Examining the Challenges of Developing Alternatives to Prosecution and Investigation in the Criminal Law of Iran and England

Abstract

Upon the confirmation of a criminal offense, the public prosecutor, as the prosecuting authority, must decide whether to initiate public prosecution. In this regard, two major approaches exist: the principle of legality in prosecution and the principle of expediency in prosecution. Based on their criminal justice policy, and taking into account the circumstances, criminal trends, and the overall cultural context of society, states may adopt one or both of these approaches. In English law, it is widely accepted that criminal prosecution is based on the principle of expediency. Accordingly, alternatives to criminal prosecution have a more prominent presence in the English legal system. As a result of various studies conducted during the drafting of the Code of Criminal Procedure enacted in 2013, certain aspects of these alternatives were incorporated into Iran’s legal framework. However, these alternatives have not been adequately developed. The lack of development in this area is due to a multitude of barriers. Identifying these barriers and offering solutions to overcome them—through a comparative perspective with English law—justifies the necessity and objective of this study. Such a comparative examination may contribute to a transformation in Iran’s criminal prosecution system through the application of alternative mechanisms. These barriers can be categorized into two main types: theoretical challenges, such as the lack of conceptual frameworks or intellectual foundations for implementing alternatives, and practical challenges, including the absence of functional mechanisms for enforcement. Specific examples include a lack of attention to the objectives of punishment, a prevailing punitive culture, restricted authority of law enforcement officers, and disregard for the individual characteristics of offenders at the initial stage of criminal proceedings. The remainder of this article explores these challenges in the development of alternatives to investigation and prosecution in the criminal justice systems of Iran and England.