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3.1 On 17 September 1987 the Committee of Ministers to member states of the Council of Europe accepted a document[41] which is pertinent to the present discussion. It is hard to assess its actual impact on the law of European countries. On the face of it the document was not widely implemented. Yet, many countries have since introduced some legislation relating to speedier criminal procedures, discretionary prosecution, et cetera.
3.2 Recommendation No R(87)18 recommends that member states introduce the principle of “discretionary prosecution” and make use of several measures when dealing with minor and mass offences. The main consideration is to accelerate and simplify the working of the criminal justice system, while taking due consideration of articles 5 and 6 (the right to speedy trial) of the European Convention on Human Rights, as well as the increase in the number of criminal cases and the fact that delays in dealing with crimes bring criminal law into disrepute and affect the proper administration of justice.
3.3 The principle of discretionary prosecution is dealt with in the following terms:
1. The principle of discretionary prosecution should be introduced or its application extended wherever historical development and the constitution of member states allows; otherwise, measures having the same purpose should be devised.
2. The power to waive or to discontinue proceedings for discretionary reasons should be founded in the law.
3. The decision to waive prosecution, under this principle, only takes place if the prosecuting authority has adequate evidence of guilt.
4. This principle should be exercised on some general basis, such as the public interest.
5. The competent authority, in exercising this power, should be guided in conformity with its domestic law, notably by the principle of equality of all citizens before the law and the individualisation of criminal justice, and especially by:
- the seriousness, nature, circumstances and consequences of the offence;
- the personality of the alleged offender;
- the likely sentence of a court;
- the effects of conviction on the alleged offender, and
- the position of the victim.
6. The waiving or discontinuation of proceedings may be pure and simple, accompanied by a warning or admonition, or subject to compliance by the suspect with certain conditions, such as rules of conduct, the payment of moneys, compensation of the victim or probation.
7. The alleged offender’s consent should be obtained wherever conditional waiving or conditional discontinuation of proceedings is envisaged. In the absence of such consent, the prosecuting authority should be obliged to proceed against the alleged offender unless it decides upon a different reason to drop the charges. Failure to challenge the measure decided upon or compliance with a condition required within the meaning of paragraph 6 may be considered as amounting to consent. Rules should be prescribed to ensure that informed consent is given freely and not subject to constraint.
8. In general, the waving or discontinuation of proceedings may be temporary, pending expiry of the statutory period for prosecution, or final.
9. In the case of conditional discontinuation, discontinuation should be final once a person has fulfilled his or her obligations. The decision should not be treated as equivalent to conviction and follow the normal rules regarding, inter alia, inclusion in the criminal record unless the alleged offender has admitted his or her guilt.
10. Whenever possible, a decision to waive or discontinue proceedings should be notified to the complainant.
11. The victim should be able to seek reparation for the injury done to him by the offence in a civil or criminal court.
12. The notification of the suspect should not be necessary if the decision takes the form of a simple decision not to prosecute.[42]
3.4 The next proposal deals with summary procedures for offences which are inherently minor. In essence, this is already applied in South Africa by way of admissions of guilt. Nevertheless, a few of the recommendation’s detailed points bear repeating: (1) no physical coercive order should be ordered; (2) the procedure should be subject to express or tacit acceptance; (3) acceptance of or compliance with such a proposal should preclude any prosecution in respect of the same facts; and (4) the procedure should not infringe the right of the suspect to have his case brought before a judicial authority.[43]
3.5 What are termed out-of-court settlements are then dealt with.[44] This is done in the following terms:
(1) In the light of their constitutional requirements, member states should review their legislation with regard to out-of-court settlements in order to allow an authority competent in criminal matters and other authorities, intervening at this stage, to promote the possibility of out-of-court settlements, in particular for minor offences on the basis of the following principles:
(2) The law should prescribe the conditions which the authorities may propose to the alleged offender, more particularly: (i) the payment of a sum of money to the state or to an institution of public or charitable nature; (ii) the restitution of goods or advantages obtained by the commission of the offence; (iii) that appropriate compensation be granted to the victims of the offence either in advance of the settlement or as a part of it.
(3) The competence of the authorities concerned to make such a proposal and the categories of offences should be determined by law. The authorities should be able, for the benefit of the alleged offender, to revise its proposal after having taken note of possible objections made by the alleged offender.
(4) The authorities should specify the circumstances in which they have recourse to out-of-court settlements and should draw up guidelines and tables of amounts payable for out-of-court settlements in order to ensure, as far as possible, the principle of equality before the law. With this aim, it is useful to publish the circumstances, guidelines and tables of amounts payable.
(5) The alleged offender who does not wish to accept the proposal for an out-of-court settlement should always be entirely free to ignore or refuse the offer.
(6) The acceptance of the out-of-court settlement by the alleged offender and his fulfilling of the conditions makes the renunciation of the right to prosecute definitive.
(7) The authorities should publish an annual report on how they have exercised their powers of out-of-court settlement, without disclosing the identity of the alleged offenders.
3.6 The main difference between discretionary prosecution and out-of-court settlements as they are dealt with in this document appears to be the fact that out-of-court settlements are advanced in the case of "an authority competent in criminal matters and other authorities, intervening at this stage". The distinction is not important for South African purposes, as South African law does not provide for a comparable authority.
3.7 The considerations that are mentioned in the Recommendation, which are often based in the protection of human rights, should be heeded in any out-of-court settlement procedure that may be advanced or discussed for South Africa.
3.8 Professor Hans-Jörg Albrecht of the Max Planck Institute for Foreign International Criminal Law in Freiburg, Germany drew up a report for the Commission on current developments regarding out-of-court settlements in Europe. This report will be published in the Commission's research series.
3.9 Generally, the motivation for out-of-court settlements has already been mentioned in this document.[45] Professor Albrecht's study also deals with this motivation in some detail. The following bears repeating: the main aim is the simplification and acceleration of the criminal process without undermining the rule of law and basic standards of fair and just criminal process. Cost-efficiency is a major consideration. Criminal cases must be finalised within a reasonable time. Restitution and restorative justice plays an important role, especially in the interests of crime victims. At the same time stigmatisation of the offender is reduced. Mass crime and the increased complexity of criminal cases is a further consideration.
3.10 In this document the most important features of Dr Albrecht's report will be summarised briefly.
Germany
3.11 It is important, when considering the German position, to keep in mind that, according to the German understanding of the principle of legality, every criminal complaint has to be investigated and, if sufficient evidence is found to exist, prosecuted. Therefore, German law does not accept discretionary prosecution. Nevertheless, the power of prosecutors to settle cases out of court has been constantly expanded in recent years.
3.12 In terms of §153 of the German Procedural Code a prosecutor may unconditionally dismiss a case “if the guilt of the suspect is marginal”. This means that both the degree of intent or negligence that should be satisfied, and the damage or injury caused, should be marginal. Dismissal is, in general, based on the discretion of the prosecutor. In the case of more serious offences, despite compliance with the above-mentioned criteria, the decision has to be affirmed by the court.
3.13 In terms of §153a of the German Procedural Code a prosecutor may dismiss a “case of minor guilt” if the offender complied with conditions set by the prosecutor.[46] The payment of an amount of money (Geldbuße), which is different from a fine as the latter is confined to criminal convictions, is by far the commonest such condition, although compensation, community service and maintenance orders are imposed in a small number of cases.
3.14 Criticism against the increasing discretion by the prosecutors is that it grants the victim no input, that strong pressure may be exercised on the suspect to accept the conditions of a conditional dismissal (simply because an objection would lead to a trial in court), that these provisions could be used to avoid acquittals because of insufficient evidence, that there is considerable disparity within the system and that influential offenders may find it easier to bargain their way out of the criminal justice system by offering to pay the Geldbuße in exchange for having the charges dropped. There is also claimed to be insufficient control over prosecutors decisions.
Denmark
3.15 The prosecutor may dismiss a case “if costs, expected length of proceedings or workload required by processing a case would be unproportional compared to the significance of the case and the expected outcome.” This option was introduced mainly for economic crimes.
3.16 The prosecutor may waive prosecution at own discretion if (1) only a fine is prescribed as punishment; (2) the accused is a juvenile and confesses to the crime; (3) the expected costs of the trial would be disproportionate; (4) the law authorises waiving; or (5) rules of the executive permit waiving.
3.17 Provision is also made for a summary fine, similar to the South African admission of guilt. In this case the accused can pay the fine immediately, or consent to the fine but negotiate to pay in instalments.
England and Wales
3.18 In simple cases “and in cases where the suspect had confessed to the offence police have the power to caution the offender and to dismiss the case after a formal caution had been issued.”[47] However, neither the police nor the prosecuting services have the power to impose fines or any other conditions in exchange for waiving prosecution.
France
3.19 For certain traffic offences fixed amounts of (administrative) fines are imposed by the police. In case of other “contraventions” the accused has the right to appeal to the prosecutor who can decide to dismiss the case unconditionally, or to take the matter to court.
3.20 The “composition pénale” was introduced in 1999. It is quite similar to the procedure introduced under §153a of the German Procedural Code. It can be imposed for offences for which not more than three years’ imprisonment can be imposed, has to be consented to by the judge, and is dependent on full compensation of the victim. Such dismissal of prosecution can also be made dependent on payment of a transaction fine, withdrawal of driver’s licence, community service or confiscation of proceeds or instruments of crime.
Belgium
3.21 The first option open to a Belgian prosecutor is simple, unconditional non-prosecution.[48] This is limited to petty offences, and the decision has to be made in accordance with the general guidelines from the ministry of justice. Such decisions have to be justified in writing.
3.22 Conditional non-prosecution is also possible. The suspect has to agree to such conditions, which are usually closely related to probation.
3.23 The report also makes mention of the procedure provided for in §216 of the Belgium Procedural Code. This appears to be a typical out-of-court settlement, to which a wide variety of conditions can be attached, including the “proposal” of a fine, which is available for all offences punishable by fine or imprisonment of up to 5 years’. Only 1,2% of all prosecutorial decisions in 1995 fell into this category.
Italy
3.24 Italian criminal procedure does not allow the prosecutor any discretionary dismissal of criminal cases. A couple of abbreviated procedures are provided for, but a judge is always involved, and the outcome of the case is determined only by the judge.
The Netherlands
3.25 Dutch criminal procedure allows the prosecutor not to open a criminal trial, based on reasons of public interest. Some of the considerations that may prompt such a decision include the existence of other agencies to deal with the offence, that the offence is petty or occurred a long time ago, or that there are factors peculiar to the offender or in the relationship between the offender and the victim which would make punishment superfluous (eg the victim participated in the crime).
3.26 Decisions not to prosecute can take one of two forms: (1) informal decisions, or (2) formal decisions with “notification of the judge”.
3.27 §74 of the Dutch Criminal Code permits the prosecutor to dismiss a case in exchange for compliance with some condition (transactie).[49] The requirements are the following: (1) only criminal offences not carrying a sentence of more than six years’ imprisonment; (2) the suspect has to consent to the transaction, and (3) the guidelines by the Dutch ministry of justice have to be complied with. Four conditions can be attached to a transactie: (1) payment of a sum of money,[50] (2) payment of an amount equivalent to the value of items which can be forfeited, (3) consent to confiscation, or (4) compensation and restitution.
Portugal
3.28 For petty offences a summary procedure is provided. Although no trial takes place, it is restricted to a small range of offences. It is not sufficiently close to an out-of-court settlement to warrant further consideration.
Spain
3.29 No out-of-court settlement procedure is provided for.
Austria
3.30 §42 of the Austrian Criminal Code provides that a particular act will under certain circumstances not be regarded as a crime. If these circumstances are present, the prosecutor has to dismiss the case unconditionally. The circumstances are the following: (1) the offence is not punishable with more than three years’ imprisonment, (2) punishment is not required for the deterrence of the offender, and (3) the offence has only resulted in minor loss or damage and the offender has compensated the victim or has made a serious attempt to effect compensation. Although dismissal has to be unconditional, the latter condition gives the prosecutors ample opportunity to require compensation before the unconditional dismissal is allowed.
3.31 Conditional dismissal has been provided for since 1 January 2000. The following conditions can be imposed: (1) a fine, (2) community service, (3) probation, or (4) victim-offender mediation. A move is afoot to make a combination of these conditions possible. The requirements for conditional dismissal are the following: (1) the offence is not punishable with more than 5 years’ imprisonment, (2) the suspect has consented, (3) there is sufficient evidence that the accused committed the offence and no difficulty in proving it, and (4) the blameworthiness of the offender is minor.
Switzerland
3.32 A penal order exists, which cannot be equated to an out-of-court settlement.
Poland
3.33 The Polish Code of Criminal Procedure does not really provide for any process related to an out-of-court settlement. It does provide for abbreviated procedures in the case of less serious offences, but these procedures generally culminate in a conviction and sentence. The prosecutor may only decide not to institute prosecution of petty offences where the danger to society is insignificant.
Australia
3.34 True out-of-court settlements appear to be a foreign concept in Australia. A speech by the Commonwealth DPP on 18 April 1996,[51] dealing with the initial decision to prosecute, mentions two fundamental considerations in the decision to prosecute. The first is that there must be sufficient evidence, and the second that a prosecution must be required in the public interest. The latter consideration has some place in the question whether an out-of-court settlement might be appropriate.
3.35 Some Australian states have a separate trial system for certain drug offenders. These offenders are diverted from the normal criminal justice system, and channelled into a drug courts system. The Drug Court Act 1998 of New South Wales provides an example. In terms of its provisions the court[52] before which a person is charged has the duty to determine whether the accused is an "eligible person".[53] If the accused is an "eligible person", and is willing to be referred to the Drug Court, the court has to do so.[54] The Drug Court acts as an ordinary court, in the sense that it convicts and sentences the accused,[55] but must suspend the sentence within 14 days of its imposition, allowing the offender to participate in a program instituted under the Act.[56] At the termination of this program, the imposed sentence has to be reconsidered.[57]
United States of America
3.36 Dealing with diversion in general, Professor Candace McCoy writes as follows:
Most often, a prosecutor will demand that the accused admit guilt and agree to participate in a ‘diversion program,’ often involving drug or alcohol treatment. In return, the prosecutor will not make formal charges or will drop the charges already made. The result is that the offender will have no criminal record and the prosecutor will have assured a measure of social control and, optimistically, rehabilitation. A thoughtful prosecutor has thus worked to prevent a juvenile or petty criminal from being stigmatized with a criminal conviction – an important consideration for juveniles whose lives may change for the worse be being labelled ‘delinquent’. A pretrial diversion program may involve restitution to the victim, voluntary public service, or other conditions. If a person accomplishes the requirements of such a program, formal charges – if made – are dismissed, leaving no criminal record. But if the person does not fulfill the program requirements, the prosecutor may then pursue the original charges.
The point is that the prosecutor has complete power to decide who will receive the benefits of diversion, the conditions necessary to avoid criminal charges, and whether to restart prosecution due to noncompliance. As a matter of policy, the prosecutor has determined who might be capable of rehabilitation or, indeed, whether a person is guilty of the crime or not. And the prosecutor has arguably ‘widened the net’ of state control over lives of people accused of crime, because defendants assigned to diversion programs probably would not have received such extensive conditions of compliance if they had proceeded through regular adjudication into court and been sentenced by a judge. This is simply one example of the great discretionary power the prosecutor can wield over the lives of a great number of people – and all before their cases ever get near a courtroom.[58]
3.37 It must be accepted that diversion is not held in the same high regard everywhere or under all circumstances.[59] It may be a solution in the case of juvenile justice, but it has the potential of adding to the criminal justice system cases which would not have been accepted in the absence of diversion. In other words, it may have a “net-widening effect”, which could complicate rather than simplify the criminal procedure. The net-widening effect results in more cases coming through the criminal justice system, placing a greater burden on the prosecuting staff or other officials that may be specifically appointed for this purpose, often without really reducing the number of cases going to court.[60]
3.38 A fairly common practice in the USA is that of deferred prosecution,[61] where prosecution is suspended on compliance by the defendant with some condition or conditions. This practice is closely related to out-of-court settlements. It is fairly generally accepted to have been initiated in the 1930s in Brooklyn, as a result of the efforts of Conrad Printzlien.[62] Its purpose is
the diversion of selected defendants from the regular criminal justice system, after arrest and arraignment. It is recommended where, in the prosecutor's initial impressions, it appears that the defendant is not a significant threat to the community and is likely to benefit from the procedure.[63]
At first, deferred prosecution was informally implemented, without statutory authority, but in June 1964 the Department of Justice issued a memorandum that formalised the institutional use of deferred prosecution.[64]
3.39 Some of the useful points that have been highlighted in studies on deferred prosecution include the following:
3.40 It is clear from the comparative research that a very wide range of out-of-court settlements is provided for in different countries, for crimes of widely different severity, with a wide range of conditions. Owing to this wide variety, often determined by the legal traditions and practices of the specific jurisdiction, it serves no purpose to attempt a summary of the comparative research. As far as useful ideas can be gathered from this research, it will be done in the next chapter, in dealing with the different considerations that should be kept in mind when constructing a South African proposal.
[41] Council of Europe The simplification of criminal justice (Recommendation R(87)18) (1988) Strasbourg.
[42] Op cit 8-9.
[43] Op cit 10-11.
[44] Op cit 11.
[45] See par 7 p 3 above.
[46] See also JMT Labuschagne “Konsensuele strafregspleging: Opmerkinge oor die spanningsveld tussen regsstaatlikheid en doelmatigheid” (1995) 8 SACJ 158 at 185.
[47] This cautioning has been given a statutory basis in the Crime and Disorder Act, 1998.
[48] It amounts to 54% of all prosecutor decisions (1999).
[49] See also JMT Labuschagne “Konsensuele strafregspleging: Opmerkinge oor die spanningsveld tussen regsstaatlikheid en doelmatigheid” (1995) 8 SACJ 158 at 184.
[50] The most common disposition (25% of cases).
[51] See www.law.gov.au/cdpp/speeches/SPEECHPR.HTM
[52] The courts to which the Act is applicable is prescribed by regulation – s 6(1).
[53] Among others, an "eligible person" is someone likely to be sentenced to unsuspended imprisonment, has pleaded guilty or intends to do so and appears to be dependent on the use of prohibited drugs – s 5(1).
[54] Section 6(2).
[55] Section 7(2).
[56] Section 7(3).
[57] Section 12(1). The rationale of the Drug Court is the following, according to R v Jenkins [1999] NSWCCA 111 (12 May 1999) par 216 (www.austlii.edu.au): "The acceptance of the link between drug dependency and many forms of criminal activity has recently led the State of New South Wales to create a Drug Court, with a special regime for dealing with certain categories of offenders, although not those charged with offences 'involving violent conduct'."
[58] In “Prosecution” in Michael Tonry (ed) The Handbook of Crime and Punishment (1998) Oxford University Press 460.
[59] See, eg, Paul C Friday, Katherine R Malzahn-Bass, Donna K Harrington "Referral and selection criteria in deferred prosecution" (1981) 21 British Journal of Criminology 166-172.
[60] Cf Friday et al (n 46) at 172.
[61] Carol J. DeFrances, Steven K. Smith, Louise van der Does: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Prosecutors in State Courts, 1994 (October 1996) NCJ-151656 (see www.ojp.usdoj.gov/bjs/pub/ascii/ pisc94.txt): 59% of prosecutors used deferred prosecution for felony prosecution.
[62] James M Dean "Deferred prosecution and due process in the Southern District of New York" (1975) Federal probation 39(3) 23.
[63] Dean op cit (n 49) 24.
[64] Stephen J Rackmill "Printzlien's legacy, the 'Brooklyn Plan'" (1996) Federal probation 60(2) 8 at 10.
[65] Dean op cit (n 49) 24.
[66] Rackmill op cit (n 51) 13.
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