinafter referred to as Code).42 S. 2(u) of the Code defines a public prosecutor as any person appointed under S. 24, as well as any person acting under the directions of a public prosecutor. As per S. 24, all public prosecutors and additional public prosecutors- who conduct prosecutions in the Sessions Courts and High Courts- are to be appointed by the Government, Central or State- the Superintendent of Police and District
42

See Article role of public prosecutor under Cr.P.Cby legal sutra law students knowledge-base pg 4.-16

ibid

13

Magistrate no longer have any such power.43 The District Magistrate is only required, in consultation with the Sessions Judge, to prepare a panel of names of persons whom he thinks fit for such appointment, from which panel the State Government is to make its selection, unless a regular cadre of prosecuting officers exists in the State, in which case the State Government must make its appointment from this cadre. Further, S. 24(7) provides that only advocates who have a minimum of 7 years experience in practice are eligible for appointment as public prosecutors, or additional public prosecutors. Therefore, police officers who lack such experience can no longer function as prosecutors. Similarly, S. 25on the appointment of assistant public prosecutors, who conduct prosecutions in magisterial courts-, also provides that, ordinarily, no police officer is eligible to be so appointed, and every such appointment is to be made by the State or Central Government. Only in exceptional cases, where no assistant public prosecutor is available, can the District Magistrate appoint another person in his stead, and even in such a case he may only appoint a police officer if he is of the rank of Inspector or above, and provided that he has not participated in the investigation into the offence being prosecuted.44 Thus, although as per S. 173 of the Code the police have the power to file a charge-sheet for the judicial magistrate to take cognizance of an offence, the prosecution itself cannot, except in the exceptional situation envisaged by S. 25, be conducted by a police officer. Separation of Police and Prosecution These provisions indicate that the Code does envisage a separation between the investigation and the prosecution of offences. In addition, although the Code itself says nothing about the manner in which the prosecutor must discharge his duties, Courts have uniformly held that he must not display
43 44

any unseemly eagerness for or grasping at conviction, his primary duty being to assist the administration of justice, thereby lending support to the premise of the Law Commissions view that the police- as biased investigators- ought not to be involved in prosecution. However, it has rightly been pointed out that the provisions contained in Ss. 24 and 25 do not give an adequate idea as to the actual organization of the prosecuting agency in the district or as to the hierarchy or the administrative control envisaged therein. As a result, the hopes entertained by the Law Commission seem to have been belied, inasmuch as several State Governments continue to this day to follow the system of police prosecution, and prosecution subordinated to District Magistrates. In fact, the Assam Police Commission has observed that it would be advantageous and proper if the prosecution agency continues to remain under the control of the police department, and the Delhi Police Commission has suggested that members of the prosecution organization should remain under the control of the Head of Police, and should form a separate cadre in the police establishment.45 According to Professor D. Shankara Reddy, former DPP of Karnataka, Karnataka is one of the only States where the prosecutor has some independence from the police, and even here, for the last 15 years, the police has been trying to regain its upper hand. Now, the Courts have on occasion invalidated such attempts. For example, the Allahabad High Court in 1975 struck down an order of the Government of Uttar Pradesh placing a group of assistant public prosecutors under police control, as being violative of S. 25. The Supreme Court reiterated the same principle in S.B.Shahane Vs. State of Maharastra 46where it was held that a government notification in regard to the appointment of Police Officer as Directors of
45 46

ibid ibid

ibid MANU/SC/0312/1995.

14

Public Prosecution violated S. 25. Further, in Hitendra Vishnu Thakur v. State of Maharashtra47 the Supreme Court concluded that under the Code the public prosecutor was an important officer of the State Government- an independent statutory authority who was not a part of the investigating agency. Nevertheless, in spite of these decisions the old system of prosecution still persists in some States, so much so that now in Orissa and Uttar Pradesh the separation between the police and the prosecutor has been statutorily diminished through amendment of S. 25, to allow for police control over assistant public prosecutors. Also, in Tamil Nadu and Uttar Pradesh, IPS officers of the rank of Director General of Police or Inspector General hold the post of Director of Prosecution. Separation of Prosecution and Executive The independence of the public prosecutor from the State executive is also a matter that the Code fails to deal with explicitly. Although it does curtail the power of the District Magistrate over the prosecutor, it is silent on the relationship between the prosecutor and the Government. In fact, S. 37848 of the Code, which deals with appeals from acquittals and provides for such appeals to be made by the public prosecutor on direction by the State or Central Government, would appear to support the view that the prosecutor is merely a functionary of the Government. Judicial pronouncements on this matter have varied over the years. In 1957, in State of Bihar v. Ram Naresh Pandey49 the Supreme Court accepted the view that prosecution is a function of the State executive, and as such, that the status of the public prosecutor is that of an executive officer. That case dealt with the power of the prosecutor to withdraw prosecutions under S. 494 of the old Criminal
47 48

Procedure Code, which power is now conferred by S. 321 of the Code. Similarly, in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan,50 the Court accepted the argument that the prosecutor must obey executive directions as to whether to withdraw prosecutions. This position was also treated as correct in State of Orissa v. C. Mohapatra51, where it was held that the policy decision as to withdrawal from prosecution is rightly that of the State Government. However, in the period after 1978, the Court began to reconceptualize the status and role of the public prosecutor. Beginning with Balwant Singh v. State of Bihar,52 where Krishna Iyer J. held that the Criminal Procedure Code is the only master of the Public Prosecutor, the prosecutor has come to be regarded as the holder of a public office- not merely the professional counsel of the Governmentwhose appointment may not be terminated at will by it, and in whom the Code vests statutory discretion regarding such matters as the withdrawal of prosecution. Nevertheless, the practice of certain States runs contrary to this doctrine- so much so that it has been observed that in politically sensitive cases the independence of the public or special prosecutor is a myth. The Uttar Pradesh legislature, for example, has deleted the requirement in S. 24(1) that the Government must consult the High Court before appointing a public prosecutor in such Court, as well as the provisions in S. 24 requiring selection of the prosecutor only from a panel prepared by the District Magistrate in consultation with the Sessions Judge, or from the regular cadre of prosecuting officers, if any. Thereby, it has strengthened the exclusive power of the Government in making such appointments. But in a judgment delivered in April 2004, the Supreme Court, while reiterating its view that public prosecutors are required by the Code to perform statutory duties independently, with
50 51

MANU/SC/0526/1994. th Rattan lal dhiraj lal: cr. Procedure code (15 ed)pg .15-31 49 AIR 1957 SC 389

(1972) 1 SCC 318. (1976) 4 SCC 250. 52 (1977) 4 SCC 448

15

the object of serving the administration of justice, expressed pain at the amendments in Uttar Pradesh, for which it could not see any rationale. Clearly, the presence of such divergent theory and practice indicates that the law as it stands is not sufficiently clear on what the precise nature and extent of prosecutorial independence from the police and the executive is, and to whom the prosecutor is accountable. Given that it is generally accepted that the role of the prosecutor is to further the achievement of a just decision in each case, the question is- what manner of prosecutorial independence, if any, would best promote the fulfillment of this role?53 ii-The Debate on Prosecutorial Independence Although there does exist discussion on such matters as the independence of the prosecutor from the victim, and the prosecutions financial independence, as already mentioned, this paper is concerned only with the fundamental dimensions of the concept of prosecutorial independence- independence from the investigative agency, and independence from the Government executive. The debates that have been associated with both these dimensions are reviewed and analyzed separately in this section Independence from the Investigative Agency The arguments for establishing a separation between the investigation of offences, and their prosecution, as put forth by the Law Commission, among others, have already been noted. Summarized briefly, these arguments hold that it is not advisable for the police to undertake or supervise prosecutions, because they lack the objectivity and detachment necessary for the purpose, as well as the legal know-how, and are also not subject to the
53

See Article role of public prosecutor under Cr.P.Cby legal sutra law students knowledge-base pg 4.-22

professional and ethical guidelines which apply to officers of the court. However, there also exists considerable support for the contrary viewpoint. Those who argue for police prosecutions emphasize that, in the minds of the common man, it is the police which is morally responsible for the fate of criminal trials; as such it is only fair that they should have supervision of the prosecution process. Further, they point to the fact that such a system is by no means novel. In New Zealand, the police themselves conduct all the prosecutions in the lower courts, and in Northern Ireland as well as the Republic of Ireland this is true for minor offences. Further, until the Prosecution of Offences Act of 1985, police prosecutions were also widely prevalent in England. 54 In addition, a recent Public Prosecution System Study Group in the Republic of Ireland thought that the question of police prosecutions was a pragmatic issue of effectiveness and cost. Its report supported this system, on the grounds that police officers who are familiar with the details of a case are better place to prosecute than lawyers who lack such familiarity, and that allowing for police prosecutions dispenses with the delay involved in briefing a lawyer and preparing reports for this purpose. The report also addressed concerns of biased prosecution with the argument that Garda *the name of the Irish police force] discipline and procedures, trial in open court, the existence of basic constitutional rights for the accused and a vigorous legal system should, if rigorously operated, provide sufficient safeguards in the criminal prosecution system. Closer home, the Malimath Committees Recommendations on the Reform of the Criminal Justice System, while recognizing that the public prosecutor is an officer of the Court, whose duty is to advance justice, recommended that a police officer not below the rank of Director General of Police be appointed as Director of Public Prosecutions in each State, on the ground that

54

ibid

16

this would promote coordination between investigation and prosecution.55 Such arguments, however, are not decisive. The United Nations Guidelines on the Role of Prosecutors state that prosecutors must possess integrity, so as to further the administration of justice. Most countries today have recognized that police prosecutions are inconsistent with this requirement of fair and impartial prosecution. Canadas Law Reform Commission stated in 1990 that having prosecutions prosecuted by the police is undesirable, and that all public prosecutions should be conducted by a lawyer responsible to, and under the supervision of, the Attorney General. Similarly, in 1996, the Australian Federal Director of Public Prosecutions pointed to the compelling reasons of both efficiency and public policy why the police should not be involved in the conduct of prosecutions. In Northern Ireland, a report commissioned by the Criminal Justice Review Group disagreed with the conclusions of the Public Prosecution System Study Group, arguing that considerations of fairness in prosecution must supervene pragmatic considerations of cost. In the United Kingdom, the Prosecution of Offences Act of 1985 was specifically brought in to end the practice of police prosecutions.56 Professor Shankara Reddy also pointed out that police prosecution was inconsistent with the impartiality required of a prosecutor, and his duty to do justice, as an officer of the judiciary. As such, it can be concluded that if prosecution is to conducted fairly and impartially- as a facet of the administration of justice- then the practice of police prosecutions ought rightly to be abandoned, and the provisions of the Code in India that accomplish this are therefore to be lauded. It should be noted, however, that given that prosecution follows investigation as a stage in the administration of criminal justice, it is evident that there must be an interface of
55 56

some nature between the two. In this context, it is relevant to note that in America the District Attorney who conducts prosecutions is often heavily involved with the investigations, long before the charge is framed.57 Further, although the Law Commission of India did argue that the police should have no role in prosecution, it did not suggest that the reverse is also true. In fact, it recommended that the Director of Public Prosecutions (DPP) in each district should have access to the FIRs in all cognizable cases, and the power to advise the Police Department in the course of investigation in all cases, particularly complex cases involving charges of conspiracy, forgery etc., as well as the power to scrutinize the charge-sheet before it is placed before the Court and to indicate to the police the lines along which further investigation ought to be conducted to remedy any lacuna that might be found in it. It also recommended that the DPP be empowered to look into all cases where the police decide not to file a charge sheet, to ascertain if such a decision is justified. The Code itself is entirely silent on this aspect of the Commissions recommendations. Now, some supporters of prosecutorial independence from the police believe that this notion entails the unambiguous separation of the roles of investigator and prosecutor so as to eradicate the prosecutions involvement in investigation. Even the Supreme Court, in Saralas Case,58 appears to have lent support to this extreme point of view by holding, not only that under the Code there is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor, but also that it is not in the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court. However, although this decision may be a correct interpretation of the Code as it is, which does not explicitly provide for such
57 58

ibid ibid

ibid AIR 2000 SC 1731

17

combined operation, it does not necessarily reflect a desirable state of affairs. Even if the American position leans too heavily towards an intermingling of prosecution and investigation, so as to raise fears of convictionoriented prosecutions, it is evident that a complete separation between the investigative agency and the prosecution would militate against the creation of a healthy relationship of cooperation between the two. It has been pointed out that the criminal justice system in India suffers at present from the apathetic attitude that the police and prosecutors have towards each other. In order to address this problem, the recommendations of the Law Commission for prosecutorial involvement with investigation should be given serious consideration. By enabling the prosecutor to guide the police in conducting investigations, not only is the investigation itself likely to be more effective, but the prosecutors familiarity with the case prior to trial will also be achieved, thereby addressing one of the principal concerns of those who argue for police prosecutions. Such contact with the police during the investigative stage would also equip the prosecutor better in making decisions such as whether or not to withdraw prosecutions.59 This view is also supported by the former DPP of Karnataka, who stated that, although it was not formally provided for, there ought to be good co-ordination between the prosecutor and the police. Independence from the Executive The dangers of political influence on the conduct of prosecutions was the central theme of the Supreme Courts judgment in the Best Bakery case, and to a lesser extent, in Vineet Narain 60as well. However, it has already been noted that although recent Court decisions have sought to protect the prosecutor from governmental interference, the Code itself does not at present do so. Now, in considering the question of prosecutorial independence
59 60

from the executive, two issues must be tackled- the first is as to what the theoretical justification of such independence is, and the second is as to how it can be secured while retaining the accountability of the prosecutor. If prosecution is thought of as a primarily executive function, then it is difficult to conceptualize the independence of the prosecutor from the executive. The American Supreme Court has been ambiguous on this issue, holding in Morrison v. Olson61 that although prosecution is an executive function, it is not a core executive function. In India, as noted earlier, Courts have been moving away from the view that prosecution is an executive function. One important argument against treating prosecution as an executive function derives from the doctrine of separation of powers, which has been held to be part of the Indian Constitutions unamendable basic structure. The argument is that the notion of the separation of powers would seem to stipulate that crimes committed by members of the government should be investigated and prosecuted by persons that are not dependent on government personnel. The Supreme Court in Vineet Narain 62also pointed to this very need. Now, given that, as discussed previously, it is commonly recognized today, in India and outside, that the role of prosecutors is such as to require that they bear themselves in the character of ministers of justice assisting in the administration of justice it is perhaps most accurate to treat prosecution as essentially a part of the judicial process. Such a treatment would by no means be uncontroversial- given that the United Nations Guidelines on the Role of Prosecutors themselves provide that the office of prosecutors shall be strictly separated from judicial functions. However, the sense of this guideline is that prosecutors ought not to judge in their own cause; this is different from suggesting that, as officers of the court,
61 62

See the above cited(at no.48) article MANU/SC/0827/1998

108 S.Ct. 2597 (1988) MANU/SC/0827/1998

18

prosecutors should also be encompassed by the concept of the independence of the judiciary. In addition, Italian law is an example of this position. A.104 (1) of the Italian Constitution63 provides that The judiciary constitutes an autonomous and independent branch of government not subject to any other, and A. 104(3) makes the general public prosecutor a member of the judiciary. In addition, A. 108(2)64 provides that The law has to protect the independence of judges, of special courts, of the public prosecutors attached to them, and of all those not belonging to the judiciary who participate in the administration of justice. This has been praised as a system that offers an unprecedented degree of freedom and independence in the execution of judicial duties and the discharging of its functions, especially in cases involving the state, the government and its officers. Professor Shankar Reddy was also of the view that, although the law in India does not clearly make the prosecutor independent of government orders in his functioning, this is a requirement, and that constitutionalizing the office of the prosecutor might assist its achievement. As such, the Italian system might provide an adequate basis for prosecutorial independence in India as well. The other difficult issue relates to ensuring the accountability of an independent prosecutor65. Clearly, independence without accountability is untenable; in fact, it has been noted that the accountability of a prosecuting service is in fact one of the bastions of its independence, in the absence of which no independence could be conferred. One way of achieving accountability is to adopt the system prevalent in several American States, where the prosecutor is elected by the people, and therefore answerable to them.Such a system would also be consistent with the idea that the
63

public prosecutor conducts the prosecution in the court for the people.66 However, it is not likely to work in India, not just because it would represent a clean break from the current system of prosecution but also because it would entail- as it has in America- a high degree of politicization of the office of the prosecutor, who would align himself with political parties in fighting elections. Perhaps a better option, then, is the one proposed by the Law Commission, which had recommended that the Director of Public Prosecutions be responsible to the State Government. Would such responsibility be incompatible with his independence from it? To answer this, a distinction must be drawn between explanatory and co-operative accountability and subordinate and obedient 67 accountability . While the former refers to a process whereby the decision-maker may be called to explain an impugned decision to a responsible authority and may canvass the views of other authorities or agencies about certain matters of policy, the latter implies a relationship in which one party is of lower rank or is of lesser importance inferior, and under the orders of the other.68 It is true that if the prosecutor were responsible to the Government in this latter sense, then it would conflict with his independence from it, but if the Government could only note the explanations and responses of the prosecutor and perhaps broadcast them to a wider audience- such as Parliament, to which the Government itself is responsible- and also consider policies of the prosecution agency and perhaps make recommendations in respect of policy, this would be perfectly compatible with prosecutorial independence.69 Such a system would not confer any power on the Government to override the decisions of the prosecutor (although the Courts
66

See Constitution of Italy, available at www.electionworld.org/italy.htm (5/5/2004). 64 ibid 65 nd Basus Cr.p.c (2 ed. 1973) pg 59-67

ibid nd Granville Williams the book of criminal law (2 ed.)ch.ii pg 42-69 68 ibid 69 ibid
67

19

themselves would retain judicial review over such decisions), but it would enable it to take suitable action if he were found to be abusing his discretion. A system close to this exists in the United Kingdom, where although the Crown Prosecution Service, headed by the Director of Public Prosecutions, is superintended by the Attorney General, constitutional convention dictates that it is accountable to him only in an explanatory form.70 The institution of a system along the same lines in India, as an elaboration on the Law Commissions recommendation that the prosecution be responsible to the State Government, might therefore be beneficial.

70

See prosecution of offences Act,1985

20

ENGLISH SYSTEM I.INTRODUCTION The Crown Prosecution Service (CPS) is the principal public prosecution service for England and Wales. In January 2010, it merged with the Revenue and Customs Prosecutions Office (RCPO). The service is headed by the Director of Public Prosecutions (DPP) who is also the Director of Revenue and Customs Prosecutions. The DPP exercises his functions independently, subject to the superintendence of the Attorney General who is accountable to Parliament for the work of the prosecution service.71 The Crown Prosecution Service is responsible for criminal cases beyond the investigation, which is the role of the police. This involves giving advice to the police on charges to bring, being responsible for authorizing all but a very few simple charges (such for court, both in magistrates' courts as begging), and preparing and presenting cases and, increasingly, the Crown Court.72

jurisdiction was only for the decision as to whether to prosecute, and just for a very small number of difficult or important cases; once prosecution had been authorised, the matter was turned over to the Treasury Solicitor. Police forces continued to be responsible for the bulk of cases, sometimes referring difficult ones to the Director. In 1884, the offices of the DPP and the Treasury Solicitor were merged, but were again separated by the Prosecution of Offences Act 190874. In 1962, a Royal Commission recommended that police forces set up independent prosecution departments so as to avoid having the same officers investigate and prosecute cases though, technically, the prosecuting police officers did so as private citizens. However, the Royal Commission's recommendation was not implemented by all police forces, and so in 1978 another Royal Commission was set up, this time headed by Sir Cyril Philips. It reported in 1981, recommending that a single unified Crown Prosecution Service with responsibility for all public prosecutions in England and Wales be set up75. A White Paper was released in 1983, becoming the Prosecution of Offences Act 1985, which established the CPS under the direction of the Director of Public Prosecutions, consisting of a merger of his old department with the existing police prosecution departments. It started operating in 198676. The power of the police to charge for all but the most minor offences was transferred to the CPS following the Criminal Justice Act 2003.

II.History Historically, in England, with no police forces and no prosecution service, the only route to prosecution was through private prosecutions brought by victims at their own expense or lawyers acting on their behalf. From 1829 onwards, as the police forces began to form, they began to take on the burden of bringing prosecutions against suspected criminals.73 In 1880, Sir John Maule was appointed to be the first Director of Public Prosecutions, operating as a part of the Home Office; the
71

Rt Hon Sir Iain Glidewell, The Review of the Crown Prosecution Service: A Report, June 1998, Cm 3960, para 16 72 ibid 73 See www.wikipedia.org/search/ crown prosecuting service

74 75

ibid ibid 76 ibid

21

III.Organisational structure of crown prosecuting service i.GENERAL The CPS is divided into 13 geographical Areas across England and Wales. Each Area is led by a Chief Crown Prosecutor (CCP) who is responsible for the provision of a high quality prosecution service in their Area. Each CCP is supported by an Area Business Manager (ABM), and their respective roles mirror, at a local level, the responsibilities of the DPP and Chief Executive. Administrative support to Areas is provided by Area Operations Centres. A 'virtual' 14th Area, CPS Direct, is also headed by a CCP and provides out-of-hours charging decisions to the police.77 Each area is headed by a Chief Crown Prosecutor who reports directly to the Director of Public Prosecutions. In London, the Chief Crown Prosecutor is supported by Sector Directors. Although Chief Crown Prosecutors are directly accountable for the prosecutions in each area, most of the responsibility for the business administration of the area is overseen by an Area Business Manager.78 The CPS is the largest employer of lawyers in the UK, dealing exclusively with criminal prosecutions. At the end of March 2006, it employed a total of 8,775 people; almost a third of which were qualified prosecutors.[2] They deal with more than 1.3 million cases annually in the Magistrates' court and approximately 115,000 in the Crown Court.79 Other staff include Associate Prosecutors, who are not qualified lawyers but are specially trained to review and present limited range of cases in magistrates' courts, paralegal staff who carry out work required to implement
77

decisions and progress existing cases, and administrative staff who deal with tasks such as tracking the progress of cases, liaising with other agencies, matching incoming material to case files and copying and sending out documents. The headquarters in South-East London sets national business strategies; develops and delivers policies, practices and procedures for the prosecution process; delivers IT and other services; deal with issues such as equality and diversity issues for the organisation and provides administrative support to areas. Complementing the bulk of qualified lawyers prosecuting in-area, the Crown Prosecution Service also has the following two specialist80 casework groups:

Central Fraud Group based in London, Manchester in York, concentrating on the country's most serious and complex cases of fraud and associated dishonesty offences Serious Crime Group which is further divided into two divisions o Organised Crime o Special Crime & Counter Terrorism

On 2 March 2004 the Director of Public Prosecutions commented on a rumoured renaming of the service to the 'Public Prosecution Service': "We are a public prosecution service and for some time I have favoured a change of name to make that clearer. This would reflect the major transformation that we are making in the role of prosecutors within the criminal
80

Keir Starmer QC, A prosecution service for the 21st century, a speech to the London Metropolitan University, 9 January 2009 78 ibid 79 ibid

Coppen, J., PACE: A View from the Custody Suite, in Cape, E. and Young, R., (eds), (2008) Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future, Oxford and Portland, Hart Publishing, p. 87

22

justice system. I have discussed this with the Attorney General who takes the same view and I am discussing it with my staff. No final conclusion has yet been reached. When this process is complete the Attorney General and I will announce our decision. Ken Macdonald QC81 Some suggest that such a change would undermine the constitutional role of the department, nominally at least. It is unclear whether a name change is imminent, or is still being discussed at all. This proposed change was very unpopular within the Service as being pointless and otiose, as well as somehow insulting.

ii.STATUTORY PROVISIONS The preamble to the Prosecution of offences Act,198582 provides as follows: An Act to provide for the establishment of a Crown Prosecution Service for England and Wales; to make provision as to costs in criminal cases; to provide for the imposition of time limits in relation to preliminary stages of criminal proceedings; to amend section 42 of the Supreme Court Act 1981 and section 3 of the Children and Young Persons Act 1969; to make provision with respect to consents to prosecutions; to repeal section 9 of the Perjury Act 1911; and forconnected purposes Thus this Act is the main enactment which provides for the constitution and functions of the C.P.S. I.CROWN PROSECUTING AGENCY Section 1 83of the Prosecution of offences Act,1985 provides as follows:
81 82

ibid See preamble to THE PREAMBLE TO THE PROSECUTION OF OFFENCES ACT,1985{U.K.STATUTE.}(hereinafter reffered as POOA,1985)

(1)There shall be a prosecuting service for England and The Crown Wales (to be known as the " Crown Prosecution Service ") consisting of(a)the Director of Public Prosecutions, who shall be head of the Service ; (b) the Chief Crown Prosecutors, designated under subsection(4) below, each of whom shall be the member of the Service responsible to the Director for supervising the operation of the Service in his area ; and (c) the other staff appointed by the Director under this section. (2) The Director shall appoint such staff for the Service as, with the approval of the Treasury as to numbers, remuneration and other terms and conditions of service, he considers necessary for the discharge of his functions. (3) The Director may designate any member of the Service who is a barrister or solicitor for the purposes of this subsection,and any person so designated shall be known as a Crown Prosecutor. (4) The Director shall divide England and Wales into areas and, for each of those areas, designate a Crown Prosecutor for the purposes of this subsection and any person so designated shall be known as a Chief Crown Prosecutor. (5) The Director may, from time to time, vary the division of England and Wales made for the purposes of subsection (4) above. (6) Without prejudice to any functions which may have been assigned to him in his capacity as a member of the Service, every Crown Prosecutor shall have all the powers of the Director as to the institution and conduct of proceedings but shall exercise those powers under the direction of the Director. (7) Where any enactment (whenever passed)(a) prevents any step from being taken without the consent of the Director or without his consent or the consent of another ; or (b) requires any step to be taken by or in relation to the Director ;
83

POOA 1985,SECTION 1

23

any consent given by or, as the case may be, step taken by or in relation to, a Crown Prosecutor shall be treated, for the purposes of that enactment, as given by or, as the case may be, taken by or in relation to the Director. II.The Director of Public Prosecutions: Appointment (section 2) Section 284 of the Act of 1985 provides for the appointment of director of public prosecution ,as follows: (1) The Director of Public Prosecutions shall be appointed by the Attorney General. (2) The Director must be a barrister or solicitor of not less than ten years' standing. (3) There shall be paid to the Director such remuneration as the Attorney General may, with the approval of the Treasury, determine. III.Functions of the Director Section 385 of the Act of 1985 states as follows: (1) The Director shall discharge his functions under this or any other enactment under the superintendence of the Attorney General. . (2) It shall be the duty of the Director(a) to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force (whether by a member of that force or by any other person) ; (b) to institute and have the conduct of criminal proceedings in any case where it appears to him that(i) the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him ; or (ii) it is otherwise appropriate for proceedings to be instituted by him ; (c) to take over the conduct of all binding over proceedings instituted on behalf of a police force (whether by a member of that force or by any other person) ;
84 85

POOA 1985 SECTION 2 SECTION 3

(d) to take over the conduct of all proceedings begun by summons issued under section 3 of the Obscene Publications Act 1959 (forfeiture of obscene articles) ; (e) to give, to such extent as he considers appropriate, advice to police forces on all matters relating to criminal offences ; (f) to appear for the prosecution, when directed by the court to do so, on any, appeal under(i) section 1 of the Administration of Justice Act 1960 (appeal from the High Court in criminal cases) ; (ii) Part I or Part II of the Criminal Appeal Act 1968 (appeals from the Crown Court to the criminal division of the Court of Appeal and thence to the House of Lords) ; or (iii) section 108 of the Magistrates' Courts Act 1980 (right of appeal to Crown Court) as it applies, by virtue of subsection (5) of section 12 of the Contempt of Court Act 1981, to orders made under section 12 (contempt of magistrates' courts) ; and (g) to discharge such other functions as may from time to time be assigned to him by the Attorney General in pursuance of this paragraph. (3) In this section the court " means(a) in the case of an appeal to or from the criminal division of the Court of Appeal, that division ; (b) in the case of an appeal from a Divisional Court of the Queen's Bench Division, the Divisional Court ; and (c) in the case of an appeal against an order of a magistrates' court, the Crown Court; " police force " means any police force maintained by a police authority under the Police Act 1964 and any other body of constables for the time being specified by order made by the Secretary of State for the purposes of this section ; and " specified proceedings " means proceedings which fall within any category for the time being specified by order made by the Attorney General for the purposes of this section. (4) The power to make orders under subsection (3) above shall be exercisable by statutory instrument subject to annulment

24

in pursuance of a resolution of either House of Parliament. IV.CROWN PROSECUTORS Section 486 of the Act of 1985 makes provision for the crown prosecutors. It reads as follows: (1) Crown Prosecutors shall have, in any court, the rights of audience enjoyed by solicitors holding practising certificates and shall have such additional rights of audience in the Crown Court as may be given by virtue of subsection(3) below. (2) The reference in subsection (1) above to rights of audience enjoyed in any court by solicitors includes a reference to rights enjoyed in the Crown Court by virtue of any direction given by the Lord Chancellor under section 83 of the Supreme Court Act 1981. (3) For the purpose of giving Crown Prosecutors additional rights of audience in the Crown Court, the Lord Chancellor may give any such direction as respects Crown Prosecutors as he could give under section 83 of the Act of 1981 in respect of solicitors. (4) In section 88 of the Solicitors Act 1974 (which, amongst other things, provides that solicitors in public departments are not required to hold practising certificates) the following subsection shall be inserted after subsection (1)" (1A) The exemption from the requirement to hold a practising certificate conferred by subsection (1) above shall not apply to solicitors who are Crown Prosecutors. (5) In section 11 of the Act of 1974 (fees payable on issue PART I of practising certificates), the following subsection shall be inserted after subsection (2)" (2A) An order under subsection (1) may specify reduced fees for practising certificates which are issued to solicitors who are Crown Prosecutors." (6) In Schedule 2 to the Act of 1974 (the compensation fund), in paragraph 2, for the words " sub-paragraph (2) " there shall

be substituted the words " sub-paragraphs (2) and (2A) " and after sub-paragraph (2) there shall be inserted the following sub-paragraph" (2A) Sub-paragraph (1) above shall not apply to any solicitor who is a Crown Prosecutor."87 V.Conduct of prosecutions on behalf of the Service/otherwise than by Service The prosecution of offences Act,1985 provides two kinds of means for instituting &conducting of prosecution i.e; on behalf of service and otherwise than by service. These procedures are mentioned under sections 5& 6 of the Act respectively, which are as follows: 5.-(1) The Director may at any time appoint a person who is not a Crown Prosecutor but who is(a) a solicitor ; or (b) a barrister who is a member of the staff of a public authority ; to institute or take over the conduct of such criminal proceedings as the Director may assign to him. (2) Any person conducting proceedings assigned to him under this section shall have all the powers of a Crown Prosecutor but shall exercise those powers subject to any instructions given to him by a Crown Prosecutor 6. (1). Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply. (2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.88

VI.Reporting system

87 86

SEE THE ABOVE ACT

88

IBID IBID

25

The Act of 1985 provides for two types of reporting systems89 i.e; reports to director by police and reports by director to attorney general. These systems are as follows: I. Section 8 of the Act states that the Attorney General may make regulations requiring the chief officer of any police force to which the regulations are expressed to apply to give to the Director information with respect to every offence of a kind prescribed by the regulations which is alleged to have been committed in his area and in respect of which it appears to him that there is a prima facie case for proceedings. The regulations may also require every such chief officer to give to the Director such information as the Director may require with respect to such cases or classes of case as he may from time to time specify.90 II .Section 9of the Act provides that as soon as practicable after 4th April in any year the Director shall make to the Attorney General a report on the discharge of his functions during the year ending with that date. The Attorney. General shall lay before Parliament a copy of every report received by him above and shall cause every such report to be published. The Director shall, at the request of the Attorney General,report to him on such matters as the Attorney General may specify. IV. The Code for Crown Prosecutors91 Section 10 Of the Act of 1985 states that the Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them(a) in determining, in any case(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued ; or
89

(ii) what charges should be preferred ; and (b) in considering, in any case, representations to be made by them to any magistrates' court about the mode of trial suitable for that case. The Director may from time to time make alterations in the Code.The provisions of the Code shall be set out in the Director's report under section 9 of this Act for the year in which the Code is issued ; and any alteration in the Code shall be set out in his report under that section for the year in which the alteration is made.92 The prosecution service co-operates with the investigating and prosecuting agencies of other jurisdictions to facilitate enquiries and prosecutions both in England and Wales and abroad. In accordance with section 36(2) of the Commissioners for Revenue and Customs Act 2005, prosecutors from the RCPO who are acting in that capacity must have regard to the Code for Crown Prosecutors issued by the DPP. Although the prosecution service works closely with the police and other investigators, it is independent of them. The independence of prosecutors is of fundamental constitutional Importance93. The DPP is, thus, responsible for issuing the Code for Crown Prosecutors (the Code) under section 10 of the Prosecution of Offences Act 1985. The Code gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. 94The information that I am quoting is from the sixth edition (2010)of the Code and replaces all earlier versions. GENERAL GUIDELINES UNDER THE CODE95 The decision to prosecute or to offer an individual an out-of court disposal is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. It is the
92

IBID 90 IBID 91 SEE CODE OF CROWN PROSECUTORS ISSUED BY DIRECTOR UNDER SECTION 10 OF ACT OF 1985 FOR THE GUIDANCE OF CROWN PROSECUTORS

IBID IBID 94 IBID 95 CODE FOR CROWN PROSECUTORS (SIXTH EDITION ) FEB. 2010.{hereinafter referred as CODE}.
93

26

duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible. Casework decisions taken fairly, impartially and with integrity help to deliver justice for victims, witnesses, defendants and the public. It is the duty of prosecutors to review, to advise on and to prosecute cases or to offer an appropriate out-of-court disposal to the offender. Prosecutors must ensure that the law is properly applied; that all relevant evidence is put before the court; and that obligations of disclosure are complied with, in accordance with the principles set out in the Code. Although each case must be considered on its own facts and on its own merits, there are general principles that apply to the way in which prosecutors must approach every case. Prosecutors must be fair, independent and objective. 96They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction. The prosecution service is a public authority for the purposes of current, relevant equality legislation. Prosecutors are bound by the duties set out in this legislation. The prosecution service is also a public authority for the purposes of the Human Rights Act 199897. Prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act, at each stage of a case. Prosecutors must also comply with any guidelines issued by the Attorney General and with the policies of the prosecution service issued on behalf of the DPP. They must also comply with the Criminal Procedure Rules currently in force.

I. Decision Whether to Prosecute In more serious or complex cases, prosecutors decide whether a person should be charged with a criminal offence, and, if so, what that offence should be. They make their decisions in accordance with the Code and the DPPs Guidance on Charging.The police apply the same principles in deciding whether to charge or summons a person in those cases for which they are responsible.98 The police and other investigators are responsible for conducting enquiries into an allegation that a crime may have been committed. Every case that prosecutors receive from the police or other investigators is reviewed. Prosecutors must ensure that they have all the information they need to make an informed decision about how best to deal with the case. This will often involve prosecutors providing guidance and advice to the police and other investigators about lines of inquiry, evidential requirements, and assistance in any pre-charge procedures throughout the investigative and prosecuting process. However, prosecutors cannot direct the police or other investigators. Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test , they should swiftly stop cases which do not meet the evidential stage of the Full Code Test and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution . Although the prosecutor primarily considers the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help to inform the prosecutors decision.99 Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test . The exception is
98 99

96 97

CODE ,pg 1-2 ibid

Code pg 2-5 ibid

27

when the Threshold Test may be applied where it is proposed to apply to the court to keep the suspect in custody after charge, and the evidence required to apply the Full Code Test is not yet available. Prosecutors must make sure that they do not allow a prosecution to start or continue where to do so would be seen by the courts as oppressive or unfair so as to amount to an abuse of the process of the court. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. Wherever possible, they should talk to the investigator first if they are thinking about changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the prosecution service. Parliament has decided that a limited number of very serious or sensitive offences should only be taken to court with the agreement of the DPP. These are called consent cases. In such cases, the DPP or prosecutors acting on his behalf apply the Code in deciding whether to give consent to a prosecution. II.The Full Code Test The Full Code Test100 has two stages: (i) the evidential stage ; followed by (ii) the public interest stage. In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these rare instances, prosecutors may decide that the case should not proceed further101. Prosecutors should only take such a decision when they are satisfied that the broad extent of the
100 101

criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test set out in this section.102 Prosecutors must follow any guidance issued by the DPP to ensure that decisions in these cases are appropriate and correct. A. The Evidential Stage Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. A realistic prospect of conviction is an objective test based solely upon the prosecutors assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.103 When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it 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. In particular, prosecutors will need to consider the following issues. Can the evidence be used in court?
102 103

CODE pg 7-14 ibid

ibid ibid

28

a) Is it likely that the evidence will be excluded by the court? There are legal rules that 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 obtained? b) Is the evidence hearsay? If so, is the court likely to allow it to be presented under any of the exceptions which permit such evidence to be given in court?104 c) Does the evidence relate to the bad character of the suspect? If so, is the court likely to allow it to be presented? Is the evidence reliable? d) What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does the evidence support an innocent explanation? e) Is there evidence which might support or detract from the reliability of a confession? Is its reliability affected by factors such as the suspects level of understanding? f) Is the identification of the suspect likely to be questioned? Is the evidence of his or her identity strong enough? Have the appropriate identification procedures been carried out? If not, why not? Will any failure to hold the appropriate identification procedures lead to the evidence of identification being excluded? g) Are there concerns over the accuracy, reliability or credibility of the evidence of any witness? h) Is there further evidence which the police or other investigators should reasonably be asked to find which may support or undermine the account of the witness? i) Does any witness have any motive that may affect his or her attitude to the case? j) Does any witness have a relevant previous conviction or outof- court disposal which may affect his or her credibility? k) Is there any further evidence that could be obtained that would support the integrity of evidence already obtained?
104

Where it is considered that it would be helpful in assessing the reliability of a witness evidence or in better understanding complex evidence, an appropriately trained and authorized prosecutor should conduct a pretrial interview with the witness in accordance with the relevant Code of Practice. Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction.105 B. The Public Interest Stage In 1951, Sir Hartley Shawcross, who was then Attorney General, made the classic statement on public interest: *i+t has never been the rule in this country I hope it never will be that suspected criminal offences must automatically be the subject of prosecution. He added that there should be a prosecution: wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest (House of Commons Debates, Volume 483, 29 January 1951). This approach has been endorsed by Attorneys General ever since. Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-ofcourt disposal, prosecutors must go on to consider whether a prosecution is required in the public interest.106 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal . The more serious the
105 106

See code pg 7-14 and POOA,1985 FOR FURTHER DETAILS.

IBID IBID

29

offence or the offenders record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.107 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the offence was not carried out by a group does not transform the factor tending in favour of a prosecution into a factor tending against prosecution.108 Some common public interest factors which should be considered when deciding on the most appropriate course of action to take are listed below. The following lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits. Some common public interest factors tending in favour of prosecution109 A prosecution is more likely to be required if: a) a conviction is likely to result in a significant sentence;

107 108

IBID IBID 109 IBID

b) a conviction is likely to result in an order of the court in excessof that which a prosecutor is able to secure through a conditional caution; c) the offence involved the use of a weapon or the threat of violence; d) the offence was committed against a person serving the public (for example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport); e) the offence was premeditated; f) the offence was carried out by a group; g) the offence was committed in the presence of, or in close proximity to, a child; h) the offence was motivated by any form of discrimination against the victims ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics; i) the offence was committed in order to facilitate more serious offending; j) the victim of the offence was in a vulnerable situation and the suspect took advantage of this; k) there was an element of corruption of the victim in the way the offence was committed; l) there was a marked difference in the ages of the suspect and the victim and the suspect took advantage of this; m) there was a marked difference in the levels of understanding of the suspect and the victim and the suspect took advantage of this; n) the suspect was in a position of authority or trust and he or she took advantage of this; o) the suspect was a ringleader or an organiser of the offence; p) the suspects previous convictions or the previous out-of court disposals which he or she has received are relevant to the present offence; q) the suspect is alleged to have committed the offence inbreach of an order of the court; r) a prosecution would have a significant positive impact on maintaining community confidence;

30

s) there are grounds for believing that the offence is likely to be continued or repeated. Some common public interest factors tending againstprosecution A prosecution is less likely to be required if: a) the court is likely to impose a nominal penalty; b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies; c) the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offending and any breach of trust involved; d) the offence was committed as a result of a genuine mistakeor misunderstanding; e) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by misjudgment; f) there has been a long delay between the offence taking place and the date of the trial, unless: the offence is serious; the delay has been caused wholly or in part by the suspect; the offence has only recently come to light; the complexity of the offence has meant that there has been a long investigation; or new investigative techniques have been used to re-examine previously unsolved crimes and, as a result, a suspect has been identified. g) a prosecution is likely to have an adverse effect on the victims physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health; h) the suspect played a minor role in the commission of the offence;110

i) the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained); j) the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspects mental or physical ill health with the need to safeguard the public or those providing care services to such persons; k) a prosecution may require details to be made public that could harm sources of information, international relations or national security. views of victims or their families111 In deciding whether a prosecution is required in the public interest, prosecutors should take into account any views expressed by the victim regarding the impact that the offence has had. In appropriate cases, for example, a case of homicide or where the victim is a child or an adult who lacks capacity as defined by the Mental Capacity Act 2005, prosecutors should take into account any views expressed by the victims family. However, the prosecution service does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.112 Where prosecutors have a responsibility to explain their decision to the victim, for example, when they stop a case or substantially alter the charge in a case, they must comply with the Code of Practice for Victims of Crime and all relevant CPS Guidance.

111 110

IBID

112

CODE Pg 15 paras 4.18 - 4.20 ibid

31

Prosecutors must follow any agreed procedures, including abiding by any time period within which such decisions should be notified to the victim. III.The Threshold Test Prosecutors will apply the Full Code Test wherever possible. However, there will be cases where the suspect presents a substantial bail risk if released and not all the evidence is available at the time when he or she must be released fromcustody unless charged. In such cases, prosecutors may apply the Threshold Test in orderto make a charging decision.113 When the Threshold Test may be applied The Threshold Test may only be applied where the prosecutor is satisfied that all the following four conditions are met: a) there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and b) there are reasonable grounds for believing that further evidence will become available within a reasonable period; and c) the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and d) there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case an application to withhold bail may properly be made.114 Where any of the above conditions is not met, the Threshold Test cannot be applied and the suspect cannot be charged. Such cases must be referred back to the custody officer who will determine whether the person may continue to be detained or released on bail, with or without conditions.115 PARTS OF TEST116
113 114

There are two parts to the evidential consideration of the Threshold Test: A. is there reasonable suspicion? First, the prosecutor must be satisfied that there is at least a reasonable suspicion that the person to be charged has committed the offence. In determining whether reasonable suspicion exists, the prosecutor must consider the evidence which is currently available. This may take the form of witness statements, material or other information, provided the prosecutor is satisfied that: a) it is relevant; and b) it is capable of being put into an admissible format for presentation in court; and c) it would be used in the case. If this part of the Threshold Test is satisfied, the prosecutor should proceed to the second part of the Threshold Test.

Code pg 16-18 paras 5.1 5.13 ibid 115 ibid 116 ibid

B. will there be a realistic prospect of conviction? Secondly, the prosecutor must be satisfied that there are reasonable grounds for believing that the continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence taken together is capable of establishing a realistic prospect of conviction in accordance with the Full Code Test.117 The further evidence must be identifiable and not merely speculative. In reaching a decision under this second part of the Threshold Test, the prosecutor must consider: a) the nature, extent and admissibility of any likely further evidence and the impact it will have on the case; b) the charges that all the evidence will support; c) the reasons why the evidence is not already available;

117

ibid

32

d) the time required to obtain the further evidence and whether any consequential delay is reasonable in all the circumstances. If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time118. Reviewing the Threshold Test A decision to charge under the Threshold Test must be kept under review. The evidence must be regularly assessed to ensure that the charge is still appropriate and that continued objection to the granting of bail is justified. The Full Code Test must be applied as soon as is reasonably practicable and in any event before the expiry of any applicable custody time limit or extended custody time limit.119 IV.Selection of Charges120 Prosecutors should select charges which: a) reflect the seriousness and extent of the offending supported by the evidence; b) give the court adequate powers to sentence and impose appropriate post-conviction orders; and c) enable the case to be presented in a clear and simple way. This means that prosecutors may not always choose or continue with the most serious charge where there is a choice.Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one. Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard.121 Prosecutors must take account of any relevant
118 119

change in circumstances as the case progresses after charge. Out-of-Court Disposals122 The prosecution service is responsible for deciding whether to offer an offender a conditional caution in certain cases. In such cases, the Full Code Test must be met. Prosecutors will offer a conditional caution where it is a proportionate response to the seriousness and the consequences of the offending and where the conditions offered meet the aims of rehabilitation, reparation or punishment within the terms of the Criminal Justice Act 2003. A conditional caution is not a criminal conviction but it forms part of the offenders criminal record and may be cited in court in any subsequent proceedings. It may also be taken into consideration by prosecutors if the offender re-offends. Prosecutors may offer a conditional caution where, having taken into account the views of the victim, they consider that it is in the interests of the suspect, victim or community to do so. Prosecutors must follow the relevant Code of Practice and the DPPs Guidance on Conditional Cautioning when deciding Whether to offer an offender a conditional caution. The offer of a conditional caution which is accepted and complied with takes the place of a prosecution. If the offer of a conditional caution is refused or the suspect does not make the required admission of guilt to the person who seeks to administer the conditional caution, a prosecution must follow for the original offence. If the terms of the conditional caution are not complied with, the prosecutor will reconsider the public interest and decide whether to charge the offender. Usually, a prosecution should be brought for the original offence. Only prosecutors can decide whether to authorise the offer of a simple caution to an offender for an offence that may only be heard in the

ibid ibid 120 Code pg 19 paras 6.1 6.5 121 ibid

122

Code pg 20- 21 .,, paras 7.1 - 7.8

33

Crown Court. The occasions when this will be an appropriate disposal will be exceptional. In all other cases, prosecutors may direct that a simple caution be offered in accordance with CPS and Home Office Guidance, or suggest, for example, the issue of a Penalty Notice for Disorder. The issue of a Penalty Notice for Disorder is, however, a decision for the police. Prosecutors must be satisfied that the Full Code Test is met and that there is a clear admission of guilt by the offender in any case in which they authorise or direct a simple caution to be offered by the police.123 The acceptance of a simple caution or other out-of-court disposal which is complied with takes the place of a prosecution. If the offer of a simple caution is refused, a prosecution must follow for the original offence. If any other outof-court disposal is not accepted, prosecutors will apply the Full Code Test, upon receipt of the case from the police or other investigators, and decide whether to prosecute the offender. V.Accepting Guilty Pleas124 Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime. Prosecutors should only accept the defendants plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Prosecutors must never accept a guilty plea just because it is convenient.125 In considering whether the pleas offered are acceptable, prosecutors should ensure that the interests and, where possible, the views of the victim, or in appropriate cases the views of the victims family, are taken into account when deciding whether it is in the public interest to
123

accept the plea. However, the decision rests with the prosecutor. It must be made clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis. Where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence at court, prosecutors will consider whether a prosecution is required for that offence. Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review. Particular care must be taken when considering pleas which would enable the defendant to avoid the imposition of a mandatory minimum sentence126. When pleas are offered, prosecutors also must bear in mind the fact that ancillary orders can be made with some offences but not with others. Prosecutors must comply with the Attorney Generals Guidelines on the Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercise which set out in greater detail the extent of prosecutors duties and role in the acceptance of guilty pleas.127

VI.The Prosecutors Role in Sentencing128 Sentencing is a decision for the court, but prosecutors have a duty to offer assistance to the sentencing court in reaching its decision as to the appropriate sentence by drawing the courts attention to the following factors:
126 127

Ibid 124 Code pg 24- 25 paras 10.1 10.7 125 ibid

ibid ibid 128 Code pg 26- 27 paras 11.1 11.6

34

a) any aggravating or mitigating factors disclosed by the prosecution case; b) any Victim Personal Statement; c) where appropriate, evidence of the impact of the offending on a community; d) any statutory provisions, sentencing guidelines, or guideline cases which may assist; and e) any relevant statutory provisions relating to ancillary orders (such as anti-social behaviour orders). Prosecutors may also offer assistance to the court by making submissions, in the light of all the above factors, as to the sentencing range within which the current offence falls. In all complex cases or where there is the potential for misunderstanding, the prosecutor must set out in writing the aggravating and mitigating factors that he or she will outline when informing the court of the case in the sentencing hearing. In all other cases, this approach should be considered and undertaken if it will be of benefit to the court or the public to understand the case.129 It is the duty of the prosecutor to apply for compensation and ancillary orders, such as anti-social behaviour orders and confiscation orders, in all appropriate cases.130 When considering which ancillary orders to apply for, the prosecutor must always have regard to the victims needs, including the question of their future protection. Prosecutors should challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. If the defence persist in the assertion, and it appears relevant to the sentence, the court should be invited to hear evidence to determine the facts and sentence accordingly.131 Prosecutors must comply with the Attorney Generals Guidelines on the Acceptance of
129 130

Pleas and the Prosecutors Role in the Sentencing Exercise which set out in greater detail the extent of prosecutors duties and role in the sentencing process. VII. Reconsidering a Prosecution Decision132 People should be able to rely on decisions taken by the prosecution service. Normally, if the prosecution service tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are special reasons why the prosecution service will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will restart the prosecution, particularly if the case is serious. These reasons include: a) rare cases where a new look at the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision; b) cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared. In these cases, the prosecutor will tell the defendant that the prosecution may well start again; c) cases which are stopped because of a lack of evidence but where more significant evidence is discovered later; and d) cases involving a death in which a review following the findings of an inquest concludes that a prosecution should be brought, notwithstanding any earlier decision not to prosecute.133 There may also be exceptional cases in which, following an acquittal of a serious offence, a prosecutor may, with the written consent of the DPP, apply to the Court of Appeal for an order quashing the acquittal and requiring the defendant to be retried.
132 133

ibid ibid 131 ibid

Code pg 28, paras 12.1 12.3 ibid

35

V. House of Commons: Justice Committee Ninth Report of Session 200809 : Conclusions and recommendations134 Central to the Criminal Justice System 1. The prosecution plays a pivotal role in the criminal justice system. This role has become too important to continue to be vulnerable to piecemeal amendment inresponse to events. We expect the Attorney General and the Director of Public Prosecutions to show clear leadership in defining the role of the prosecutor in the criminal justice system. Specific changes to the operation of the prosecution system should be made in the light of an awareness of how they affect and contribute to this clear role and to the criminal justice system as a whole. (Paragraph 7) 2. The aims and purposes of the Crown Prosecution Service need to be clear and it also needs to be clear how they relate to the overarching aims and purposes of the criminal justice system as a whole. We fear that the Crown Prosecution Service is sometimes defined by what it is not or by its relationship to other organisations, rather than its own aims and purposes, or by clarity about its role within the criminal justice system. (Paragraph 8) Defining the role of the prosecutor 3. The CPS needs to take a bold and robust approach as the independent prosecutor. Part of that role is challenging the police to do better. The CPS is not a minor partner in the criminal justice system. (Paragraph 30) 4. There is much to commend in the collaborative approach being taken by the
134

See report of House of Commons Justice CommitteeThe Crown Prosecution Service: Gatekeeper of the Criminal Justice System:Ninth Report of Session 200809 :Report, together with formal minutes, oral and written evidence Ordered by the House of Commons to be printed 15 July 2009: Published on 6 August 2009 pg 56-60.

police and the CPS, which helps to raise overall standards through understanding the challenges and expertise of other agencies. While such arrangements are working well we do not see the need for the CPS to have powers such as those of the Procurator Fiscal to direct the police. The debate about whether the CPS should have such powers has to be seen in the light of the increasing development of joined up working between the police and the CPS at earlier stages of an investigation. In theory this could raise a question over the way in which the CPS will be expectedat a later stageto make an independent decision about whether or not to prosecute but in practice it seems better to have that relationship throughout an investigation as long as both sides are clear that joint working must not blur the distinction between the police responsibility to investigate, and the CPS responsibility to take the decision about prosecution and to manage any subsequent process. Oversight of this relationship is clearly a matter for the inspection and scrutiny processes. (Paragraph 31) 5. We heard strong support on grounds of principle for the charging decision to rest with the prosecutor. We also heard concerns that the arrangements for statutory charging had resulted in delays. Nevertheless, these considerations did not lead us to a conclusion that statutory charging should be wholly or partly abandoned. There is clearly a willingness on behalf of the CPS and the police to resolve what are significant practical problems. (Paragraph 32)135 6. CPS Direct provides a telephone and IT based remote service, which appears to be well regarded by its users and we hope that it can contribute to the consistency and ease of access to legal advice provided for the police. However, this service should not be assumed to be a substitute for local engagement and should operate within the context of a good working relationship and
135

ibid

36

mutual understanding between the police and the CPS at a local level. (Paragraph 33) 7. The decision as to what offence an individual is charged with is pivotal, with significant implications for the rest of their journey through the criminal justice system. It also goes to the heart of what that system is trying to achieve; we are not trying to maximize conviction rates, we are trying to maximise convictions of guilty people for the crime they have committed. While perceptions of both under- and over-charging may be inevitable, they are nonetheless damaging to public confidence. The Attorney General should consider what evidence is required to monitor the extent of under- and overcharging, and how this data could be best collected. (Paragraph 44) 8. An effective and ongoing evaluation of the extent to which under- or over-charging happens is important not least because of what it tells us about whether plea bargaining is happening. Expanding the use of plea bargaining would have significant consequences and in our opinion needs the utmost care and consideration. We must not drift towards a situation where it is commonplace without discussing whether it is desirable and, if so, what safeguards must be put in place for defendants, victims and the public. (Paragraph 45)136 9. Conditional cautions are part of a significant change to how the criminal justice system operates, making a material difference to the process by which the state punishes people. The fact that prosecutors can now recommend that an individual be conditionally cautioned, and a prosecution suspended subject to the fulfilment of particular conditions, represents a significant change to the prosecutors role. On the other hand if such decisions prevent an individual being drawn further into the criminal justice system, and therefore succeed in reducing the likelihood that they will re-offend, that is in the interests of potential victims and society as a whole, as
136

well as having a benefit to the individual. Such decisions can therefore contribute to the responsibility of the CPS to reduce reoffending. (Paragraph 58) 10. However, the growth in the number of outof-court disposals represents a fundamental change to our concept of a criminal justice system and raises a number of concerns about consistency and transparency in the application of punishment. Different patterns of fines may simply reflect local priorities and be argued to be a feature of community engagement. However, we believe the use of these disposals requires systematic scrutiny, and we recommend that as a first step they should be the subject of a multi-inspectorate review. The Attorney General should assemble a comprehensive map of the offences and relevant penalties in operation across England and Wales to assist this scrutiny. (Paragraph 59) 11. The development of CPS advocacy cannot simply be seen as the next logical step in how the CPS should develop: it has wider implications for the criminal justice system and will lead to a very different organisation from that which was originally set-up. (Paragraph 76)137 12. While the representatives of the Criminal Bar Association clearly saw this issue in terms of the interest of their members, we recognise that the consequences of CPS advocacy on the future provision and quality of legal services as a whole require attention. The idea of advocates moving more freely between employed and self employed work is an attractive one, not least because it would preserve the benefits of experience of both prosecution and defence work, which probably produces better advocates. (Paragraph 77) 13. We do not dismiss the anecdotal concerns raised from a number of quarters about the quality of CPS advocates and the systems for their deployment, such as allegations that complex cases are dumped on self-employed barristers at short notice, but regard this as
137

Ibid

ibid

37

evidence of a need for better case management by the CPS, rather than providing a general argument against CPS advocacy. We welcome the Chief Inspectors reports into CPS advocacy and case preparation and the evidence basis this provides for developing the quality of CPS advocacy and ensuring effective systems across the CPS to support this, and we look forward to considering the responses of the CPS and the Bar. (Paragraph 78) Prosecutors and victims 14. Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals, and there are good reasons for this. The CPSs role as independent arbiter of decisions about prosecution is critical. Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital. (Paragraph 83) 15. Victims want to be treated as people, which often does not happen in a criminal justice system that is driven by process. We are pleased that the CPS has risen to this challenge by developing good policies for engaging with victims and witnesses. Delivering these consistently on the ground continues to require a major effort. (Paragraph 94) 16. The lack of a consistent, effective and readily understood complaints handling system has been a serious weakness of the CPS. We welcome the CPSs recognition of the need, and commitment, to take action to ensure that the system is more open and transparent. We believe that it should provide a valuable mechanism for the CPS to learn more about the service that its various clients and stakeholders would like provided, as well as giving a proper response to complainants. (Paragraph 98) 17. Special measures are a crucial part of the criminal justice system which should enable a

witness to give the best evidence they are capable of giving. We are concerned by the evidence that individuals are not being identified as being suitable for special measures, or that delivery failures mean they do not receive them once their need has been identified. We are also concerned at the suggestion that the CPS may be reluctant to recognise that people with mental health problems can be credible witnesses at all. The CPS is not the only agency with a role to play in identifying those who need special measures but it is a key agency and should be alert at the charging stage to what people need. The CPS could also work with the police to ensure that they are identifying individuals for special measures effectively. We look forward to hearing more about the CPSs work to improve its identification of those cases where the need for special measures was not recognised. (Paragraph 103) Consistency and local discretion 18. Inconsistency in CPS delivery was a clear theme in the evidence we received and must be tackled. Failures to define clearly the role of the prosecutor, and the pressures pushing and pulling it in different directions, militate against priorities for consistent delivery. The definition of a clear role should include the CPSs contribution to the overall aims and delivery of an effective criminal justice system. The development of community prosecutors is a further fundamental change to what we expect from prosecutors in the criminal justice system, raising questions about what kind of local discretion is desirable and beneficial to the public interest. The Attorney General should make a clear statement of how local responsiveness can be made compatible with the demands of natural justice for system-wide consistency. (Paragraph 114)138

138

ibid

38

The public prosecution landscape139 19. We were surprised that it was only through the recent review of the Attorney Generals role that the Attorney came to the conclusion that different prosecuting agencies could learn a lot from each other. There seems to be much good work already undertaken by organisations talking to each other about matters of common interest and we welcome the interest the Attorney General is now taking in this work. There is much the Law Officers could do to guide and provide better support to such discussions and, in doing so, ensure consistency of approach across different prosecutors. We emphasise that it is not only those prosecuting agencies superintended by the Attorney which have an interest in how prosecuting policy is developed. (Paragraph 134) 20. We believe that the role of the Chief Inspector of the CPS could successfully be extended so that he can inspect other agencies conducting prosecution. We would also like to see the CPS, as the principal prosecutor and owner of the Code for Crown Prosecutors, demonstrating leadership within the wider prosecutorial family. The public interest test may invoke different considerations in different circumstances, but choices about prosecution across different agencies should be consistent and transparent. (Paragraph 135) 21. We have not come to the conclusion that England and Wales should move towards the Scottish model of a single prosecuting authority. We believe that there are more pressing priorities for CPS management than such a major change, but, given the diverse structure of prosecuting authorities, we regard co-ordination and the sharingof best practice as essential. (Paragraph 136).140

139 140

ibid ibid

39

Conclusion
Although there has for long been agreement that the role of the prosecutor in the criminal justice system is to further justice in each case, not simply to secure a conviction, nevertheless it is a fact that, today; prosecutions in India are organized differently in different States. What is relevant for this paper is that such differences extend to the concept of prosecutorial independence. While some States adhere to the letter and spirit of the provisions of the Code of Criminal Procedure insofar as the abolition of police prosecutions are concerned, others do not and continue to follow the old system, as it existed prior to the Law Commissions 14th Report. What is more, these conflicting practices each have their proponents, who believe that the purposes of prosecution- on which there appears to be unanimity- are best advanced by the particular system they defend. Similarly, the question of the relationship between the prosecutor and the State executive is also a thorny issue- one which has led to conflicting judicial pronouncements over the years, as well as the recognition of differing degrees of prosecutorial discretion in different States. The chief contribution that this paper has sought to make is to sift through the various arguments on each of these issues- which taken together constitute the question of prosecutorial independence- and indicate which ones are worthier, and why. This has been done with a view to understanding how the system of prosecution in India ought to develop, so as to realize, as far as possible, the goals of prosecution, and what amendments to the law as it is are necessary for this purpose. On the question of the separation between the police and the prosecution, an examination of trends in developed countries shows that, barring a few cases, it is increasingly being recognized that promoting objectivity in prosecutions requires that the police not conduct them. If the prosecutor is to fulfill his role as a minister of justice, then,

notwithstanding that police prosecutions might be quicker and more efficient than those conducted by lawyers, the fact that they jeopardize fairness in the prosecution process renders them unacceptable. In this respect the provisions of the Code of 1973, which largely accepted the recommendations of the Law Commission on the eradication of police prosecutions, are adequate, although the amendments made to these provisions in particular States (such as Uttar Pradesh, which reinstate such prosecutions), as well as the support to such amendments given by the Malimath Commission, is regrettable. However, the Code does need to be amended to provide for the greater involvement of the prosecutor in the investigation process, as recommended by the Law Commission, so as to enhance the quality of investigations as well as equip the prosecutor for the trial in court. In addition, there is a requirement for the Code to specify, in more detail, the system of prosecution that should exist in each State. For this purpose, the Law Commissions suggestion that a Director of Public Prosecutions (DPP) be appointed as the head of the prosecution machinery in each district can be adopted. This post would correspond to the post of Chief Crown Prosecutor, in the United Kingdom, who heads the operation of the Crown Prosecution Service, established by the Prosecution of Offences Act of 1985, in particular geographical areas. Further, to add to the Law Commissions recommendation, the DPPs in each district should be together headed by a DPP for the State (corresponding to the DPP who heads the Crown Prosecution Service as a whole), who would, as discussed below, be accountable to the State Government. The issue of prosecutorial independence from the State executive is a particularly current one, in light of the highly politicized prosecution witnessed in the Best Bakery case, in the Gujarat High Court. Although the Code adopts the Law Commissions suggestion that the powers of the District Magistrate over the prosecution be reduced, it does not establish

40

its independence from the Government in a sufficiently explicit manner. It has been noted above that such independence is best conceptualized by treating the prosecutor as a judicial officer- a view which fits well with the conception of his role as an officer of the court- who is therefore entitled to freedom from governmental interference through the notion of the independence of the judiciary. The establishment of such independence should not, however be left only to legislation on criminal procedure, but should be present in the Constitution itself, as in Italy- to ensure that no amendment to the law can derogate from it. However, coupled with such independence there must also be provision for the accountability of the prosecutor. Further, if such accountability is only of an explanatory and cooperative character- so as not to subordinate the prosecutor to other authorities- then it would be consistent with prosecutorial independence, while also imposing a check on incompetent or corrupt prosecutors. The accountability of the prosecutor to the State Government, so long as it does not entail his subordination to it, ought therefore to be established in India- in the Constitution, and in the Code as well. To conclude, it should be emphasized that prosecutorial independence is crucial to fair and successful prosecutions, and therefore to the proper operation of the criminal justice system. It is impossible for the prosecutor to fulfill his role as an agent of justice if he is unduly biased towards securing a conviction, as is the danger with police prosecutors, as also if he is not allowed to exercise his own discretion, as is the effect of governmental interference. It follows that it is of the first importance for criminal justice in India, that prosecutorial independence be recognized and established in its law.