Talk:Prosecutorial discretion

Untitled 2010

IANAL, but this principle seems similar to the British judges often not deciding to prosecute for assisted suicide (in the news for example with cases involving the Swiss society Dignitas) stating that "it is not in the public interest" to do so. So is that "public interest" not a formal guiding principle in UK law? 94.169.249.202 (talk) 10:02, 19 April 2010 (UTC)

Agreed, the common law has some similar provision, see nolle prosequi. "Not in the public interest..." is a form of nolle prosequi. As mentioned in the article, the principle of opportunity is a principalized form of nolle prosequi. Tgeorgescu (talk) 15:00, 3 May 2010 (UTC)

Requested move 31 December 2022

The following is a closed discussion of a requested move. Please do not modify it. Subsequent comments should be made in a new section on the talk page. Editors desiring to contest the closing decision should consider a move review after discussing it on the closer's talk page. No further edits should be made to this discussion.

The result of the move request was: Moved to prosecutorial discretion, with discretionary prosecution as a redirect. While there is no firm consensus, the discussion indicates that there is broad agreement to cover common-law and civil-law concepts under a single article. I will also merge the relevant content from selective enforcement pertaining to U.S. and leave the rest to interested editors. No such user (talk) 14:12, 16 January 2023 (UTC)

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Principle of opportunity → Discretionary prosecution – The current title is a literal translation from European languages, which rarely works across differing legal systems. This topic concerns the discretion inherent in a prosecutor to decide whether or not to carry forward with a prosecution given the ability to find an accused, the amount of evidence, motive, and other factors. In French, it's called opportunité des poursuites (lit.: 'opportunity for prosecution') which at least is a little closer than the German term (lit:'Principle of opportunity') which conveys almost nothing in English. Translation of the European term into English depends somewhat on context: in running text, esp. if concerning a particular case, "the advisability or appropriateness of prosecution" are sometimes seen; but when discussing it as a general principle or concept in English, most frequent is discretionary prosecution. (Cf. mandatory prosecution). Mathglot (talk) 22:03, 31 December 2022 (UTC) — Relisting. Arbitrarily0 ^(talk) 19:50, 8 January 2023 (UTC)

Survey

Listed at: WT:WikiProject Law. — Mathglot (talk) 22:20, 31 December 2022 (UTC)

The common law term is “prosecutorial discretion.” At present, prosecutorial discretion unfortunately redirects to selective enforcement, which is not exactly the same concept (it is akin to selective prosecution, which has its own article). The fact remains that we have an existing article that includes the common law concept of prosecutorial discretion. The only question is whether this article should be combined with principle of opportunity, or we should instead have separate articles for the common law and the civil law concept. John M Baker (talk) 11:21, 1 January 2023 (UTC)

@John M Baker: Thanks for contributing this. I don't think the fact that Prosecutorial discretion is a redirect is a problem, because it is misdirected; the selective enforcement article never mentions it. We can simply take over "prosecutorial discretion" if that is the better title for the P of O article. There are only sixteen articles that use that redirect, and they can easily be repointed to the right article. Furthermore, some of the articles that use that redirect make it less clear what is actually meant by it. See for example at Rule of law#United States, where it seems to mean what I understand by "discretionary prosecution" (or "prosecutorial discretion") and *not* "selective enforcement"; but if I'm wrong about that, then it kind of proves the point because it's unclear; if they mean "selective enforcement" they should say so (or use a redirect that makes sense, like enforcement discretion), and not "prosecutorial discretion" which just confuses the matter. This to me, is a second argument for taking over that redirect, as it may clarify fifteen other articles as a corollary. Would appreciate your thoughts on this. Mathglot (talk) 01:17, 2 January 2023 (UTC)

P.S., The first sentence of this abstract supports your view. As far as the two similar expressions are concerned, I performed this search to see how they compared, and a number of sources use both of them; perhaps you could comment further on how they differ, or whether they can be used interchangeably? Thanks, Mathglot (talk) 01:39, 2 January 2023 (UTC)

P.P.S. Also, please see nolle prosequi, and the #Discussion below. Mathglot (talk) 05:09, 3 January 2023 (UTC)

• Per John's comments above, and the #Discussion below (in particular, the comparative ngrams chart), I'm now favoring prosecutorial discretion as the new title. Mathglot (talk) 19:48, 4 January 2023 (UTC)

• Move to prosecutorial discretion, which is the correct name for the concept, as per the discussion above. Red Slash 23:20, 11 January 2023 (UTC)

Discussion

Not to confuse the situation further, but here's another way to look at this, which conceivably could lead to a different outcome. Namely, what is this article really about? What is the topic? If we don't know that, we can't properly decide on the title of the article in a move discussion. Consider this:

1. Is it about the concept of "prosecutorial discretion" (as it's called in English sources) in legal systems around the world, however they happen to be called in local languages?
2. Or is it solely about European law equivalents of what we call "prosecutorial discretion", but which is called "principle of opportunity" (or words to that effect) when translated from the European languages, or when the European laws are mentioned in English sources?

Neither the content, nor the current title, make this clear. In fact, the content and the title are at odds with each other, as the content starts off talking about Dutch law (so maybe it should be, "Principle of opportunity in Dutch law", if that's the topic). Then it mentions German, Swedish, French; so under that assumption, so maybe the topic of this article is "Principle of opportunity in European law". So, based on what we think the topic is, or should be, I see either of these two as valid outcomes:

1. The topic is worldwide, and as a result:
   • this article moves to "Prosecutorial discretion" (because that is the common name in reliable English sources), content about adversarial/Common law systems is added, lead sentence redone to define larger scope.
   • New section header "European law" added to the article, most current content moved under it, and "Principle of opportunity" created as a redirect to that section.
2. The topic is limited to European law, and as a result:
   • this article moves to "Principle of opportunity in European law"
   • A new, parent article "Prosecutorial discretion" is created in summary style, including a section about European law and linking here with a {{Main}} template.

My preference is for the first outcome, mostly because we don't have enough content (yet) to support two articles. However, both approaches are logically consistent, and in accordance with P&G. Mathglot (talk) 22:18, 2 January 2023 (UTC)

• Comment. Note that the United Kingdom is a common law country and is part of Europe. We don't use the term "principle of opportunity", but we certainly have the principle of prosecutorial discretion (although I'm not sure we actually use that term either). It is likely that legal systems in non-European countries derived from continental European legal systems also use the term "principle of opportunity". I therefore see no value in moving the article to Principle of opportunity in European law. Either keep it as it is or merge it into a general worldwide article. -- Necrothesp (talk) 14:29, 4 January 2023 (UTC)

  Necrothesp, good point; I wonder if the usage divide is more aligned with inquisitorial system (for "opportunity") vs. adversarial (for "discretion")? In any case, the bottom line is that the title should be determined by article title policy and the preponderance of usage in English sources. This ngrams chart makes it clear that overall in English books, "prosecutorial discretion" is by far the most ccommon term. It should be further noted, that prosecutorial discretion is invariably about the legal topic under discussion, whereas the ngrams tally for principle of opportunity, low as it is, is nevertheless inflated, as clicking the 2012 – 2019 link in the P of O row under the chart will show: result #2 is about the philosophy of science, result #7 is about racism, #8, #9, and #10 are about economics (false positives: "The principle of opportunity cost"), so half of the top ten hits for P of O in the 2015–2019 slice are not about law at all. If that is typical of all results, then rather than 20 to 1 in favor of prosecutorial discretion, it's perhaps more like 40 to 1. Mathglot (talk) 20:12, 4 January 2023 (UTC)

  Btw, this web search would tend to imply that prosecutorial discretion is the primary term used in the UK. Mathglot (talk) 20:28, 4 January 2023 (UTC)

Relisting requested, when due. Mathglot (talk) 11:41, 7 January 2023 (UTC)

Notes

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Post-move adjustments

Of the sixteen pages that link here, previously mentioned in the #Survey section of the requested move, only two are in mainspace, namely: Academic degree ‎and Ministère public (France). Both of these have been adjusted per the article title change. Two articles linked here via a redirect: Doctorate and Nolle prosequi; they have been updated.

Move request closer No such user has kindly made all required post-move changes to the article text itself, even going beyond that to merging some U.S. content here from another article and adding a new reference; so many thanks to him for that.

I'm not aware of any other cleanup that is required, so I think we are now  Done. Thanks to all who participated. Cheers, Mathglot (talk) 23:48, 16 January 2023 (UTC)

During my cleanup, I noticed that

• We should make a section about U.K. in this article, but this should be done by someone in the know.
• Germany is mentioned as the country where both prosecutorial discretion and compulsory prosecution apply. That might be true, but should be researched and clarified.
• Compulsory prosecution is really stubby now.

Overall, I suppose that the choice between "compulsory" and "discretionary" is not binary, and that every legal system allows a certain kind of latitude. Thus, compulsory prosecution would better be merged here, to cover the whole spectrum. But again, it takes a subject-matter expert and/or a deeper research than I'm able to provide. No such user (talk) 08:05, 17 January 2023 (UTC)

Yes, UK for sure; and not only that but also Singapore, which surprisingly (to me) appears to have this phrase in about half a dozen or more articles about the Singaporean legal system. Mathglot (talk) 11:25, 17 January 2023 (UTC)

Added. Mathglot (talk) 08:35, 19 January 2023 (UTC)

Canada would probably be an interesting addition, as well. Although I haven't checked sources yet, they may well have two systems, one for Quebec, and one for all the other provinces. Mathglot (talk) 11:47, 17 January 2023 (UTC)