Saturday, February 22, 2014

Should the prosecutor have the power to dismiss a charge?

The current U.S. controversy arising out of the withdrawal of the chief prosecutor in the general court-martial of Army Brig. Gen. Jeffrey A. Sinclair raises important questions about what power a military prosecutor should have. For an interesting comparison, consider Makhele v. Commander, Lesotho Defence Force, [2003] LSHC 85, where the High Court of Lesotho set aside a court-martial conviction for fundamental errors, one of which was that the court-martial proceeded with a charge that the prosecutor had dismissed. (The offense at issue was "refus[al] to use a green beret instead of a maroon beret.") For later proceedings see Makhele v. Commander, Lesotho Defence Force, [2005] LSHC 237.

1 comment:

  1. It goes without saying that a military prosecutor should have the power to dismiss a charge. Under Canadian law prosecutors possess a wide discretion with respect to either the laying or the prosecution or both of a charge. However, independence and guarantees of independence are required for the proper exercise of this power so fundamental and essential to the proper administration of criminal justice. In the civilian justice system such independence is statutorily given to the Director of Criminal and Penal Prosecutions. The situation is not as clear in the military context where the chain of command is omnipresent.
    Charges may be laid by a commanding officer, a non-commissioned member duly authorized by a commanding officer or members of the military police: s161 of the National Defence Act (Act). Legal advice must be sought before an officer or a non-commissioned member can lay a charge if the offence is one that cannot be tried by way of summary trial, one that is alleged to have been committed by a military above the rank of sergeant or one for which a right to elect trial by a court martial is available: see Letourneau and Drapeau, Military Justice in Action, Thomson Reuters, Toronto, Canada, 2011, at p.356-357.
    While s.165.1 of the Act provides for the appointment of a Director of Military Prosecutions, the appointment is made by the minister of National Defence. The term is for a maximum of four years but renewable by the minister. In addition the Judge Advocate General (JAG), who is the legal adviser to the minister and the Canadian Forces, is responsible to the minister for the defence and prosecution functions of the military justice system; see Military Justice in Action, supra, at pp.56-62. In other words the existing scheme under the Act offers poor guarantees of independence to the Director of Military Prosecutions and his lawyers, leaving the door wide open for direct or subtle interference with the prosecutors’ discretion to prosecute or dismiss a charge laid.
    In the matter of the laying and prosecution of charges which not only have an impact on the accused and the victim, but also on society and its confidence in the administration of justice, perception is just as important as reality. While I cannot vouch for the reality in the Canadian system of prosecutions, I can say without hesitation that the perception with respect to the existing system is not inspiring and offers little confidence in it.


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