DANISH PROSECUTION SERVICE
Kolding, 9 May 2001
THE PROSECUTOR IN A SHRINKING WORLD
Nicholas Cowdery QC
President, International Association of Prosecutors
Director of Public Prosecutions, NSW, Australia
INTRODUCTION – THE IAP
I commence by borrowing the words of the General Counsel of the International Association of Prosecutors (IAP), Barry Hancock, in a speech he made last year to the annual conference of the Canadian Federal Prosecution Service:
“International understanding and co-operation between the prosecutors of the world are not optional luxuries. For the future, they will be necessities without which the prosecutor will always be fighting a losing battle against the criminal.”
One of the principal aims of the IAP is contained in Article 2.3 d. of its Objects:
“to assist prosecutors internationally in the fight against organised or other serious crime, and for that purpose:
· to promote international co-operation in gathering and providing evidence; in tracking, seizing and forfeiting the proceeds of serious crime; and in the prosecution of fugitive criminals;
· to promote speed and efficiency in such international co-operation;”
We encourage understanding and cooperation at present with programs: for putting prosecutors in contact with one another across national borders; for mutual assistance measures in the investigation and prosecution of crime; for asset tracking; and for extradition. We do it also simply by bringing prosecutors from many jurisdictions together at conferences, simply to meet, discuss issues of mutual concern and establish contacts for the future exchange of information.
THE CRIMINAL WORLD
The world of the criminal is constantly changing and prosecutors, as we know only too well, are often a few steps behind the pace. Criminals operate in a world that is still organised in a way that naturally favours lawlessness – a world of national borders that set boundaries to efforts at law enforcement; a world where “nationality” can be a guarantee of impunity; a world of differences of language, culture and law; a world of competition and mistrust between geographic and ethnic groupings of people; and now a technological world where transactions of all kinds can occur within and across all those divisions in fractions of seconds. By contrast, the world of the law enforcement official is still one of practical, technical and philosophical boundaries and limitations that often serve to frustrate the achievement of criminal justice.
I come from a land “downunder” – a nation that entirely occupies a continent about the size of the continental USA and a few islands as well, one large and the others small. We are fortunate in being surrounded by a large moat, but it is not impassable. Its shore is about 30,000 kilometres long and with a population of only 19 million we do not have the manpower or the wealth to guard every kilometre. Our greatest defence is probably the high proportion of desert country in the north and the centre of the continent.
In legitimate traffic, every year over 2 million airline passengers and 7 million shipping containers arrive on our shores (not to mention airfreight and postal items of all kinds and those people who arrive by sea, some lawfully and some not). The highest proportion of those arrive in my home city, Sydney. Illegitimate traffic brings us every year, among other unwanted items, thousands of asylum seekers and hundreds of kilograms of illegal drugs.
There is traffic of another kind these days – electronic traffic. In Australia as elsewhere, transactions, legal and illegal, occur in cyberspace in fractions of seconds. Remoteness and a harsh landscape do not make us immune from those.
An even more remote country than mine is the tiny 21 square kilometre Pacific island nation of Nauru just south of the equator. Its main attraction to the Europeans early this century was guano, phosphates – perhaps fossilised bird droppings, or it may have been marine life trapped when the volcanic island was thrown up. Now that has all been dug out and taken away to fertilise European fields and the population of 10,500 is in dire economic straits. It is no longer an attractive island for tourism – it looks like a moonscape for the most part. Enter Russian organised crime. The Sinex Bank (a registered offshore bank in Nauru) has been cited recently as laundering USD 3 billion through the Bank of New York. Russia’s central bank has claimed that USD 70 billion went through Nauru’s 400 offshore banks last year – banks which are all registered to one mail box owned by the Government’s Nauru Agency Corporation. All these transactions have been done in cyberspace, of course.
We have learnt, therefore, that even in the very remote parts of the southern hemisphere we are not protected from some of the criminal challenges that you face in Denmark and elsewhere in Europe. Consequently we also appreciate the need for cooperation in crime fighting, simply because we must rely on it so often, being so far from the source of much of what ultimately becomes for us a local crime problem.
The criminal world is moving at a fast pace – and we are all some distance behind. The opening up of frontiers, the dramatic increase in international travel and the potential of electronic communication have added a new dimension to the traditional problems and created new challenges for us that we are barely meeting.
In general, lawyers are by training extremely parochial. By and large we are taught local laws and local procedures and how to apply them to local problems. We are taught our local legal history and traditions. All of that is appropriate and useful, of course, but it is not enough in what the Canadian Marshall McLuhan dubbed “the global village”. The traditional approach is changing slowly in some jurisdictions where formerly optional subjects with international dimensions are now more widely studied. It is also changing as lawyers increasingly seek practical experience by working in other jurisdictions. Part of the problem has been language, but what we call “English” has now become the world tongue.
The professional horizon of prosecutors is ordinarily more limited. The bulk of our work routinely concerns crimes against the person and crimes against property committed at the domestic level. When we are confronted by crime with international dimensions, we commonly encounter legal and jurisdictional problems, linguistic and cultural difficulties, the absence of mechanisms (structures and processes) for sharing information and responsibility, a lack of trust, obstruction and delay and even perceptions of corruption.
The challenge ahead may be illustrated, perhaps, by what has happened to children. Since time immemorial, it seems, and in all societies, children have been physically and sexually abused. In the last decade or so the extent of this worldwide problem has been progressively revealed. Initially it was a private matter, kept within the confines of the home, school or club – now it is a problem for all of us. Children also used to be punished by their carers in ways that are now dealt with as assault. In more recent times the problem has enlarged. Underage “sex tourism” is now acknowledged and dealt with as criminal offending. Many countries have found ways to overcome the jurisdictional barriers that were previously thought to exist. With the advent of computer technology, however, more efficient ways have been devised to capture, store and transmit pornographic images of children. Now Internet pornography is routinely the subject of internationally coordinated criminal investigation and prosecution.
There has been a progression – from sordid private exploitation of children between people behind closed doors, to large-scale abuse that crosses the globe in the wink of an eye.
Children are our future. What have we done to protect them?
Local prosecutors have been able to address the prosecution of local domestic child abuse (subject, of course, to all the difficulties that attend such prosecutions because of the nature of the people and activities involved). But when the “sex tourists” need to be prosecuted – and when there need to be simultaneous raids on computer terminals in several countries to prevent the destruction of electronic evidence – cooperation is required between national agencies. Prosecutors have a role to play in that coordination.
This example may be illustrated in other contexts – fraud, money-laundering, drug trafficking and so on. The unregulated Internet has facilitated traditional crime and created new areas of offending: credit card fraud, stock market manipulation, identity theft, copyright infringement, economic espionage, fraudulent prime bank note schemes, corrupt exchanges for currency trading, money laundering, advance fee frauds (like the Nigerian scams that have covered the globe), drug trafficking, people smuggling and so on. Organised offenders can reach millions of potential victims through the Internet, while protecting (at least to some extent) their identity and location. They can move information, money, even goods and people, across national boundaries with greater ease and security and the harm they can cause has been augmented.
NEED FOR BALANCE
It must be remembered, however, that in all law enforcement endeavours a balance must be struck between the effect of measures taken by the state on behalf of its citizens and the rights and privileges enjoyed by each of them individually.
INTERNATIONAL ASSOCIATION OF PROSECUTORS
The IAP has undertaken a number of programs to promote cooperation between prosecutors in addressing these new challenges. In the case of children, the 1998 Annual Conference in Dublin “Secret Crimes – Crimes Against Children” exposed participants to the best practices being adopted in other jurisdictions. It led to the publication of our Best Practice Series No 1 “Recommendations on Combating Use of the Internet to Exploit Children” and No 2 “Model Guidelines on the Effective Prosecution of Crimes Against Children”.
(All is not rosy in the garden, however. One participant in a workshop in Dublin announced: “I come from a Muslim country and we do not have any cases of this type”.)
We have moved on and now Best Practice Series No 3, just released, deals with corruption – another scourge of the international community which causes untold suffering for many millions of people, particularly in the developing world.
At a more basic level, we have also published a Directory of world prosecution services which is now in its second edition.
However, the first and most significant IAP publication is its Standards: “Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors”. I have annexed a copy of them to this paper.
We have distributed these documents widely, in several languages. The present campaign is to have prosecution services commit themselves to working in accordance with those standards. The next step will be to have such agencies measure themselves against the standards and then seek formal accreditation from the IAP. This is all part of the process of bringing world prosecuting services up to an acceptable standard and to a point of significant international cooperation. We do not expect this to happen overnight, but with supporters of good will, it will happen.
In a speech he made at the Federal Prosecution Service Annual Conference in Quebec last year, Canadian Deputy Minister of Justice and Deputy Attorney General, Morris Rosenberg, said:
“There is significant and growing pressure on the Government of Canada, [and, he might have said, of all countries] from other governments and from international organizations, to deal effectively with terrorism, trans-national organized crime, cyber-crime, etc. The increasing globalization of crime may well be placing new obligations on the federal prosecution function that will require us to examine our ability to be involved in the prosecution of offences that up to now have been dealt with mainly by provincial Attorneys General. By the same token, some provinces are facing the problem of having to conduct major, complex trials that involve matters of national significance or that have an impact on Canada’s international relations. This raises the possibility, at least, of exploring new mechanisms for cooperation between the federal and provincial prosecution services, or new funding arrangements.”
That is but one example of how these new challenges may need to be addressed at a national level. There are lessons there that may be translated also to the international stage.
Standards of professional responsibility and statement of the essential duties and rights of prosecutors
adopted by the International Association of Prosecutors on the twenty third day of April 1999
The International Association of Prosecutors was established in June 1995 at the United Nations offices in Vienna and was formally inaugurated in September 1996 at its first General Meeting in Budapest. In the following year in Ottawa, the General Meeting approved the Objects of the Association which are now enshrined in Article 2.3 of the Association's Constitution. One of the most important of these Objects is to :
".. promote and enhance those standards and principles which are generally recognised internationally as necessary for the proper and independent prosecution of offences."
In support of that particular objective a committee of the Association, chaired by Mrs Retha Meintjes of South Africa, set to work to produce a set of standards for prosecutors. A first draft was circulated to the entire membership in July 1998 and the final version was approved by the Executive Committee at its Spring meeting in Amsterdam in April 1999.
The International Association of Prosecutors' Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors is a statement which will serve as an international benchmark for the conduct of individual prosecutors and of prosecution services. We intend that this should not simply be a bold statement but rather a working document for use by prosecution services to develop and reinforce their own standards. Much of the Association's efforts in the future will be directed to promoting the Standards and their use by working prosecutors throughout the world.
Standards of professional responsibility and statement of the essential duties and rights of prosecutors
WHEREAS the objects of the International Association of Prosecutors are set out in Article 2.3 of its Constitution and include the promotion of fair, effective, impartial and efficient prosecution of criminal offences, and the promotion of high standards and principles in the administration of criminal justice;
WHEREAS the United Nations, at its Eighth Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba in 1990, adopted Guidelines on the Role of Prosecutors;
WHEREAS the community of nations has declared the rights and freedoms of all persons in the United Nations Universal Declaration of Human Rights and subsequent international covenants, conventions and other instruments;
WHEREAS the public need to have confidence in the integrity of the criminal justice system;
WHEREAS all prosecutors play a crucial role in the administration of criminal justice;
WHEREAS the degree of involvement, if any, of prosecutors at the investigative stage varies from one jurisdiction to another;
WHEREAS the exercise of prosecutorial discretion is a grave and serious responsibility;
AND WHEREAS such exercise should be as open as possible, consistent with personal rights, sensitive to the need not to re-victimise victims and should be conducted in an objective and impartial manner;
THEREFORE the International Association of Prosecutors adopts the following as a statement of standards of professional conduct for all prosecutors and of their essential duties and rights:
1. Professional Conduct
Prosecutors shall :
at all times maintain the honour and dignity of their profession;
always conduct themselves professionally, in accordance with the law and the rules and ethics of their profession;
at all times exercise the highest standards of integrity and care;
keep themselves well-informed and abreast of relevant legal developments;
strive to be, and to be seen to be, consistent, independent and impartial;
always protect an accused person's right to a fair trial, and in particular ensure that evidence favourable to the accused is disclosed in accordance with the law or the requirements of a fair trial;
always serve and protect the public interest; respect, protect and uphold the universal concept of human dignity and human rights.
2.1 The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference.
2.2 If non-prosecutorial authorities have the right to give general or specific instructions to prosecutors, such instructions should be :
· consistent with lawful authority;
· subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence.
2.3 Any right of non-prosecutorial authorities to direct the institution of proceedings or to stop legally instituted proceedings should be exercised in similar fashion.
Prosecutors shall perform their duties without fear, favour or prejudice.
In particular they shall:
carry out their functions impartially;
remain unaffected by individual or sectional interests and public or media pressures and shall have regard only to the public interest; act with objectivity;
have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;
in accordance with local law or the requirements of a fair trial,seek to ensure that all necessary and reasonable enquiries are made and the result disclosed, whether that points towards the guilt or the innocence of the suspect;
always search for the truth and assist the court to arrive at the truth and to do justice between the community, the victim and the accused according to law and the dictates of fairness.
4. Role in criminal proceedings
4.1 Prosecutors shall perform their duties fairly, consistently and expeditiously.
4.2 Prosecutors shall perform an active role in criminal proceedings as follows: where authorised by law or practice to participate in the investigation of crime, or to exercise authority over the police or other investigators, they will do so objectively, impartially and professionally;
b) when supervising the investigation of crime, they should ensure that the investigating services respect legal precepts and fundamental human rights; when giving advice, they will take care to remain impartial and objective;
d) in the institution of criminal proceedings, they will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence; throughout the course of the proceedings, the case will be firmly but fairly prosecuted; and not beyond what is indicated by the evidence;
when, under local law and practice, they exercise a supervisory function in relation to the implementation of court decisions or perform other non-prosecutorial functions, they will always act in the public interest.
4.3 Prosecutors shall, furthermore; preserve professional confidentiality; in accordance with local law and the requirements of a fair trial, consider the views, legitimate interests and possible concerns of victims and witnesses, when their personal interests are, or might be, affected, and seek to ensure that victims and witnesses are informed of their rights;
and similarly seek to ensure that any aggrieved party is informed of the right of recourse to some higher authority/court, where that is possible;
safeguard the rights of the accused in co-operation with the court and other relevant agencies;
disclose to the accused relevant prejudicial and beneficial information as soon as reasonably possible, in accordance with the law or the requirements of a fair trial;
examine proposed evidence to ascertain if it has been lawfully or constitutionally obtained;
refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods which constitute a grave violation of the suspect's human rights and particularly methods which constitute torture or cruel treatment;
seek to ensure that appropriate action is taken against those responsible for using such methods;
in accordance with local law and the requirements of a fair trial, give due consideration to waiving prosecution, discontinuing proceedings conditionally or unconditionally or diverting criminal cases, and particularly those involving young defendants, from the formal justice system, with full respect for the rights of suspects and victims, where such action is appropriate.
In order to ensure the fairness and effectiveness of prosecutions, prosecutors shall: co-operate with the police, the courts, the legal profession, defence counsel, public defenders and other government agencies, whether nationally or internationally;
and render assistance to the prosecution services and colleagues of other jurisdictions, in accordance with the law and in a spirit of mutual co-operation.
In order to ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled :
to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability;
together with their families, to be physically protected by the authorities when their personal safety is threatened as a result of the proper discharge of their prosecutorial functions;
to reasonable conditions of service and adequate remuneration, commensurate with the crucial role performed by them and not to have their salaries or other benefits arbitrarily diminished; to reasonable and regulated tenure, pension and age of retirement subject to conditions of employment or election in particular cases;
to recruitment and promotion based on objective factors, and in particular professional qualifications, ability, integrity, performance and experience, and decided upon in accordance with fair and impartial procedures;
to expeditious and fair hearings, based on law or legal regulations, where disciplinary steps are necessitated by complaints alleging action outside the range of proper professional standards;
to objective evaluation and decisions in disciplinary hearings;
to form and join professional associations or other organisations to represent their interests, to promote their professional training and to protect their status; and to relief from compliance with an unlawful order or an order which is contrary to professional standards or ethics.
Information regarding the Association, its Officers and Committees and its projected Meetings, Conferences and other activities can be obtained from the Secretary-General at the Bureau of the Association.
Hartogstraat 13, 2514 EP The Hague, The Netherlands
Phone: ++ 31 70 363 03 45
Fax: ++ 31 70 363 03 67
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