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The Constitution of the Criminal Law$
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R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros

Print publication date: 2013

Print ISBN-13: 9780199673872

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199673872.001.0001

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The Role of the Public Prosecutor in Applying and Developing the Substantive Criminal Law

The Role of the Public Prosecutor in Applying and Developing the Substantive Criminal Law

(p.53) 4 The Role of the Public Prosecutor in Applying and Developing the Substantive Criminal Law
The Constitution of the Criminal Law

Jonathan Rogers

Oxford University Press

This chapter focuses on the effects of criminalization decisions on the decision-making process in the public prosecutor's office. It argues that the public prosecutor should have a role in identifying the reasons why an alleged activity seems to have been criminalized and considering whether these reasons are comprehensible to the rest of the community. If he cannot both identify and explain any possible reason for condemning a person for what he is alleged to have done, then discontinuance for the alleged offence is justified and even required. Otherwise he would not be applying the law as recognized by the community, and so the trial will have no communicative value (nor indeed could the prosecutor effectively communicate to the defendant his decision to prosecute him, if called upon to do so). But where he is unsure whether the alleged conduct is intended by the lawmaker to be criminal and has too little relevant legal material to make an informed opinion, then he may only prosecute in order to develop the law. The chapter distinguishes between applying the law and developing the law, and suggests that the standard tests in prosecutorial decision-making (the evidential test, the public interest test, and the fairness test) should apply differently depending on whether the prosecutor is trying to apply the existing the law, or to develop the law.

Keywords:   public prosecutors, criminalization, criminal law, prosecution, prosecutorial decision-making, evidential test, public interest test, fairness test

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