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The Role of the Cyprus Attorney General's Office in Prosecutions: Rhetoric, Ideology and Practice pp 145–185Cite as

Prosecution Policies and Decision-Making Within the Attorney General’s Office

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Abstract

The extent to which a prosecuting agency is regarded as responsible for the investigatory stage is a matter of great variation across different prosecution systems. The special status of the Attorney General’s Office in Cyprus in that area has been discussed in the previous chapter. This chapter deals with what is regarded as the central function – the sine qua non – of every prosecuting authority: the power to decide whether a particular case should be forwarded to court or filtered out of the system, and inevitably the power to define the answer to a number of other issues that result from this initial decision (e.g. choice of charges, selection of the mode of trial, discontinuance of prosecution, acceptance of a plea).

In the first section of this chapter, the legal standpoint of the Cyprus prosecution system on the issue of prosecutorial discretion will be examined. The great latitude that is afforded to the Attorney General to formulate prosecution policies and exercise his prosecutorial discretion will be highlighted.

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Notes

  1. 1.

    See Loucaides (1974) and Tornaritis (1985).

  2. 2.

    The questions of whether there is such a policy, which is this, and how it is actualised, are issues that will be raised in later sections of this chapter.

  3. 3.

    As, for example, it is the case in England and Wales where the CPS is obligated by statutory legislation to publish a code with the criteria by which they exercise their prosecutorial discretion.

  4. 4.

    E.g. The Police v. Athienitis (1983) 2 C.L.R. 223.

  5. 5.

    Xenophontos v. The Republic 3 SCCC 89, In Re Ttooulias (1984) 1 C.L.R. 885, Attorney General v. Ioannidi (1993) 2 C.L.R. 377, Attorney General v. Andrianou (1995) 1 C.L.R. 486.

  6. 6.

    This was also particularly stressed by all the Attorney Generals; for instance: “When exercising this power (the power to carry out prosecutions or entering a nolle prosequi), the Attorney General is enjoying an absolute discretion and he is not subject to the directions of any authority; however, he is acting always in the public interest” (Tornaritis 1974, p. 18).

  7. 7.

    And similar provisions in Laws that give to other Government Departments the right to prosecute. For example, Law 82/67 s.176(1) provides: “Prosecutions against this Law … are referred to as custom prosecutions and are made subject to any direction of the Attorney General of the Republic”.

  8. 8.

    See Chap. 4 for further reflection on this matter.

  9. 9.

    Mr Nikitas published a couple of circulars, as will be shown later. However, this was only to state that there was no need for the specification of certain criteria by which discretion to refrain from prosecution should be exercised, because he would only do so in very exceptional cases.

  10. 10.

    All the Attorney Generals appeared in Parliament from time to time but not equally as frequently or with the same attitude. For example, Mr Tornaritis (see Tornaritis 1975, 1983c; and Memorandum G.E. 7/1969, dated 20/04/1975) furiously denied that he was obliged to explain to the Parliament the use of nolle prosequi in certain cases (indeed, theoretically, the Attorney General is not obliged to do so), whereas Mr Markides used to present to the Parliament at the end of the year a catalogue detailing the numbers of nolle prosequis he entered. See the concluding chapter for a brief discussion on the issues of public accountability and openness.

  11. 11.

    Circular G.E. 7/1969, dated 22/01/1969.

  12. 12.

    Tornaritis (1975, 1983a, c, 1985).

  13. 13.

    H.C. Debates, Vol. 483, cols. 679-90, January 1951.

  14. 14.

    “It is the Attorney General, applying his judicial mind, who has to be the sole judge of those (public interest) considerations” (Tornaritis 1985, p. 1745, partly citing Edwards 1964).

  15. 15.

    H.C. Debates, Vol. 483, cols. 679–690, January 1951.

  16. 16.

    H.C. Debates Vol. 2105–6, December 1925.

  17. 17.

    Sir Theobald Mathew was the Director of Public Prosecutions in England and Wales from 1944 to 1964.

  18. 18.

    As Mansfield and Peay (1987, pp. 30–31) report, referring to the parliamentary speech of Lord Shawcross in 1951, the common law tradition historically did not separate the evidential assessment of a case from the public interest one as neatly as is the case currently. Instead, public interest was regarded as the dominant consideration, while evidential sufficiency was considered as one aspect of the public interest assessment. Of course, as Lord Shawcross stated, the public interest would never demand “to put a man on trial … when the evidence is insufficient to justify his conviction, or even to call upon him for an explanation”. Nevertheless, these days, common law systems tend to separate in theory evidential considerations from “public interest” considerations but most of the time they embody in what they call the evidential assessment of a case, additional considerations which might be better included in the public interest limb of their evaluation.

  19. 19.

    Again citing Sir Shawcross’s talk.

  20. 20.

    Tornaritis (1984) and Tornaritis (1985).

  21. 21.

    Especially in his article “Discretion in Prosecuting” (Williams 1956).

  22. 22.

    Press releases G.E. 61/85/IV, dated 05/10/1993, G.E. 61/85/IV, dated 18/11/1993, G.E. 61/85/IV, dated 23/11/1993 and G.E. 61/85/IV, dated 15/12/1993.

  23. 23.

    Mr Triantafyllides’ Statement G.E 7/69/3, dated 02/12/1993.

  24. 24.

    See below the exactly opposite approach adopted by Mr Nikitas in his circular.

  25. 25.

    Interview with Mr Markides on 15/05/2002.

  26. 26.

    Circular G.E. 124/73/2B, dated 26/06/1997. This was issued to replace of a previous Circular G.E. 124/73/2A dated 03/05/1996.

  27. 27.

    Circular G.E. 50(B)/87/N.35/3, dated 23/12/1996.

  28. 28.

    As was shown in Chap. 4, these cases are necessarily sent to the Law Office as a result of specific directions by the Attorney General. There is a team of Law Officers assigned with the duty to examine such cases. Furthermore, all officers of the Government Departments (police officers, social workers, doctors, etc.) to whose attention comes a case of domestic violence have an obligation to submit a report within seven days to the Attorney General.

  29. 29.

    Interview with Mr Markides (15/05/2002). See also Discussions in Parliament on 25/09/2001, reported in the newspaper “Phileleftheros” on 26/09/2001.

  30. 30.

    Contrary to this approach, Mr Triantafyllides, during his tenure, instituted prosecutions against journalists on a couple of occasions for which he was heavily criticised (see, for instance, articles in the newspaper “Alithia” on 29/04/94 and 10/07/94)

  31. 31.

    There are numerous unworkable and antiquated provisions still exist in the Cyprus criminal code. Both the Attorney General and the Deputy Attorney General stated in their interviews that they refrained from carrying out prosecutions based on them.

  32. 32.

    Note the similarity with the approach advocated by Mansfield and Peay (1987).

  33. 33.

    He specifically referred to tax offences.

  34. 34.

    The Deputy Attorney General was the immediate supervisor of all Law Officers regarding prosecutions.

  35. 35.

    Circular G.E. 65/1993/3, dated 12/07/2002.

  36. 36.

    Circular G.E. 41(K)/1947, dated 23/01/2003.

  37. 37.

    This effort did not produce any results as, a few months after this circular, a new Attorney General (Mr Nikitas) was appointed, following the resignation of Mr Markides, with a totally different philosophy on prosecutions.

  38. 38.

    Circular G.E. 41(K)/1947, dated 11/06/2003, p. 2.

  39. 39.

    This was his approach even for juvenile offenders. See Announcement G.E.124/73/2, dated 11/03/2004.

  40. 40.

    See Chap. 2.

  41. 41.

    See, for example Announcement G.E 93/1984/Y142, dated 19/10/2004 and Announcement G.E 40/82/II, dated 20/09/2004.

  42. 42.

    Circular G.E. 41(K)/1947, dated 11/06/2003.

  43. 43.

    This circular was also publicly announced.

  44. 44.

    During the first months of his tenure, every request by defendants asking him either to enter a nolle prosequi or review a police decision for prosecution was either refused or returned unanswered. Inevitably, these requests dramatically reduced (see Chap. 4).

  45. 45.

    Circular G.E. 41(K)/1947, dated 11/06/2003, p. 2.

  46. 46.

    However, it seems that nowadays the previous philosophy regarding prosecutions is once again applied since, following the recent resignation of Mr Nikitas, Mr Clerides, the Deputy Attorney General responsible for prosecutions under Mr Markides’ tenure, was appointed to the office. See also Footnote 71 in Chap. 4.

  47. 47.

    See Chap. 4.

  48. 48.

    See Chap. 4. Prosecutors serving in the Police Prosecution Departments stated: “a specific decision by the Attorney General to overrule a police decision serves as a guidance for future similar cases” (Interview with the head of the Central PPD). Similar statements were made by the heads of the PPD in Limassol and Nicosia.

  49. 49.

    See Ashworth and Redmayne (2005, Chaps. 1, 2, 7 and 7) and Sanders and Young (1994, Chap. 6).

  50. 50.

    See Chap. 2.

  51. 51.

    See Sect. 6.4.

  52. 52.

    However, a couple of Law Officers argued that the publication of their policy would be an additional control of their power:

    ‘It would be useful to have written criteria … It would be good to have them published as well. The better way to exercise control of a power is to have transparency … Furthermore, the public has the right to know …’. (Law Officer 19)

  53. 53.

    At times, there was the impression that by denying that they were applying their own discretion, they were allowed to keep a distance from potentially bad decisions.

  54. 54.

    Factors that prosecutors in other jurisdictions often avoid admitting but which they surely consider in practice. See, for example, Fionda (1995, p. 229): “In England and Wales … such considerations are still regarded with a certain distaste and cause jurisprudential anguish at what are seen as unjustifiable reasons for compromising the course of justice, and for informalising the legal process”.

  55. 55.

    See earlier in this chapter the successive Attorney Generals’ policies and criteria for prosecutions.

  56. 56.

    This was the approach of Mr Markides himself. See earlier Mr Markides’ responses in his interview.

  57. 57.

    See Azinas and Another v. The Police (1981) 2 C.L.R. 133 and Attorney General v. Christodoulou (1990) 2 C.L.R. 133.

  58. 58.

    (1962) 1 All E R 448.

  59. 59.

    See in Sect. 6.4 that practice showed that the mode of the trial is indeed a serious influential factor in the level of evidence required.

  60. 60.

    See Mr Markides’ specific policies earlier in this chapter.

  61. 61.

    This is consistent with their view – mentioned earlier – that prosecution is the rule and non-prosecutions are the exceptions.

  62. 62.

    For example, in domestic violence cases the policy is to prosecute cases, even if the victim wishes otherwise.

  63. 63.

    See Block et al. (1993, p. 106) describing the absence of such a practice in England and Wales: “There is little or no contact between the CPS and prosecution witnesses in the run-up to trial, this being currently a police function. Closer liaison between the CPS and witnesses and victims would enable some assessment to be made as to the latter’s willingness, likelihood and ability to testify, and to some kind of track of them to be kept between committal and trial”.

  64. 64.

    Furthermore, quite often, consultations were arranged with expert witnesses such as forensic scientists or doctors so they could explain to Law Officers their statements and clarify complex points of their evidence.

  65. 65.

    Offences punishable with a term of imprisonment not exceeding five years and/or a fine not exceeding £5,000.

  66. 66.

    Court of Justice Law 1960, s.24.2.

  67. 67.

    In 28 cases (43%) out of 65 that were included in this category in my sample, the Law Officers dealt with other issues besides the determination of the mode of trial, and in 21 of them that occurred after the police prompting.

  68. 68.

    According to s.155(b) of Criminal Procedure Law, during the period between the completion of committal proceedings and the beginning of the trial in the Assize Court, the Attorney General has the power to remit a case to the District Court.

  69. 69.

    This mainly concerned cases relating to the carrying of a firearm for hunting without a licence or during the period that hunting is not permitted.

  70. 70.

    However, Law Officers themselves admitted that in particularly busy period even cases that could be characterised as rather clear Assize Court cases could be sent to District Courts (Interviews with Law Officers).

  71. 71.

    There was a particular sensitivity for domestic violence offences at the Law Office. They admitted that the police attitude towards these cases until recently had not been the proper one. I even observed a number of short, educational sessions about the handling of these cases, organised by the Law Officer in charge, in which police officers, Social Service Officers and Law Officers participated.

  72. 72.

    Blumberg (1967), in his classic work on the criminal justice system, argues that the most common reason for criminal justice officials deviating from their ideological and professional commitments is the intolerably large caseloads they have to deal with.

  73. 73.

    Especially during very busy days, or days that Law Officers had also to appear in court, these cases were dealt with quickly and sometimes casually. A Law Officer admitted:

    ‘When I don’t have to be at court all day, I have the time to examine these cases carefully, communicate with the investigator, ask for clarification, etc. Also, when I have time, I prefer to read witnesses’ statements instead of relying on the police summary. However, I admit that next week when I will be in court most of the time, things will be different’. (Law Officer 01)

  74. 74.

    These were almost identical with the factors on which nolle prosequis were granted.

  75. 75.

    See Appendix 1.

  76. 76.

    Circular G.E. 74/72/7, dated 02/05/2001.

  77. 77.

    In 2000, 46.4% of the requests were granted while 53.6% were rejected; in 2001, 44.7% were granted and 55.3% rejected. In my sample, 47% were granted and 53% were rejected.

  78. 78.

    In many of these cases, it was clear that police wanted the discontinuance of the case even independently of the defendant’s request.

  79. 79.

    See Chap. 4 for a detailed catalogue of these cases.

  80. 80.

    See the Attorney General’s specific policies in Sect. 6.2.

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    Dr Despina Kyprianou

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Kyprianou, D. (2010). Prosecution Policies and Decision-Making Within the Attorney General’s Office. In: The Role of the Cyprus Attorney General's Office in Prosecutions: Rhetoric, Ideology and Practice. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-01921-0_6

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