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Custom in the Enforcement of the Law: The Power of the Attorney-General to Stay Criminal Proceedings
Published online by Cambridge University Press: 16 February 2016
Extract
This article is a synopsis of a monograph which will be published shortly (in Hebrew) by the Harry Sacher Institute for Legislative Research and Comparative Law. I dedicate it to Professor Tedeschi because he was the one who triggered it ten years ago, with his suggestion that the study of law, and especially the study of contexts of discretion in the law, cannot be complete without detailed studies of the ways in which officers in practice use their powers. 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.
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; 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, 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 jurisprudential 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.
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References
1 This suggestion was made as a part of Tedeschi's comprehensive analysis of the role of custom in the law: “Custom in Israel Law: Present and Future” (1973) 5 Mishpatim 9 Google Scholar. It was reinforced by his sponsoring of a series of researches into the operation of custom in various areas. This study is one of this series. See also “On the Inductive Study of Law” in Studies in Israel Law (Jerusalem, 1960) 1 Google Scholar, in which Tedeschi argues that lawyers should investigate the way legal institutions operate in social reality, drawing attention to the fact that occasionally such institutions serve functions other than those for which they were originally designed.
2 “On Reception and on the Legislative Policy of Israel” (1960) 16 HaPraklit 348 Google Scholar. See the English version in Studies in Israel Legislative Problems, Scripta Hierosolymitana, vol. 16 (Jerusalem, 1966) 11 Google Scholar.
3 Tedeschi's work covers the whole field of private law, including family law and the law of succession. In addition he addresses issues such as “Who Is a Jew?” In many of his articles, Tedeschi shows great sensitivity not only to the legal dimensions of the problems, but also to the human and social problems which underly them. See, e.g., his recent “Residence in Apartment Hotels and Parents' Homes” (1986) 11 Iyunei Mishpat 181 Google Scholar.
4 See, e.g., “Medical Records and Patients' Rights” (1986) 11 Iyunei Mishpat 423, at 428 Google Scholar.
5 For general discussions of various legal systems, see, e.g., Cole, Frankowski and Gertz, (eds.), Major Criminal Justice Systems (Beverly Hills, Sage Publications, 1981)Google Scholar. The main difference in law is between the Anglo-Saxon systems, in which prosecutorial discretion is the rule, and systems such as the German, in which at least for serious offences there is a duty to prosecute whenever there is enough evidence. For a summary discussion see Harnon, and Mann, , Plea Bargaining in Israel (Jerusalem, 1981, in Hebrew) 16–21 Google Scholar.
6 Thus there is a dispute as to the extent to which discretion, even in serious crimes, is in fact limited in Germany. See, for example, the exchange between Goldstein and Marcus, on the one hand, and Langbein and Weinreb, on the other: (1977–1978) 87 Yale L.J. 240, 1549, 1570 Google Scholar.
7 This point was stressed by the adherents of two American schools of jurisprudence: the Realists argued that we should investigate the law-in-fact rather than the law-in-the-books, and the Social Policy school argued that complete answers to legal questions are only given if we know both the law and the ways in which it is used and enforced.
8 In a seminal article about police decision-making, Goldstein, J. points out the implications of this low visibility: “Police Discretion Not to Invoke the Criminal Process – Low-Visibility Decisions in the Administration of Justice” (1960) 69 Yale L.J. 543 CrossRefGoogle Scholar.
9 All legal systems which recognize custom as a source of law require that a recurrent pattern of behaviour in similar circumstances is identifiable. It strengthens the Finding that such a pattern exists if people accept it as binding and follow it. Such acceptance requires the knowledge of the existence of the pattern. When decisions are of low-visibility, such knowledge may be missing.
10 In Israel, the police not only refused to give access to files, but even refused to give access to its own internal general directives. A similar difficulty was encountered by K.C. Davis when he wanted to study police discretion in Chicago: Police Discretion (St. Paul, Minn., West Pub., 1975) 173–174 Google ScholarPubMed. For a similar complaint see Harnon and Mann, supra n. 5, at 38, n. 2.
11 Sec. 202 of the 1965 Criminal Procedure Law (19 L.S.I. 158) specified that only the Attorney-General could exercise the power. Both legislative intent and the regular canons of interpretation supported the view that the power could not be delegated.
12 See Table 1 below.
13 For the amended text see sec. 231 of the 1982 law (36 L.S.I. 35, at 75), cited in full, sec. B. infra. Soon after the amendment, on May 31, 1981, a general delegation of the power to stay criminal proceedings in contraventions and misdemeanors to the Attorney-General's deputies was published: (1981) (ii) Y.P. no. 2719, pp. 1996–1997.
14 See the comparative discussion below. Similar figures for England are cited in the leading case of Shor v. Attorney-General (1957) 11 P.D. 285.
15 See supra n. 13. Felonies are defined in Israeli law as offences the maximum punishment for which is more than three years imprisonment.
16 Sec. 232 of CPL provides that proceedings may be reopened within a year for a misdemeanor, and 5 years for a felony. If a second stay is granted, the proceedings may not be reopened.
17 The principle of state monopoly on criminal prosecutions is stated in sec. 11 of CPL. Sec. 68 creates the possibility of “private complaints” for a small number of offences listed, including mainly those offences in the prosecution of which there is small public interest.
18 Sec. 59 of CPL provides that the police may decide not to investigate any offence which is not a felony if there is no public interest in the investigation, and sec. 62 permits a prosecutor not to prosecute, if there is no public interest in conducting a trial.
19 Until the beginning of the trial, the prosecution may unilaterally amend the charge (sec. 91). After that stage, amendment may be requested by a party, but can only be granted by the court (sec. 92). The prosecution has also the option of not submitting evidence, which will usually result in an acquittal.
20 Secs. 93-94 of CPL.
21 Sec. 5 of CPL incorporates the principle that a person may not be prosecuted for an act if he was previously either convicted or acquitted for an offence related to it.
22 See the legislative debate concerning this power, (1965) 43 Divrei HaKnesset 2441–2442, in which various limitations were suggested, and the explanation of the chairman of the committee as to why these limitations were rejected: ibid., at 2445, 2446.
23 The demand that defendants be consulted was raised in the debate: first reading, (1963) 37 Divrei HaKnesset 2034–2035 Google Scholar, and second reading: (1965) 43 Divrei HaKnesset 2441 Google Scholar. It was rejected by the committee: ibid., at 2446.
24 S.H. (1984) no. 1110, p. 78. The same applies to a decision by the Attorney-General to press charges or to refrain from pressing charges.
25 In fact, one of the major cases discussing this issue, Shor, supra n. 14, dealt with a private complaint.
26 Both positions are expressed in the recent decision of Noff v. Attorney-General (1983) 37 (iv) P.D. 326, in which the plurality endorsed the “classical” position of limited review, whereas Barak J. suggested that the scope of review should be more extensive. All three Justices found that in the circumstances of the case before the Court (dealing with the decision not to prosecute) there was no reason to upset the Attorney-General's decision.
27 In a number of cases the court expressed surprise at a particular decision: See e.g., Cohen v. Ministry of Justice and the Attorney-General (1964) 18 (ii) P.D. 397, in which a complaint of a crime was submitted against the petitioner. The complainant appealed the decision not to prosecute, and the appeal was dismissed. He then complained again to the Attorney-General; a new Attorney-General had been appointed in the meantime, and decided to prosecute. He also rejected a request for a stay of proceedings. The court decided not to intervene because no one alleged bad faith, but H. Cohn J. expressed displeasure with the fact that there were no positive reasons given for this change of decision, whose outcome was so serious as far as the petitioner was concerned.
28 Directive 51.000, (vol. 5), most recently amended and republished May 1, 1984.
29 The directives specify, for example, types of circumstances in which a rare stay of a private complaint may be granted: an apparent abuse of the power to prosecute, e.g., when a number of complaints are made for the same set of facts; or when the complaint is brought to intimidate the defendant or his relatives from testifying against the private prosecutor or his relatives. The implication is that in regular circumstances a stay will not be granted.
30 It should be noted that a number of decisions relating to the Attorney-General's discretion in enforcing the criminal law have not been published. Some of them, which we saw, are indeed lacking of public interest. Others, however, seem significant enough. Thus, for example, the main judicial decision concerning stay of proceedings when the request comes from the prosecution itself, an extremely problematic class of cases, has not been published: HC 472/76 Abu Zmil. Thus it cannot be certain that all important decisions in this field have been published.
31 I have not given the numbers for these categories here, since I do not draw any conclusions from them. They appear, of course, in the complete study: See Chapter 10.
32 Table 2:
The number of criminal proceedings is the result of data on criminal matters in Legal Statistics, where the number of criminal matters in the Supreme Court and criminal appeals and other proceedings in district courts were deducted from total criminal proceedings for that year. Table 2 also shows that there is no obvious relationship between the trend in the number of proceedings and the number of stay applications. It may be easy to explain some of the figures, e.g., the drop in prosecutions and the rise in stay applications in 1974, the year just after the 1973 war. For identifying and explaining other trends, more detailed analysis is required.
33 It is useful to compare it to the percentage of justified complaints in other contexts: see, e.g., the Findings of a comparative survey of ombudsman decisions: Shetreet, , “Administrative Procedure Bill” (1984) 14 Mishpatim 367, at 371 Google Scholar, n. 10 (citing Danet, B., “Toward a Method to Evaluate the Ombudsman Role” (1978) 10 Administration and Society 348)CrossRefGoogle Scholar. In a similar materia of appeals on the administrative decision not to prosecute for lack of evidence or absence of public interest, only 10% of the appeals were found justified: the complete study, Chapter 5.
34 The hypothesis was investigated in the Ministry of Justice, and was explicitly endorsed by Shamger P. in Barzilai and others v. Minister of Justice and others (1986) 40 (iii) P.D. 505; at 536-537 (the “General Security Services case”).
35 One of the major reasons for a change in perception may be the change of the Attorney-General. It was popularly believed that Barak was more lenient than Shamgar, and that Zamir was more lenient than Barak. Nonetheless, in both transition periods it seems that the number of applications for stay went down when the new Attorney-General assumed office.
36 One of the reasons for this is that the actual rate of acceptances is not a known fact. If the idea behind a stay application is that there is nothing to lose by it, and all to gain, this does not seem to be affected by the chances of the application.
37 Such aspects may include answers to the questions why witnesses or defendants disappear, why it is sometimes found that the file does not contain enough evidence for even a prima facie case, etc.
38 See e.g., Ronnen, M., “The Equal and the More-Than-Equal”, Yediot Aharonot, 30 December 1983, pp. 6–7 Google Scholar. But compare, for a discussion of prosecutorial discretion stressing over-prosecution, Friedmann, D., “Judicial Discretion in Criminal Prosecution” (1983) 35 HaPraklit 155 Google Scholar.
39 Percentages are based solely on the systematic 150 - file sample checked in 1978. All the other kinds of data we use cannot generate any percentages data. Nonetheless, the small samples of cases we checked in later years did not suggest a change in the types of cases or considerations.
40 Three such cases are: file 62/75, in which the application was submitted by the income tax authorities when the defendant was terminally ill; file 111/75, in which the application was submitted by a social worker for the offence of instigating to prostitution, on grounds of rehabilitation; and file 126/75, in which the sitting judge suggested stay for a minor theft committed a long time before the trial and whose victim had since died.
41 This is file 2183/84, concerning the prosecution of members of the “Jewish underground”. The reason for the application was that the main question in the trial was the efficiency of the security policy in Judea and Samaria, and that this was a subject not fit for judicial decision and which should be investigated by a Commission of Inquiry. By the time the Attorney-General addressed the question of whether proceedings should be stayed in that trial, the argument was rather the connection between this trial and the release of convicts in the POW's transaction. At that stage, the reason alleged as a proper ground for a stay had already been rejected by the Court as a defence in the trial.
42 It is not always easy to understand the reasons for a particular decision from the file. A case that looked “suspect”, although not corrupt, is file 21/75, in which a stay was requested in the prosecution of an old man for violence in a welfare agency. The policy in such cases is not to close files, in view of the need to deter from such conduct and stress its severity. Accordingly, a first request was rejected by the Attorney-General, and by all those who gave recommendations in the case. Nonetheless, after repeated requests from the Ministry of Foreign Affairs, a stay was granted. Insinuation of corruption or discrimination was made in a number of newspaper articles (see e.g., Ronnen, supra n. 38). From my experience with hundreds of such files, I do not believe that these accounts indeed justify, in themselves, allegations of favoritism.
43 Thus in many cases the recommending advocate went to lengthy efforts to verify facts, receive rehabilitation information, find out details about the complainant and the history of the conflict, etc.
44 For this reason it is not always easy to know why a stay was given or refused, since it is not clear which of the reasons suggested by the applicant were persuasive to the person who ultimately made the decision. The standard form for notifying the court of a decision to stay merely states that “I reached the conclusion that, in the circumstances, there is no public interest in the continuation of the trial”…
45 See, e.g., file 98/75, a case of a charge of having intercourse with a minor. The defendant claimed that the girl told him she was of age. The application was rejected, and the two recommendations specified that the place to verify such claims is the court.
46 See, e.g., file 28/75, in which the defendants were accused of an attempt to obtain a loan on the basis of false data. The advocates in both the District Attorney office and in the State Attorney office recommended a stay due to doubt concerning the intention of the defendants. A stay was granted (with a warning).
47 See, e.g., file 6/75, in which it was decided that a major contribution to Israeli literature was irrelevant in an application of stay in proceedings for giving bribes; or file 21/75 (age and health situation are irrelevant in a charge for violence in a welfare agency). Contrast these with file 45/75, in which a charge for insulting a civil servant was stayed because the defendant was the mother of six.
48 Taking bribes is a serious offence, and there seems no obvious connection between the offence and the alleged mitigating circumstance. Furthermore, the mitigation has nothing to do with the oppressiveness of a criminal prosecution for the defendant.
49 In this case, there is probably a connection between the situation of the defendant and the circumstances under which the offence was committed. It might be a de-minimis case anyway, and it is almost inconceivable to punish severely in such a case. It thus may seem more sensible to refrain from prosecution altogether.
50 See, e.g., file 3/75, a charge of theft against a youngster with no record, who was inducted in the meantime. The complaint was withdrawn. The investigating police unit recommended a stay, but the National HQ recommended against it, so that youngsters will not think they can get away with everything before their induction. Application for stay was rejected.
51 See, e.g., file 114/75, a charge against a youngster of insulting a policeman. The reasons invoked for the application included age, remorse and the fact the youngster was going to be drafted. Both recommending instances recommended that the application be rejected. The Attorney-General decided to grant a stay.
52 In many cases it seems that lapse of time is a strong reason for a stay, especially when it is combined with additional factors. This is what justified a stay in file 126/75 (a petty theft, lapse of time, death of victim). In other cases, on the other hand, such combinations did not work. See, e.g., the first decision in file 4/84: Defendant was accused, in October 1983, of burglary and theft of a television set from a house in April 1980. An application of stay invoked the reasons of lapse of time, weakness of evidence, absence of criminal record and various personal reasons. The application was refused, with the standard reasoning.
53 Thus in file 80/75 the defendant, a resident of East Jerusalem, was accused of tax offences. The reasons for his application of stay were that he was “cooperating” with Israel to an extent that put him under physical risk. The original decision to prosecute was made by top officials who were aware of these facts. Nonetheless a stay was granted after repeated applications.
54 One such case is file 9/75, in which a defendant with a criminal record was granted a stay because it was felt that a trial and punishment may harm his chances of rehabilitation, in view of extremely positive reviews by probation officers.
55 This, of course, is no surprise. There is always a first time in which a person suspected of an offence is charged with it.
56 A dramatic example is the always-relevant offence of selling products for prices above the maximum price. In file 123/75, the defendant's advocate requested a stay arguing that the defendant did not know of the law. He suggests a monetary award instead of a trial. The District Attorney recommended a stay for lapse of time and because the problem was not acute. The advocate in the State Attorney office strongly recommended against a stay, due to the turpitude of this kind of behaviour. A stay was not granted. A stay was not granted also in file 64/75, for the same offence. On the other hand, a charge for the same offence was stayed in file 71/75, when the defendant was a mother who had just lost a son in the war. No mention was made of the consideration of the severity of the offence. It is impossible, of course, to assess the reasonableness and consistency of such decisions without more information, but on the face of the decisions, there is a tension between them and the principle that like cases should be treated alike.
57 The deliberations in the files reveal a conscientious and sensitive approach. Yet this is not surprising: it is hard to expect that such deliberations will reflect anything else. Also, discrimination is notoriously difficult to establish if one does not have a systematic survey of cases according to potential criteria for discrimination. This absence of systematic material may disguise, however, not only deliberate discrimination, but simple arbitrariness and unequality as well. Good intentions are no bar against this vice of decision-making.
58 There were a number of cases studied in which the decision-maker reached a decision that was contrary to all the recommendations he received. See, e.g., files 88/75 and 74/75 (rejection despite unanimous recommendation to stay) and file 114/75 (supra n. 51: stay despite negative recommendations from both instances).
59 See Ronnen, supra n. 38. See also Korin-Lieber, Stella, 80 Monitin, May 1985 Google Scholar.
60 In response to Ronnen's article, Attorney-General Zamir specifically wrote to the Bar Bulletin, notifying lawyers that the directives explicitly specified that meetings with lawyers will only be conducted with the advocate dealing with the case in rare cases, and only exceptionally with the Attorney-General himself. He also added that he did not have a single such meeting with a lawyer between the publication of the directives (Dec. 1982) and the article (Dec. 1983). A similar denial was included in the Attorney-General's response to the Monitin article: 81 Monitin, June 1985, p. 96 Google Scholar.
61 For the most recent general description of the English procedure see Edwards, J. Ll.J., The Attorney-General, Politics and the Public Interest (London, 1984) 444–448 Google Scholar.
62 See the findings of the Committee of Jurists to Investigate the Powers of the Attorney-General, S. Agranat, chairman (hereinafter the Agranat Committee), 1962.
63 See Edwards, supra n. 61, and the Agranat Committee Report.
64 This fact was noted by the Israel court in Shor, supra n. 14, based on Howard, , “Criminal Prosecution in England” (1930) 30 Col. L.R. 12 CrossRefGoogle Scholar. Howard reported the figures for 1927. They have not changed much since, based on a meeting I had with Roger Maitland and Nicholas Walker from the Attorney-General staff in London, in the summer of 1978.
65 See The Prosecution of Offences Act 1985, incorporating into the law the guidelines for prosecution published in 1983 following the recommendations of the Phillips Committee in 1981.
66 For a historical and critical discussion of this issue in the U.S. see Goldstein, A., The Passive Judiciary (Baton Rouge, Louisiana State U.P., 1981)Google Scholar.
67 For a thorough discussion of the danger of prosecutorial discretion as it is practiced in the U.S. see Davis, K. C., Discretionary Justice (Baton Rouge, Louisiana State, U.P., 1969)Google Scholar esp. ch. VII.
68 See the account of both problems and remedies in Vorenberg, , “Recent Restraint of Prosecutorial Power” (1981) 94 Harv. L.R. 1521 CrossRefGoogle Scholar.
69 For a very informative discussion see Sun, Connie, “The Discretionary Power to Stay Criminal Proceedings” (1974) 1 Dalhousie L.J. 482 Google Scholar.
70 For the situation in Germany see Langbein, John, Comparative Criminal Procedure: Germany (St. Paul, West Pub., 1977)Google Scholar and The Criminal Justice System of the Federal Republic of Germany (1981).
71 See the discussion of the rationale of the private complaint in the Knesset debate concerning the 1965 Criminal Procedure Law. The essence of the right is that an individual may initiate criminal proceedings, for certain offences, without “official” deliberation of the public interest in the litigation. Reviewing the individual's decision in terms of such public interest via the avenue of a stay may thus frustrate the purpose of granting the individual the right to initiate criminal proceedings in this way.
72 See sec. 73 of CPL which is an amendment to the original CPL of 1965, granting the court the power to require that a private complainant appoint an advocate to represent him in court so as to minimize abuse of process. If the private complainant fails to do so, the court may deem him not to have appeared.
73 See Friedmann, supra n. 38, and the cases cited there.
74 In one recent case, for example, the court imposed a minimal fine on a person who was convicted upon his own confession for walking naked in his home. The judge explicitly said that no prosecution should have been brought. People in the police prosecution department disclose that it is much easier not to prosecute, whereas prosecution is the rule.
75 One line of thought is to grant the court discretion to dismiss criminal prosecutions in contexts of de-minimis or other reasons even before the hearing of evidence. Another is to seek a system under which first-instance decisions of prosecution will be treated more seriously, and to change the present pattern under which prosecution is the rule and a decision not to prosecute requires special justification and discussion.
76 It is usually thought that an individual does not have standing in a petition challenging the Attorney-General's decision not to prosecute (or to stay) if the petitioner is not directly affected. Thus in such cases of under-prosecution it is unlikely that the decision will be challenged, even if it is known. The willingness of the court to deal with the merits of the challenge of the pardon and the decision not to investigate in the General Security Services episode (supra n. 34) may signal a change in this issue. Similarly, a claim by a defendant that many others who have committed the same offence were not prosecuted and that he was singled out unfairly is of no formal relevance in the particular defendant's own trial.