Why Are Some Criminal Cases Prosecuted While Others Are Not?

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The recent announcement by SAPOL that they have discovered further evidence in the NCA bombing case has excited some hope that they may be close to laying charges in the case and that this will be followed by a prosecution in our courts.

It has also caused some to ask, if previously the police had evidence which they believed was sufficient to present to the DPP for a prosecution, why has there not been a prosecution to date?

Unlike the operation of some legal systems in America, Europe and Asia, our prosecutors do not investigate criminal cases. While they may advise the investigators on aspects of the evidence during an investigation, the gathering of evidence against a suspect is solely the job of the police. Our prosecutors (unlike say, an American District Attorney), generally do not attend crime scenes, interview witnesses or collect evidence relating to the commission of the crime.

The job of the prosecutor is to receive the evidence from the police (the police “file” or “brief”), carefully examine what has been presented and decide whether the evidence provided should be acted upon by initiating a prosecution. Except for relatively minor cases in the Magistrate’s court, the decision of whether or not to proceed to trial is made by the prosecutor. While the police should always be consulted over the decision and while sometimes they may disagree with the decision made by the prosecutor, it is the call of the prosecutor not the police.

So how then does a prosecutor decide whether the police evidence is sufficient to start a prosecution? There are two basic tests that the evidence must pass before the case can be taken to court.

The first test is whether the evidence establishes a reasonable prospect of a conviction being secured. This is often a difficult legal assessment to make and the prosecutor’s experience of what has succeeded in past cases and the knowledge gained from the results of past trials is an important factor in this decision making process. In difficult cases, advice is inevitably sought by consultation with other, more experienced prosecutors before the final call is made.

The essence of the difficulty is in determining the meaning of “reasonable”. It can and does mean very different things to different people which again emphasises the importance of experience. Some people confuse the question “Is there sufficient evidence to prove beyond a reasonable doubt that the crime has been committed?” with the correct question “Is there sufficient evidence to prove beyond a reasonable doubt not only that the crime has been committed, but that it has been committed by this accused?”

The second test that the prosecutor must consider is whether or not it is in the public interest to proceed. In determining this question issues such as the seriousness of the offence, the staleness of the offence, the attitude of the victim and the likely length and expense of any trial, all have to be considered.

If, and only if, the evidence passes both tests, is the prosecutor free to take the case to court where the test of “reasonable prospects of conviction” is re-examined by the scrutiny of a judge and a jury.


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