The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
Making an unqualified statement that, within the criminal justice system of the Republic of Cyprus, the Attorney General is a dominus litis, might lead the reader to incorrect conclusions. In any event, one should not underestimate the important role of the Courts in the administration of criminal justice.
On the other hand, one cannot but confirm that the Attorney General is the person in real charge of criminal prosecution. As it has already been said, the power ‘to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic’ is expressly granted to the Attorney General by the Constitution itself. It is furthermore repeated that the exercise of such power is fully discretionary and it is not subject to any control by any other person or institution, not even the Courts themselves. Although, in the past, there had been some case law suggesting that the exercise of the constitutional powers of the Attorney-General is, at least in some respects, subject to judicial control, in 1997, the Full Bench of the Supreme Court resolved the matter finally and terminated the state of uncertainty that had existed till then. In the case of Georghios Ioannou v. The Police (No. 2) (judgment delivered on July 17, 1997), the Supreme Court pro-claimed in the most authoritative manner that the exercise of the constitutional powers on the Attorney General is not subject to judicial control.
Nevertheless, it must be stressed that the relationship between the public prosecution service and the judiciary is one of mutual respect. Although the Attorney General is entitled to discontinue any criminal proceedings without providing the Court with any explanation or justification for his decision, he does not use this privilege in practice. In most cases, and unless exceptional circumstances exist, the prosecution explains to the Court the reasons which necessitate the discontinuation of the proceedings.
It is in this context that one must consider the question whether it is open to the prosecution service to charge a suspect with an offence less serious than the one he could have been charged with on the basis of the evidence. Although the prosecutor is free to make the choice, there must be serious reasons justifying such a decision. In the absence of such serious reasons, the Court hearing the evidence may make comments, which no prosecutor would like to hear about himself. I cannot but repeat that the relationship between the prosecution service and the judiciary is one of mutual respect; and the praise of the Bench is the ultimate reward for any public prosecutor.
Amending the charge
The trial court is empowered to proceed, at its own initiative, with amending the charge pending before it. However, this power, granted through express provisions in the CCP, is by no means unlimited. On the contrary, it is a power that may be exercised for specific purposes prescribed by law only.
The power of the trial court to amend a charge exists only in relation to a ‘defective’ charge. Case law has established that a charge is defective when there is a discrepancy between the particulars of the offence as charged, and the evidence that has been adduced. Thus, amendment is authorised for the limited purpose of effecting harmonisation of the particulars of the charge with the evidence that has been presented.
The power of the prosecutor to amend the charge during the hearing of a case is always subject to approval by the Court. The major consideration taken into account relates to the question of prejudice to the accused. When the prosecutor applies to the Court for leave to amend the charge, the determining issue is whether, considering all circumstances, the amendment may affect the interests of the accused in any prejudicial manner. Therefore, the stage of the proceedings at the time is of determining importance. Evidently, an application made before the hearing of evidence is granted almost in-variably. On the other hand, the court will be reluctant to acquiesce to a request for amendment made after the conclusion of the prosecution case. However, even at such a late stage, the amendment may still be granted if it appears to the court that the recalling of witnesses could rectify any prejudice that might have been caused.
Cross-examination
Cross-examination of the opponent’s witnesses is a fundamental element of the criminal trial. It is the process whereby the evidence of the other side is questioned and challenged. The party calling them examines witnesses. However, upon conclusion of their evidence-in-chief, they are cross-examined by the opponent. If the accused elects to give sworn evidence (which is one of the options available to him), he is treated like any other witness, that is, he is examined in-chief by his advocate and he is cross-examined by the prosecution.
Upon completion of the evidence, both sides address the Court. Each put forward their own evaluation of the evidence and the respective arguments.
If the Court finds the accused guilty, the defence proceeds with the address in mitigation. All matters that may operate as mitigating factors are put before the Court. These certainly include the personal circumstances of the accused and any other matter that may call for leniency. However, no corresponding right exists for the prosecutor. The prosecution has no say in the matter. He does not make any suggestions, recommendations, or requests as to the sentence that would be appropriate. Nevertheless, if the Attorney General, in any given case, considers that, the sentence imposed by the Court is inadequate; he may file and appeal with the Supreme Court. In the context of the appeal, the prosecutor addresses the Supreme Court and puts forward the reasons why the sentence is considered inadequate and should be replaced. The defence advocate addresses the Court in reply.
The Role of the Public Prosecutor in Court
Making an unqualified statement that, within the criminal justice system of the Republic of Cyprus, the Attorney General is a dominus litis, might lead the reader to incorrect conclusions. In any event, one should not underestimate the important role of the Courts in the administration of criminal justice.
On the other hand, one cannot but confirm that the Attorney General is the person in real charge of criminal prosecution. As it has already been said, the power ‘to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic’ is expressly granted to the Attorney General by the Constitution itself. It is furthermore repeated that the exercise of such power is fully discretionary and it is not subject to any control by any other person or institution, not even the Courts themselves. Although, in the past, there had been some case law suggesting that the exercise of the constitutional powers of the Attorney-General is, at least in some respects, subject to judicial control, in 1997, the Full Bench of the Supreme Court resolved the matter finally and terminated the state of uncertainty that had existed till then. In the case of Georghios Ioannou v. The Police (No. 2) (judgment delivered on July 17, 1997), the Supreme Court pro-claimed in the most authoritative manner that the exercise of the constitutional powers on the Attorney General is not subject to judicial control.
Nevertheless, it must be stressed that the relationship between the public prosecution service and the judiciary is one of mutual respect. Although the Attorney General is entitled to discontinue any criminal proceedings without providing the Court with any explanation or justification for his decision, he does not use this privilege in practice. In most cases, and unless exceptional circumstances exist, the prosecution explains to the Court the reasons which necessitate the discontinuation of the proceedings.
It is in this context that one must consider the question whether it is open to the prosecution service to charge a suspect with an offence less serious than the one he could have been charged with on the basis of the evidence. Although the prosecutor is free to make the choice, there must be serious reasons justifying such a decision. In the absence of such serious reasons, the Court hearing the evidence may make comments, which no prosecutor would like to hear about himself. I cannot but repeat that the relationship between the prosecution service and the judiciary is one of mutual respect; and the praise of the Bench is the ultimate reward for any public prosecutor.
Amending the charge
The trial court is empowered to proceed, at its own initiative, with amending the charge pending before it. However, this power, granted through express provisions in the CCP, is by no means unlimited. On the contrary, it is a power that may be exercised for specific purposes prescribed by law only.
The power of the trial court to amend a charge exists only in relation to a ‘defective’ charge. Case law has established that a charge is defective when there is a discrepancy between the particulars of the offence as charged, and the evidence that has been adduced. Thus, amendment is authorised for the limited purpose of effecting harmonisation of the particulars of the charge with the evidence that has been presented.
The power of the prosecutor to amend the charge during the hearing of a case is always subject to approval by the Court. The major consideration taken into account relates to the question of prejudice to the accused. When the prosecutor applies to the Court for leave to amend the charge, the determining issue is whether, considering all circumstances, the amendment may affect the interests of the accused in any prejudicial manner. Therefore, the stage of the proceedings at the time is of determining importance. Evidently, an application made before the hearing of evidence is granted almost in-variably. On the other hand, the court will be reluctant to acquiesce to a request for amendment made after the conclusion of the prosecution case. However, even at such a late stage, the amendment may still be granted if it appears to the court that the recalling of witnesses could rectify any prejudice that might have been caused.
Cross-examination
Cross-examination of the opponent’s witnesses is a fundamental element of the criminal trial. It is the process whereby the evidence of the other side is questioned and challenged. The party calling them examines witnesses. However, upon conclusion of their evidence-in-chief, they are cross-examined by the opponent. If the accused elects to give sworn evidence (which is one of the options available to him), he is treated like any other witness, that is, he is examined in-chief by his advocate and he is cross-examined by the prosecution.
Upon completion of the evidence, both sides address the Court. Each put forward their own evaluation of the evidence and the respective arguments.
If the Court finds the accused guilty, the defence proceeds with the address in mitigation. All matters that may operate as mitigating factors are put before the Court. These certainly include the personal circumstances of the accused and any other matter that may call for leniency. However, no corresponding right exists for the prosecutor. The prosecution has no say in the matter. He does not make any suggestions, recommendations, or requests as to the sentence that would be appropriate. Nevertheless, if the Attorney General, in any given case, considers that, the sentence imposed by the Court is inadequate; he may file and appeal with the Supreme Court. In the context of the appeal, the prosecutor addresses the Supreme Court and puts forward the reasons why the sentence is considered inadequate and should be replaced. The defence advocate addresses the Court in reply.
