Global Perspectives on the Role and Independence of Public Prosecutors

The public prosecutor is often described as the most powerful figure in a criminal justice system – more powerful, in some ways, than even the judge. A judge can only decide what is placed before them. The prosecutor, on the other hand, decides what gets placed before a judge, when, and against whom. This prosecutorial discretion is enormous. Naturally, the question of how to structure and safeguard this power has occupied legal systems across the world for centuries. While no two countries have arrived at the same answer, a clear global pattern has emerged: separating the prosecutorial function from police investigation is widely accepted as essential to upholding fairness and the integrity of criminal proceedings.

Two major legal traditions, two different approaches 🔗

To understand how prosecutorial systems are structured globally, it helps to first understand the two dominant legal traditions. Adversarial systems, which are common in common-law countries like the United Kingdom, the United States, and Australia, structure criminal proceedings as a contest between two parties – the prosecution and the defence. The focus is on procedural fairness. Inquisitorial systems, prevalent in civil-law countries like France, Germany, and Italy, are oriented towards finding the truth, with prosecutors and judges playing a more active role in examining evidence.

These traditions significantly shape the role of the public prosecutor. In adversarial systems, the prosecutor is generally a party to an adversarial contest. In inquisitorial systems, the prosecutor may be more closely aligned with the judiciary, expected to present evidence impartially – both incriminating and exculpatory. Despite these differences, both traditions increasingly recognise that prosecutors must function at an arm’s length from the police to maintain credibility and impartiality.

The United Kingdom: the Crown Prosecution Service model 🔗

England and Wales offer one of the clearest examples of institutionalised separation between investigation and prosecution. The Crown Prosecution Service (CPS), established in 1986, is led by the Director of Public Prosecutions (DPP) and operates as an independent body. The police investigate crimes and refer cases to the CPS, which then independently decides whether there is sufficient evidence and whether it is in the public interest to prosecute. Critically, the Attorney General – though having supervisory authority – cannot direct the CPS to pursue or abandon any particular prosecution.

This structural separation is deliberate. The CPS’s independence from both the police and direct political control is considered a cornerstone of fair prosecution. The objectivity of the public prosecutor is treated as a core institutional value in the English system, meaning prosecutors are expected to act as ministers of justice, not advocates seeking convictions at any cost.

The United States: decentralised and politically embedded 🔗

The American prosecutorial model is markedly different – and frequently described as exceptional in the global context. Police, courts, and corrections systems may look similar across developed countries, but prosecutors differ radically when the American system is compared with its counterparts elsewhere.

In the United States, prosecution is highly decentralised. States and counties have their own prosecutors, and in many jurisdictions, district attorneys are elected officials, making them directly accountable to voters but also susceptible to political pressures. United States Attorneys at the federal level are appointed by the President and confirmed by the Senate. This electoral accountability introduces dynamics absent from most other systems – prosecutors may factor in public sentiment or re-election prospects when making charging decisions, which critics argue compromises independence.

The relationship between police and prosecutors in the US is also described as a “coordinate” rather than hierarchical model – neither institution formally controls the other, and the dynamics of the relationship vary significantly across states.

Germany: the prosecutor as guardian of legality 🔗

Germany’s prosecutorial system is widely cited as a model for prosecutorial independence rooted in legal principle. In Germany, the prosecutor is explicitly identified as a guardian of legality – not a partisan advocate for the state, but an officer of the law obligated to pursue truth. This framing fundamentally shapes how German prosecutors operate.

German prosecutors work within a hierarchical civil-law structure, with authority flowing from the Ministry of Justice. However, the obligation to act in accordance with the law, rather than political interest, constrains executive influence. Prosecutors have a duty to investigate both incriminating and exonerating evidence equally, and victims can petition a judge to compel prosecution if a prosecutor dismisses charges – a safeguard that reduces arbitrary non-prosecution. Efforts have also been made in Germany to insulate the office of the prosecutor from political pressures, recognising the tension between institutional accountability and individual independence.

France: a unitary, judiciary-aligned system 🔗

France’s prosecutorial structure follows the continental civil-law tradition closely. Public prosecution in France is carried out by a single office – the ministère public – with representatives in courts across the country. French prosecutors are part of the magistracy, meaning they share professional training and status with judges, though they perform different roles.

This close alignment with the judiciary is significant: it reinforces the expectation that prosecutors serve the public interest rather than act as partisans for the executive. In France, the prosecutor recommends sentences to the trial judge, and this recommendation is generally accepted. The police operate under the authority of the Interior Ministry, while prosecutors are formally attached to the Ministry of Justice – a structural separation that, in principle, keeps investigative and prosecutorial functions distinct, though critics note that executive influence over prosecutors remains a persistent concern across many European systems.

Japan: prosecutorial power concentrated, but separate from police 🔗

Japan’s prosecution system has its roots in the French model, introduced in 1872. After World War II, Japan’s new 1946 Constitution enshrined the principle of separation of powers, requiring the prosecution department to be formally separated from the courts. The Public Prosecutors Office Act of 1947 established the current structure, consisting of four tiers of offices from the Supreme Public Prosecutors Office down to district-level offices.

Japanese prosecutors are considered exceptionally powerful within the criminal justice process. In Japan, only prosecutors can initiate criminal prosecutions, and they have broad authority to direct police investigations. They can also independently investigate serious and complex cases through dedicated Special Investigation Departments. While the Minister of Justice may give general directions to prosecutors, the Minister can only direct the Prosecutor-General regarding a specific case – a limitation that insulates individual case decisions from overt political interference. Japan’s high conviction rate has drawn scrutiny, but the formal independence of prosecutors from the police is firmly embedded in the structure.

Australia and Canada: the Commonwealth model 🔗

Both Australia and Canada follow the Commonwealth tradition, with the Director of Public Prosecutions as the head of the prosecuting authority in each jurisdiction. In most Commonwealth nations, the DPP is appointed, not elected, distinguishing these systems from the American model and reducing the influence of electoral politics on prosecutorial decisions.

In Australia, a two-tier structure exists: police prosecutors handle minor matters in lower courts, while Crown Prosecutors – qualified barristers – represent the state in serious cases in higher courts. The DPP may be asked by police during an investigation to advise on evidence sufficiency, creating a collaborative but structurally separate relationship. In Canada, Crown Attorneys are appointed by the provincial Attorney General, and the principle of independence from police – and from direct political interference in individual cases – is a foundational feature of the system.

Italy and Brazil: prosecutors as independent judicial officers 🔗

Italy and Brazil represent systems where prosecutorial independence is at its most entrenched. In both countries, prosecutors are judicial civil servants who enjoy the same liberties and independence traditionally afforded to judges. This constitutional embedding of prosecutorial independence is designed to insulate them from both political pressure and police influence.

Italy’s system became particularly notable during the early 1990s with the Mani Pulite (“Clean Hands”) investigations, when independent prosecutors pursued major corruption cases against politicians and business figures – cases that would have been unlikely under a more politically dependent prosecutorial structure. Italy’s example illustrates how prosecutorial independence can directly shape a country’s ability to hold powerful actors accountable.

International standards and the global trend 🔗

Across all these systems, international bodies have developed norms to guide prosecutorial independence. The Venice Commission of the Council of Europe has emphasised the importance of distinguishing between the interests of the state and the genuine public interest – noting that conflating the two is a recurring problem in many systems. It has also stressed that the method of selecting senior prosecutors should be professionally driven rather than politically motivated, to command public confidence.

The World Justice Project’s Rule of Law Index, which measures criminal justice performance across 113 countries, consistently identifies independent and impartial prosecution as a key indicator of a functioning legal system. Research using this index has found that prosecutorial independence significantly increases the likelihood of crimes by public officials being prosecuted, particularly when combined with strong accountability mechanisms.

The UN Guidelines on the Role of Prosecutors reinforce this global consensus: decisions to prosecute must be made free from outside influences, particularly political ones. Instructions from non-prosecutorial authorities – where they exist – must be transparent, lawful, and subject to clear guidelines.

The core tension: independence versus accountability 🔗

A common thread runs through every system examined here – the tension between prosecutorial independence and prosecutorial accountability. Prosecutors who are too independent risk becoming unaccountable to democratic processes. Those who are too embedded in political or police structures risk compromising the very fairness their office is meant to guarantee.

Research shows that countries with strong legal safeguards – transparent appointments, fixed terms, and operational independence – demonstrate higher rates of successful prosecutions and greater public trust. Conversely, where political dependency is high, selective justice, delayed investigations, and diminished institutional credibility tend to follow.

The near-universal global shift towards separating prosecutorial duties from police investigation reflects a hard-won recognition: that when the person who investigates and the person who prosecutes are the same, or too closely aligned, the checks that protect citizens from wrongful prosecution break down. Whether through independent statutory bodies like the CPS, constitutionally protected prosecutors as in Italy and Brazil, or court-supervised systems as in Japan, countries are converging on one principle – that the decision to prosecute a citizen is too serious to be made under the shadow of police, political, or personal influence.

What do you think? Given that elected prosecutors in countries like the United States can face public and political pressure, does democratic accountability strengthen or weaken prosecutorial independence? And should countries like India consider constitutionally entrenching prosecutorial independence, as Brazil and South Africa have done, to better insulate the system from executive influence?

References

1. https://judiciariesworldwide.fjc.gov/comparative-criminal-procedure
2. https://www.britannica.com/topic/prosecutor
3. https://en.wikipedia.org/wiki/Prosecutor
4. https://law.stanford.edu/wp-content/uploads/2017/04/Prosecutorial-Power.pdf
5. https://www.justiceinitiative.org/uploads/f3b388fc-c2cc-401a-98e5-9423ccee0e0d/promoting_20090217.pdf
6. https://en.wikipedia.org/wiki/Public_Prosecutors_Office_(Japan)
7. https://www8.cao.go.jp/search/search?q=Australia+DPP
8. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-UDT(2011)008-e
9. https://worldjusticeproject.org/news/what-data-says-about-criminal-justice-systems-around-world
10. https://www.journals.uchicago.edu/doi/full/10.1086/703749
11. https://www.journalisslp.com/index.php/isslp/article/download/315/524/1756