The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
Public prosecutors are appointed by the state in a public career system. Most are appointed directly by the Minister of Justice, but the higher echelons – the Attorney General, the regional prosecutors, the head of the Serious Fraud Office, the chief constables, and the deputies of all these officials – are appointed by the King (today the Queen regnant) on the advice of the Minister of Justice who countersigns the appointment. Although the politically responsible Minister of Justice is directly and solely responsible for the appointment of public prosecutors – unlike the judges, where since 1999 the Courts’ Appointment Board, Dommerudnævnelsesrådet, in practice decides whom to appoint – politically motivated appointments are unheard of in Denmark. During the latter part of the 20th century, the proportion of women in the prosecution service – and in the courts – has risen spectacularly.
The number of employees with a legal degree in the police (including the prosecution service) is a little more than 400, out of about 8,000 uniformed police officers, about 2,000 plain-clothes detectives, and about 2,000 clerical staff.
As for the ranks of public prosecutors the most humble prosecutors are strictly speaking not appointed as prosecutors at all. In petty cases, especially concerning violations of the Road Traffic Act, a police sergeant often represents the prosecution service in court. When the role of prosecutor is not filled by rotation, and the same sergeant is allowed to perform this role for many years, a vast experience may be gained.
As for prosecutors with a legal degree, the lowest rank is politifuldmægtig, after about ten years automatically renamed politiassessor, corresponding to assistant chief constable. The first step of promotion is to politiassessor af første grad, assistant chief constable first grade, and the majority remain in that rank. In the 53 police districts outside Copenhagen the next step is vicepolitimester, deputy chief constable – one, or possibly two, per district – and the last chief constable. When, and if, the amalgamation of police forces is carried out, the number of chief constables will be reduced correspondingly, but the corps of prosecutors will probably be compensated by a rise in the number of deputy chief constables. In Copenhagen, the step after Assistant chief constable first grade is politiadvokat. Unlike the deputy chief constable outside Copenhagen, who is both prosecutor and deputy head of police, the politiadvokat is only senior prosecutor. The next step is vicepolitidirektør, deputy commissioner, and the last politidirektør, commissioner of the Copenhagen police.
In regional prosecutors’ offices, in the Serious Fraud Office, and in the new office for the prosecution of international cases there is also a four-step scale, politifuldmægtig (with age politiassessor), statsadvokatassessor af første grad or assistant regional prosecutor first grade, vicestatsadvokat or regional prosecutor and, finally statsadvokat. In the Attorney General’s office there is a five-step scale, the first three the same as in the regional prosecutors’ offices, the fourth being statsadvokat and the fifth rigsadvokat.
In addition to the permanent prosecutors, it is possible for the regional prosecutor to retain an attorney in private practice to represent the Crown in a particular case, just like barristers in Great Britain. Until 1919 this happened all the time. After 1919, the practice was retained for some, though not all bigger cases, esp. in cases for the Eastern High Court (in Copenhagen); today the practice is dwindling, if not totally discontinued.
As for special national prosecutors, the most important are the corps of military prosecutors, auditørkorpset, each prosecutor called auditør. There are five auditører in all. All military penal cases are entrusted to them. Their head, generalauditøren, has the same position as the Attorney General in civilian penal cases. They are lawyers, all former civilian prosecutors. In military cases the Military Administration of Justice Act supplements the ordinary AJA. The military justice system, also the Military Penal Code, is in course of reform, but the main outlines of the system are retained, including the special corps of auditører.
In two groups of cases, fiscal cases and cases concerning offences against European Union subsidies, the administrative departments concerned have limited powers of prosecution, i.e. the same right as the police to propose a compound fine to the suspect (Sect. 924 AJA) as described below. In other administrative cases, the authority concerned has no power to propose a fine directly to the suspect, but must refer the case to the police, who will take over the matter, normally in co-operation with the complainant, and take guidance from that authority before determining a compound fine. If the case goes to court, the police as the normal prosecution service has sole competency to decide whether to prosecute or not, also in fiscal cases and European Union subsidies cases. If the police and the competent administrative agency disagree as to the decision to prosecute, the police must refer the case to the regional prosecutor (RM 3/2002) and the administrative agency must be given the opportunity to argue its opinion before the case is forwarded to the regional prosecutor (RM 6/1994). RM 3/2002 gives detailed instructions covering a wide scale of specific rare offences, too numerous to detail here, normally by ordering the police to confer with the relevant administrative agency and passing on final decisions, especially judgments.
The highest authority in the prosecution service is in practice the Attorney General, but in theory the Minister of Justice, who not only has supervision over the service, appoints the prosecutors, issues general circulars concer¬ning the service, and decides upon complaints against certain – by no means all – decisions made by the Attorney General. The Minister of Justice also has legal power to intervene in each and every case, to initiate or to stop it, even against the wishes of the prosecution service (Sect. 98 AJA). This power has been criticised because of its potential political implications, especially since Parliament, Folketinget, has the power, if not to make the actual decision whether to prosecute, then at least to threaten the Minister with a vote of no confidence unless the wishes of the majority are met. In practice, however, both Government and Parliament have acted with great restraint, and perhaps that is why the system has been allowed to survive this long! During the past twenty years there have been a couple of cases where Folketinget came perilously close, especially in a military case in 1986, when a majority of the Defense Committee of Folketinget expressed a strong wish that the already initiated prosecution against a naval officer for negligence in connection with the accidental discharge of a missile be stopped. The Minister of Defense (who in military cases replaces the Minister of Justice) refused to act; there was a potential hostile majority in Folketinget, but in the end the politicians backed down, and the case continued, the officer being found guilty and punished very leniently. Recently, some experts and politicians have advocated a change in the law so that the power of the Minister to intervene be either curtailed or made more formal and open. Whether the system will in fact be changed, I cannot say.
In one very sensitive group of cases, i.e. cases concerning the safety of the realm, an indictment can only be filed upon the order of the Minister of Justice (Sect. 118a CC).
Both the Minister of Justice and the Attorney General can be said to supervise the implementation of a proper prosecution policy. Formal guidelines have not been issued, but it has been made clear to the police that crimes against personal integrity are to be given general priority. In the daily dealings in court and in the local prosecution service such practical priorities become noticeable e.g. in that a rising number of rather weak cases of bodily assault reach the courts instead of being dropped for lack of evidence. When I asked an experienced local prosecutor informally, after an acquittal or an only nominal sentence, why the case had not been strangled at birth, the answer has been that he did turn down the case initially, but that the complainant appealed to the regional prosecutor, who in turn ordered him to go on with the case.
The prosecution service has monopoly over prosecutions, except for a very small number of so-called private penal cases, offences such as libel and slander which the victim prosecutes himself in the civil courts. In all other cases the prosecution service is sole prosecutor. As seen above, other administrative departments may only make suggestions and possibly complain to a higher-ranking prosecutor, but cannot prosecute on their own, and the same applies to a private complainant. If the competent prosecutor refuses to act, the complainant can appeal to a higher-ranking prosecutor – only one step up – however, he cannot appeal to the courts or initiate a criminal case on his own, and can only bring a civil case for damages.
The criteria for dismissing a case without prosecution, which are listed in Sect. 721 AJA, are as follows:
1. the registered complaint is manifestly ill-founded, in which case not only the prosecution service, but also the police, can dismiss the case;
2. further action is not expected to bring about a conviction;
3. costs, expected length of proceedings, or amount of work are out of proportion to the importance of the case or the expected penalty.
The most interesting is the last criterion, which is often exercised not by dismissing the entire case, but by curtailing the case by dismissing single counts, leaving out potential co-defendants etc. A good practical example is my own trial in 1987-88 following the collapse of an important regional bank, Kronebanken, because of reckless lending amounting to criminal mismanagement, and breach of trust. The Serious Fraud Office tailored the case - rightly, in my view. Firstly, by only prosecuting three high officials and not underlings, nor the largely misled board, nor even the accountants, who were left to their own organisation’s disciplinary committee. Secondly, by only indicting for the largest potential count concerning operations inter alia in the murky waters of Nigerian finance and officialdom. Thirdly, by only including acts within the last two years before the collapse, but even then there were more than 70 days in court and a written judgment of 569 pages. Curtailing the case is generally tempting but potentially dangerous, if too much is left out, and RM 3/2002 requires that the question be referred by the chief constable to the regional prosecutor, if it is envisaged to drop the entire case or to leave out potential co-defendants altogether, and the counts left out could be expected to bring about a custodial sentence, or if the curtailment will result in a radically altered sanction.
The law and the general instructions only regulate the decision to drop the case, but not the potentially even more dangerous situation where the police register a complaint and then shelve it without further action, but without formally dismissing the case. Recently, in the police district of Frederikssund a great scandal exploded, when it emerged that many hundred cases, which had been passed on from uniformed police or detectives to local prosecutors, remained shelved there without proper prosecution. One single official was responsible for up to half of those cases. In order not to be submerged completely, the chief constable once or twice a year ordered wholesale dismissal of whole lots of cases without proper deliberation. This included some very strong cases, and even a few in which the suspect had made a confession. The reason was chiefly lack of sufficient personnel, but also bad planning and a hopeless lack of prioritising within the local prosecution service. It is expected that the regional prosecutors’ powers and practical possibilities of intervening be strengthened. In this district the amount of work had been dramatically higher than usual during several years, as a result of some very big cases of economic crime, for which reason the chief constable had repeatedly complained and asked for assistance. From higher levels in the prosecution service there had been no response to his requests – as here, also, officials were overburdened. Therefore, no disciplinary action was taken, except for strong censure. Yet, also in my own, less overburdened, jurisdiction, undoubtedly like other districts, I discern a tendency that cases – except for offences of bodily assault which are investigated and prosecuted speedily, and cases where the suspect is in pre-trial detention, which mostly applies to suspects with a large number of previous convictions – are left on desks of prosecutors far too long, without a line of priority being discernible.
The Minister of Justice is politically accountable for the policy of the prosecution service (in military cases the Minister of Defense). As stated earlier, Parliament has, in the instrument of a vote of no confidence, the power to question the Minister’s exercise of his authority, but Parliament also has a record of self-restraint. Whereas Parliament never or almost never exercises its power, many members of Parliament express opinions, normally in the direction of urging more zeal in the exercise of prosecution, swifter justice, more severe penalties etc., but the impact of such pronouncements is probably only marginal.
There is one classic example of Parliament deciding a question of general policy regarding prosecution. In 1969 a proposed circular letter from the Attorney General to all other prosecutors that only a warning be employed in case of first time possession of very small amounts of drugs for personal use was submitted to Parliament before being issued. It should be noted first, that such possession is still considered an offence, as the drug in question is liable to confiscation, and in case of a repeated possession a fine will be administered. In a way, Parliament ‘legislated’ informally by not opposing the circular letter, thus accepting partial discretion in such cases. Recently, several politicians have advocated a more severe practice, imposing a fine also for first-time possession, so that the pendulum may well swing the other way.
Concerning the formulation of instructions on the exercise of prosecution policy in general or in individual cases the following can be stated.
The Minister of Justice has, as remarked above, in theory very wide powers, but only intervenes rarely. Even the very important general regulation no. 621 of June 25, 2001 on the exercise of prosecutorial discretion, the predecessors of which were issued by the then Ministers of Justice, was issued by the Attorney General, citing the authority of the Minister. Some early, not repealed general instructions remain as issued by the Minister of Justice, e.g., the very important circular no. 36 of February 18 1966, enjoining that the Attorney General be notified of all genuine cases against public employees – and the old circular no. 194 of July 16, 1949, on the duty of notification of cases against anyone who has received a Royal decoration – nothing is too small to be regulated –!
The Attorney General gives detailed general instructions, especially the detailed RM 3/2002. Most of this instruction consists of orders to the lower prosecutors to submit single cases or groups of cases to the Attorney General, or from the chief constable to the regional prosecutor or the administrative agency concerned, or possibly to notify decisions in single cases or groups of cases to such authorities. The list of (groups of) cases where the Attorney General is to be notified, numbers as much as twenty items. The point which comes closest to the formulation of a general policy – as distinct from many points where good order is the main motive for regulation – is the duty of periodical notification of speed or delay of cases of bodily assault, from the chief constables to the regional prosecutors every three months, and from these to the Attorney General every six months. As there is no corresponding order to notify delay in other groups of cases, it is thus made abundantly clear that cases of bodily assault have priority over other cases.
A point which may seem amusing to officials of criminal justice systems other than the Danish, is the instruction that every judgment of acquittal, in full or at least on all important counts, be notified from the chief constable to the regional prosecutor, though not necessarily in time for an appeal. The reason why is that it is a general policy that if an acquittal is the expected outcome, an experienced prosecutor ought to dismiss the case without a formal indictment. When one prosecutor ‘loses’ many cases, at least those where the result would seem a foregone conclusion to an experienced observer, something should be done about that prosecutor. This does of course not apply to prosecutors acting in cases where, for example, witnesses change their story in court.
A distinct policy is also present in RM 2/2000 ordering chief constables to notify the competent regional prosecutor of all cases without exception, where the suspect is remanded in pre-trial detention for three months or more, and ordering the regional prosecutors to inform the Attorney General once a year of the number of such cases. The instruction directly states as an objective that the amount of long periods of pre-trial detention be reduced.
The large, and constantly growing bulk of instructions from the Attorney General to other prosecutors shows the latter are the object of instructions from above to a far greater extent than a generation ago, when I was a prosecutor.
The Danish prosecution service is not statutorily obliged to prosecute every crime brought to its notice, but may to a certain extent waive prosecution or exercise discretion.
The AJA does not formulate a distinct principle of legality or of opportunity, and moreover, it does not expressly enjoin the prosecution to prosecute in any case at all, but there is no doubt that by listing in detail the cases where discretion is possible, the AJA presupposes a duty to prosecute when the evidence so warrants, and grounds for discretion do not apply.
Discretion or waiver of prosecution – the latter term is the more literal translation of the Danish tiltalefrafald – is according to Sect. 722 subs. 1 AJA, possible in the following cases:
1. where only a fine is applicable and the offence is of a minimal nature - possibly, though now rarely, combined with a caution, informal or formal. The practice of cautioning in case of first time possession of a small amount of drugs for personal use is probably the most important example of the use of the formal caution in practice. Before, first time shoplifting to an amount not exceeding 300 Dkr. (about € 40,-) would be followed by a written caution, but this is now discontinued, and a fine is always applied. Also, many minor violations of the Road Traffic Act are undoubtedly ‘sanctioned’ by the policeman only cautioning or even turning a blind eye. Also, fiscal agencies and many other administrative agencies have adopted a practice of only reporting repeated offences or offences exceeding a threshold delimited by the agency itself;
2. where social proceedings are to be applied, often used when the accused is a minor under the age of 18;
3. when the accused was a minor at the time of the offence and some conditions will be imposed, typically social proceedings as in 2) or the acceptance of a fine and/or confiscation;
4. when the accused has already been sentenced abroad or sentenced after the offence for other, typically more serious crimes, so that no or only a nominal supplementary penalty will presumably be imposed;
5. where the expected costs etc. are out of proportion, i.e., the same grounds as for dismissal described above, the difference being that whereas dismissal presupposes a lack of faith in the strength of the evidence, discretion is to be applied in cases where the accused is presumed guilty;
6. where a special statute legitimises a waiver;
7. according to general rules enacted – publicly – by the Minister of Justice or the Attorney General, now the general regulation no. 621/2001 detailing inter alia trivial cases of assault, indecency, contravention of the Drugs Act, asylum seekers’ first entering the country on forged papers and so forth.
The same authority is competent as to either decide to prosecute or to use discretion.
Under exceptional mitigating circumstances or other special circumstances a higher-ranking prosecutor – i.e., the regional prosecutor, when the chief constable is competent, which is especially since 1992, the most common case, but the Attorney General, when the regional prosecutor is, exceptionally, competent – can waive prosecution, if proceedings are not necessitated for the common good, Sect. 722 subs. 2 AJA. Theoretically speaking, such waiver is possible in all cases whatsoever, but in practice the following groups are the most common or the least uncommon:
- cases where the accused is already undergoing the same treatment as would probably be the outcome of the new case, e.g., in a psychiatric ward;
- where the accused is mentally deviant, but no special treatment seems necessary;
- where, in a road traffic case, the accused has by negligence caused the death or very serious bodily harm to somebody very close to himself or, possibly, more rarely, very serious bodily harm to himself, note: cases of drink driving are excluded;
- very mitigating cases of sexual intercourse with a minor (the normal age of consent is 15 years, but discretion is in practice applied when the child is 14 and the offender less than 18 years old);
- when the accused is an alien and has already left the country, and proceedings abroad would be unduly cumbersome.
It must, however, be stressed that the list is not exclusive, and that even a very serious case can be included – and do not forget the Minister of Justice’s powers!
In theory the system is characterised as based on the principle of opportunity, but still a system bound by rules. It can safely be said that prosecutors almost always take action when so warranted by the evidence.
Any tendency towards arbitrariness is – probably effectively – thwarted by the need to refer the case a step upwards in the hierarchy (Sect. 722 subs. 3 AJA) and, before, when the Attorney General had sole competence cases where discretion was based on exceptional circumstances, by the long tradition of publishing his practice in publicly accessible Annual Reports, also forwarded to all other prosecutors. As the chief constables today exercise the decision to prosecute in many cases, where before the regional prosecutor was competent, the power to use discretion on the ground of exceptional circumstances is placed only one step upwards, and lies now with the regional prosecutor, not with the Attorney General. However, this does not cause any discontinuity as the regional prosecutors seem to adhere to past practice of the Attorney General.
The grounds for non-prosecution due to technicalities are above all listed in group 4) under Sect. 722 AJA. If the accused has already been sentenced abroad or sentenced after the offence for other, typically more serious, crimes, no or only a nominal supplementary penalty will presumably be imposed. In practice, such non-prosecution is applied extremely often, when prosecutors forward cases to court with a view to shortened trial resulting in judgment on the basis of a confession strengthened by, what may best be described as, prima facie-evidence (Sect. 922 AJA). A shortened trial is a trial before a single judge without lay assessors or jury and consisting only of a statement by the accused – a full statement, not a simple plea of guilty – whereby witnesses are not heard. When, in such a case, the prosecution tenders several counts, and the accused confesses to some, but not all, the prosecution may well decide to ask for conviction only for the admitted counts, at the same time intimating that the prosecution is willing to waive the disputed counts (the same applies, if the accused combines a confession with the claim of mitigating circumstances, and the prosecution decides to refrain from pressing for judgment without mitigating circumstances). Whether such reduction of the charge is to be classed as partial dismissal or discretion – probably the first – is immaterial. Such reduction of the charge may be applied either in writing when forwarding the case to the court or in court itself. As long ago as by circular no. 216 of September 29, 1919, two days before the AJA was due to enter into force, the first Attorney General empowered the prosecutor in court – normally an assistant chief constable – to reduce the charge in order to secure judgment upon confession without having to obtain the consent of the then competent regional prosecutor.
Whereas a decision to prosecute is not motivated, a decision not to prosecute is regarded as an administrative decision entailing a duty to motivate in writing (Sects. 22-24 Act on Public Administration, Forvaltningsloven,) and the interested party, normally the complainant or victim, must be informed about his possible right to complain to a higher-ranking official.
A settlement of a criminal case out of court is in Danish law above all the compound fine, bødeforelæg, which plays a very important role in practice. In a normal year, more than 200,000 cases are settled by means of a compound fine, compared to (in the year 2000) 14,242 cases in shortened trial following a confession, 62,358 cases before a single judge in normal adversary proceedings, 11,914 cases in a mixed court with lay assessors and 78 cases before a jury. In all cases where the prosecution does not claim a higher penalty than a fine – also if the offence as described in the relevant act carries a higher maximum – the ‘indictment’ (the same heading is retained) is not sent to the court, but to the accused, setting out the alleged offence exactly as in a normal indictment and adding that the case may be settled by payment of a fine stipulated at the bottom of the letter (Sect. 924 AJA). A postal cheque form is enclosed, although the accused may only declare his willingness to pay the fine and ask for permission to pay by instalments. The policeman is also entitled to hand out a ticket on the spot for a few clear and trivial offences according to the Road Traffic Act enumerated by the Minister of Justice (Sect. 924 subs. 4 AJA). In that case there is an upper limit of 1,000 Dkr., about 130 Euro, to the fine proposed, whereas there is no limit to the fine which may be proposed by writing. In 1984 – by the way, the same year when the maximum of 2,000 Dkr. for settling a fine out of court was abolished – the possibility to settle for disqualification (whether absolute or suspended) of a driver in cases of drink driving was also introduced, as long as the penalty is only a fine (Sect. 119a Road Traffic Act). Although Sect. 924 AJA puts as a condition that the accused pleads guilty to the offence, in practice this has been modified so that naked payment or acceptance suffices. Nevertheless, if the accused pays, but declares his innocence in a simultaneous letter – it does happen sometimes – adding that he only pays in order to avoid the bother and loss of time of appearing in court, the conditions will be regarded as unfulfilled and the case referred to the court. This also applies to cases where the accused either denies culpability or simply stays passive. On the other hand, the accused cannot claim a compound fine as of right, for example in order to avoid the publicity of going to court.
Normally the compound fine is proposed by the police, but in fiscal cases and cases concerning offences against European Union subsidies the department concerned may also propose a compound fine. If the case must go to court however, only the normal prosecution service is competent.
If the accused, having by passivity caused the case to be referred to the court, also stays away having been summoned to court, the judge is entitled to convict and sentence on the spot, except if it appears blatantly that the accused is innocent or that, e.g., limitation has occurred (Sect. 934 AJA). The accused is notified of that risk in the summons. If, however, the accused appears, the case is conducted entirely on normal lines including the principle in dubio pro reo, the prosecution’s attempt to expedite the case by means of a compound fine creating no presumption against the accused. If the suspect agrees to the fine, the case is closed, and the settlement is regarded as if it were a proper sentence, including the case of a repeated offence. An accepted compound fine is recorded in the criminal record of the accused to the same extent as a judgment, e.g. a fine for petty shoplifting is recorded independent from whether the accused accepts a compound fine or is sentenced by the court to pay a fine.
There is no appeal from an accepted fine, but the accused may, if he repents of having accepted, complain to a higher-ranking prosecutor, who always has the power to revoke the decision, normally within a two-months period (Sect. 724 AJA). In a fiscal case the accused can repent within six months from the acceptance of the fine. If it should emerge that the accused was in fact innocent, a free pardon will probably be granted, of course that is an extremely rare case.
While a confiscation order or an order for costs, e.g. costs for removing a motor vehicle, may be imposed and accepted at the same time as the fine, a compensation order cannot be settled simultaneously. Normally the police ought to check that there are no outstanding questions of damages before proposing a fine, afterwards it is too late; but in road traffic cases – and cases according to the Dogs Act – it is possible to ask the Criminal Court to decide on questions of damages by demand of the injured party even after settlement of the penalty (Sect. 115 Road Traffic Act).
Both police and fiscal authorities have a detailed list of normal fines prepared by the Attorney General, and this list is nick-named fines’ catalogue by police as it is normally followed by the court. The main principles of the catalogue have been subject to test cases, sometimes even in the Supreme Court, so it could be said that the prosecution follows the courts rather than the other way round. As the lists are publicly known, the majority of the accused do not contest the case in court.
As the offer from the police is normally in the nature of ‘take it or leave it’ and is not negotiable, the compound fine cannot be likened to plea bargaining. If the accused does not accept the offer, the case will normally be go to court. Of course, when the accused upon receiving the letter, informs the police of an important, hitherto unknown, fact, the prosecutor may think twice and reduce or even remit the fine.
In Denmark no other means of settlement than the compound fine does exist.
The Relation between the Public Prosecutor and the Minister of Justice
Public prosecutors are appointed by the state in a public career system. Most are appointed directly by the Minister of Justice, but the higher echelons – the Attorney General, the regional prosecutors, the head of the Serious Fraud Office, the chief constables, and the deputies of all these officials – are appointed by the King (today the Queen regnant) on the advice of the Minister of Justice who countersigns the appointment. Although the politically responsible Minister of Justice is directly and solely responsible for the appointment of public prosecutors – unlike the judges, where since 1999 the Courts’ Appointment Board, Dommerudnævnelsesrådet, in practice decides whom to appoint – politically motivated appointments are unheard of in Denmark. During the latter part of the 20th century, the proportion of women in the prosecution service – and in the courts – has risen spectacularly.
The number of employees with a legal degree in the police (including the prosecution service) is a little more than 400, out of about 8,000 uniformed police officers, about 2,000 plain-clothes detectives, and about 2,000 clerical staff.
As for the ranks of public prosecutors the most humble prosecutors are strictly speaking not appointed as prosecutors at all. In petty cases, especially concerning violations of the Road Traffic Act, a police sergeant often represents the prosecution service in court. When the role of prosecutor is not filled by rotation, and the same sergeant is allowed to perform this role for many years, a vast experience may be gained.
As for prosecutors with a legal degree, the lowest rank is politifuldmægtig, after about ten years automatically renamed politiassessor, corresponding to assistant chief constable. The first step of promotion is to politiassessor af første grad, assistant chief constable first grade, and the majority remain in that rank. In the 53 police districts outside Copenhagen the next step is vicepolitimester, deputy chief constable – one, or possibly two, per district – and the last chief constable. When, and if, the amalgamation of police forces is carried out, the number of chief constables will be reduced correspondingly, but the corps of prosecutors will probably be compensated by a rise in the number of deputy chief constables. In Copenhagen, the step after Assistant chief constable first grade is politiadvokat. Unlike the deputy chief constable outside Copenhagen, who is both prosecutor and deputy head of police, the politiadvokat is only senior prosecutor. The next step is vicepolitidirektør, deputy commissioner, and the last politidirektør, commissioner of the Copenhagen police.
In regional prosecutors’ offices, in the Serious Fraud Office, and in the new office for the prosecution of international cases there is also a four-step scale, politifuldmægtig (with age politiassessor), statsadvokatassessor af første grad or assistant regional prosecutor first grade, vicestatsadvokat or regional prosecutor and, finally statsadvokat. In the Attorney General’s office there is a five-step scale, the first three the same as in the regional prosecutors’ offices, the fourth being statsadvokat and the fifth rigsadvokat.
In addition to the permanent prosecutors, it is possible for the regional prosecutor to retain an attorney in private practice to represent the Crown in a particular case, just like barristers in Great Britain. Until 1919 this happened all the time. After 1919, the practice was retained for some, though not all bigger cases, esp. in cases for the Eastern High Court (in Copenhagen); today the practice is dwindling, if not totally discontinued.
As for special national prosecutors, the most important are the corps of military prosecutors, auditørkorpset, each prosecutor called auditør. There are five auditører in all. All military penal cases are entrusted to them. Their head, generalauditøren, has the same position as the Attorney General in civilian penal cases. They are lawyers, all former civilian prosecutors. In military cases the Military Administration of Justice Act supplements the ordinary AJA. The military justice system, also the Military Penal Code, is in course of reform, but the main outlines of the system are retained, including the special corps of auditører.
In two groups of cases, fiscal cases and cases concerning offences against European Union subsidies, the administrative departments concerned have limited powers of prosecution, i.e. the same right as the police to propose a compound fine to the suspect (Sect. 924 AJA) as described below. In other administrative cases, the authority concerned has no power to propose a fine directly to the suspect, but must refer the case to the police, who will take over the matter, normally in co-operation with the complainant, and take guidance from that authority before determining a compound fine. If the case goes to court, the police as the normal prosecution service has sole competency to decide whether to prosecute or not, also in fiscal cases and European Union subsidies cases. If the police and the competent administrative agency disagree as to the decision to prosecute, the police must refer the case to the regional prosecutor (RM 3/2002) and the administrative agency must be given the opportunity to argue its opinion before the case is forwarded to the regional prosecutor (RM 6/1994). RM 3/2002 gives detailed instructions covering a wide scale of specific rare offences, too numerous to detail here, normally by ordering the police to confer with the relevant administrative agency and passing on final decisions, especially judgments.
The highest authority in the prosecution service is in practice the Attorney General, but in theory the Minister of Justice, who not only has supervision over the service, appoints the prosecutors, issues general circulars concer¬ning the service, and decides upon complaints against certain – by no means all – decisions made by the Attorney General. The Minister of Justice also has legal power to intervene in each and every case, to initiate or to stop it, even against the wishes of the prosecution service (Sect. 98 AJA). This power has been criticised because of its potential political implications, especially since Parliament, Folketinget, has the power, if not to make the actual decision whether to prosecute, then at least to threaten the Minister with a vote of no confidence unless the wishes of the majority are met. In practice, however, both Government and Parliament have acted with great restraint, and perhaps that is why the system has been allowed to survive this long! During the past twenty years there have been a couple of cases where Folketinget came perilously close, especially in a military case in 1986, when a majority of the Defense Committee of Folketinget expressed a strong wish that the already initiated prosecution against a naval officer for negligence in connection with the accidental discharge of a missile be stopped. The Minister of Defense (who in military cases replaces the Minister of Justice) refused to act; there was a potential hostile majority in Folketinget, but in the end the politicians backed down, and the case continued, the officer being found guilty and punished very leniently. Recently, some experts and politicians have advocated a change in the law so that the power of the Minister to intervene be either curtailed or made more formal and open. Whether the system will in fact be changed, I cannot say.
In one very sensitive group of cases, i.e. cases concerning the safety of the realm, an indictment can only be filed upon the order of the Minister of Justice (Sect. 118a CC).
Both the Minister of Justice and the Attorney General can be said to supervise the implementation of a proper prosecution policy. Formal guidelines have not been issued, but it has been made clear to the police that crimes against personal integrity are to be given general priority. In the daily dealings in court and in the local prosecution service such practical priorities become noticeable e.g. in that a rising number of rather weak cases of bodily assault reach the courts instead of being dropped for lack of evidence. When I asked an experienced local prosecutor informally, after an acquittal or an only nominal sentence, why the case had not been strangled at birth, the answer has been that he did turn down the case initially, but that the complainant appealed to the regional prosecutor, who in turn ordered him to go on with the case.
The prosecution service has monopoly over prosecutions, except for a very small number of so-called private penal cases, offences such as libel and slander which the victim prosecutes himself in the civil courts. In all other cases the prosecution service is sole prosecutor. As seen above, other administrative departments may only make suggestions and possibly complain to a higher-ranking prosecutor, but cannot prosecute on their own, and the same applies to a private complainant. If the competent prosecutor refuses to act, the complainant can appeal to a higher-ranking prosecutor – only one step up – however, he cannot appeal to the courts or initiate a criminal case on his own, and can only bring a civil case for damages.
The criteria for dismissing a case without prosecution, which are listed in Sect. 721 AJA, are as follows:
1. the registered complaint is manifestly ill-founded, in which case not only the prosecution service, but also the police, can dismiss the case;
2. further action is not expected to bring about a conviction;
3. costs, expected length of proceedings, or amount of work are out of proportion to the importance of the case or the expected penalty.
The most interesting is the last criterion, which is often exercised not by dismissing the entire case, but by curtailing the case by dismissing single counts, leaving out potential co-defendants etc. A good practical example is my own trial in 1987-88 following the collapse of an important regional bank, Kronebanken, because of reckless lending amounting to criminal mismanagement, and breach of trust. The Serious Fraud Office tailored the case - rightly, in my view. Firstly, by only prosecuting three high officials and not underlings, nor the largely misled board, nor even the accountants, who were left to their own organisation’s disciplinary committee. Secondly, by only indicting for the largest potential count concerning operations inter alia in the murky waters of Nigerian finance and officialdom. Thirdly, by only including acts within the last two years before the collapse, but even then there were more than 70 days in court and a written judgment of 569 pages. Curtailing the case is generally tempting but potentially dangerous, if too much is left out, and RM 3/2002 requires that the question be referred by the chief constable to the regional prosecutor, if it is envisaged to drop the entire case or to leave out potential co-defendants altogether, and the counts left out could be expected to bring about a custodial sentence, or if the curtailment will result in a radically altered sanction.
The law and the general instructions only regulate the decision to drop the case, but not the potentially even more dangerous situation where the police register a complaint and then shelve it without further action, but without formally dismissing the case. Recently, in the police district of Frederikssund a great scandal exploded, when it emerged that many hundred cases, which had been passed on from uniformed police or detectives to local prosecutors, remained shelved there without proper prosecution. One single official was responsible for up to half of those cases. In order not to be submerged completely, the chief constable once or twice a year ordered wholesale dismissal of whole lots of cases without proper deliberation. This included some very strong cases, and even a few in which the suspect had made a confession. The reason was chiefly lack of sufficient personnel, but also bad planning and a hopeless lack of prioritising within the local prosecution service. It is expected that the regional prosecutors’ powers and practical possibilities of intervening be strengthened. In this district the amount of work had been dramatically higher than usual during several years, as a result of some very big cases of economic crime, for which reason the chief constable had repeatedly complained and asked for assistance. From higher levels in the prosecution service there had been no response to his requests – as here, also, officials were overburdened. Therefore, no disciplinary action was taken, except for strong censure. Yet, also in my own, less overburdened, jurisdiction, undoubtedly like other districts, I discern a tendency that cases – except for offences of bodily assault which are investigated and prosecuted speedily, and cases where the suspect is in pre-trial detention, which mostly applies to suspects with a large number of previous convictions – are left on desks of prosecutors far too long, without a line of priority being discernible.
The Minister of Justice is politically accountable for the policy of the prosecution service (in military cases the Minister of Defense). As stated earlier, Parliament has, in the instrument of a vote of no confidence, the power to question the Minister’s exercise of his authority, but Parliament also has a record of self-restraint. Whereas Parliament never or almost never exercises its power, many members of Parliament express opinions, normally in the direction of urging more zeal in the exercise of prosecution, swifter justice, more severe penalties etc., but the impact of such pronouncements is probably only marginal.
There is one classic example of Parliament deciding a question of general policy regarding prosecution. In 1969 a proposed circular letter from the Attorney General to all other prosecutors that only a warning be employed in case of first time possession of very small amounts of drugs for personal use was submitted to Parliament before being issued. It should be noted first, that such possession is still considered an offence, as the drug in question is liable to confiscation, and in case of a repeated possession a fine will be administered. In a way, Parliament ‘legislated’ informally by not opposing the circular letter, thus accepting partial discretion in such cases. Recently, several politicians have advocated a more severe practice, imposing a fine also for first-time possession, so that the pendulum may well swing the other way.
Concerning the formulation of instructions on the exercise of prosecution policy in general or in individual cases the following can be stated.
The Minister of Justice has, as remarked above, in theory very wide powers, but only intervenes rarely. Even the very important general regulation no. 621 of June 25, 2001 on the exercise of prosecutorial discretion, the predecessors of which were issued by the then Ministers of Justice, was issued by the Attorney General, citing the authority of the Minister. Some early, not repealed general instructions remain as issued by the Minister of Justice, e.g., the very important circular no. 36 of February 18 1966, enjoining that the Attorney General be notified of all genuine cases against public employees – and the old circular no. 194 of July 16, 1949, on the duty of notification of cases against anyone who has received a Royal decoration – nothing is too small to be regulated –!
The Attorney General gives detailed general instructions, especially the detailed RM 3/2002. Most of this instruction consists of orders to the lower prosecutors to submit single cases or groups of cases to the Attorney General, or from the chief constable to the regional prosecutor or the administrative agency concerned, or possibly to notify decisions in single cases or groups of cases to such authorities. The list of (groups of) cases where the Attorney General is to be notified, numbers as much as twenty items. The point which comes closest to the formulation of a general policy – as distinct from many points where good order is the main motive for regulation – is the duty of periodical notification of speed or delay of cases of bodily assault, from the chief constables to the regional prosecutors every three months, and from these to the Attorney General every six months. As there is no corresponding order to notify delay in other groups of cases, it is thus made abundantly clear that cases of bodily assault have priority over other cases.
A point which may seem amusing to officials of criminal justice systems other than the Danish, is the instruction that every judgment of acquittal, in full or at least on all important counts, be notified from the chief constable to the regional prosecutor, though not necessarily in time for an appeal. The reason why is that it is a general policy that if an acquittal is the expected outcome, an experienced prosecutor ought to dismiss the case without a formal indictment. When one prosecutor ‘loses’ many cases, at least those where the result would seem a foregone conclusion to an experienced observer, something should be done about that prosecutor. This does of course not apply to prosecutors acting in cases where, for example, witnesses change their story in court.
A distinct policy is also present in RM 2/2000 ordering chief constables to notify the competent regional prosecutor of all cases without exception, where the suspect is remanded in pre-trial detention for three months or more, and ordering the regional prosecutors to inform the Attorney General once a year of the number of such cases. The instruction directly states as an objective that the amount of long periods of pre-trial detention be reduced.
The large, and constantly growing bulk of instructions from the Attorney General to other prosecutors shows the latter are the object of instructions from above to a far greater extent than a generation ago, when I was a prosecutor.
The Danish prosecution service is not statutorily obliged to prosecute every crime brought to its notice, but may to a certain extent waive prosecution or exercise discretion.
The AJA does not formulate a distinct principle of legality or of opportunity, and moreover, it does not expressly enjoin the prosecution to prosecute in any case at all, but there is no doubt that by listing in detail the cases where discretion is possible, the AJA presupposes a duty to prosecute when the evidence so warrants, and grounds for discretion do not apply.
Discretion or waiver of prosecution – the latter term is the more literal translation of the Danish tiltalefrafald – is according to Sect. 722 subs. 1 AJA, possible in the following cases:
1. where only a fine is applicable and the offence is of a minimal nature - possibly, though now rarely, combined with a caution, informal or formal. The practice of cautioning in case of first time possession of a small amount of drugs for personal use is probably the most important example of the use of the formal caution in practice. Before, first time shoplifting to an amount not exceeding 300 Dkr. (about € 40,-) would be followed by a written caution, but this is now discontinued, and a fine is always applied. Also, many minor violations of the Road Traffic Act are undoubtedly ‘sanctioned’ by the policeman only cautioning or even turning a blind eye. Also, fiscal agencies and many other administrative agencies have adopted a practice of only reporting repeated offences or offences exceeding a threshold delimited by the agency itself;
2. where social proceedings are to be applied, often used when the accused is a minor under the age of 18;
3. when the accused was a minor at the time of the offence and some conditions will be imposed, typically social proceedings as in 2) or the acceptance of a fine and/or confiscation;
4. when the accused has already been sentenced abroad or sentenced after the offence for other, typically more serious crimes, so that no or only a nominal supplementary penalty will presumably be imposed;
5. where the expected costs etc. are out of proportion, i.e., the same grounds as for dismissal described above, the difference being that whereas dismissal presupposes a lack of faith in the strength of the evidence, discretion is to be applied in cases where the accused is presumed guilty;
6. where a special statute legitimises a waiver;
7. according to general rules enacted – publicly – by the Minister of Justice or the Attorney General, now the general regulation no. 621/2001 detailing inter alia trivial cases of assault, indecency, contravention of the Drugs Act, asylum seekers’ first entering the country on forged papers and so forth.
The same authority is competent as to either decide to prosecute or to use discretion.
Under exceptional mitigating circumstances or other special circumstances a higher-ranking prosecutor – i.e., the regional prosecutor, when the chief constable is competent, which is especially since 1992, the most common case, but the Attorney General, when the regional prosecutor is, exceptionally, competent – can waive prosecution, if proceedings are not necessitated for the common good, Sect. 722 subs. 2 AJA. Theoretically speaking, such waiver is possible in all cases whatsoever, but in practice the following groups are the most common or the least uncommon:
- cases where the accused is already undergoing the same treatment as would probably be the outcome of the new case, e.g., in a psychiatric ward;
- where the accused is mentally deviant, but no special treatment seems necessary;
- where, in a road traffic case, the accused has by negligence caused the death or very serious bodily harm to somebody very close to himself or, possibly, more rarely, very serious bodily harm to himself, note: cases of drink driving are excluded;
- very mitigating cases of sexual intercourse with a minor (the normal age of consent is 15 years, but discretion is in practice applied when the child is 14 and the offender less than 18 years old);
- when the accused is an alien and has already left the country, and proceedings abroad would be unduly cumbersome.
It must, however, be stressed that the list is not exclusive, and that even a very serious case can be included – and do not forget the Minister of Justice’s powers!
In theory the system is characterised as based on the principle of opportunity, but still a system bound by rules. It can safely be said that prosecutors almost always take action when so warranted by the evidence.
Any tendency towards arbitrariness is – probably effectively – thwarted by the need to refer the case a step upwards in the hierarchy (Sect. 722 subs. 3 AJA) and, before, when the Attorney General had sole competence cases where discretion was based on exceptional circumstances, by the long tradition of publishing his practice in publicly accessible Annual Reports, also forwarded to all other prosecutors. As the chief constables today exercise the decision to prosecute in many cases, where before the regional prosecutor was competent, the power to use discretion on the ground of exceptional circumstances is placed only one step upwards, and lies now with the regional prosecutor, not with the Attorney General. However, this does not cause any discontinuity as the regional prosecutors seem to adhere to past practice of the Attorney General.
The grounds for non-prosecution due to technicalities are above all listed in group 4) under Sect. 722 AJA. If the accused has already been sentenced abroad or sentenced after the offence for other, typically more serious, crimes, no or only a nominal supplementary penalty will presumably be imposed. In practice, such non-prosecution is applied extremely often, when prosecutors forward cases to court with a view to shortened trial resulting in judgment on the basis of a confession strengthened by, what may best be described as, prima facie-evidence (Sect. 922 AJA). A shortened trial is a trial before a single judge without lay assessors or jury and consisting only of a statement by the accused – a full statement, not a simple plea of guilty – whereby witnesses are not heard. When, in such a case, the prosecution tenders several counts, and the accused confesses to some, but not all, the prosecution may well decide to ask for conviction only for the admitted counts, at the same time intimating that the prosecution is willing to waive the disputed counts (the same applies, if the accused combines a confession with the claim of mitigating circumstances, and the prosecution decides to refrain from pressing for judgment without mitigating circumstances). Whether such reduction of the charge is to be classed as partial dismissal or discretion – probably the first – is immaterial. Such reduction of the charge may be applied either in writing when forwarding the case to the court or in court itself. As long ago as by circular no. 216 of September 29, 1919, two days before the AJA was due to enter into force, the first Attorney General empowered the prosecutor in court – normally an assistant chief constable – to reduce the charge in order to secure judgment upon confession without having to obtain the consent of the then competent regional prosecutor.
Whereas a decision to prosecute is not motivated, a decision not to prosecute is regarded as an administrative decision entailing a duty to motivate in writing (Sects. 22-24 Act on Public Administration, Forvaltningsloven,) and the interested party, normally the complainant or victim, must be informed about his possible right to complain to a higher-ranking official.
A settlement of a criminal case out of court is in Danish law above all the compound fine, bødeforelæg, which plays a very important role in practice. In a normal year, more than 200,000 cases are settled by means of a compound fine, compared to (in the year 2000) 14,242 cases in shortened trial following a confession, 62,358 cases before a single judge in normal adversary proceedings, 11,914 cases in a mixed court with lay assessors and 78 cases before a jury. In all cases where the prosecution does not claim a higher penalty than a fine – also if the offence as described in the relevant act carries a higher maximum – the ‘indictment’ (the same heading is retained) is not sent to the court, but to the accused, setting out the alleged offence exactly as in a normal indictment and adding that the case may be settled by payment of a fine stipulated at the bottom of the letter (Sect. 924 AJA). A postal cheque form is enclosed, although the accused may only declare his willingness to pay the fine and ask for permission to pay by instalments. The policeman is also entitled to hand out a ticket on the spot for a few clear and trivial offences according to the Road Traffic Act enumerated by the Minister of Justice (Sect. 924 subs. 4 AJA). In that case there is an upper limit of 1,000 Dkr., about 130 Euro, to the fine proposed, whereas there is no limit to the fine which may be proposed by writing. In 1984 – by the way, the same year when the maximum of 2,000 Dkr. for settling a fine out of court was abolished – the possibility to settle for disqualification (whether absolute or suspended) of a driver in cases of drink driving was also introduced, as long as the penalty is only a fine (Sect. 119a Road Traffic Act). Although Sect. 924 AJA puts as a condition that the accused pleads guilty to the offence, in practice this has been modified so that naked payment or acceptance suffices. Nevertheless, if the accused pays, but declares his innocence in a simultaneous letter – it does happen sometimes – adding that he only pays in order to avoid the bother and loss of time of appearing in court, the conditions will be regarded as unfulfilled and the case referred to the court. This also applies to cases where the accused either denies culpability or simply stays passive. On the other hand, the accused cannot claim a compound fine as of right, for example in order to avoid the publicity of going to court.
Normally the compound fine is proposed by the police, but in fiscal cases and cases concerning offences against European Union subsidies the department concerned may also propose a compound fine. If the case must go to court however, only the normal prosecution service is competent.
If the accused, having by passivity caused the case to be referred to the court, also stays away having been summoned to court, the judge is entitled to convict and sentence on the spot, except if it appears blatantly that the accused is innocent or that, e.g., limitation has occurred (Sect. 934 AJA). The accused is notified of that risk in the summons. If, however, the accused appears, the case is conducted entirely on normal lines including the principle in dubio pro reo, the prosecution’s attempt to expedite the case by means of a compound fine creating no presumption against the accused. If the suspect agrees to the fine, the case is closed, and the settlement is regarded as if it were a proper sentence, including the case of a repeated offence. An accepted compound fine is recorded in the criminal record of the accused to the same extent as a judgment, e.g. a fine for petty shoplifting is recorded independent from whether the accused accepts a compound fine or is sentenced by the court to pay a fine.
There is no appeal from an accepted fine, but the accused may, if he repents of having accepted, complain to a higher-ranking prosecutor, who always has the power to revoke the decision, normally within a two-months period (Sect. 724 AJA). In a fiscal case the accused can repent within six months from the acceptance of the fine. If it should emerge that the accused was in fact innocent, a free pardon will probably be granted, of course that is an extremely rare case.
While a confiscation order or an order for costs, e.g. costs for removing a motor vehicle, may be imposed and accepted at the same time as the fine, a compensation order cannot be settled simultaneously. Normally the police ought to check that there are no outstanding questions of damages before proposing a fine, afterwards it is too late; but in road traffic cases – and cases according to the Dogs Act – it is possible to ask the Criminal Court to decide on questions of damages by demand of the injured party even after settlement of the penalty (Sect. 115 Road Traffic Act).
Both police and fiscal authorities have a detailed list of normal fines prepared by the Attorney General, and this list is nick-named fines’ catalogue by police as it is normally followed by the court. The main principles of the catalogue have been subject to test cases, sometimes even in the Supreme Court, so it could be said that the prosecution follows the courts rather than the other way round. As the lists are publicly known, the majority of the accused do not contest the case in court.
As the offer from the police is normally in the nature of ‘take it or leave it’ and is not negotiable, the compound fine cannot be likened to plea bargaining. If the accused does not accept the offer, the case will normally be go to court. Of course, when the accused upon receiving the letter, informs the police of an important, hitherto unknown, fact, the prosecutor may think twice and reduce or even remit the fine.
In Denmark no other means of settlement than the compound fine does exist.
