THE ROLE AND INDEPENDENCE OF PROSECUTORS
Paul Mageean, Belfast, Northern Ireland
17th May 2005, Cairo.
I would like firstly to thank the organisers of this event for the invitation to speak to you today. I would also like to acknowledge the role of Professor John Jackson from the School of Law in Queens University Belfast. The international sections of this paper draw on his work. I should also like to make clear that I am speaking in my personal capacity today.
This paper will be an attempt to examine some of the key elements which make up properly functioning public prosecution systems with reference to international standards. I also intend to use the experience of public prosecution in Northern Ireland as a way of illustrating the difficulties in marrying the twin themes of independence and accountability. Most of you will know that in Northern Ireland we had between 1969 and the mid 1990s a period of violent conflict. The government chose to respond to the violence primarily through the use of the criminal justice system, and as a consequence, all of the criminal justice agencies including the office of the Director of Public Prosecutions (DPP) became embroiled in regular complaints about a lack of independence and accountability. As a result of the peace Agreement reached in Belfast in 1998 we have had a significant program of reform of various aspects of the criminal justice system including, in particular the system of public prosecution. We are on the verge of the establishment of a new office, the Public Prosecution Service. I intend using some examples from Northern Ireland during the course of the paper to 2
illustrate the points I am making and also to show to delegates that the task of building independent and accountable public prosecution offices is not something which is just confined to the Arab world.
One of the difficulties in speaking about the role of prosecutors in an international context is that there are a wide variety of different prosecution systems around the world with differing functions and responsibilities. Some public prosecution systems are well established within their national countries and have been developed over many centuries. Others are relatively new and under-developed. There has been a long tradition in civil law systems of public prosecutors taking responsibility for prosecutions in the public interest. In the common law tradition by contrast prosecutorial functions remained mainly in the hands of private individuals until police forces developed in the nineteenth century. The notion of a separate prosecution agency emerged in most common law countries after police forces had already been established and is not so embedded within the common law culture. During the course of the 20th century, however, independent prosecution services established themselves taking over responsibility for most if not all prosecutions. It was not until 1986 that England and Wales developed an independent prosecution service, known as the Crown Prosecution Service, to take over all prosecutions. Until this time the police were responsible for investigating crime and for the prosecution of cases through the courts with the exception of the most complex cases which could be referred by the Attorney General to the Director of Public Prosecutions, an office created in the late 19th century for prosecuting the most serious crimes. A similar office was not even created in Northern Ireland until 1972.
In Europe there are a wide variety of public prosecution services with their roots in either the inquisitorial or adversarial tradition. As a consequence, although all member states of the Council of Europe have a public prosecuting authority, there are great differences in the institutional position of the public prosecutor from one country to another, firstly in terms of its relationship with the executive power of the state (ranging from subordination to independence) and,...