To recognize always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the state, and of authoritatively judging guilt and punishing the guilty.
This principle addresses the separation that must exist between the police and other components of the criminal justice system.
The criminal justice system consists of four main components. They are: the police; the crown; the judiciary; and corrections. Each component plays a specific role in the criminal justice process. The police determine what will become the subject of investigation, and how the investigation will be conducted. With a few exceptions (cases where the approval of the attorney general is required to lay specific charges), crown prosecutors cannot tell the police if charges should be laid or which charges should be laid. The police may at times consult the crown to avail themselves of legal expertise but the decision to lay charges (with the noted exception) falls under the purview of the police.
Police may lay a charge if they, on reasonable and probable grounds, believe that an offence has been committed. Reasonable and probable ground (sometimes referred to as simply reasonable grounds) has been defined as a set of conditions or circumstances that cause an ordinary prudent individual to form a strong belief which goes beyond mere suspicion.
If police determine that reasonable and probable grounds exist and lay a charge, the crown determines if the charge will be prosecuted. The crown will examine the strength of the case in terms of the credibility of the witnesses and the admissibility and strength of the evidence gathered by police. The crown must look beyond simple reasonable grounds. In court the crown must prove criminal cases ‘beyond a reasonable doubt’. This is the highest level of proof required by the courts. Civil cases are decided based on a lower standard, the civil standard being balance of probabilities. If the crown is of the opinion that the case can be proved beyond a reasonable doubt, in other words there is a likelihood of conviction, there is a secondary consideration. The crown must determine if it is in the public interest to prosecute the case. Although the police can offer their opinion, the decision to either proceed with or stay a charge lays with the crown.
Judges have no input into police investigations or decisions by the crown in terms of cases that should be brought before the courts. Their role is to hear and pass judgement on the cases that are brought before them. Judges decide if the crown, based on the evidence gathered by police, has proved a case ‘beyond a reasonable doubt’. If not, judges are required to ‘acquit’, that is find the accused person not guilty.
If a person is found guilty, it is the role of judges to impose a penalty.
The main issue addressed by this principle, that of the police not ‘usurping’ or ‘seeming to usurp’ the role of judges, is at times not adhered to by police and at times results in public sniping by police. Although there are at times disagreements between police and the crown as to whether cases should be prosecuted, these disagreements rarely spill over into a public forum.
Comments by police on either a judge’s findings or penalties imposed are not in keeping with this principle and are somewhat unseemly. Firstly, they speak to a possible lack of understanding on the part of some police executives and union spokespersons as to the police role in the criminal justice system. Secondly, to publicly criticize judges is inappropriate for two reasons: judges are not in a position to defend their findings and decisions in a public forum, and an appeal process exists to review and remedy flawed judicial decisions.
Police executives should not allow frustration in relation to specific cases to cloud their judgement. They should refrain from public comment that is critical of the judiciary. Police constables and investigators working on the front lines should not and must not allow their own personal views of judicial decisions, or the comments of police executives, to influence them in terms of their interaction with suspects. Any police perception of either an unwillingness or inability by the judiciary to impose appropriate penalties cannot be allowed to translate into any form of behaviour either seen, or intended, to be punishing to the suspects they interact with. Punishment is clearly not the role of police.
The criminal justice system was designed to ensure a separation of roles between the police, the crown and the judiciary. The system is designed to ensure fair treatment at all stages of the process. The truism that it is preferable for 10 guilty men to go free than for one innocent man to be convicted speaks to the tradition of our approach to justice. While all legal avenues should be pursued to ensure that the guilty are convicted, the pre-conviction rights of suspects, and the rights of the innocent must share an equal footing. Those rights include the right not to be punished prior to conviction.
Any police officer who either does not understand this or can’t live with it should pursue alternate employment.