Background: Due to the increase of crime in South Africa and the overcrowding of correctional facilities, there has been increasing pressure on courts to find and implement alternatives to imprisonment. In this regard, the so-called "desirability of prosecution" reports and diversion for youths is in general use throughout the country. A new trend is, however, an increase in requests of "desirability of prosecution" reports for adults by some courts, while others are still unaware of their potential use and its accompanying diversion for adults. This state of affairs has caused some uncertainty amongst probation officers regarding what precisely is expected of this type of investigations and the reports that must be presented to the courts. Objective: The primary aim of the study was to determine the nature and required content of the so-called "desirability of prosecution" report for adults. Method: The empirical research focused on magistrates' and control prosecutors' expectations regarding the particular type of report. It utilised a combination of quantitative and qualitative research methods and involved three magistrates and seven control prosecutors from three different towns in three different provinces in central South Africa. Results: From the questionnaires and interviews it, first of all, became clear that not all the respondents were aware of the fact that the so-called "desirability of prosecution" reports and accompanying diversion can also be used for adults. It, secondly, showed that the vast majority of respondents viewed it as a mechanism that showed great promise and that it has already been utilised with some success by some courts. The study also produced a variety of guideline for the compilation of such reports. / Thesis (M.A. (MW))--North-West University, Potchefstroom Campus, 2007.

Thesis (M.S.)--Michigan State University. Criminal Justice, 2008. / Title from PDF t.p. (viewed on Aug. 5, 2009) Includes bibliographical references (p. 53-58). Also issued in print.

This research examines the question whether or not the exercise of the prosecutorial discretion is kosher, by which is meant whether its functional integrity is intact and free from interference. An investigation, with particular reference to various factors that come into play in prosecutorial decision-making, revealed evidence that suggests degree of undue influence in prosecutorial decision-making. The researcher contends that there is sufficient evidence to infer a causal link between the prevailing climate of uncertainty about the questions informing the research and the manifest lack of credibility of this very important function. There seems to be a lack of recognition for and appreciation of the significant role played by the prosecution service in promoting democracy by ensuring the fair administration of justice. The fact that the prosecution service seems to be a regular target for political interference despite legislative guarantees of its integrity and independence as laid down in the Constitution and the NPA Act suggests an underlying mentality that fails to appreciate or flouts the essential distinction between party and state. Prosecutors also take an oath of office or affirmation before assuming duties in this capacity and this also does not seem to be sufficient guarantee to make their decision making kosher and to avoid any trace of suspicion. In the end some remedial legislative and administrative measures are recommended with a view to restoring public confidence in the prosecution service. The suggestion is made to investigate some of the questions raised in the research, for instance questions such as why the interest in the prosecution service and not the judiciary, and why the current mechanisms aimed at guaranteeing its independence seem not to be sufficient. / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

This thesis examines the conditions under which a defense of religious freedom can be successfully argued before the courts. It is acknowledged that freedom of religion has long existed in Canada but the defense of religious freedom in criminal prosecutions has not often been accepted by the Canadian Courts. The author thinks that the Canadian Charter of Rights and Freedoms puts the defense of religious freedom in a more favourable position by making it possible for Canadian judges to proceed to a balancing test that up to now they have been reluctant to use. Besides the question of the balancing test, various problems revolve around the defense of religious freedom in criminal prosecutions. The first section examines the social and historical context of religious freedom in Canada. The second section is located in a more legal perspective. A survey of the Canadian cases is made in order to comprehend the answers that Canadian judges have given in the criminal prosecutions where the defense of religious freedom was raised. In looking at the Canadian decisions on that issue, four basic problems call for solutions. The following sections deal respectively with those questions. Section 3 raises the issue of the definition of religion and religious activities. Section 4 points out a new understanding of the concept of infringement. In Section 5, the notion of balancing test is examined in light of American decisions and its application to the defense of religious freedom is considered. Finally, the necessity of a theory justifying the defense of religious freedom is explored in Section 6. In conclusion, this study stresses the impact the Charter will have upon the acceptance of the defense of religious freedom by Canadian courts. To the problems that have been identified, the author proposes some solutions, bearing in mind that the future of the defense of religious freedom in Canada depends on whether or not Canadian judges will consider that the Charter has introduced a new era in the exercise of fundamental freedoms in Canada. / Law, Peter A. Allard School of / Graduate

In order to improve responses to sexual assaults so that fewer cases drop out of the criminal justice funnel, it is important to understand the decision-making processes of the police and prosecutors in these cases. The focal concerns perspective posits that legal and extralegal variables factor into the police and prosecutors' decisions about how to proceed with sexual assault cases. Although decisions made at the prosecutorial stage are largely reliant on the actions of the police, the prosecutors' charging decisions often differ from how the police classify the incidents. This study examined 11 years of adult sexual assault incidents reported to the police in a Midwestern city to determine the level of congruence in the charging decisions made by the police and prosecutors. Unique from past research, this study used a mixed methods approach to analyze the data from police reports and court documents. Quantitative data examined the extent to which charging decisions were congruent between the police and prosecutors and assessed which factors in sexual assault cases predict the agreement in police and prosecutors' charging decisions. Qualitative data was used to determine which factors were cited most frequently within sexual assault case documents in congruent and incongruent cases. The quantitative analysis revealed that the police and prosecutors' decisions were in agreement in 34% of the cases, and distinct from prior research, the only statistically significant predictors of congruent charges were legally-relevant variables. Findings from the qualitative analysis mirrored those from the quantitative analysis, as legally-relevant characteristics such as the amount of evidence collected and the use of physical force were cited more frequently in congruent cases than incongruent cases. Overall, the results suggest that the focal concerns of the police and prosecutors in this study revolve primarily around the level of evidence available in sexual assault cases. Implications resulting from these findings are discussed.

No abstract / Mini Dissertation (LLM)--University of Pretoria, 2019. / Public Law / LLM / Unrestricted

No description available.

Prosecutors are powerful actors in the criminal justice system. Scholars make the argument that prosecutors exercise far more control over criminal matters than any other agency (Thomas and Fitch, 1976, p. 509; McDonald, 1979, p. 18-19, Wickersham, 1931) . Over time, various changes have augmented prosecutorial power, ranging from the decision to make the office of the prosecutor an elected one, thereby affording prosecutors independence in carrying out their duties (Misner, 1996, p. 729), to the advent of determinant sentencing, resulting in shifting sentencing discretion away from the courts to the prosecutor (Vorenberg, 1981, p. 1525, 1529). This research hypothesized that community prosecution represents another development that will result in increasing the influence of the office of the prosecutor. Traditionally, prosecutors have been oriented toward successful case disposition. The case-by-case methodology has involved little contact with the community. In addition, the prosecutorial focal point is on felony cases, while lower level offenses generally receive little time or attention. The emergence of community prosecution challenges the traditional prosecution role and its emphasis on the more serious matters and winning cases, and promises positive effects for the "communities" targeted. Through a case study of its application in Kings County, New York, this dissertation explores community prosecution and its impact on the role of the prosecutor and for the community, in the context of a community court implemented in Red Hook, Brooklyn. Focusing on the Red Hook example, the study drew on three principal sources of data to examine the community prosecution innovation, including: a) arrest data, aggregated monthly, for the three police precincts that handle cases originating in Red Hook, covering the years 1998 through 2001 (46 months per precinct, n=138 ); b) precinct level arrest and court case filings for criminal incidents that took place in Red Hook and other Kings County locations for two distinct time periods (the third quarter of 1998, (n = 19,296) and the first quarter of 2001, (n = 22,988)); and c) court case data from the Red Hook Community Justice Center (hereafter, RHCJC) 2000 through 2001 (51 weeks, n=4,088). Several different types of complementary analyses, including HLM, contrasted changes in case types and defendant characteristics in the study locale over time associated with this community-oriented form of prosecution. The analyses also compared these changes to the caseloads from neighboring communities that did not have access to this innovation, where cases were processed in the traditional manner. Specific hypotheses tested about the effects of the community prosecution innovation included the following: 1) Implementation of the community prosecution initiative via the community court will result in an increase in the volume and/or proportion of arrests for minor offenses in precincts operating within the community court's jurisdiction. That increase will not be experienced by precincts not involved with the court. 2) The community prosecution strategy will draw defendants into the Red Hook criminal justice system who would not otherwise have been involved in the system, specifically including greater proportions of young minority males and individuals with no prior criminal histories. This research also involved a limited inquiry into how community members were responding to the community prosecution initiative. Given the purpose of community prosecution, to engage the community in handling its unique crime problems in an effort to make them feel safer, it was of interest to know whether there was any evidence that this happened in Red Hook. To that end, the research drew upon qualitative data, including: a) a series of non-probability based community surveys performed within the Red Hook jurisdiction in 1999 (n=980), 2000 (n=1,744) and 2001 (n=1,169) and b) two focus groups (n=12; n=18) conducted by this researcher in May of 2003. These other data sources provided context, allowing for better understanding the results of the analyses. Findings indicated slight effects of community prosecution in the anticipated direction: The volume of arrests from the Red Hook precincts (Data Set 1) increased slightly after the court was implemented. In addition, findings from the RHCJC caseload (Data Set 3) indicated that post-implementation, misdemeanor cases increased slightly but significantly. Comparisons of the post-implementation caseload filed from Red Hook precinct arrests with the control group (consisting of pre-implementation, Red Hook filings and both pre-and post-implementation filings from the arrests made by the rest of the Kings County precincts (Data Set 2)) indicated that the caseload proportion of misdemeanors in post-implementation Red Hook filings increased significantly when compared with the control group filings. In addition, analysis of Data Set 2 (comparison of caseload characteristics) indicated both a significant increase in the proportion of the post-implementation, Red Hook cases made up of Hispanic defendants, and a significant increase in the caseload proportion consisting of defendants with no prior record of criminal convictions. The primary findings from the qualitative data (Survey and Focus Group Data) indicated that community respondents appeared to be more satisfied with the court system and seemed to feel safer after the RHCJC was implemented. There was also some indication of race based differences in responses: White respondents seemed generally more positive about perceived post-implementation changes in Red Hook than minority respondents. / Criminal Justice

Contrat par lequel les parties terminent une contestation née ou préviennent une contestation à naître, la transaction présente a priori une utilité remarquable pour la matière pénale. L'identification de la logique transactionnelle suppose toutefois que de tels procédés répressifs mettent un terme définitif au litige et ce au moyen de concessions de la part de l'auteur des faits et des autorités ou administrations chargées des poursuites. Seules la transaction pénale et la composition pénale revêtent ces qualités. Une telle transposition implique que la matière en cause puisse connaître d'un règlement des suites de l'infraction déterminé par les parties, hors du juge, mais aussi d'un règlement définitif. Les caractéristiques des alternatives aux poursuites témoignent alors de la réception de la technique transactionnelle dans la matière pénale. Ce constat ne peut pour autant suffire, la transposition de la transaction suppose également l'insertion d'un contrat dans le processus répressif. La mise à l'épreuve de la transaction à la matière pénale conduit à relever certains obstacles, tenant au consentement de l'auteur des faits ou encore à l'indisponibilité de l'action publique. Cette opposition conduit à une adaptation de la transaction à la matière pénale. Les alternatives aux poursuites révèlent l'existence de mesures à caractère répressif, proposées à l'auteur des faits et acceptées par lui dans un cadre déjudiciarisé : les sanctions transactionnelles. La reconnaissance de cette catégorie spécifique de sanctions permet d'entrevoir un certain nombre d'améliorations, afin que ces sanctions transactionnelles soient le fruit d'un accord équitable / Contract with which parties settle or prevent a complaint, the compromise seems to be an outstanding and useful tool in criminal process. However, the identification of the settlement approach presupposes that repressive processes permit to settle the dispute definitively, with concessions from the perpetrators and the Authorities. Only two mechanisms of criminal settlement take on these qualities. Such adaptation implies that the parties could settle the consequences of an offence, without any involvement of a magistrate, but also definitively. The characteristics of the alternative prosecution measures attest the use of the settlement technique in criminal law. However, this aknowledgment is not enough since the transposition of the compromise settlement requires also to introduce a contract in the prosecution process. The comparison of the compromise contract with criminal matter reveals an opposition, some difficulties due to the consent of the perpetrators or Public prosecution. These difficulties necessary lead the settlement to be adapted to this matter. Without the contractual side, the alternative prosecution measures are considered as repressive measures, proposed to the perpetrator and accepted by him outside the formal judicial frame : settlement sanctions. Recognition of this specific sanctions category allowed improvements in order to achieve the settlement sanctions are the result of a fair agreement

The investigation of crime is one area in which the South African Police Service is measured on. There is no doubt that poor application of investigation methods results in acquittal of criminals or, at worst, failing to identify the perpetrator. In murder cases, the response from the communities who are directly affected is usually unpleasant and intolerable. This is so because murder is a crime against human life. One death in the family will have significant, undesirable implications to the family involved and, to a certain extent, the community. Violent crime such as murder has a negative effect, not only on the family who has lost the loved one, but also has a severe direct impact on the economy. For instance, no potential investors would want to associate themselves with a country where the incidence of violent crimes has become the norm and where the government appears to be reluctant to take tangible actions to remedy the situation. For years, the South African Police Service applied one methodology in murder investigations, even though their crime statistics showed that this type of crime was constantly increasing and required drastic steps to curb it. This study gives a detailed analysis of the prosecution-led investigation model and its feasibility in murder cases. This research was conducted on the basis that this model appears to work successfully in commercial crimes, judging by the conviction rates reported annually by the National Prosecuting Authority. The study discusses the current investigation model used by the South African Police Service in the investigation of murder and compares it to an intelligence-led investigation model. It then examines the meaning of the prosecution-led investigation. Finally, international experiences in terms of criminal investigation and prosecution procedures are discussed and compared with those of South Africa. The researcher explored the models from the selected countries and interviews conducted were used as a foundation for describing and explaining the future application of the findings emanating from this research. Using the qualitative approach, data was gathered by means of a literature review and qualitative interviews with the sampled participants to answer the research questions. The researcher is of the view that this study (analysing the prosecution-led investigation model in murder cases) presents a significant contribution to the development of practical guidelines that can be used to effectively and efficiently investigate murder cases. / Police Practice / D. Phil. (Criminal Justice)