Researching the Discretions to Charge and to Prosecute

Abstract

Prominent miscarriages of justice such as the Confait affair and the cases of the ‘Guildford Four’ and the ‘Maguire Seven’ have focused public attention on the processes by which alleged offences are investigated and alleged offenders prosecuted. These cases raise serious doubts about the ability of the criminal trial to expose the faults and errors which may be built into a case by the very processes of investigation and prosecution. They further suggest that the problem is not generated simply by corrupt or illegal practices of police and prosecutors, but rather that miscarriages of justice may arise also through currently lawful practices. Miscarriage of justice thus may be seen as an inherent feature of our present adversarial system, in which control of a case in its early stages is vested in well-resourced state agencies whose function is to prepare and present a case for the prosecution.