The public prosecutor under Article 145 of the Federal Constitution has vast discretionary power to institute, conduct and to discontinue a criminal prosecution. By such vast power, the public prosecutor has a duty to weigh carefully and to consider all available evidence and the pros and cons of a case to be prosecuted. Prosecutions that are not well founded in law and in fact, or which do not serve the public interest may not be brought to court. On the other hand, the failure to effectively prosecute a meritorious case can also erode public confidence on the public prosecutor. Considerable care therefore, must be taken to ensure that the best decision should be made, but prosecutorial discretion cannot and should not be reduced to something like a mathematical formula where there is a clear and obvious answer.

The whole policy in public prosecution should be to ensure objectively a fair prosecution, not simply to prosecute the guilty and to avoid prosecuting the innocent, but, rather that prosecutions should be initiated only in cases in which there is sufficient evidence and where prosecution is justified in the public interest.

In order to come to a decision, the public prosecutor by himself or through his deputy public prosecutors may give directions to the investigating agency which investigates the case what evidence to collect and how to preserve evidence before and during trial. While it is permissible for the public prosecutor or through deputy public prosecutors to give legal advice to investigating agencies, the problem of such role by the public prosecutor or by deputy public prosecutors is that, one could not discount abuse of investigation process by government agencies.


In taking a prosecution, the public prosecutor’s office may need to consider, foremost of all whether there is sufficient evidence to form at least a prima facie case against the accused person, but, the public a prosecutor must not simply adopt the views and enthusiasm of others, such as the complainant or investigator. He also needs critically assess the evidence that the prosecution has and must also take into account of reliable defence. In assessing evidence for the prosecution, the prosecutor may need to determine the following factors:

  • Are witnesses for the prosecution credible or reliable;
  • Do these witnesses have improper motives that may affect his or her credibility;
  • Is there evidence that can detract the credibility of other witnesses;
  • Are there grounds for believing that some inculpatory evidence will likely be excluded?
  • If the case depends in part the admission of the accused person, is there any evidence that may support or detract from reliability of the statement;
  • Has the accused attempted to explain his (alleged) conduct or present a defence? If so, is it clear that the explanation or defence (by itself or in the context of other evidence or information) will be sufficient to raise a reasonable doubt?


The decision to prosecute is often been expressed as a decision to commence or to continue a prosecution and this may involve an assessment of what offence or charging sections should the accused be charged with. To do this, the prosecutor may decide to continue with the original charge or charges, to change the charge or charges or to completely stop the prosecution.

To decide on the charge, the prosecutor normally need to reflect the nature and seriousness of the criminal conduct and most often than not, the prosecutor would pursue charges that would be the most serious as disclosed by the evidence collected by the investigating agency. If there is justification for the commencement or continuation of a prosecution, the public prosecutor should consider whether it is in the public interest that a prosecution should commence or be continued.

As then-Attorney General for England and Wales, Lord Shawcross expressed the guiding principle as follows:

It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should . . . prosecute ‘wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest’. That is still the dominant consideration….


A skillful lawyer can always write to the public prosecutor seeking to drop charges against his client. Here, the skill of a lawyer is needed which may include telling the public prosecutor that:

  • Evidence collected or from investigation of the lawyer, there is insufficient evidence to proceed with the charge preferred;
  • That the prosecution is not in public interest;

Of course the lawyer may in his representation be careful with the facts, evidence and law that he intends to put forward in his representation for the client to drop the charges. At times, the public prosecutor could be persuaded by the representations made by the lawyer to drop the charge or may review the files and reduce the charge against the client. Such a situation is quite common in serious offences.

If for example murder cases, the lawyer acting in the best interest of his client and in order to spare his clients from going to the gallows may wish to persuade the public prosecutor to drop the charge and tell the public prosecutor that a conviction for murder under section 302 of the Penal Code, would not be possible but there could be evidence, at the most, for a lesser charge, perhaps, under section 304 of the Penal Code. Even if convicted under section 304 of the Penal Code, the client’s life could still be saved or probably be acquitted ad discharge at the end of trial. So, choose a skillful lawyer!