Tuesday, June 10, 2014

The prosecutor's discretion

Judicial interference with decisions about what submissions a party to litigation should make will occur only rarely, to prevent an abuse of process: R v Anderson, 2014 SCC 41 (6 June 2014).

Here the issue was whether the court should review a prosecutor’s decision to seek a minimum penalty for a repeat offender on sentence for an alcohol related driving offence.The Supreme Court of Canada, in a judgment delivered by Moldaver J, recognised that the legislation made this a matter within the prosecutor’s discretion, and held [31]-[32], [35] that judicial review of the exercise of a prosecutor’s discretion is generally undesirable and would only be appropriate to prevent an abuse of process.

Prosecutorial discretion must be exercised independently of political or judicial interference [37]. Examples of discretionary matters are: whether to bring the prosecution of a charge laid by police, whether to enter a stay of proceedings in either a private or public prosecution, whether to accept a guilty plea to a lesser charge, whether to withdraw from criminal proceedings altogether, whether to take control of a private prosecution [40], whether to repudiate a plea agreement, whether to pursue a dangerous offender application, whether to charge multiple offences, whether to negotiate a plea, and whether to initiate an appeal [44].
These are only reviewable if there would be an abuse of process, that is, where there had been a flagrant impropriety, improper motives or bad faith, where the decision undermined the integrity of the judicial process, or where it would result in an unfair trial [49]-[51].

Judicial intervention can occur in the absence of abuse of process, where the conduct of a party interferes with the orderly and effective functioning of the court [58], but the conduct of litigants or counsel is to be distinguished from the conduct of litigation [59]. Tactical decisions about how a party will present its case will be deferred to by judges unless the situation is exceptional or trial fairness requires intervention.

Where official guidelines for prosecutors have been issued, although they may not have the force of law, a breach can indicate when the court should give weight to a defendant’s claim that a prosecutorial decision would give rise to an abuse of process [56].

See also: New Zealand Law Commission, Criminal Prosecution (NZLC R66, 2000) at [61]-[66], A v R [2012] EWCA Crim 434 at [83], R v DPP ex parte Kebilene [2000] 2 AC 326 at 371, Likiardopoulos v R [2012] HCA 37 per French CJ at [1]-[5].

A particularly important prosecutorial decision is, especially in cases of high public interest, a decision not to prosecute. Judicial review has a role here, especially where there is no practical means of private prosecution. But again, a plaintiff would have to demonstrate that the prosecutor, in deciding not to prosecute, considered an irrelevant matter, or failed to consider a relevant matter, or was wrong in law, or was plainly wrong. And even if the plaintiff could show that the prosecutor had failed to consider a relevant matter, or had considered an irrelevant matter, or had made an error of law (for example by being wrong about the legal elements of the alleged offence), the plaintiff will further have to satisfy the court that if the error had not been made the prosecutor could have decided to prosecute. Even then, the reviewing court could simply refer the issue back to the prosecutor for reconsideration.

The trial process provides protection against wrong decisions to prosecute, but there is little real and practical protection against decisions not to prosecute.