5 Double jeopardy
| (a)
(24946)
13281/03
+ REV 1
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(b)
(25284)
16258/03
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Draft Framework Decision on the application of the 'ne bis in idem' principle
Draft Framework Decision on the application of the 'ne bis in idem' principle
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| Legal base | Article 34(2)(b) EU; consultation; unanimity
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| Document originated | (b) 20 January 2004
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| Deposited in Parliament | (b) 23 January 2004
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| Department | Home Office |
| Basis of consideration | (b) EM of 6 February 2004
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| Previous Committee Report | (a) HC 42-ii (2003-04), para 3 (9 December 2003), HC 42-v (2003-04), para 6 (14 January 2004); and see (24591) 10135/03: HC 63-xxviii (2002-03), para 6 (2 July 2003) and HC 63-xxxii (2002-03), para 15 (17 September 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Cleared
(b) Not cleared; further information requested
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Background
5.1 We considered earlier versions of this proposal on 2 July
and 17 September and a further version (document (a)) on 9 December
2003 and 14 January 2004. The proposal concerns the principle
of 'ne bis in idem' (or avoidance of double jeopardy)
which has long been a feature of civilised legal systems and
requires that a person may not be tried twice for the same criminal
offence when the charge is based on the same facts. Within the
European Union the draft Framework Decision would replace Articles
54 to 57 of the Convention implementing the Schengen Agreement.[11]
5.2 Our principal remaining concern with document
(a) was over Article 3. This seeks to resolve conflicts where
more than one Member State is entitled to commence a prosecution.
The Article sets out criteria for giving preference to the Member
State "which will [best] guarantee the proper administration
of justice". It provides that the Member States having jurisdiction
might choose the Member State to be given preference, "after
consultation taking account of the criteria". The Article
also provides for the suspension of proceedings in a court other
than the forum which has been chosen .
5.3 The Minister agreed with us that, given the existence
of Eurojust and other mechanisms for mutual legal assistance,
these provisions were unnecessary. The Minister further explained
that efforts to secure the deletion of these provisions had not
been successful, but that the Government had managed to ensure
that the current draft of Article 3 provided "an indicative
rather than mandatory scheme for the resolution of jurisdiction
issues". The Minister explained that Article 3(b) applies
both to situations prior to the initiation of criminal proceedings
and also where there is simply the possibility of a number of
Member States bringing a criminal prosecution in respect of the
same criminal offence. Member States would be obliged to consult
prior to the initiation of criminal proceedings, but the Minister
explained that the provision did not compel Member States to choose
a Member State as a result of that consultation and that the Government
could accept the provision as drafted.
5.4 We remained concerned about the provisions of
Article 3, since they appeared to us to impose an obligation on
a prosecuting authority to consult with its counterparts as a
condition of bringing proceedings, both where proceedings in one
Member State were pending and (despite the opening words of Article
3) also in cases where it was merely possible for concurrent proceedings
to be commenced. This appeared to us to raise a question as to
the validity of a prosecution which had been commenced without
such consultation having taken place, and we asked for the Minister's
comments on how a defendant in such circumstances would be able
to establish the invalidity of the proceedings where such consultation
had not been carried out.
5.5 We also noted the Minister's explanation of the
effect of the provisions of Section 76(4) of the Criminal Justice
Act 2003. An application which might otherwise have been made
to the Court of Appeal for an order that an acquittal before a
court outside the United Kingdom was not to be a bar to a prosecution
in England and Wales would not receive the consent of the Director
of Public Prosecutions if the new trial would be inconsistent
with the EU obligations of the United Kingdom relating to the
principle of ne bis in idem.
The revised draft Framework Decision
5.6 The revised draft Framework Decision (document
(b)) reflects the outcome of further consideration by the Council
working group. The revised proposal contains a number of minor
changes to the text, with some re-ordering of its Articles, but
is in substance similar to its predecessor.
5.7 Article 1 of the revised draft now defines "final
decision" as a "final judgment in criminal matters"
or as "another legal act based upon the presumption of [the]
legality or illegality of the behaviour of the person concerned,
taken by a judicial or equivalent authority with jurisdiction
in particular in criminal matters, or having been subject to an
appeal to such a judicial authority, that finally terminates the
possibility of prosecution". The explanatory notes to this
provision show that most Member States thought that this definition
of "final decision" would cover decisions on time limits
for prosecutions, these being decisions on the substance under
their national laws, but that this was being resisted by other
Member States.
5.8 Article 2 sets out the ne bis in idem
principle in terms similar to the previous version. It provides
that a person who has been subject to a final decision in a Member
State "cannot be subject to criminal proceedings or tried
again for the same facts, irrespective of their legal qualification,
in another Member State".
5.9 Article 3 contains the provision formerly made
in Article 4(1) in relation to an exception from the ne bis
in idem principle for cases where a penalty imposed in a Member
State is not being enforced. It provides that a second prosecution
may be initiated in such cases "where the penalty can still
be enforced in accordance with the laws of the first Member State
and neither a transfer of the enforcement of the original penalty
nor the surrender of the person[s] involved for purposes of the
enforcement of the penalty is legally possible".
5.10 The former Articles 3 and 4 (now 4 and 5), concerning
concurrent proceedings (lis alibi pendens) and exceptions
from the ne bis in idem principle, are unchanged.
5.11 Article 6 (formerly Article 4(a)) has been slightly
amended. It deals with the situation where new evidence or new
or newly discovered facts would have justified the re-opening
of the case in a Member State different from the one in which
the final decision was reached. It provides that the Member State
shall "if necessary" inform the competent authorities
of the State in which the final decision was reached of such new
evidence or facts. Where such competent authorities decide not
to re-open the case "they shall explain the reasons for their
decision to the competent authorities of the informing State within
a reasonable time". (The previous text provided that the
competent authorities of the State in which the final decision
was reached might refuse to re-open the case "solely by reasoned
decision").
5.12 The remaining provisions (on accounting for
penalties already imposed, exchange of information, application
of more extensive national law and the formal provisions relating
to implementation, repeals and entry into force) are substantially
unchanged.
The Government's view
5.13 In her Explanatory Memorandum of 6 February
2004 the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains the effect of the revised proposal as
well as addressing the points we raised in our most recent Report.
5.14 The Minister explains that the Government continues
to have concerns about the drafting of passages in the text. It
is not content with the definition of "final decision"
in Article 1, because it lacks any "direct explanation of
the finality of the judgment". In the Government's view,
the definition should refer to there being a "substantive
determination of guilt or innocence, so that decisions taken on
merely procedural grounds are excluded". The Minister adds
that this will "avoid confusion over the precise constitution
of the final decision".
5.15 The Minister explains that the Government is
seeking to retain Article 3, which states that further proceedings
are possible, notwithstanding a final decision in another Member
State, where a penalty "has not been enforced, and is not
being enforced, provided that the transfer of the original penalty
is not possible".
5.16 In her comments on Article 4 (lis alibi pendens)
the Minister addresses our concerns as follows:
"The European Scrutiny Committee has raised
the issue of the nature of Article 4, as well as concerns over
the validity of prosecutions undertaken without such consultation.
The Government remains of the view that Article 4 does not contain
binding provisions for choosing the Member State to carry
out the prosecution. As drafted Article 4(b) does impose an obligation
on Member States to consult where there is a possibility of criminal
proceedings, and where there are a number of Member States bringing
a criminal prosecution in respect of the same criminal offence.
But this Article does not compel Member States to choose a Member
State as a result of this consultation. The Government is content
with this provision as drafted on the basis that it represents
a compromise between those Member States who wished to go further
and agree a binding provision and those who wanted an entirely
permissive provision.
"If consultation under Article 4(b) remains
compulsory and a prosecution were to take place either without
any consultation or without the defence being able to determine
whether consultation took place, it is possible that the prosecution
itself could be considered an abuse of process under our domestic
law. This point will need to be addressed. One solution would
be to allow Member States to address this issue on implementation.
The UK could seek to meet this requirement by, for example, creating
some guidelines on consultation and an obligation on the prosecuting
authority to notify the defendant or legal representation of the
outcome of discussions on jurisdiction."
5.17 In relation to the exceptions under Article
5, the Minister explains that the Government is generally content
with these, and is supporting their retention. The Minister points
out that the provision requiring Member States to make a declaration
at the time they adopt the Framework Decision that they intend
to apply the exceptions was included because of an argument that
those Member States which had not made use of the similar exceptions
under the Schengen Convention would not be able to do so under
the Framework Decision.
5.18 The Minister does, however, register a concern
over Article 5(5) (formerly Article 4(6)), which provides that
a Member State may not rely on the exceptions in Article 5 if
it has previously agreed that preference is to be given under
Article 4 to the jurisdiction of another Member State. The Government's
concern is that the circumstances which would be relevant to the
reliance on the exception for national security or other essential
national interests may not be known when the preference under
Article 4 is agreed. The Government will continue to "seek
language that allows sufficient flexibility for the national security
and other essential interests exception to apply in these circumstances".
5.19 The Minister adds that the draft Framework Decision
is not due to be discussed imminently in the Council and that
the Irish Presidency wishes to give this matter further consideration
before returning it to the negotiating table, but that there has
been no indication as to when this might be.
Conclusion
5.20 We thank the Minister for her detailed and
helpful Explanatory Memorandum.
5.21 We ask the Minister to explain further the
grounds of her objection to the definition of "final decision"
in Article 1, and, in particular, to explain further what is meant
by excluding decisions "taken on merely procedural grounds"
from the proposed rule against double jeopardy.
5.22 Like the Minister, we continue to believe
that the provisions of Article 3 on resolving positive conflicts
of jurisdiction are unnecessary. We note the confirmation by the
Minister that these provisions do impose an obligation on a prosecuting
authority to consult other prosecuting authorities in cases where
there is a possibility of concurrent criminal proceedings. We
welcome the statement by the Minister that in such cases the
bringing of a prosecution without such consultation might amount
to an abuse of process under domestic law, and that the point
will need to be addressed. We likewise welcome the Minister's
suggestion of imposing an obligation on the prosecution to disclose
to the defence whether such consultation has taken place, and
its outcome.
5.23 We note the position which has been reached
on the national security and essential interests exception in
Article 5, and we shall look forward to a further account in
due course.
5.24 We clear document (a) on the grounds that
it has been superseded, but we shall hold document (b) under scrutiny
pending the Minister's reply.
11 OJ No. L 239, 22.9.00, p.19. Back
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