Custom in the Enforcement of the Law: the Power of the Attorney-General

Custom thus has an easily overlooked importance as a source of law even in modern systems, in the many areas in which mere knowledge of the normative framework within which powers are exercised is insufficient for a knowledge and understanding of the law.

Tedeschi's suggestion seemed correct on its face, to an extent sufficient to motivate me to leave theorizing about law from the armchair and look into the practice of law enforcement. I emerged from the adventure even more convinced of his insight than when I started.

While working on the subject I realized that comparative analysis was also of relevance to such questions, and that important questions were raised about the utility of such analyses in attempts to solve one's problems. Again I have found that Tedeschi articulated the conclusion I have reached in an early article published years ago.2

So these insights of his were added to the many things for which I am indebted to Professor Tedeschi: the solid commitment to legal scholarship for which he has always stood; the varied, persistent and prolific interest he has in all things legal and in the life-problems which the law seeks to regulate, resulting in many essays which are to this day classic in their field;3 and the fact that he is among the rare scholars who practice what they preach. If we take the importance of custom as an example, Tedeschi insists on including sections on custom in all his articles on legal problems,4 and in many instances this combination of great analytical strength and attention to social reality is what makes Tedeschi's writings so important. It is rare to have such people as one's teachers, and I feel lucky and grateful to have been his student.

The larger study on which this article is based elaborates in some detail these larger juris-prudential questions of the complex relationships between solutions of legal problems (or law reform) and legal theory, empirical research and comparative analysis. Here I shall confine myself to the major findings of my research into the reality and the ideal of the power of the Attorney-General to stay criminal proceedings.

A. The Problem

Law-enforcement systems differ in the amount of explicit discretion they give law-enforcement officers regarding the initial decision whether or not to press a charge. They also differ in the amount of discretion they give administrative authorities concerning the decision to stop a criminal proceeding after it has been started.5

This appearance of difference may be nonetheless misleading, since in most systems, most of the criminal cases are conducted by the State. With this control over the handling of the case often comes discretion as to its outcome, even in systems where such discretion

Once we acknowledge that important dimensions of the decision to prosecute and to conduct a criminal trial are a matter of discretion, our picture of that area of the law becomes incomplete if we do not know how in practice this discretion is exercised.7 The relevance of studying actual behaviour may be varied. First, such practices may suggest that despite the apparent equality of neutral general laws, the enforcement of the laws is discriminatory, in that only some groups of offenders are prosecuted, or that there are different prosecutorial policies depending on the identity or affiliation of the offender (or the victim). Secondly, such practices may suggest that some of the laws on the books are systematically unenforced, raising interesting theoretical and practical questions about their continuing validity and about the proper division of responsibility between legislatures and administrators. Thirdly, awareness of such practices may be indispensable for the successful achievement of one of the law's main functions - guiding the behaviour of people by letting them know, in advance, of the possible or probable official responses to their conduct. Fourthly, the study of such practices may suggest that there is some corruption in the enforcement of the law, which offends both the principle of equality before the law and the integrity of an important segment of the civil service, namely the police and the prosecutors, who are given broad powers to protect us, not to harm us.

All these possible threats to the rule of law are usually concealed by the existence of general, innocent-looking substantive norms of the criminal law, an ethos of equal and full enforcement and a normative framework within which the actual, extremely unorderly and incomplete practice of law enforcement goes on. It is the purpose of this study to examine a part of this reality, draw some of the lessons and see whether the reassuring appearance is justified.

One of the difficulties in any such attempt, in addition to the fact that traditional legal training does not aid a lawyer in such a pursuit, is that most of the decisions which together constitute the practice are of low visibility, and are not collected, reported and presented in a public way.8

This means that the process of custom-building, as against a mere collection of ad-hoc decisions, if it exists at all, is slow and difficult to observe.9 It means also that if the body generating the decisions does not want, for whatever reason, to subject them to scrutiny, it may be impossible to arrive at any comprehensive non-impressionistic findings.10 Even in the absence of such reluctance, even if the body or bodies generating the decisions are willing to give the researcher full access to all relevant material, the research must be long and expensive, since the relevant material is not available in any organized form, and most of it must be collected by participating in, or at least observing, the processes of decision-making themselves. Finally, even if such research is undertaken, it is often extremely difficult to generalize in a valid way from a collection of decisions, and it is not at all clear that such generalizations should have the force of guidelines (as distinct from judicial decisions, in which part of the bindingness stems from the fact that the decisions are public, and that the law is developed by recurrent reference to previous decisions).

These are the reasons why I have chosen to research not the vast area of discretion in the enforcement of the criminal law as a whole, but only one small segment of it: the power of the Attorney-General to stay criminal proceedings after a charge is brought and before a judgment is passed. The Ministry of Justice was kind enough to give me access to the files, and to let me interview most of those involved in the decision-making process in the Ministry itself. Unfortunately, even for this little segment it is hard to establish conclusive findings, and it soon transpired that the power to stay criminal proceedings is simply the tip of the iceberg of decisions in enforcing the criminal law. The essential profile of the iceberg is suggested by the tip, but the suggestion cannot replace an actual study of the parts below. Moreover, no recommendations for the power to stay may be adequate without an analysis of the difficulties generated by the general process of decision-making in enforcing the law.

My decision to concentrate on the power of the Attorney-General to stay criminal proceedings was also motivated by the immense practical difficulties involved in the exercise of this power. When I started the study, in 1977, the law granted power to stay only to the Attorney-General himself.11 The number of applications to stay rose steadily and reached an average of 2000 applications a year,12 imposing an unbearable load on the Attorney-General. Consequently, the law was amended in 1981 and permitted delegation of some of the power to the Deputy-Attorney-Generals.13 In the meantime, the number of stay applications has stabilized around 3000 a year. This arrangement, too, imposes a heavy burden on top officials in the Attorney-General's office. It is quite clear that this burden was not envisaged by the legislature when the power was granted; the power was expected to be invoked only in rare cases. This expectation was supported by the fact that in England, where a similar power is vested in the Attorney-General's hands, only 10 applications a year are processed by his office.14

The situation in Israel, and the comparison to England, posed both a theoretical puzzle and a practical dilemma which made the choice of this particular subject both more interesting and of a more urgent practical importance.

B. The Normative Framework

The power of the Attorney-General to stay criminal proceedings is now regulated in section 231 of the Criminal Procedure Law (Consolidated Version) 1982 (hereinafter: CPL), which states:

231 .(a) At any time after the filing of the information and before the finding, the Attorney-General may, by reasoned notice in writing to the court, stay the proceedings. Where notice as aforesaid has been given, the court shall discontinue the proceedings.

(b) The Attorney-General may delegate to a Deputy-Attorney-General, either generally or in respect of particular classes of matters or a particular matter, his power to stay proceedings under subsection (a) where the charge is an offence other than a felony.15

If the charge is for a serious offence, proceedings may be renewed for a limited period of time.16

The power to stay is a part of a system in which the State generally has monopoly over the initiation of criminal proceedings,17 and in which there is explicit statutory discretion both in the decision to investigate and in the decision to prosecute.18 In addition, the State has various ways of controlling the conduct of a trial after a charge is pressed.19 Of clear relevance to the question at hand is the power to dismiss a charge after it is brought, a power that law confers upon the prosecution.20 One important fact which should be noted is that the consequences of the State's decision to change its mind about a charge depend on the stage of the trial. If the discharge comes before the accused has answered the charge, the charge is dropped and there is no bar to further proceedings. If the reversal comes after that stage, the accused is acquitted, which means that he cannot be prosecuted again for an offence stemming from the same set of facts.21

The law does not specify the grounds for which the Attorney-General may use his power to stay criminal proceedings. This was a choice explicitly made by the legislature.22 There is no requirement that the accused be consulted before a stay, another choice explicitly made.23 The only constraint on the Attorney-General is the need to give reasons for his decision. Once the Attorney-General (or his Deputies) notify the court of their decision to stay, the court has no choice but to respect that decision. The proceedings are then suspended (rather than terminated).

The Attorney-General's decision under sections 231-232 is subject to judicial review, since it is a decision made by an official exercising his legal power, in the language of section 15 of the Basic Law: Adjudication.24 The power also extends to criminal proceedings started by individuals as "private complaints".25 Initially, the court's position was that it will only intervene in the Attorney-General's decision if it is proven to have been made without good faith, since the Attorney-General is the guardian of the public interest in this sphere. Recently, there may be a trend towards broadening this review and intervening also in decisions which are "extremely unreasonable".26 To date, however, the court has not reversed a single exercise by the Attorney-General of his power to prosecute, to stay or to refuse prosecution or stay.27

In 1982 Attorney-General Zamir issued new and comprehensive directives (replacing the existing, less comprehensive ones) concerning the practice of stays.28 These directives do not contain a list of grounds for accepting or rejecting applications. They concentrate on the procedural aspects of handling stays. The directives do include general instructions concerning the relationships between application of stay and delays, the relevance of the attitude of the complainant/victim and guidelines on meeting with applicants or their attorneys. The directives include special sections on two kinds of applications: applications for stays in cases initiated by private complaints, and stays sought by the prosecution for reasons of absence of the defendant or a central witness. For these categories there is an attempt at directing the discretion to grant stays by mentioning some general guidelines.29

C. The Practice

Our description of the practice is based on the statistical monthly reports prepared by the Ministry of Justice, on a detailed study of a sample of 150 stay application files in 1976-1977, on a number of small samples checked in 1981, 1983 and 1984 and on conversations with individuals involved in the decision-making process in applications for stays. In addition, we use impressionistic evidence which found its way into newspapers, articles, etc. Needless to say, we have taken into account all the direct or indirect references to the practice which appear in those court decisions which were available to us.30

It must be stressed from the outset that the data cannot support valid and comprehensive conclusions about the practice, though they do give some sense of it. Thus, on many points the purpose of this study is to encourage further research by identifying questions on which such research may be necessary.

1. Some Numbers

Table 1

The annual numbers given here are the compilation of monthly statistics kept by the Ministry of Justice. The statistics give the number of files of applications for stay opened each month, and the number of files which are closed. These latter files are divided into cases in which the application was accepted, those in which it was rejected, and files which were "cancelled", i.e., closed without decision on the merits (e.g., because the defendant was convicted before the decision was made, or because the application was withdrawn).31

Table 1 suggests that the number of applications rose consistently until 1981, then dropped and reached a stable plateau at around 2800-2900 applications a year. The ratio of applications for stay to all criminal proceedings has been oscillating between 0.34% in 1972 and a high of 0.79% in 1983, with an inconsistent pattern. (See Table 2 below. 32)

Table 2

Your name: *
Your email: *
Recepient's email: *
Message:
Enter code: *

Add your comment

Anonymous comment

Nickname:	Reserve nickname Reserve nickname Please select nickname you would like to use and choose your password. Nickname: Password: Retype password: Email address:
Password:
	Remember me on this computer

Title:

Font Type Arial Helvetica Times Verdana Courier David Font Size 8 pt 10 pt 12 pt 14 pt 18 pt 24 pt 36 pt « back more »

Send me by email any answer to my comment
Send me by email every new comment to this article

Insert Image

Upload image:

Add Attachment

Upload file:

Print

Print this comment
Print article
Article with all comments

Send Comment

Recepient's email*

Your name

Message

* Required fields

Complain

Your name

Email address*

Your complaint*

* Required fields