This module is a resource for lecturers
Prosecution and adjudication of firearms trafficking
Law enforcement agencies, prosecutors and the judiciary are fundamental in detecting, investigating, prosecuting and preventing/deterring firearms violence. Although the role of prosecutors varies across jurisdictions, in all legal traditions they occupy a key position within the criminal justice system. The rule of law “cannot be upheld, nor can human rights be protected, without effective prosecution services that act with independence, integrity and impartiality in the administration of justice” (UNODC, 2014: iii).
The prosecutors’ role is one of great responsibility, as they are essential agents of the administration of criminal justice. The core functions of prosecutors are the decisions to prosecute and the representation of the prosecution in court where authorized by law or consistent with local practice. They can also be involved in the “investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest” (United Nations, 1990: 3). Prosecutors have many responsibilities, and as key agents in the criminal justice system they must be “individuals of integrity and ability, with appropriate training and qualifications” (United Nations, 1990: 2).
New and complex challenges in the prosecution of firearms trafficking arise from advances in technology. There is potential for the easy availability of firearms on the dark web, and electronic means of communication through social media, such as Facebook, message boards, Viber, WhatsApp, to name a few, facilitate firearms trafficking. Prosecutors need to understand how these technologies work in order to ensure admissible evidence can be collected. On the other hand, technological developments have provided prosecutors with useful tools for successful prosecution of firearms cases. Today, they can benefit from information about tracing with data being collected quickly from various databases, including international repositories such as IBIN, FRT, iArms, and national firearms databases. The new technologies allow easier securing, collection and restoration of electronic evidence, which otherwise would have been permanently destroyed.
When investigating firearms related offences, the judicial authority may require the physical appearance in court. Special security considerations must be given to the safe storage and movement of firearms in order to preserve the chain of custody and prevent security related risks.
Temporary seizures of firearms must be evaluated by a judicial authority, which has to decide whether the items are to be returned to their legitimate owners, or the measure confirmed and transformed into a permanent confiscation. Prosecutors must request in court the confiscation of the seized firearms and other items, and their final disposal. It is the task of the judicial authority to determine whether all the legal conditions are present to accept such request and order the confiscation and the final disposal of the item. Depending on national laws and concrete circumstances, such final disposal can consist in assigning the weapons to the State, or to specific institutions for their use or destruction.
It is important to note that in some jurisdictions, the failure of prosecutors to request the confiscation and destruction of illicit firearms and ammunition, and the failure of judges to order the confiscation and disposal/destruction of firearms, can create stagnation whereby illicit weapons are accumulated in judicial courts or evidence rooms awaiting their final sentence and disposal order. This can go on for decades, with all the security and safety risks related to their unsafe and unsecure storage and management. These are typically the firearms that run a high risk of being diverted and trafficked into the hands of criminals.
The above example illustrates the interrelationships between different stages of a firearm control regime, and the importance of each single entity in the process playing its role fully and correctly.