Academic analysis of prosecutorial oversight and victim‑initiated review in the UK and Germany

Page 16 of 42 103 Minn. L. Rev. 844, *875 The mandatory prosecution duty, known as the "legality principle," is itself a safeguard against selective underenforcement due to bias or favoritism. It is primarily an anti-discrimination injunction, intended to ensure that prosecutors treat like cases alike, rather than a mandate to ensure public safety and order through full enforcement. !°> Administrative and judicial enforceability of that duty is intended to ensure its effectiveness. 2. Oversight of Declination Decisions in England and Wales 106 and its largest criminal The United Kingdom was an E.U. member state when the victim's right Directive was issued, [*876] justice system - the combined jurisdictions of England and Wales - provides several grounds on which victims or other aggrieved parties may obtain both administrative and judicial review of non-prosecution decisions. Yet the reasons for this relate foremost to public rather than private interests: "a decision not to prosecute, especially in circumstances where it is believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of the criminal justice system." 107 In line with other E.U. member states, English victims can seek administrative review within the Crown Prosecution Service. The process appears to be meaningful; in recent years, between seven and thirteen percent of prosecution decisions challenged in this way have been reversed. !°8 Moreover, noncharging decisions are also subject to judicial review - a policy rarely seen in other common law jurisdictions. !°? The standard is deferential, but English courts do periodically overturn non-prosecution decisions after evaluating them against written standards in the Code for Crown Prosecutors and other guidelines. !!° English 111 courts have disapproved of decisions not to prosecute upon finding they were based on an unlawful policy or were found to be [*877] "perverse" under a general reasonableness standard. !!? And in particular contrast to U.S. law with regard to lethal force by police, English judges give special scrutiny to cases that arise from deaths in state custody, which by their nature raise the specter of prosecutorial favoritism toward fellow law enforcement officials. !!3 Employers' Insolvency (1987); Comm. of Ministers, Council of Eur., Recommendation No. R (85) 11 of the Committee of Ministers to Members States on the Position of the Victim in the Framework of Criminal Law and Procedure (1985). For analysis of Directive 2012/29 as well as Council of Europe recommendations, see Buczma, supra note 61, at 242-48. In Germany, victims can initiate a private prosecution for certain minor offenses, and for more serious offenses may take a formal role as accessory prosecutors with rights to participate in proceedings and to be heard before charges are dismissed. See Strafprozessordnung [StPO] [Code of Criminal Procedure], §§374-94, translation at hittps://www.gesetze-im-internet.de/englisch_ stpo/englisch_stpo.html (describing rights of privateklage); id. §§153, 395-402 (describing rights of nebenklager); see also id.§§403-406c (describing compensation); id. § 172 (describing victim's right to seek court order to compel public prosecution); Michael Bohlander, Principles of German Criminal Procedure 25, 64 (2012). 7% This describes, for example, the German system that allows private parties to act as accessory prosecutors alongside public prosecutors. See Strafprozessordnung [StPO] [Code of Criminal Procedure],§§153, 395-402 (describing rights of nebenklager). 4 See, e.g., Commonwealth Dir. of Pub. Prosecutions, supra note 71 (reporting three private prosecutions in federal courts in 2014-15). 75 By the end of the nineteenth century, state and federal justice systems were firmly committed to the principle that prosecution is an exclusive power of public officials in which private victims have no role or standing. See Malley v. Lane, 115 A. 674, 676 (Conn. 1921); cf. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution... . In American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."). 76 See Manikis, supra note 66. 77 See Jacoby, supra note 70, at 5-7; Jack M. Kress, Progress and Prosecution, 423 Annals Am. Acad. Pol. & Soc. Sci. 99, 100 (1976); Allen Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 Crime & Deling. 568, 571-72 (1984) (finding that private prosecutions predominated in the colonies). In 1704, Connecticut established what was probably the first public prosecutor's office. See Jacoby, supra note 70, at 17; Kress, supra, at 103. When Blackstone described criminal law as predominantly directed at public wrongs, he did so in the context of a late eighteenth century justice system in which private prosecutions were common. See 4 William Blackstone, Commentaries on the Laws of England: Book the Fourth 5-6 (1795). 78 See Jacoby, supra note 70, at 23 (concluding that after 1789 “for the first half-century at least" the public prosecutor was "clearly a minor actor in the court's structure" with a more judicial than executive role); Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 Yale LJ. 1069, 1073 (1990) ("First, colonial attorneys general and district attorneys performed non-prosecutorial tasks ... ." ); see also Steinberg, supra note 77, at 577 (noting public prosecutor's duties included responsibility DAVID SCHOEN HOUSE_OVERSIGHT_016525