Duty of prosecutor

In general terms the role of advocates in the adversary system is, as the system’s name implies, adversarial. Lawyers are supposed to champion the interests of their client’s and the ultimate goal is, bluntly, to win.

That goal is considerably modified when considering the role of a prosecutor in a criminal or quasi-criminal proceeding. That is a result of who is the prosecutor’s client – Her Majesty. Her Majesty’s interests are always best served when justice, broadly defined, is done. Winning the case is meaningless – what counts is seeing that all the facts are properly put before the Court fairly and fully. Similarly, pursuing cases for reasons unrelated to the case itself – say in order to make a point with a judicial officer unrelated to the overall justice issues involved – is entirely inappropriate.



The Rules of Professional Conduct, both for lawyers and for paralegals, reflect this obligation.


How does this apply to plea bargaining?


At base, a plea negotiation is proper and may be accepted by a prosecutor only where there is a possibility of conviction. If, for some reason known to the prosecutor, conviction cannot flow then a plea ought not to be taken and the charge should be withdrawn. Now, if, as a practical matter, a conviction can occur but, as a result of there being an overbooking of the Courts, it is unlikely a conviction will result, the prosecutor can accept a plea if the interests of justice are served. Recognizing that some matters are so minor that it is inappropriate to engage in lengthy court proceedings – say an HTA matter – a plea may well be entirely appropriate if it frees court time for more important matters.