Reasons for Prosecutorial Decisions

Abstract

In terms of the prosecuting policy of the National Prosecuting Authority reasons for the exercise of prosecutorial discretions should be furnished on request of persons with a legitimate interest in the decisions. In general only the broad reasons should be provided and not the specific particulars of the decision. This approach is based on two important policy considerations. The first is that the decisions of the prosecuting authority should be transparent since it is a requirement for upholding the legality principle. The second is that the furnishing of specific particulars could result in a violation of the rights of individuals, for example it could create doubt about the innocence of a person without him or her ever having been subjected to a criminal trial. This contribution investigates issues such as the nature of the duty to provide reasons for prosecutorial decisions, the identification of the parties that are entitled to the reasons for a particular prosecutorial decision, and the furnishing of reasons in order to enhance the judicial review of prosecutorial decisions.