Prosecutor
A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in civil law. The prosecution is the legal party responsible for presenting the case in a criminal trial against the defendant, an individual accused of breaking the law. Typically, the prosecutor represents the state or the government in the case brought against the accused person.
Prosecutor as a legal professional
Prosecutors are typically lawyers who possess a law degree and are recognised as suitable legal professionals by the court in which they are acting. This may mean they have been admitted to the bar or obtained a comparable qualification where available, such as solicitor advocates in England law. They become involved in a criminal case once a suspect has been identified and charges need to be filed. They are employed by an office of the government, with safeguards in place to ensure such an office can successfully pursue the prosecution of government officials. Multiple offices exist in a single country, especially in those countries with federal governments where sovereignty has been bifurcated or devolved in some way.Since the power of the state backs prosecutors, they are subject to special professional responsibility rules in addition to those binding all lawyers. For example, in the United States, Rule 3.8 of the ABA Model Rules of Professional Conduct requires prosecutors to "make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused or mitigates the offense." Not all U.S. states adopt the model rules; however, U.S. Supreme Court cases and other appellate cases have ruled that such disclosure is required. Typical sources of ethical requirements imposed on prosecutors come from appellate court opinions, state or federal court rules, and state or federal statutes.
Directors of public prosecutions
In most Commonwealth Nations, the head of the prosecuting authority is known as the director of public prosecutions and is appointed, not elected. A DPP may be subject to varying degrees of control by the attorney general, a formal written directive which must be published.In Australia, the Offices of the Director of Public Prosecutions institute prosecutions for indictable offences on behalf of the Crown. At least in the case of very serious matters, the DPP will be asked by the police, during the investigation, to advise them on the sufficiency of evidence and may well be asked to prepare an application to the relevant court for search, listening device or telecommunications interception warrants.
More recent constitutions, such as South Africa's, guarantee the independence and impartiality of the DPP.
Common law jurisdictions
Australia
Prosecutors in Australia come in a few distinct species. Prosecutors of minor criminal cases in lower courts are police sergeants with a traineeship in prosecution and advocacy lasting approximately one year in duration, although they may hold law degrees. Crown Prosecutors are always lawyers and typically barristers, and they represent the state or Commonwealth in serious criminal cases in higher courts, County Court and above. Aside from police prosecutors and Crown prosecutors, government agencies have the authority to appoint non-lawyers to prosecute on their behalf, such as the RSPCA Inspectors.Canada
In Canada, public prosecutors in most provinces are called Crown Attorney or Crown Counsel. They are generally appointed by the provincial Attorney General.England and Wales
The prosecution landscape in England and Wales is highly varied, meaning that a prosecutor can refer to a number of different individuals and roles.Types of prosecutor
The primary prosecutor in the jurisdiction is the Crown Prosecution Service, which is led by the Director of Public Prosecutions. The CPS prosecutes on behalf of the Crown and also takes forward prosecutions originating from police investigations. While the DPP must be a suitably qualified lawyer under section 71 of the Courts and Legal Services Act 1990, the DPP does not take on cases themselves and instead plays an administrative and leadership role. In this way, while the DPP may be referred to as a prosecutor, the individual in the role would not take any cases to court. The DPP is appointed by His Majesty's Attorney General for England and Wales, and the Attorney General also has supervisory authority as the sponsor of the CPS; however, the CPS is an independent body and the Attorney General cannot direct particular prosecutions. Unlike in the United States and other jurisdictions, the Attorney General is not a prosecutor in England and Wales. Instead, the role is a political office of the chief legal advisor to the executive.Crown Prosecutors are lawyers who work for the CPS. They are responsible for researching, advising police investigations, preparing cases for trial and sometimes presenting the case at trial. These lawyers may also be referred to as prosecutors. A number of other bodies have authority to bring prosecutions in England and Wales, including the Serious Fraud Office, Service Prosecuting Authority, and Financial Conduct Authority. These organisations and their legal representatives may be called prosecutors. This is the same for any person, organisation, or their representatives during a private prosecution. Finally, when cases are brought to trial, a barrister or solicitor with higher rights of audience may present the case before a magistrate or a judge. In these instances, referring to the prosecutor would refer to the lawyer conducting the case during trial. In most serious offences, the CPS or other prosecuting authority will instruct a barrister to represent them. In the most serious cases, this may be a King's Counsel, and barristers may work in teams with a leader directing juniors. Unlike in the United States, these prosecuting barristers will work on a case-by-case basis, and so may also engage in defence work; they will not be employed solely to undertake prosecution advocacy.
Approach of the CPS to prosecutions
Crown Prosecutors are bound by a strict code of conduct, known as the Code for Crown Prosecutors, which governs how cases are charged and trials conducted. This fundamental code is supported by a range of other policies, most notably the Director's Guidance on Charging. The first stage in prosecuting a case is deciding to charge the suspect, and it is this process which begins the prosecution. The CPS has the authority to decide whether a person is charged in all offences. However, the police may charge all summary offences, and either-way offences when there is an anticipated guilty plea. The nature of the offence is suitable for sentence in the magistrates' court.In order to charge, the circumstances must meet the Full Code Test. In some urgent cases, a lower Threshold Test can be applied to get a charge quickly; however, the Full Code Test must then be applied at the earliest opportunity. The Full Code Test has two stages; both parts are equal and must be met before a prosecution can be brought.
The Threshold Test must be kept under proactive and continuous review, and should only be used in rare and urgent circumstances.
Prosecutions by other government agencies
State investigative agencies such as the Serious Fraud Office and the Financial Conduct Authority, alongside independent prosecutors like the Service Prosecuting Authority, may all bring prosecutions themselves without using the CPS. Nevertheless, these prosecutors will follow the standards set by the Code of Crown Prosecutors alongside their own prosecution policies, which may deal with issues specific to the types of crime they engage with. There may, at times, be confusion as to which agency is responsible for having brought a prosecution. Which agency is prosecuting may affect whether an offence can be properly tried, as not all agencies can investigate and prosecute all offences. In R v Stafford Justices ex parte Customs and Excise Commissioners 2 All ER 201, it was found by the court that a prosecution is instituted by the police only when they have investigated, arrested and brought the arrested person to the custody officer. A case is not instituted by the police simply because a custody officer at a police station charges the suspect. Applying the same principle, proceedings are instituted by another prosecuting agency when they have been solely responsible for the investigation and arrest of the suspect, even though the suspect is taken to the police station to be charged by a custody officer.The CPS advise that another prosecuting authority should probably conduct a case if any of the following factors apply:
- the police did not conduct the majority of the investigation;
- the police were only involved in overseeing a search, effecting an arrest or assisting other investigators in the conduct of an interview;
- the other authority is in possession of all the main exhibits; and
- someone other than a police officer is named on the charge sheet as the person accepting the charge or as the officer in the case.
Prosecutions requiring special consent
| Consent type | Details |
| Attorney General's consent | Offences stipulating Attorney General's consent require the explicit consent of either the Attorney or Solicitor General. These roles together are known as the Law Officers. Under section 1 of the Law Officers Act 1997, the Solicitor General can undertake any role assigned to the Attorney General. |
| DPP's consent | Where an offence requires the consent of the DPP to proceed, this consent may be granted by a Crown Prosecutor under section 1 of the Prosecution of Offences Act 1985. The prosecutor should apply all the normal tests before granting consent. |
| DPP's personal consent | Where an offence requires the personal consent of the DPP, this must be sought from the serving DPP by prosecutors, though the exact process varies depending on the offence. |
| Inchoate offences | Where an inchoate offence is based on an underlying offence which requires consent to prosecute, the inchoate offence will also need consent. |
The range of offences which require consent is wide, a list of the offences can be found at Annex 1 of Consents to Prosecute.