Prosecutors’ decisions in common law jurisdictions remain understudied. Drawing on examples in Australian cases of child sexual abuse, this chapter provides insights into case attrition or advancement at the discretion of the prosecution. We discuss contextual factors that support this expanding area of prosecutorial practice, including legislation, available special measures for vulnerable complainants, and recommendations of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. We review factors that influence decisions on charges, whether a case proceeds, plea negotiation, jury versus judge-alone trials, and joint trials. These factors include the age difference between complainants and offenders, the time lapse between alleged offending and reporting, the quality of prerecorded interviews, and the amount of evidence. Recent research and developments affecting decisions by prosecutors about evidence by the complainant and expert witnesses in CSA trials are summarized. We conclude with suggestions for future research to expand understanding of the role of prosecutors’ decisions in this discrete area of criminal justice process.

The criminal defence advocate is usually taken as the paradigmatic example of why adversarial advocacy is necessary, is ethically justified and is fully deserving of our admiration. The defence lawyer’s task is to represent the interests of their client. If a client pleads not guilty, defence counsel’s role is to ensure that their client is not convicted ‘except by a competent tribunal and upon admissible evidence sufficient to support the offence charged’. Prosecutors have special duties of fairness because the prosecutor is an agent of the state, and it is not appropriate for a prosecutor to be adversarial in pressing for conviction. We discuss prosecutors’ ethical position in greater detail later in this chapter. Thus the prosecution and the defence have essentially complementary roles as ‘officers of the court’ in criminal trials – the prosecution’s role is to present a fair case while the defence’s role is to test and probe it adversarially. The prosecution must demonstrate judgement and the defence must have courage. It is the combination of these virtues that make for a fair trial and a fair justice system more generally.

While virtue ethics is distinguished from deontology and consequentialism by its focus on the actor and their character rather than specific acts, it can nonetheless be illuminating to analyze particular acts through a virtue ethics prism. Such an analysis may be helpful in coming to understand why, in a specific situation, the actor came to their act. The point here is not so much to appraise the act and assess whether it was good or bad but rather whether the act can be made understandable – and perhaps justifiable – in light of the circumstances of the case and the agent’s character. Put differently, and perhaps more accurately, the idea underlying what follows is that their conduct tells us something about the individual concerned and simultaneously suggests how difficult situations can be approached – atypical though they may be. Much conduct is hemmed in by the context in which it takes place, and thus there is little point in copying other people’s conduct. But it may be possible to draw broader lessons from looking at specific situations and how people responded.

Before investigations may begin, the jurisdiction of the Court with respect to a ‘situation’ must be triggered in one of three ways: a resolution of the United Nations Security Council, referral by a State Party and decision of the Pre-Trial Chamber authorizing the Prosecutor to proceed proprio motu. When the Security Council or a State Party refers a situation, the Prosecutor conducts a preliminary examination before deciding to proceed with an investigation. Should the Prosecutor decline to investigate, the Security Council or the State Party may apply for judicial review of the decision by the Pre-Trial Chamber. Special rules apply for triggering of jurisdiction over the crime of genocide by a State Party or by the Prosecutor. Pursuant to Article 16, the Security Council may temporarily block prosecution of a situation.

The International Criminal Court is a distinct international organization headquartered in The Hague. It works in close cooperation with the United Nations but is independent of it. The Court is composed of four ‘organs’: the Presidency, the Chambers, the Office of the Prosecutor and the Registry. The Presidency consists of the President and the two Vice-Presidents, who are elected by the Plenary of judges. Judges are elected by the Assembly of States Parties to terms of nine years; they must be nationals of a State Party. The judges are constituted into Divisions, for Appeals, Trials and Pre-Trial proceedings. Within each division may be one or more Chambers. The Appeals Chamber is generally composed of five judges while the other Chambers are generally made up of three judges, although a Single Judge may issue rulings in some cases. The head of the Office of the Prosecutor is the Prosecutor, who is elected to a nine-year term by the Assembly of States Parties. The Registrar is nominated by the judges but elected by the Assembly of States Parties and serves a term of five years. The Registrar is the principal administrative officer. The Court’s annual budget is proposed by its organs but must be confirmed by the Assembly of States Parties.

American Indians, Crime, and the Law: looks at criminal justice in Indian country not from the perspective of Indian law and policy but through the lens of criminal law and policy. It recognizes that criminal jurisdiction in Indian country places a disproportionate weight on federal prosecution of on-reservation crime because the state lacks the authority to enforce laws, and tribes have limited criminal powers over non-Indians. Washburn questions whether prosecutorial discretion can be appropriately exercised when outsiders prosecute local crimes in Indian country and when juries often fail to include tribal members.