7 Green Paper on conflicts of jurisdiction
and double jeopardy in criminal proceedings
| (27178)
5381/06
COM(05) 696
+ ADD 1
| Commission Green Paper on conflicts of jurisdiction and the principles of ne bis in idem in criminal proceedings.
Annexed Commission staff working document
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| Legal base | — |
| Department | Home Office |
| Basis of consideration | Minister's letter of 22 March 2006
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| Previous Committee Report | HC 34-xx (2005-06), para 14 (1 March 2006) and see HC 42-xiv (2003-04), para 5 (24 March 2004), HC 42-xix (2003-04), para 2 (5 May 2004) and HC 34-i (2005-06), para 29 (4 July 2005)
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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 | Not cleared; further information awaited
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Background
7.1 We considered the Commission Green Paper on 1 March 2006.
The Green Paper sought to address problems raised by positive
conflicts of jurisdiction in criminal cases i.e. cases where more
than one Member State has, and wishes to exercise, jurisdiction
to prosecute conduct which constitutes a criminal offence.
7.2 We noted that the Green Paper suggested the creation
of a mechanism for allocating criminal jurisdiction, so that all
prosecutions would be concentrated in the one territorial jurisdiction.
The mechanism would have a three-stage procedure. First, in any
case with significant links to another Member State, a national
prosecuting authority would be obliged by a rule adopted at EU
level to inform the authority in those other Member States of
its intention to prosecute. Following the elapse of a deadline
with no expressions of interest the first Member State would be
free (apart from exceptional cases) to continue with the prosecution.
Where two or more Member States had an interest in commencing
a prosecution, a second stage would involve discussions between
the authorities concerned leading to one Member State pursuing
the proceedings with others desisting from instituting proceedings
or bringing them to a close. A third stage would provide for a
"structured dialogue" with the involvement of a body
at EU level, such as Eurojust, acting as mediator where agreement
could not be reached. A further possible stage of empowering a
body at EU level to decide on the most appropriate jurisdiction
was suggested by the Green Paper, but this also acknowledged that
such a step would be "very difficult" to take within
the current Treaty framework, and noted that the current Treaties,
unlike the provisions of Article III-359 of the Constitutional
Treaty, did not provide a basis for conferring a power on the
ECJ to review the decisions of such a body.
7.3 The Green Paper also advocated a rule of priority
whereby Member States would be obliged to concentrate proceedings
in one "leading" jurisdiction, with other jurisdictions
being obliged to discontinue a prosecution or refrain from instituting
any new proceedings. The Green Paper also suggested the adoption
of a list of criteria for use by the Member States in allocating
jurisdiction.
7.4 We agreed with the Attorney General that the
need for a formal mechanism for allocating jurisdiction was far
from being demonstrated, and that such a mechanism did not appear
to bring any advantage which was not already secured by voluntary
co-operation through Eurojust. We viewed with particular concern
the suggestion that an EU body might be empowered to make a binding
ruling determining which Member State should be allowed to prosecute,
which could have the result that a national prosecuting authority
could be prevented, by reason of an EU decision not reviewable
in the national courts, from prosecuting an offence taking place
within the national territory. We did not believe that such a
result would be tolerable as it would undermine the accountability
of the Law Officers (including the Lord Advocate in relation to
prosecutions in Scotland) and we looked to the Attorney General
vigorously to oppose any such notion.
7.5 We also agreed with the Attorney General that
it was not clear that the Green Paper had fully considered the
implications for defendants of delays while conflicts of jurisdiction
are considered and that such delays would be aggravated by the
further time necessarily taken up by preliminary references to
the European Court, and we agree that such a system would be likely
to give rise to challenge under the ECHR, notably under Article
6. We held the document under scrutiny so that we could report
on the Government's reply to the Green Paper.
The Minister's reply
7.6 The Attorney General (Lord Goldsmith QC) replied
to our report on 22 March 2006, informing us that the Government's
response to the Green Paper would make it very clear that the
Government could not support the introduction of measures on conflicts
of jurisdiction without sufficient supporting evidence to show
they were necessary or desirable.
7.7 In relation to our concern over the possible
curtailment of a national authority's discretion to prosecute
an offence occurring within the national territory, the Attorney
General "fully" agrees that an obligation to suspend
proceedings would be inflexible, and that the Government's response
will reflect this view and will set out the practical inconvenience
of such a measure as well as pointing out that it will be of no
benefit to public prosecutors in tackling serious crime.
7.8 The Attorney General adds that the various mechanisms
suggested by the Commission in its Green Paper would lengthen
proceedings and "undoubtedly lead to an increase in challenges
on ECHR Article 6 grounds, likely to give rise to a conflict in
case law with the ECJ". The Attorney General states that
these important issues will be exposed fully in the Government's
response.
Conclusion
7.9 We thank the Attorney General for his letter,
and we shall look forward to further information from him about
the Government's formal response to the Green Paper.
7.10 We note that the Attorney General agrees
with us that a rule imposed by an EU body which suspended a national
prosecution would be "inflexible", but we trust the
point will also be made that it would be objectionable in principle,
since it would undermine the national systems of accountability
for prosecuting authorities.
7.11 We shall hold the document under scrutiny
pending further information from the Attorney General.
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