The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
On the local level, the police and the prosecution service are amalgamated in so far as the chief constable in each of the 54 police districts, politimesteren (in Copenhagen politidirektøren = commissioner), is both the independent chief of the local police force (Sect. 114 AJA) and head of the local prosecution service (Sect. 104 AJA). As far as I know, only Norway has a similar construction. Because of that double role, not only the legal staff of the police, but also the chief constable in person must have a legal degree (Sect. 113 AJA).
The chief constable is thus ultimately responsible for both a proper criminal investigation and for a smooth running of the prosecution service. The duties of the latter are aptly summarised in Sect. 96 AJA, requiring prosecutors not only to ensure that the guilty are called to account, but also that those innocent are not proceeded against – the so-called principle of objectivity – and also, to proceed with due speed, a commandment unfortunately not rarely sinned against in practice. In his day-to-day work the chief constable never appears in court in person – during my twenty one year tenure as a judge, the local chief constable has only once been present in court as a spectator, never as a prosecutor, and when I was deputy chief constable before being appointed as a judge, I was in all practical respects the senior prosecutor of the district.
It is now seriously considered, though not (yet) carried through, reducing the number of police districts from 54 to 25, rather for technical and operational reasons, than for reasons connected with the chief constables’ role as head of the prosecution service.
The chief constable has the task to ensure that during the criminal investigation the police observe all statutory rules and procedures. Also the regional prosecutor in whose region the relevant police district is situated, has a general power of supervision (Sect. 101 subs. 2 AJA). It depends on the workload of the regional prosecutor to which extent they can fulfil those duties. The regional prosecutor for Funen for example, has a good record of inspection of the relevant police districts, whereas the ordinary work-load of the regional prosecutor for Zealand is so heavy that inspection tours are few, undoubtedly too few.
As a starting point, the police is not obliged to prior consultation with the prosecution service in matters of investigation, but there are important exceptions, which are above all enumerated in the exhaustive and very detailed general instruction of the rigsadvokaten, RM 3/2002 (RM stands for Rigsadvokatens meddelelse).
1. An employee of the local legal staff of the chief constable (assistant or deputy chief constable, politifuldmægtig) will, as a matter of routine, be drawn in when a court order is necessary, because the police cannot act on their own in law, above all when the police/prosecution demand that a special means of coercion be employed. E.g., in a detention hearing, the equivalent of a habeas corpus, the prosecution is always represented in court by an employee with a legal degree (the big practical exception being the City of Copenhagen). Yet also, the Attorney General requires that a legally trained employee be consulted in big and complicated cases, esp. in cases where the prosecution may wish to curtail a case instead of pressing all counts that are theoretically possible. In other general instructions, rigsadvokaten has prescribed that a legally trained employee be drawn in in cases against medical personnel (RM 5/1998), and in more serious environmental cases (RM 9/1998).
The politifuldmægtig may give detailed instructions to the police concerning investigative activities. E.g., when a file has been passed on to a prosecutor for his decision on whether to prosecute or drop the case, it is not uncommon for him to send the file back to the police asking e.g. for the interrogation of an additional witness mentioned by other persons who have already given statements to police.
In cases conducted by the Serious Fraud Office (whose head has the title of statsadvokat, although he is not a regional prosecutor, as the office deals with offences committed in all of Denmark) plain-clothes detectives and legal staff co-operate in the investigation from day one.
Recently, a special office for the prosecution of certain international cases, especially war crimes, has been set up, whose head also has the title of statsadvokat. Also in this office there is close co-operation between lawyers and detectives.
2. The regional prosecutor must be consulted, or at least be kept informed, prior to the use of very costly means of investigation, also in cases where the accused has lodged a genuine complaint against the use of special means of coercion such as invasion of communication or the use of an undercover agent. RM 3/2002 details many of special cases where the regional prosecutor must be kept informed or consulted, too numerous to be fully recorded here. E.g., whereas the local prosecution service may apply for an ordinary psychiatric examination of the accused (mentalundersøgelse) at its own discretion, an application for committing the accused to a mental hospital for the duration of the examination – which inevitably entails a delay of several months and a corresponding lengthening of the period of pre-trial detention of the accused – can only be made after consultation with the regional prosecutor. There is no special requirement concerning the use of informants or infiltrators.
Though as mentioned in the introduction, most offences treated in the courts of first instance fall within the competence of the chief constables, the decision whether to prosecute is left to the regional prosecutor in a number of very serious or rare offences. E.g., for obvious reasons in order to obviate the risk of bias, cases where police officers are victims, or, the other way round, complaints against police officers concerning alleged offences committed in their own time, must be referred to the regional prosecutor (RM 9/1999). If the alleged offence is committed while on duty, it follows directly from the Sect. 1020c AJA that only the regional prosecutor has the right to decide whether to prosecute. Also, cases of perjury where the local court is affected, can only be prosecuted by the regional prosecutor. The politically very sensitive offence of utterances which can be regarded as threatening, insulting, or degrading a group of people because of their race, colour, national or ethnic origin, religion, or sexual inclination (Sect. 266b CC) also fall within the competence of the regional prosecutor (Sect. 719 AJA). The even more sensitive offence of blasphemy (Sect. 140 CC) can only be prosecuted by order from the Attorney General who has not initiated a case since 1967. Finally, offences allegedly committed by medical personnel are prosecuted by the regional prosecutor.
In addition to the cases where the decision to prosecute remains with the regional prosecutor, the Attorney General requires chief constables to seek the approval of the regional prosecutor as concerns a great number of rare and/or sensitive cases. For example, when other authorities have a legitimate interest in the case, especially if there is a difference of opinion between the police and an other authority. Furthermore, in cases concerning offences against European Union subsidies the Serious Fraud Office pursues the case before sending it on to the local prosecution service (RM 4/1998). If the chief constable intends to dismiss the case, he must consult the regional prosecutor first.
3. The Attorney General, rigsadvokaten, is to be notified, when the court has stated during the investigation or the trial proper that the legal conditions for the use of a means of investigation employed by the police were not fulfilled, or when the court has directly criticised the police for acting as they did (RM 6/1991).
4. If the case is not a common offence according to the Criminal Code or the Road Traffic Act, but is of a rarer kind, some specialised administrative agency will often be the complainant, and, some or most of the relevant investigation, may well have been carried out within the orbit of that agency. The Attorney General has in RM 3/2002 and other general instructions imposed close co-operation on the police and the administrative agency concerned. Above all, I shall mention offences against the environment. Although the chief constables have the formal power to prosecute or dismiss, RM 9/1998 requires that regional prosecutors be consulted – which in practice entails that the decision whether to prosecute is made by the regional prosecutor, although he does not sign the indictment – in almost all but trivial cases, and in the most important cases, even the Attorney General.
The chief constable, as head of the local prosecution service, may at any time set priorities on when to institute investigations and when not, and often does so. Although the regional prosecutor is – probably – not in law barred from expressing a wish for priorities, I have never heard of such cases in practice.
This chapter is rather short, because practical investigators and legally trained prosecutors work under the same authority and therefore, informal lines of communication suffice. Especially in serious fraud cases, co-operation is very intensive.
The Relation between the Public Prosecutor and the Police
On the local level, the police and the prosecution service are amalgamated in so far as the chief constable in each of the 54 police districts, politimesteren (in Copenhagen politidirektøren = commissioner), is both the independent chief of the local police force (Sect. 114 AJA) and head of the local prosecution service (Sect. 104 AJA). As far as I know, only Norway has a similar construction. Because of that double role, not only the legal staff of the police, but also the chief constable in person must have a legal degree (Sect. 113 AJA).
The chief constable is thus ultimately responsible for both a proper criminal investigation and for a smooth running of the prosecution service. The duties of the latter are aptly summarised in Sect. 96 AJA, requiring prosecutors not only to ensure that the guilty are called to account, but also that those innocent are not proceeded against – the so-called principle of objectivity – and also, to proceed with due speed, a commandment unfortunately not rarely sinned against in practice. In his day-to-day work the chief constable never appears in court in person – during my twenty one year tenure as a judge, the local chief constable has only once been present in court as a spectator, never as a prosecutor, and when I was deputy chief constable before being appointed as a judge, I was in all practical respects the senior prosecutor of the district.
It is now seriously considered, though not (yet) carried through, reducing the number of police districts from 54 to 25, rather for technical and operational reasons, than for reasons connected with the chief constables’ role as head of the prosecution service.
The chief constable has the task to ensure that during the criminal investigation the police observe all statutory rules and procedures. Also the regional prosecutor in whose region the relevant police district is situated, has a general power of supervision (Sect. 101 subs. 2 AJA). It depends on the workload of the regional prosecutor to which extent they can fulfil those duties. The regional prosecutor for Funen for example, has a good record of inspection of the relevant police districts, whereas the ordinary work-load of the regional prosecutor for Zealand is so heavy that inspection tours are few, undoubtedly too few.
As a starting point, the police is not obliged to prior consultation with the prosecution service in matters of investigation, but there are important exceptions, which are above all enumerated in the exhaustive and very detailed general instruction of the rigsadvokaten, RM 3/2002 (RM stands for Rigsadvokatens meddelelse).
1. An employee of the local legal staff of the chief constable (assistant or deputy chief constable, politifuldmægtig) will, as a matter of routine, be drawn in when a court order is necessary, because the police cannot act on their own in law, above all when the police/prosecution demand that a special means of coercion be employed. E.g., in a detention hearing, the equivalent of a habeas corpus, the prosecution is always represented in court by an employee with a legal degree (the big practical exception being the City of Copenhagen). Yet also, the Attorney General requires that a legally trained employee be consulted in big and complicated cases, esp. in cases where the prosecution may wish to curtail a case instead of pressing all counts that are theoretically possible. In other general instructions, rigsadvokaten has prescribed that a legally trained employee be drawn in in cases against medical personnel (RM 5/1998), and in more serious environmental cases (RM 9/1998).
The politifuldmægtig may give detailed instructions to the police concerning investigative activities. E.g., when a file has been passed on to a prosecutor for his decision on whether to prosecute or drop the case, it is not uncommon for him to send the file back to the police asking e.g. for the interrogation of an additional witness mentioned by other persons who have already given statements to police.
In cases conducted by the Serious Fraud Office (whose head has the title of statsadvokat, although he is not a regional prosecutor, as the office deals with offences committed in all of Denmark) plain-clothes detectives and legal staff co-operate in the investigation from day one.
Recently, a special office for the prosecution of certain international cases, especially war crimes, has been set up, whose head also has the title of statsadvokat. Also in this office there is close co-operation between lawyers and detectives.
2. The regional prosecutor must be consulted, or at least be kept informed, prior to the use of very costly means of investigation, also in cases where the accused has lodged a genuine complaint against the use of special means of coercion such as invasion of communication or the use of an undercover agent. RM 3/2002 details many of special cases where the regional prosecutor must be kept informed or consulted, too numerous to be fully recorded here. E.g., whereas the local prosecution service may apply for an ordinary psychiatric examination of the accused (mentalundersøgelse) at its own discretion, an application for committing the accused to a mental hospital for the duration of the examination – which inevitably entails a delay of several months and a corresponding lengthening of the period of pre-trial detention of the accused – can only be made after consultation with the regional prosecutor. There is no special requirement concerning the use of informants or infiltrators.
Though as mentioned in the introduction, most offences treated in the courts of first instance fall within the competence of the chief constables, the decision whether to prosecute is left to the regional prosecutor in a number of very serious or rare offences. E.g., for obvious reasons in order to obviate the risk of bias, cases where police officers are victims, or, the other way round, complaints against police officers concerning alleged offences committed in their own time, must be referred to the regional prosecutor (RM 9/1999). If the alleged offence is committed while on duty, it follows directly from the Sect. 1020c AJA that only the regional prosecutor has the right to decide whether to prosecute. Also, cases of perjury where the local court is affected, can only be prosecuted by the regional prosecutor. The politically very sensitive offence of utterances which can be regarded as threatening, insulting, or degrading a group of people because of their race, colour, national or ethnic origin, religion, or sexual inclination (Sect. 266b CC) also fall within the competence of the regional prosecutor (Sect. 719 AJA). The even more sensitive offence of blasphemy (Sect. 140 CC) can only be prosecuted by order from the Attorney General who has not initiated a case since 1967. Finally, offences allegedly committed by medical personnel are prosecuted by the regional prosecutor.
In addition to the cases where the decision to prosecute remains with the regional prosecutor, the Attorney General requires chief constables to seek the approval of the regional prosecutor as concerns a great number of rare and/or sensitive cases. For example, when other authorities have a legitimate interest in the case, especially if there is a difference of opinion between the police and an other authority. Furthermore, in cases concerning offences against European Union subsidies the Serious Fraud Office pursues the case before sending it on to the local prosecution service (RM 4/1998). If the chief constable intends to dismiss the case, he must consult the regional prosecutor first.
3. The Attorney General, rigsadvokaten, is to be notified, when the court has stated during the investigation or the trial proper that the legal conditions for the use of a means of investigation employed by the police were not fulfilled, or when the court has directly criticised the police for acting as they did (RM 6/1991).
4. If the case is not a common offence according to the Criminal Code or the Road Traffic Act, but is of a rarer kind, some specialised administrative agency will often be the complainant, and, some or most of the relevant investigation, may well have been carried out within the orbit of that agency. The Attorney General has in RM 3/2002 and other general instructions imposed close co-operation on the police and the administrative agency concerned. Above all, I shall mention offences against the environment. Although the chief constables have the formal power to prosecute or dismiss, RM 9/1998 requires that regional prosecutors be consulted – which in practice entails that the decision whether to prosecute is made by the regional prosecutor, although he does not sign the indictment – in almost all but trivial cases, and in the most important cases, even the Attorney General.
The chief constable, as head of the local prosecution service, may at any time set priorities on when to institute investigations and when not, and often does so. Although the regional prosecutor is – probably – not in law barred from expressing a wish for priorities, I have never heard of such cases in practice.
This chapter is rather short, because practical investigators and legally trained prosecutors work under the same authority and therefore, informal lines of communication suffice. Especially in serious fraud cases, co-operation is very intensive.
