6 The Prosecution
1. Rights of prosecution. Whereas English law allows any private person to institute criminal prosecutions and whereas it occasionally happens even for serious crimes that is not so in Denmark.
In general, Danish law regards it as a state privilege to institute criminal proceedings, just as it is a state privilege to measure out punishment.
This general rule is modified in a number of ways. Firstly, in some cases the public can only prosecute with the consent of the victim. This applies to a number of minor offences e.g. tresspass and breaches of privacy (Criminal Law Act 5§ 263-265).
Secondly, a number of other cases, notably defamation and common assault (Criminal Law Act §§ 267-274 & 244, stk. 1) are left entirely to the individual to prosecute unless the public has an overriding interest in the case (AJA §725, stk. 3).
Finally, in some cases the victim may prosecute, if the public prosecutor gives up the prosecution, provided the case belongs to one of the two previous categories and the penalty cannot excede simple detention (§§ 725, stk 4 & 725, stk. 2).
It follows that unlike in England the prosecution service cannot take over undesirable private prosecutions and terminate them. Having mentioned this, one should also note that private prosecutions are very rare – even defamation cases.
Basically, public prosecutions are divided into two categories – crown and police cases. The chief constable prosecutes whatever he is permitted to by statute, and the crown prosecutors take the rest (§ 720). The Administration of Justice Act does allow for other public authorities to prosecute, but in reality this does not happen.
2. The Prosecution Service. The recent changes in the English prosecution system have made the structures rather similar. In Denmark, the Minister of Justice is the political head of the Prosecution Service, but the work is actually carried out under the auspices of the Director of Public Prosecutions and ministerial interference is very rare, except in cases on national security. The rules on the prosecution service are found in §§ 99-107.
Cases before the Town and High Courts are handled by a number of regional Chief Crown Prosecutors *10, or in the case of white collar crimes, by the Serious Fraud Office (Statsadvokaturen for særlig Økonomisk kriminalitet), which is a combined police and prosecution department. The majority of cases will be handled by Crown Prosecutors who, very often, are only part time employees. Part time staff are usually either clerks in the Ministry of Justice or lawyers in private practice.
As well as issuing guidelines for the regional offices and the police, the Director of Public Prosecutions will handle appeals to the Supreme Court and the Special Court of Complaint. When not personally appearing before the court, he will be represented by his assistant Chief Crown Prosecutor.
An important aspect of the work of the Prosecution Service is the vetting of the cases before indictments are brought. In recent years, an increasing number of cases have been referred to the chief constables for prosecution, and they are consequently not reviewed by any independent authority, but they are handled by legally qualified members of the police.
The most remarkable difference between the prosecution services of the two countries is that the Danish Chief Crown Prosecutor decides whether the case should be tried, whereas the English must present a prima facie case before a judicial authority (normally a Magistrates’ Court) and then let it decide whether to commit for trial.
In the vast majority of cases this committal procedure is pure routine and little harm would be caused by doing away with it and introducing a duty to disclose the evidence instead.
Under § 711 of the Administration of Justice Act the prosecutor has a duty to be fair and only press charges when he believes the accused is guilty. Today the rule only stresses a general principle of administrative law, but originally it probably helped establish this principle. It is common for Danish lawyers to be unaware of the parallel rules in the Code of Conduct issued under section 10 of the Prosecution of Offences Act 1985.
3. The Police. Unlike in England, the Danish police is organised as a single, national force under the Ministry of Justice (§§ 108-114). The country is divided into 54 police districts, each headed by a legally qualified chief constable, who is responsible for policing the district. He is assisted by legally educated as well as vocationally trained staff.
The local departments are backed by a national flying-squad (Rigspolitiets Rejsehold), and the necessary scientific departments. These national departments are headed by a National Chief Constable who also carries responsibility for recruitment and training of constables.
Any suspected crime may be investigated by the police either ex officio or on request of a member of the public (§ 742). When the right to public prosecution is conditional, the police must have reason to believe that permission will be forthcomming. The police must keep a record of all steps taken during the investigation (§ 744). This record is not limited to a mere custody record, but includes witness statements, record of searches etc.
The powers of the police during investigation are partly governed by the Administration of Justice Act and partly by common law. For this purpose police powers may be defined as actions that may lawfully be undertaken during investigation of a crime, but which would otherwise be criminal.
In general, the police may only use their powers sparingly, and in particular the means must neither be disproportionate to the possible punishment for the crime nor may a more comprehensive action be taken, if a lesser would have been sufficient.
The areas covered by the Administration of Justice Act (part 2 of the 4th book, §§ 742-830) are:
– Interrogation and the use of police agents provocateur.
– Arrest, custody and surrogates for custody i.e. bail.
– Breaches of privacy, e.g. telephone tapping, opening of mail etc.
– Search of property or suspects.
– Seizure of the suspect’s assets to compel his attendance.
– Social enquiry reports and mental health examinations of the accused.
– Inspection of persons, goods or localities.
– Intimate searches and samples.
Whether the measure is permissible during an investigation is usually determined by a combination of the seriousness of the crime being investigated, the intensity of the suspicion, and the usefulness for the investigation versus the breach of privacy inflicted. A plethora of different criteria are used for the different powers thereby reflecting the gradual growth of this part of the law.
When permitted, the most severe measures can only be exercised with leave from a court, e.g. use of custody; others are primarily exercised by the court, but may be exercised by the police if they have reason to believe that waiting for a court order would render the action useless, or when the subject of the action consents, e.g. a suspect allowing police to search his home. Provided police powers are to be used against a named suspect, the procedure will normally be adversarial. In case of breaches of communications which have to be kept secret counsel will be appointed to safeguard the defendants interests, although counsel cannot approach the accused.
In the case of minor actions such as taking fingerprints or photographs this may be done at the discretion of the police.
If a suspect refuses to cooperate, force may, under some circumstances, be used to obtain the desired result. Most police powers are also applicable against non-suspects, but may not be carried through with the use of violence.
There are some important differences regarding interrogations. One is that the suspect may be interviewed at any stage of the investigation. Another is that in Denmark one can always refuse to be interviewed by the police (§ 750) and all suspects and other persons, who would not be compellable witnesses (see later paragraph 9.7), should be told of this. The caution does not warn that what they do say may be put in writing and given in evidence, simply because it may normally not be. Suspects, who fail to answer questions, seriously increase the risk of being arrested (provided the crime is sufficiently serious), but even then they do not have to attend police interrogations. Witnesses i.e. non-suspects have a duty to appear for examination incourt and may, if they refuse to give information to the police be required to sub mit to interrogation in court.
Once arrested, the suspect must either be released or brought before a court within 24 hours (Constitution § 71, stk. 3). The rule seems closely related to the old English writ of habeas corpus. Unless the court releases the suspect, it may detain him for questioning for a further 3 times 24 hours, or remand him in custody for a renewable maximum of 4 weeks (§ 760).
Once charges have been laid custody may be available. The normal criteria are that the statutory maximum penalty is prison for 18 month or more and that the court believes the accused may abscond, pervert the course of justice, or repeat the offence, but the criteria are relaxed in some instances, when custody is deemed to be necessary for the sake of law and order. On top of this, solitary confinement is available if there is a risk that the suspect will interfere with the course of justice (§ 770a).
Bail is available as an alternative to custody, but is rarely used. The range of offences for which custody is available includes most cases of theft. It should be noted that time spent in custody is offset against sentences of simple detention or imprisonment.
4. Termination of prosecution. It is an important principle of Danish criminal procedure that, although the state may start proceedings, it has no duty to do so, and indeed it may terminate the proceedings at any stage (§ 712).
If no one has been charged, the prosecution can be abandoned for lack of evidence by the chief constable responsible for the investigation. If somebody has been charged and the case is a crown case, then the decision must be taken by the chief crown prosecutor.
If there is sufficient evidence to bring a succesful prosecution, the crown should ordinarily proceed with the case. Proceedings are, however, waived in a number of cases and the offender is cautioned. Generally, the decision must be referred to the Director of Public Prosecution, but in a large number of cases, the Chief Crown Prosecutor or the Chief Constable may decide to waive the proceedings (§ 721). A waiver does not formally count as an antecedent, but the general rules of double jeopardy concerning judicial decisions apply to it.
It is common for the caution to be conditional and the conditions may include any non-custodial sanction, which would have been available after a trial (§ 723a). The court must give its consent to any conditional waiver and the only differences from a summary trial are consequently the absence of defence counsel, that sentences of simple detention or prison cannot be imposed and that the decision cannot be appealed.
The decision to terminate proceedings may be reversed by a superior authority within two month (§ 749). If this does not happen the decision is final, unless it falls within the narrow bounds of the rules of resumption (see below chapter 11) This rule may give rise to doubts, when only parts of the charges are abandoned or when charges have not formally been laid against the accused.