Guiding and Protecting Prosecutors: Comparative Overview of Policies Guiding Decisions to Prosecute

Howard Varney, Shenali De Silva, and Alexandra Raleigh
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Deciding whether to prosecute or not is the most important step in the prosecution process.  Prosecutors ought to make such decisions with consistency. Prosecution policies or guidelines provide benchmarks for decision making and act as a shield for prosecutors in the face of undue influence, pressure, or interference. Prosecutors pursuing sensitive cases ought to do so by applying binding, objective, fair and publicly known criteria. Ultimately, prosecution guidelines help ensure prosecutors take a uniform approach—one that eliminates arbitrariness.

Policies that provide sensible evidentiary and public interest factors will facilitate the prioritization of the most deserving cases for prosecution that are likely to serve higher societal goals. However, even with such policies, courage and dedication to justice on the part of prosecutors are still required. 

The report is divided into two parts, namely decisions to prosecute in “ordinary” times and in the context of post-conflict transitions. The first part provides an overview of factors that influence decisions to prosecute based on international standards and national prosecution policies in eight common law countries. This part of the report aims to assist national prosecutorial organs to develop or strengthen their own polices or guidelines.

The second part sets out strategies to guide prosecutorial discretion in societies emerging from violent conflict, particularly those that seek to address legacies of mass atrocities. Such prosecutions invariably occur in intensely political circumstances and when criminal justice systems are weak or incapacitated. This part provides examples of attempts to prosecute in such contexts and proposes strategies to address political interference. It also examines what crimes and which perpetrators should be prosecuted.

Fairly applying credible prosecution policies can provide a measure of protection to prosecutors who must make difficult decisions in tense and politically charged contexts. This report urges the adoption of policies and strategies that will assist prosecutors to carry out their onerous duties in a just manner.