Abstract
In the previous chapter the categories of cases that the Cyprus Law Office is dealing with have been examined, placing particular emphasis on the sharing of its workload with the police regarding prosecutions. In this chapter, another aspect of the Law Office’s relationship with the police will be studied. This relates to the role and the powers of the Law Office as far as the investigation and the collection of information for a case are concerned. Therefore, it explores the Law Office’s participation in the stage that cases are still being formed as potential “prosecutable edifices”.1 It is widely accepted that whatever takes place during this phase exerts considerable influence on the later decision of prosecution, but also on the progress of the case overall.
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Notes
- 1.
Sanders (1988a, p. 35).
- 2.
This is an additional role that has been acquired by the Attorney General in Cyprus that did not appear to exist during the pre-independence period.
- 3.
See Chap. 3 for a further analysis of these powers.
- 4.
E.g. the right for legal advice in the police station.
- 5.
See Papaioannou (1999).
- 6.
See similar wording in s.17 of the Scottish Police Act 1967: “… in relation to the investigation of offences the chief constable should comply with such lawful instructions as he may receive from the appropriate prosecutor”.
- 7.
See, for example, Germany, France and the Netherlands.
- 8.
Law Officers have the power to prevent the police from prosecuting and not only the power to discontinue prosecutions with which they do not agree (see previous chapter). Therefore, once the Law Office have this power, it is reasonable that they can require the police to investigate further before agreeing to the commencement of criminal proceedings.
- 9.
G.E. 7/1969, dated 22/01/1969 (attached to a letter sent to the police on the same date).
- 10.
This was the first and the only time that an Attorney General issued a formal document stating in a relatively explicit manner the relationship of his Office with the police.
- 11.
A.F. E/274/34, dated 21/01/1969.
- 12.
Memorandum G.E. 7/1969/2, dated 12/06/1976.
- 13.
See, for example, Malachtou-Pamballi (2005, p. 482): “The Police are under no legal obligation to consult the Office of the Attorney General in relation to investigations that they are carrying out”. However, the same writer later comments that “in practice … such a consultation takes place on a daily basis … In any event, the Attorney General may ask the police to inform him of progress made and issue specific instructions at any stage during the investigation process” Malachtou-Pamballi (2005, pp. 482–483).
- 14.
National Report of the Republic of Cyprus on the Implementation of the Conclusions of the European and World Conferences against Racism (Ministry of Justice and Public Order, Republic of Cyprus 2003, p. 27).
- 15.
See Daskalakis (1966) for an analysis of the Cyprus Military Criminal Law.
- 16.
In practice, the Attorney General has appointed a Law Officer who serves at the Military Prosecution Department and executes all the responsibilities and duties of the Law Office deriving from the Military Criminal Procedure Law. It has not been possible, due to limited resources and time, to examine how this part of the responsibility of the Law Office is carried out in practice.
- 17.
See Decisions of the Council of Ministers 44.874, dated 03/10/1996 and 44.448, dated 07/10/1998.
- 18.
Decision of the Council of Ministers 53.406, dated 22/03/2001.
- 19.
Letter of the Attorney General, Mr Markides, to the Council of Ministers, dated 14/03/2001.
- 20.
Report to the Government of Cyprus on the visit carried out by the European Committee for the prevention of Torture and Inhumane and Degrading Treatment or Punishment (CPT) (European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment 2000, p. 41).
- 21.
E.g. there are records within the Office which suggest that the Attorney General exercised this right in more than 30 cases within the period April 2001 to July 2002.
- 22.
This Law was enacted after Directive 2006/24/EC of the European Parliament and of the Council, adopted on15 March 2006.
- 23.
As is the case, for example, in France and in Germany.
- 24.
Complemented by interviews with police officials and defence attorneys.
- 25.
Documentary survey in the Attorney General’s Office.
- 26.
See, for example, a press release by Mr Tornaritis (Press Release G.E. 61/1984 dated 17/03/1983) stating that the Attorney General called at his office the police investigator of a very serious drug case, asked him to inform him about the progress of investigations and gave directions for further steps to be taken. A further meeting with the investigator regarding the same case was also announced to the press (see Press Release G.E. 61/1984 dated 26/03/1983).
- 27.
Circular G.E. 41(A)/1947/17), dated 17/10/03.
- 28.
Circular G.E. 41(A)/1947/15, dated 14/02/2002. See also the recent confirmation of this procedure by the current Attorney General with Circular G.E. 41(A)/1947/18, dated 05/06/2005.
- 29.
This power derives from s.6 of the Criminal Procedure Law but in the past banks threatened to dispute such actions in court. Eventually, they agreed to accept requests to reveal bank documents provided that the police investigator had the authorisation of the Law Office. This is another indication of the integrity that the Attorney General’s involvement in the process ensures.
- 30.
However, during Mr Nikitas’ tenure, there was some friction in the relationship of the Law Office and the police concerning investigations against a Minister of the Government. It was apparent that the Attorney General disagreed with the way the police were investigating the matter and gave repeated and strict directions as to how the investigations should proceed. Although, as a result of this, there had been some police frustration, it was obvious that the police acknowledged that the Attorney General had every right to give directions: “We are obliged to obey the directions of the Attorney General, even if we disagree” (Statement of the Deputy Chief of the Police on 29/09/04).
- 31.
See Statement G.E. 61/85/IV, dated 13/07/1994.
- 32.
See also an interview of the Deputy Attorney General in the newspaper “Fileleftheros”, dated 26/08/2001:
‘Police should acknowledge and respect the fact that the Law Office has the crucial role (in prosecutions). And from our side, we respect the responsibilities and powers that the law entrusts the police with, for example their role in the investigations where we don’t usually intervene’.
- 33.
However, a couple of Law Officers appeared to deny even that:
‘The Attorney General is responsible for the decision of prosecution, not for the investigations. He is in charge of all the services that are related to the presentation of a case in court. There is no involvement in the investigative stage unless the police ask for our advice’. (Law Officer 05)
- 34.
Another reason why they believed that their help was becoming more vital to the police, and therefore their role in investigations more crucial, was that:
‘Now that we don’t have admissions as often as before, everyone is skeptical about investigations and the collection of the evidence’. (Law Officer 12)
- 35.
See for example the comments of one Law Officer:
‘Some investigators are totally incompetent. There have been occasions when it was obvious that certain evidence should have been obtained and the investigators did not act that way’.
- 36.
Regarding the cases that Law Officers present to the court, there is another opportunity to elicit further information, at a later stage though. After the committal, there is a practice followed by the Law Officers of seeing the main witnesses before testifying in Court and, thus, checking on the quality of the evidence personally.
- 37.
In fact, most of the time, it was the Deputy Attorney General.
- 38.
Such investigation teams consisting of experts, investigators and prosecutors have been established in most countries because of the need for special knowledge and expertise on financial matters when investigating complex economic crimes.
- 39.
Research studies suggest that review bodies cannot effectively review earlier decisions or processes of other agencies without access to the raw material that those agencies have considered, or at least submissions from other agencies other than those which they are reviewing (Leng et al. 1996).
- 40.
This structure within which a file proceeds is similar to the situation existing in England before the Criminal Evidence Act 1984, which gave custody officers a critical role in the decision to charge. Before 1984, a police officer was supervised by his Sergeant during the investigation of a crime. The file of a case was then sent to the Inspector and after that to the Detective Inspector who would make the decision whether to prosecute. See in Baldwin and Hunt’s (1998, pp. 530–531) interviews with police officers their comments that the earlier situation was enabling quicker and more efficient identification of evidential weaknesses in a case, since there was the input of three senior people in the hierarchy of the police before the case reached the court system.
- 41.
See, in comparison, Sanders (1986c, p. 27) commenting about the great use of abbreviated files as the only available base for prosecutors’ decisions in England: “They are little more than police précis and the defendant’s statements, rendering much prosecution screening perfunctory … Some cases in my research underwent six or more hearings before a full file was produced”.
- 42.
There were 21 cases of this category in my sample which included: two rape cases, a case of forgery and fraud, a case of arson, two cases of stealing by a servant, three cases of forgery, a case of stealing by a trustee, two cases against companies for unlawful possession of explosive substances, a case of breach of banking regulations, a case of unlawful possession of drugs, a case of fraud, a case concerning offences against Foreign Currency Law, a case concerning offences against Bankruptcy Law, a case of stealing, a case of receiving stolen goods, a case of criminal impersonation and a case of extortion by a police officer. See the complete catalogue in Chap. 4, under Sect. 4.4.1 (gb).
- 43.
See in comparison Baldwin and Moloney (1992, p. 64) describing the totally different approach of the English prosecutors: “Despite the relative gravity of the offences in question, the investigations were for the most part viewed as straightforward, unproblematic and satisfactorily conducted by the officers concerned. There was not a single case in which the Crown Prosecutors had requested that further information be collected or had criticism of the way an enquiry had been conducted”.
- 44.
This was contrary to research findings in England and Wales regarding the prosecutors’ requests for further information. See, for example, Baldwin (1997, pp. 547–548) commenting on the results of his own research: “In few of the files were there examples of imaginative questioning of the evidence. Instead, requests to the police, in so far as they were made at all, were overwhelmingly for clarification of the detail … There were only isolated instances in the files where suggestions had been made by reviewing lawyers about the need to pursue fresh lines of inquiry”.
- 45.
Research studies in Britain (McConville and Mirsky 1992; Baldwin 1985; Baldwin and McConville 1977) have been particularly critical of the defence attorneys’ attitude and role in the prosecution process. They commented on their failure to act in an adversarial way and their often uncritical acceptance of the prosecution case. McConville et al. (1991) suggest that defence lawyers quite often judge their clients’ cases in the light of the police case, while Sanders (1992) argues that although quite often police constructions are weak, the police are saved from exposure because of the legal defence community’s inability or unwillingness to challenge those constructions. For a more focused empirical study, which confirms the lack of active pre-trial investigation by defence lawyers in England and Wales, see McConville et al. (1994).
- 46.
As Sanders (1988a, p. 35) points out, “involvement in the early stages could assist … in understanding cases prior to their construction by the police as prosecutable edifices”.
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Kyprianou, D. (2010). The Role of the Attorney General’s Office Regarding Investigations. 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_5
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