Prosecutorial Advice to Police Is Mandatory in All Cases in the UK

Level of Prosecutor-Police Cooperation in System Reform
Need to Move from Recommendation to Legal Obligation

"They advise the police on all matters related to criminal offenses."

Logo of the Crown Prosecution Service of the United Kingdom

In the United Kingdom, prosecutors affiliated with the Crown Prosecution Service are legally obligated under the Prosecution of Offenses Act to provide advice to the police. The UK is a representative country where prosecutors have no investigative authority and are on equal footing with the police. However, prosecutors do not play a passive role of merely deciding whether to prosecute cases handed over by the police. Instead, cooperation between the two is systematically mandated from the investigation stage.

In the UK, prosecutors frequently consult with the police about cases via video calls that are available 24 hours a day. It is said that the police almost always follow the legal advice of prosecutors. In the past, under agreements between prosecutors and police, consulting prosecutors were sometimes stationed at police stations.

Local offices of the Crown Prosecution Service are established to match the jurisdictions of metropolitan police forces.

As the amendment to the Government Organization Act, which abolishes the current prosecution service and establishes a new public prosecution office, passed the National Assembly in September and follow-up legislation is being discussed, there are ongoing calls to refer to such international examples. So far, discussions have been limited to whether to grant supplementary investigative authority to prosecutors in the new public prosecution office.

Kim Myonki, a professor at the Korean National Police University and a New York State attorney who has studied the separation of investigation and prosecution in the UK, stated, "Cooperation between independent agencies should be driven by necessity, rather than just a general spirit of goodwill," and suggested that Korea's new system should also be designed so that prosecutors and police are required to assist each other.

The reason for the cooperation between prosecutors and police in the UK is that it increases the efficiency of both prosecution and investigation. The "Guidance on Charging" established by the Director of Public Prosecutions includes a "Shared Action Plan," which allows prosecutors to work with the police to conduct supplementary investigations. This is not a unilateral request from the prosecutor; rather, it involves documenting the reasons why certain evidence is necessary to resolve key issues in the case and agreeing with the police on a timetable for completing the investigation. A Shared Action Plan can also be drawn up at the investigation stage before prosecution is considered.

In Korea, the adjustment of investigative authority in 2020 established mutual cooperation and general investigative guidelines between prosecutors and police, but the cooperation remains at a recommended, not mandatory, level. The main provisions concern cooperation after prosecution, and the obligation to exchange opinions during the investigation stage applies only to major cases such as insurrection or national security matters. Even then, it is only carried out upon request.

A law school professor specializing in criminal procedure law commented, "To institutionalize cooperation between two independent agencies, one option is to codify the framework of the current investigative guidelines, which are currently executive orders, into the Criminal Procedure Act," adding, "While discussing follow-up legislation, it is also necessary to review how much cooperation has actually taken place since the guidelines were established."

In the United States, there are also increasing examples of institutionalized consultation between prosecutors and police. In Charlotte, North Carolina, police participate in prosecutorial plea bargaining, and in Atlanta, Georgia, police instructors collaborate with prosecutors to design training programs. In many other cities, joint investigation teams are being formed for major crimes. It is also common to see federal investigators sitting beside prosecutors in court to assist during trials.

Andrew Lee, a former special agent with the U.S. Internal Revenue Service with 22 years of experience, said, "In the United States, prosecutors also have investigative authority. However, there are dozens of investigative agencies specializing in different fields, with a high level of expertise and know-how, so prosecutors, as legal professionals, often seek their assistance." He added, "Investigative agencies also seek prosecutorial advice from the investigation stage, and because of this collaborative system, prosecutors and police often feel like they are one team."

Park Seongdong, Legal Times Reporter

※This article is based on content supplied by Law Times.