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Session 2008 - 09
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The Committee consisted of the following Members:

Chairman: Mr. Gary Streeter
Allen, Mr. Graham (Nottingham, North) (Lab)
Dhanda, Mr. Parmjit (Gloucester) (Lab)
Garnier, Mr. Edward (Harborough) (Con)
Hands, Mr. Greg (Hammersmith and Fulham) (Con)
Heath, Mr. David (Somerton and Frome) (LD)
Hepburn, Mr. Stephen (Jarrow) (Lab)
Hesford, Stephen (Wirral, West) (Lab)
Hogg, Mr. Douglas (Sleaford and North Hykeham) (Con)
Hopkins, Kelvin (Luton, North) (Lab)
Howarth, David (Cambridge) (LD)
Spellar, Mr. John (Comptroller of Her Majesty's Household)
Ward, Claire (Parliamentary Under-Secretary of State for Justice)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Gosia McBride, Committee Clerk
† attended the Committee

European Committee B

Monday 13 July 2009

[Mr. Gary Streeter in the Chair]

Conflicts of Jurisdiction in Criminal Proceedings
4.30 pm
The Chairman: Does a member of the European Scrutiny Committee wish to make a statement?
Kelvin Hopkins (Luton, North) (Lab): It is a pleasure to serve under your chairmanship, Mr. Streeter, for the first time. It might help the Committee if I take a few minutes to explain the background to the document and the European Scrutiny Committee’s reasons for recommending it for debate.
The framework decision sets up a co-operation procedure between police and prosecution authorities in EU member states. The procedure’s purpose is to prevent a criminal suspect from being tried twice for the same offence in two different member states. Being tried twice for the same offence is known as double jeopardy, or the principle of ne bis in idem—I hope that my pronunciation of the Latin is correct, as it has been 50 years since I studied it. The framework decision was a proposal of the Czech presidency.
Co-operation will work in the following way: once a police or prosecution authority in one member state has reasonable grounds to believe that parallel criminal proceedings might be, or are being, conducted against the same suspect in another member state, it is obliged to contact the relevant authority in the other state. If parallel proceedings are confirmed, the two authorities will initiate direct consultations to reach a consensus on avoiding the adverse consequences of the suspect being tried twice for the same offence. That will usually require one member state to surrender jurisdiction and might involve the defendant being transferred to another member state to be tried. Where the two authorities have been unable to reach consensus, the matter can, where appropriate, be referred to Eurojust for resolution. The framework decision is otherwise silent on what happens when consensus cannot be reached, and one of the recitals clarifies that
“no Member State should be obliged to waive or to exercise jurisdiction unless it wishes to do so”.
Member states agreed a general approach to the text in the Council of Ministers in Brussels on 6 April 2009—a general approach means agreement on the main provisions of the text. Although the general approach text—the document being considered today—met many of the European Scrutiny Committee’s previous concerns, one remained outstanding: defence rights. The Committee had recommended that a recital stating that the framework decision does not affect any right of individuals to argue that they should be prosecuted in their own jurisdiction, or in another, be repeated as an article in the operative part of the text to give it legal force. That was because the Committee took the view that it was vital, and consistent with the requirements of the European convention on human rights, for the framework decision to ensure that a defendant should be allowed to make legal representations before a court in the member state in which he was situated if he was at risk of being transferred to a foreign jurisdiction. Justice, the law reform organisation, and the Law Society raised similar concerns in briefing papers on the framework decision in February and April 2009 respectively.
The Minister, Lord Bach, responded to the Committee’s concerns in his letters of 30 March and 14 May, stating that the framework decision is aimed at facilitating co-operation between competent authorities and does not afford, create or take away any existing procedural rights for individuals. Therefore, there was no need to mention the procedural rights of defendants in the operative part of the text as well as in a recital.
It was plain to the Committee that the obligation to consult between member states conducting parallel proceedings against the same defendant was with a view to one member state surrendering or exercising jurisdiction over a defendant to avoid a parallel prosecution. That might well affect the procedural rights of that defendant if he was at risk of being tried in a foreign jurisdiction, so the Committee had difficulty in drawing the distinction the Minister made between the obligation to co-operate and the intended result of that co-operation, and in understanding why the recital could not simply be repeated as an article of the framework position.
In view of the possible consequences of that framework decision on the rights of a criminal suspect, the European Scrutiny Committee felt that the omission of a reference to procedural rights was of sufficient importance to be debated in the European Committee and has asked the Government not to agree to the final adoption of the text before the debate.
4.34 pm
The Parliamentary Under-Secretary of State for Justice (Claire Ward): Thank you, Mr. Streeter, for the opportunity to discuss the framework decision. I would also like to thank my hon. Friend the Member for Luton, North for his opening remarks.
A general approach on the framework decision was reached at the Justice and Home Affairs Council in April. The measure is due to be adopted once the European Parliament has had the opportunity to look at it and all parliamentary reservations have been lifted. We anticipate that that will be at either the October or November meetings of the JHA Council. The Government are grateful to the European Scrutiny Committee for its helpful input during the development of the measure. We have, throughout the process, actively pressed for the Committee’s points to be taken into account and we have been largely successful.
The measure, when first proposed, set up a mechanism for systematically notifying another member state of ongoing criminal proceedings when certain criteria were met. Upon notification, the relevant authorities in the member states concerned were obliged to consult each other to decide which jurisdiction would be best placed to prosecute. We considered the original proposal unsuitable because it was administratively burdensome and the criteria for notification were too wide. It would have put undesirable pressure on our prosecutors in particular. Therefore, the UK petitioned hard throughout negotiations to shape a framework decision that would not create an unnecessary bureaucratic burden for prosecuting authorities. The proposal was, therefore, altered significantly to limit its scope to preventing double jeopardy and encouraging better dialogue among the authorities of various member states. The framework decision is now very much about communication and consultation and will complement existing domestic practice.
The framework decision will be an additional tool in helping to settle conflicts of jurisdiction, since it encourages the authorities of the member states concerned to reach a consensus on where to take forward the proceedings when possible and to refer cases to Eurojust when they fail to do so. In practice, the measure is designed to ensure that member states get in contact when there are
“reasonable grounds to believe that parallel proceedings are being conducted in another Member State”.
Ensuring that member states communicate in that way will assist defendants and help to ensure that they do not suffer the adverse consequences arising from parallel proceedings. I am conscious that the debate has been called because the Committee has an outstanding concern about one aspect of the framework decision, to which my hon. Friend the Member for Luton, North alluded. That there is only one such matter is an indication of how far things have come since the measure first saw the light of day last year, but let me turn to the specific point that he raised.
The Committee’s concern regards the use of a recital to deal with a provision on defendants’ rights. Recital 17 sets out that:
“This Framework Decision is limited to establishing provisions on the exchange of information and direct contact and direct consultations between the competent authorities of the Member States and therefore does not affect any right of individuals to argue that they should be prosecuted in their own or in another jurisdiction, if such right exists under national law”.
The Committee commented that such a provision should be in the operative part of the text rather than in the introductory recitals and made that point to Lord Bach in a letter on 29 April. Lord Bach has replied to the Committee but I thought that it would be helpful if I outlined the arguments again. I know that the Committee is of the view that, as consultation among member states is done with a view to one member state surrendering or exercising jurisdiction, the procedural rights of the defendant may be affected. I contend that the biggest threat to a defendant’s rights would be parallel proceedings brought and pursued against them, and I hope that members of the Committee agree. The aim of the framework decision is to ensure that, if and when that happens, the competent authorities of the member states concerned endeavour to avoid the adverse consequences of that situation—that is to say, a double jeopardy case.
The defendant, if entitled under national law to make representations about where the prosecution will be held, will still be entitled to make such representations. Recital 17 simply highlights that fact. It is not strictly necessary to restate it at all, but it was felt that drawing that point out in a recital would provide reassurance and would help those looking at the document to grasp its scope quickly.
The Committee raised the more general point about the status and use of recitals. I agree that recitals are not the appropriate place for provisions that create rights, provide safeguards or do anything other than explain the operative section of the text and set it into context. Recitals should be seen as informative or interpretative elements of the document. Recital 17 falls within that category and, as such, I hope that the Committee will feel able to support the framework decision as it stands.
The Chairman: I thank the Minister for her statement. We now move on to questions. I remind Members that questions should be brief. It is, however, open to Members to link related questions.
Mr. Edward Garnier (Harborough) (Con): Along with the hon. Member for Luton, North, I welcome you to the Committee, Mr. Streeter. I have one or two questions, which I trust will enable us to give shape to the debate.
Will the Minister confirm that we are talking about offences or potential offences under national law—not European Union law—and that the parallel prosecutions relate to, for example, the English law of theft and the French law of theft, as opposed to a less clear European Union law?
The Minister said in her opening statement that the negotiations were in her view “largely successful”, which suggests that aspects of them were not. Perhaps she will tell us about those.
What is the precise role of Eurojust in arbitrating jurisdictional disputes between European member states? Eurojust is not a court. Why cannot those who are dissatisfied with jurisdictional issues apply to the courts of England and Wales, Scotland or Germany—whichever courts are relevant—to have such matters arbitrated? I seem to recall that we are not a member of pillar three of the European Union’s arrangements from the early 1990s, so what effect does this set of documents and recitals have on those arrangements? How can British, English, Welsh, Scottish and Northern Irish defendants’ rights, as we understand them, be guaranteed to be preserved when a person’s case is removed to another jurisdiction under the arrangements? I will sit down, but if I am provoked, I may ask some more questions.
Claire Ward: I confirm that the measure deals with allegations of offences under national law. To explain a little, when the defendant is the same and the facts are essentially the same, a discussion will probably arise between member states about jurisdiction. In such circumstances, the measure might come into play. Its purpose is simply to encourage discussions between member states and provide a framework for them.
The hon. and learned Gentleman ahs referred to pillar three. As this issue is under pillar three, we participate on a co-operative basis in crucial pillar three matters. However, the measure does not give rise to actionable rights for any individual, as it relates specifically to the justice and home affairs framework.
The hon. and learned Gentleman has asked about Eurojust. Individuals can apply to the courts, if they think that they are being prosecuted in the wrong member state. Essentially, Eurojust provides a useful forum for discussing whether a case is in the right jurisdiction. Eurojust does not take away from existing rights under national law, and its decisions are not binding.
Mr. Garnier: If its decisions are not binding, what is the point of having the discussion?
Claire Ward: It is simply to provide an opportunity for members to have an arbiter, but the decisions are not binding. I suspect that if we had signed up to something binding in this area, the hon. and learned Gentleman would be criticising the Government from that perspective.
Mr. Garnier: With respect, just because one does two wrong things, it does not mean that doing one wrong thing is better than doing another wrong thing. I am trying to understand what the Government are signing up to. It is not clear so far from the Minister’s answers, so I invite her to have another go.
Claire Ward: We are signed up to Eurojust, which allows member states to discuss such cases. If there were a dispute over which member state wished to have jurisdiction, the parties could, having followed all the procedures in the framework decision, refer it to Eurojust as a third-party arbiter. However, its final decision is not binding on a member state. Had we signed up to its being binding, I suspect that there would be additional problems and the hon. and learned Gentleman and his party would have another point to criticise.
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