Popowo, 7 June 2007

[ccpe-bu/docs2007/ccpe-bu(2007) 15 rev]

      CCPE-Bu (2007) 15 rev

BUREAU OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-Bu)

ALTERNATIVES TO PROSECUTION

IN COUNCIL OF EUROPE MEMBER STATES

QUESTIONNAIRE

adopted by the Bureau of the CCPE

at its 3^rd meeting

(Popowo, Poland, 6-8 June 2007)

Questionnaire on alternatives to prosecution in Council of Europe member States

I.          INTRODUCTION

Under the framework overall action plan for the work of the CCPE as approved by the Committee of Ministers at the 981st meeting of the Ministers’ Deputies on 29 November 2006 and by the CCPE at its first meeting in Moscow on 6 July 2006, the Bureau of the CCPE decided, in the light of the Conference of Prosecutors General of Europe (CPGE) held in Celle from 23 to 25 June 2004 on the theme "Discretionary powers of public prosecution: opportunity or legality principle - advantages and disadvantages", to carry out a study on the adoption of alternatives to prosecution with a view to identifying the best practices followed in the Council of Europe member States and promoting them.

To that end, it is submitting the enclosed questionnaire to all the national members of the CCPE, asking them to reply in English or French by 15 September 2007, in order to fuel discussion to be held on this topic at the next plenary meeting of the CCPE, at which it will be proposed to adopt an opinion.

The Bureau of the CCPE would be grateful if you would kindly e-mail your replies to the following questions to its Secretariat at the following address: [email protected], so that they may be used to prepare the plenary meeting of the CCPE, when this question will be on the agenda.

It should be noted that the replies to this questionnaire will not in any circumstances be published in a manner suggesting that they represent the official position or situation of the States on the question considered; their sole purpose is to gather the fullest possible sample of good practices with a view to drafting a document making recommendations on this question for the European Committee on Crime Problems (CDPC), and it is the task of the members of the CCPE to gather the relevant information from the individuals and practitioners with the closest knowledge of this issue in their country.  This is in no way an evaluation.

II.         CONCLUSIONS OF THE CPGE IN CELLE

The Prosecutors General meeting in Celle from 23 to 25 June 2004 noted with satisfaction that there was a trend towards European harmonisation of the objectives of the different legal systems, revolving around the principles of public interest, the equality of all before the law and personalisation of criminal justice, in accordance with Council of Europe recommendation Rec(2000)19.

The Conference of Prosecutors General called for implementation of the principles of:

1-         the possibility of choosing between the criminal law response and other responses to offences, regardless of the system of definition of punishment by law or discretionary prosecution, given the need to punish serious offences in the public interest, particularly corruption or offences by public office-holders;

2-         serious, credible alternatives which are designed to prevent the perpetrator from reoffending and take the victims' interests into account;

3-         respect, when applying an alternative sanction, of law provisions enshrining inter alia the right of victims and the objective, fair and impartial treatment of the perpetrator.

III.         DEFINITIONS

For the purposes of the present questionnaire an alternative to prosecution shall be taken to mean the temporary or conditional abandon of prosecution in a case where an infringement of the law has been committed, exposing its perpetrator to a criminal sanction such as imprisonment or a fine with or without a suspended sentence, as well as ancillary penalties such as confiscation, the deprivation of certain rights etc. It is to be noted that pleads guilty before the courts are not covered by this questionnaire, in that they do not preclude criminal law measures.

IV. QUESTIONNAIRE

1.         Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?

Answer: England and Wales has for many years pursued a policy of discretionary prosecution. 

We do not keep such statistics.

2.         In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?

Answer: The judicial authorities can only choose between criminal sanctions and orders committing a convicted offender who suffers from mental illness to a secure hospital. However, among the criminal sanctions are those having broadly welfarist objectives such as probation or drug treatment orders as part of a community penalty. Judicial officers also have the choice of discharging a convicted person. This occurs when the judge/magistrate believes that the harm caused by the admitted offence does not merit any real sanction. Discharges can be absolute or subject to a condition not to re-offend within a stated period.

Choice of sentence by a judge or magistrate can only be challenged on appeal to a higher judicial tribunal.

Prosecutors and (in some circumstances) police may choose to divert an offender who admits their offending from prosecution to a diversionary mention called a caution. A caution can be with or without conditions. This normally occurs in relation to minor offending only.

3.         Who decides on this choice?  What is the specific role of the prosecutor?

Answer: If a case is prosecuted before a court, the choice of sentence is a matter for the judicial officer (magistrate or judge). The prosecutor has only limited scope to make representations as to the proper type of punishment and cannot advocate for specific sentences.

4.         Are there criteria for abandoning the criminal prosecution approach?

Answer: Prosecutors and the police are issued with specific guidance on the operation of cautions and conditional cautions. These set out the criteria by which an offender’s suitability for diversion rather than prosecution is to be judged.

5.         Could it happen that a serious offence escapes any prosecution because of alternative measures?

Answer: In theory, yes. But seriousness of the offence is one of the most important of the criteria for deciding whether to divert rather than prosecute. The more serious the offence, the more likely it is that an identified offender will be prosecuted through the courts.

 

6.         Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?

Answer: the Code for Crown Prosecutor, the Code of Practice for Victims and the administrative guidance on cautions and conditional cautions all specify that if possible the views of victims should be sought and taken into account BEFORE a decision is taken to divert rather than prosecute an offender. A prosecutor who decides not to charge an identified offender against whom sufficient evidence exists is required to inform the victim of this decision. In many cases this responsibility is carried out by the police on behalf of the prosecutor.

A victim who is aggrieved by a decision to caution rather than prosecute an offender has a right to complain to the prosecution area or police force which made the decision; complaints will be investigated. In extreme cases the decision can be reviewed by the High Court in a process known as Judicial Review. However, the High court will only overturn the decision if it was taken in blatant disregard of a published prosecution policy or was in itself so unreasonable that no reasonable prosecutor could have come to such a decision.

  

7.         Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?

Answer: No. The decision by the police to caution an offender carries no obligation. It is subject to the willingness of the offender to accept the caution. Where a prosecutor decides to deal with a case by way of a conditional caution (i.e. a caution which carries with it specific rehabilitative or reparative obligations on the offender) this amounts to an OFFER by the prosecutor to deal with the case in this way. If the offender thinks the conditions are too severe he or she can refuse the offer and will normally be prosecuted instead.  

8.         Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victims' interests?

Answer: A conditional caution with a requirement to attend a drug or alcohol abuse education programme. Also a small number of police areas operate restorative justice approaches as part of the conditional cautioning scheme. This can include victim-offender mediation although this approach is rare in England and Wales.

9.         Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?

Answer: Only by consideration of re-offending rates in the generalised national crime statistics.

10.       Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?

Ian Brownlee, Senior Policy Advisor, HQ Crown Prosecution Service: [email protected]. Responsible for early development of policy on conditional cautions.

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