Prosecutorial Discretion, in Core Concepts in Criminal Law and Criminal Justice, Vol. II (Kai Ambos et al. eds., 2022)
Files
Description
Within the criminal justice system, the presence or absence of discretion is one of the most important determinants of whether or not the system secures justice for all parties and participants. The question is where justice lies on the spectrum running between criminal law by rules and criminal law by decision. Prosecutors in German and Anglo-American criminal law occupy distinctive roles, as decision-makers, due to both the institutional and normative framework, and the presence of both role duality and role ambiguity. Since prosecutorial discretion in the context of an investigation cannot be separated from police discretion, this chapter covers all discretionary decisions during the proceedings by prosecutors and the police. The chapter thus only deals with discretionary decisions of other agents (such as judicial discretion) from a conceptual perspective since the particular, constitutionally protected position of judges affects their discretion considerably. In the words of the German Constitutional Court: "Police forces and public prosecutors do not enjoy independence and cannot be expected – with regard to their investigatory powers and duties – to show the same strict neutrality as judges do."
ISBN
9781316510544
Publication Date
2022
Publisher
Cambridge University Press
Disciplines
Criminal Law | Criminal Procedure | Law
Repository Citation
Shannon Fyfe, Prosecutorial Discretion, in Core Concepts in Criminal Law and Criminal Justice, Vol. II (Kai Ambos et al. eds., 2022),
https://scholarlycommons.law.wlu.edu/fac_books/198