37 Green Paper on conflicts of jurisdiction
and double jeopardy in criminal proceedings
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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 16 May 2006
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| Previous Committee Report | HC 34-xxv (2005-06), para 7 (19 April 2006), HC 34-xx (2005-06), para 14 (1 March 2006) and see (25284)16258/03: HC 42-xiv (2003-04), para 5 (24 March 2004), HC 42-xix (2003-04), para 2 (5 May 2004) and (26602) 9522/05: 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 | Cleared
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Background
37.1 On 1 March and 19 April 2006 we considered a Commission Green
Paper which 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. 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 and 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.
37.2 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.
37.3 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
were considered and that such delays would be aggravated by the
further time necessarily taken up by preliminary references to
the European Court. We noted the Attorney General's view that
the various mechanisms suggested by the Commission in its Green
Paper would lengthen proceedings and would lead to an increase
in challenges under Article 6 of the ECHR[117]
which would be likely to give rise to a conflict in case law with
the ECJ.
37.4 We held the document under scrutiny so that
we could report on the Government's reply to the Green Paper.
The Government's reply to the Green Paper
37.5 The Attorney General (Lord Goldsmith QC) attaches
a copy of the Government's reply to the Green Paper to his letter
of 16 May. In his letter the Attorney General informs us that
the Commission's public consultation would be continuing with
a meeting of experts on 30-31 May, but that the Commission has
stated its intention to introduce a legislative proposal, probably
in the last quarter of 2006.
37.6 The Government's reply takes the form of answers
to the 24 specific questions posed in the Green Paper. In reply
to the first such question (as to whether there is a need for
an EU provision requiring national law to provide for proceedings
to be suspended by reason of proceedings in other Member States)
the Government states that the Commission has not shown that such
need exists, and notes that in the rare case where a positive
conflict of jurisdiction does arise, existing mechanisms, such
as Eurojust, operate satisfactorily. The reply makes the following
additional points:
"A compulsory provision to suspend proceedings
would be inflexible and remove the discretion of independent public
prosecutors. The paper seems to contemplate the decision being
taken by the time that the case is sent to the trial court. This
might be possible in some long running investigations but not
in cases where the person is arrested at the time that the crime
is detected, where the person must be charged and brought before
the court. This is especially so in England and Wales where the
defendant is charged with an indictable-only offence, for which
he would normally be sent to the Crown Court upon his first appearance
before the Magistrates' Court. Similar problems would arise in
Scotland, on occasions even more sharply, because of the tighter
time scales imposed by the Scottish system in serious cases. The
idea of suspending proceedings to permit jurisdiction to be litigated
does not fit with the realities of criminal procedure. It would
also be difficult to devise a timetable that applies equitably
to the EU's diverse legal systems.
"The four-step process, especially review
of jurisdiction by the trial court and possible referral to the
ECJ, risks the possibility of protracted parallel litigation before
the trial starts. That process could delay the defendant's fair
trial in any jurisdiction, and its implementation would produce
real difficulties in a case where the defendant or another interested
party persuades the mediator/the appellate tribunal that the proceedings
should take place in another jurisdiction. The evidence will have
been gathered by investigators of a Member State in accordance
with the law and procedures of that State, which might turn out
to be inadmissible under another Member State's law and procedure.
The Member State in question would then have to make a request
for mutual legal assistance, for the evidence to be gathered in
a form that would be admitted in its courts. The prosecutor would
then have to start extradition proceedings, in which the venue
of the proceedings could be re-litigated, as could the issue of
whether the defendant could be tried in a reasonable time.
"In the circumstances, it is difficult to
see how this proposal would assist prosecutors in tackling serious,
organised, cross-border crime. The measure could be at odds with
some Member States' constitutional obligation to prosecute an
offence. 'National law' in the context of the Commission proposal
would therefore mean 'constitutional law', which is traditionally
the most difficult national legislation to amend. Even where,
as in the UK, there is no written constitutional law as such,
the discretion regarding prosecutions may be regarded as of fundamental
constitutional importance.
"Finally, to ensure that prosecutors in
Member States were routinely aware that another Member State was
interested in proceedings or that a conflict of jurisdiction had
arisen, there would have to be some mechanism for exchanging this
information routinely, perhaps an EU database, or a centralised
'European register' of prosecutions and/or charges. It is not
clear that thought has been given to an efficient and secure mechanism
for that purpose. Prosecutors' experience of mutual legal assistance
and the European Arrest Warrant tends to show that the exchange
of information could be very protracted in some cases."
37.7 In relation to the questions in the Green Paper
seeking views on whether there should be a duty to inform foreign
jurisdictions in due time of ongoing or expected prosecutions
if there are significant links to such jurisdictions, the Government's
reply does not support the creation of any binding duty, noting
that such a binding duty might give rise the arguments that a
prosecution conducted without having first given such information
amounted to an abuse of process, even if the trial were otherwise
fair. The reply also notes that there would be difficulties in
determining what is meant by "due time" and that the
exchange of personal data involved would raise data protection
issues. It also notes that the guidelines adopted by Eurojust
already provide for informing countries which might have an interest
in a prosecution.
37.8 The Government's reply sees no need for any
EU model for agreements between prosecuting authorities in relation
to prosecutions. It notes that in the UK prosecutors already have
authority and a broad discretion to terminate proceedings, and
comments that the UK cannot see why any other Member State would
wish to enter into such agreements and asks if it is "suggested
that binding agreements might make a ceding of discretion to EU
law more palatable" .
37.9 The Government's reply sees no need for any
mandatory procedure for resolving positive conflicts of jurisdiction
and points instead to the role of Eurojust in facilitating discussions
between Member States as to the appropriate venue for prosecutions.
The Government considers that no case has been made out for further
steps at EU level, such as a decision by a body at EU level to
resolve conflicts of jurisdiction, and is not convinced that it
is necessary or desirable to abandon the existing , informal,
flexible arrangements in favour of a "regulated, binding,
bureaucratic regime".
37.10 In relation to the series of questions in the
Green Paper as to a possible future legal instrument on jurisdiction,
the Government considers that a non-exhaustive list of criteria
might be useful but that any provision should allow for flexibility
to take account of the specific circumstances of a case. The list
should not exclude any relevant factors and any strictly prioritised
list of criteria would be difficult to agree. The Government does
not agree that territoriality should be given priority, since
in some cases offences will have been committed in more than one
territory, and concludes that "prioritising criteria could
be far too restrictive".
37.11 The Green Paper raises a series of questions
on the rule against double jeopardy (the ne bis in idem
principle). A proposal on this issue was under consideration by
the Council but the Government does not consider that the case
to re-open this topic has been made out, pointing out that the
previous EU initiative[118]
foundered because of the diversity of cases and national criminal
justice systems the proposal was seeking to address, and that
it is unclear what has now changed so as to prevent the same issues
resurfacing to defeat further initiatives of this type.
Conclusion
37.12 The Government's reply to the Commission's
Green Paper makes some powerful and well-argued points against
the adoption at EU level of any formal rule-bound mechanism for
allocating criminal jurisdiction, and in favour of the co-operative
approach presently fostered by Eurojust.
37.13 We agree with the points which have been
made and we clear the Green Paper from scrutiny.
117 Article 6 of the ECHR guarantees the right to 'a
fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law'. Back
118
(25284); See HC 42-xix (2003-04), para 2 (5 May 2004). Back
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