Prosecutorial Decisions

Investigation Procedures and Prosecutorial Decisions

Investigation Procedures Initiation of Investigations (Section 130):

All investigations must start immediately upon the occurrence or report of a criminal offense. Note that the presence of the accused is not a precondition for initiating investigative proceedings.

Collection of Evidence (Section 131):

There is a statutory duty for investigating officers to gather all material evidence. This can be both inculpatory and exculpatory. This to establish the facts of the case.

Use of Scientific Methods (Section 131/1):

Where there is a need for scientific methods. These including the collection of biological samples and forensic analysis, may be employed. Note that such procedures require informed consent from the relevant parties unless otherwise permitted by law.

Powers of Investigation (Section 132):

The police investigators are vested with the authority to examine the victim, the accused, or any person or object that may yield probative evidence. Note that they may also conduct searches as well as seize relevant materials. They can also summon witnesses for examination in accordance with legal procedures.

Rights of the Accused Right Against Self-Incrimination and Notification of Charges (Section 134)

Note that the accused should be told the nature of the allegations and that they retain the right to remain silent or to provide testimony. Likewise this notification must be made at the earliest opportunity upon arrest or formal accusation.

Provision of Legal Counsel (Sections 134/1, 134/2):

Where there are serious criminal charges, or where the accused is a minor. Then the law mandates the appointment of legal counsel. This will be at the state’s expense if the accused does not retain private representation.

Right to Counsel During Interrogation (Sections 134/3, 134/4)

As part of your rights, the accused should have the presence of legal counsel during any stage of interrogation. Likewise investigating officials must ensure that this right is observed and facilitated without undue delay.

Special Provisions for Minors and Victims of Sexual Offenses (Sections 133 bis, 133 ter):

Should the accused or the victim is a minor. This or where the investigation concerns a sexual offense. Then the proceedings must be conducted with particular sensitivity. There should be the presence of a psychologist, social worker, or other suitable professional. They are required during interviews to prevent psychological harm and ensure the minor’s best interests are upheld.

Prosecutorial Decision-Making Charging Decisions (Sections 141, 142):

Upon conclusion of the investigation. It is then up to the public prosecutor who is responsible for determining whether to institute legal proceedings. Likeiwse where the alleged offender is identifiable. Then the prosecutor must decide whether to file formal charges.

Declination to Prosecute (Sections 145, 146):

Should the prosecutor opt not to pursue prosecution. Then the decision must be accompanied by a written explanation. This will need to be communicated to the appropriate parties. This including the complainant and the investigating officer.

Review and Appeal of Non-Prosecution Decisions Supervisory Review (Sections 145/1, 146)

Should the decision not to prosecute is contested. At this point in time it is up to the senior officials, such as the Chief of Police or the Director-General of the Department of Public Prosecution. They may review and overturn such decisions. Lastly the appellate mechanism ensures oversight and prevents arbitrary discontinuation of proceedings.

Lastly also see the Investigation and Inquiry Powers, Jurisdictions of Courts and Warrants for Search.