CONFLICTS OF JURISDICTION AND THE PRINCIPLE
OF NE BIS IN IDEM IN CRIMINAL PROCEEDINGS (5381/06)
Letter from the Chairman to Rt Hon Lord
Goldsmith QC, Attorney General, Office for Criminal Justice Reform,
Home Office
Sub-Committee E (Law and Institutions) examined
the Green Paper at its meeting of 1 March 2006.
We agree that the Green Paper raises a number
of important issues, not least whether there is a need for further
action at EU level in this area at all. You point out that the
Commission has provided no data to support its assertions that
positive conflicts of jurisdiction are occurring more frequently
and that existing mechanisms are ineffective in dealing with these.
Does the Commission intend to provide further information on this?
Do you have statistics on positive conflicts of jurisdiction involving
the UK? Do the existing informal discussions lead to delays in
criminal proceedings?
PROTECTION OF
FUNDAMENTAL RIGHTS
You consider that negotiations on appropriate
jurisdiction would inevitably lead to lengthy delays in criminal
proceedings. This raises human rights questions, in particular
regarding Article 6 ECHR which guarantees a fair trial, and this
is a matter which the Committee considers to be extremely important.
We trust that you will ensure that regard is had to human rights
in future negotiations. We believe that it is for consideration
whether any future proposal should contain strict time limits
to ensure that delays are minimised. Is there not a case to be
made for binding legislation to minimise delays and deal with
jurisdiction conflicts within a regulated framework?
BINDING DECISION
ON JURISDICTION
You do not comment specifically on the suggestion
that a binding decision on jurisdiction might be taken at EU-level.
This would require the creation of a new EU body, either to take
on the mediation role currently envisaged for Eurojust, or to
make the binding decision itself. Should a binding decision be
made at EU level? If so, what body should make this decision?
How might the problem of judicial review of an EU level decision
be resolved?
CROSS-BORDER
CASES
It is envisaged that the obligation to inform
other Member States of proceedings underway would arise where
a case demonstrates significant links to another Member State.
How would this be assessed? Is the test being proposed by the
Commission workable in practice?
CRIMINAL JUSTICE
ACT 2003 AND
INTERNATIONAL COMMITMENTS
We note that you do not intend to revisit the
provisions of the Criminal Justice Act 2003. Any future proposal
would also have to comply with agreed international commitments.
It would be helpful if you would describe more fully the implications
of any future proposals in this field on the position in domestic
and international law.
The Committee has decided to retain the Green
Paper under scrutiny.
2 March 2006
Letter from Rt Hon Lord Goldsmith QC to
the Chairman
Thank you for your letter of 2 March 2006.
THE NEED
FOR THIS
PROPOSAL
In your letter, you ask whether the Commission
intends to provide evidence to support the introduction of measures
on conflicts of jurisdiction. We shall certainly press for this.
UK practitioners (liaison magistrates, prosecutors, officials
dealing with cross-border cases) concur that there is no evidence
of positive conflicts of jurisdiction, and whilst no statistics
are available, it seems that where a jurisdiction issue arises,
it is solved by informal discussions without undue delay. In some
cases, jurisdiction is resolved before the proceedings are commenced,
usually where there are proactive investigations.
Our response will make clear that without such
evidence the Government cannot support such initiatives as either
necessary or desirable.
DELAYS AND
POSSIBLE CHALLENGES
TO THE
ECHR
As pointed out in the Explanatory Memorandum,
the various mechanisms suggested by the Commission 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. These important issues will be exposed
fully in the Government's response. I am doubtful that strict
time limits, as suggested in your letter, would solve the problem.
Any such timetable for resolving overlapping jurisdiction would
have to accommodate 25 different criminal justice procedures,
and this would be likely to result in an agreement on a maximum
duration for the process. Experience from the implementation of
the Framework Decision on the European Arrest Warrant shows that
Member States would apply any provision on timing in a way that
accommodates existing practice. Stricter time limits would have
to be enforced, which prompts questions about the type of sanction
for failing to comply with the timetable.
A BINDING MECHANISM
We are not persuaded that binding decisions
to resolve conflicts of jurisdiction should be made at Union level.
Such a mechanism would be inflexible and remove the discretion
of public prosecutors. However, we would support any measures
to enhance the capability of Eurojust to facilitate discussions.
A more formal role for Eurojust as mediator,
empowered to make binding decision on jurisdiction, would require
a thorough examination of its capacity and competence to carry
out this role, including the position of the national representatives
of the interested Member States within the "college".
Our response will reflect these concerns and
set out the practical inconvenience of the proposed mechanism.
CROSS BORDER
CASES AND
OBLIGATION TO
INFORM
The Green Paper suggests that the "initiating
state" should inform the authorities of another Member State
that has "significant links" with the case. The proposal
does not explain how this would be assessed and we would also
be interested in knowing what those "significant links"
would mean in practice and how they would be evaluted. These questions
also apply, mutatis mutandis, to the notion of "due
time" and will be reflected in the Government's response.
CRIMINAL JUSTICE
ACT 2003 AND
INTERNATIONAL COMMITMENTS
I note the Committee's request. We will keep
the Committee informed in due course.
I shall write to you again upon deposition of
the Government's response to the Green Paper.
22 March 2006
Letter from the Chairman to Rt Hon Lord
Goldsmith QC
Thank you for your letter of 22 March 2006 which
was considered by Sub-Committee E (Law and Institutions).
We note that you intend to press the points
raised in our letter in your response to the Commission; we look
forward to receiving your response in due course.
As regards the agreement of a timetable for
resolving conflicts of jurisdiction, we note what you say about
the difficulty of agreeing strict time limits. You raise the possibility
of an agreement on the maximum duration for the process but do
not indicate whether you are in favour of such a measure and whether
you will press for a provision of this nature in any future proposals.
While we accept that there will need to be discussions on what
sanctions may be applied for a failure to meet any deadline agreed,
we consider that time limits are important to send a strong signal
to Member States that the rights of individuals must be respected.
Agreement of an excessively long duration would, of course, be
susceptible to challenge before the European Court of Human Rights
as well as national jurisdictions.
The Committee has decided to retain the Green
Paper under scrutiny.
24 April 2006
Letter from Rt Hon Lord Goldsmith QC to
the Chairman
Thank you for your letter of 24 April 2006,
in which you express your interest in seeing the UK's response
to the Commission's Green Paper on Conflicts of Jurisdiction and
the Principle of ne bis in idem. Please find the response
enclosed, which reflects consultation with stakeholders, including
Scottish interests.
You ask in your letter whether the UK would
support the introduction of time limits to resolve conflicts of
jurisdiction. Such time limits would remove the flexibility that
we currently have in the system and open the door to challenges.
I understand that conflicts are currently resolved without undue
delays, so I see no need for such measures.
The Commission's public consultation will continue
with a meeting of experts on the issues, to be held on 30-31 May
2006. The stated aim of this two-day meeting is to enable Member
States to discuss the proposals made by the Commission in its
Green Paper and explain their views. The Commission have stated
their intention of introducing a legislative proposal, probably
in the last quarter of the year.
12 May 2006
Annex A
CONSULTATION RESPONSE TO THE COMMISSION'S
GREEN PAPER ON CONFLICTS OF JURISDICTION AND THE PRINCIPLE OF
NE BIS IN IDEM
The United Kingdom welcomes this opportunity
to comment on the Commission's proposal of 23 December 2005. This
response also takes into account the views of the Scottish Executive.
Scottish Executive Ministers and the Scottish Parliament have
policy responsibility for the Scottish legal system, an independent
jurisdiction within the UK.
On the evidence presented, the UK is not convinced
that binding legislation at EU level is necessary. It appears
that judicial co-operation, especially in the context of serious
organised crime, is functioning satisfactorily on the basis of
existing less informal arrangements. The UK is concerned that
legislative initiatives could reduce existing flexibilities.
SPECIFIC QUESTIONS
The response of the United Kingdom to the individual
questions is as follows:
QUESTION 1
Is there a need for an EU provision which shall
provide that national law must allow for proceedings to be suspended
by reason of proceedings in other Member States?
1. The Commission does not demonstrate that
such a need exists or that it justifies such action. Factual evidence
is not produced to show that existing arrangements are not functioning
satisfactorily. The UK's experience is that, in the rare events
where a positive conflict of jurisdiction arises, the mechanisms
in place operate satisfactorily, and that jurisdiction is and
can be resolved by discussion. Of the very few cases referred
to Eurojust, negotiation has resulted in acceptable solutions
for the states involved. A key problem seems to be persuading
States to investigate and prosecute in cases where they have jurisdiction
but are reluctant to do so, usually due to the amount of resources
required to handle those and the lack of political interest; frequently
so in fraud cases.
2. "Negative conflicts" of jurisdiction
(where no State wants to prosecute) do not appear to be addressed
by this proposal.
3. 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.
4. 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.
5. 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.
6. 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.
QUESTION 2
Should there be a duty to inform other jurisdictions
of ongoing or anticipated prosecutions if there are significant
links to those other jurisdictions? How should information on
ongoing proceedings, final decisions and other related decisions
be exchanged?
7. Early consultation and face-to-face discussion
with interested parties to resolve "overlapping jurisdiction"
(there is not always a conflict) should be encouraged. A binding
duty should not be proposed unless existing arrangements based
on co-operation are failing. No evidence is shown of such failure.
As presented, the proposal appears more focussed than a general
European register or database of prosecutions with a centralised
"watch point", but raises the question of what would
be the trigger point for informing. The paper suggests that "a
Member State that has initiated or is about to initiate a prosecution
in a case which demonstrates significant links to another Member
State, must inform the competent authorities of that other Member
State in due time". What would be the definition of "in
due time"? It is to be noted that informing countries that
might have an interest in the prosecution is one of the guidelines
already put in place by Eurojust.
8. The mechanism proposed would entail the
exchange of personal data and raise the issue of data protection
compliance. Subject to sufficient resources and consistent points
of contact in each Member State, information could be transmitted
either directly between central authorities, or directly to a
centralised database. This is a sensitive subject, which is also
addressed by the Framework Decision on Data Protection[142].
The European Data Protection Authorities stated in a recent communication
that they "very much welcome[d] the proposed introduction
of specific data protection principles in the third pillar to
safeguard citizens and encourage the approximation of the laws
and regulations of Member States. In this respect, the Authorities
requested that some provisions in the draft Framework Decision
on Data Protection be clarified, supplemented or amended, and
confirm[ed] their readiness to contribute further to the launch
of this important instrument".[143]
This shows that any measure in the field of data protection and
data exchange would have to be consistent with the other initiatives
aiming at regulating data exchange.
9. The guarantees in place in Eurojust,
Europol and the European Anti Fraud Office (OLAF) already indicate
the difficulties presented by data exchange and storage. The European
Judicial Network has put in place a secured access system. Eurojust
has implemented an electronic Case Management System (CMS) to
maintain an automated data index and has begun installing a secure
network for internal communications. It appointed a data protection
officer two years ago and unanimously agreed Rules of Procedure
on the Processing of Personal Data, approved by the Council in
February 2005. The complexities of these arrangements underline
the difficulties inherent in any data exchange.
QUESTION 3
Should there be a duty to enter into discussions
with Member States that have significant links to a case?
10. The evidence for a binding duty to enter
discussions is unclear. On the negative side, it could lead to
delays in the preparation of prosecutions. This measure could
cause difficulties in domestic law (eg regarding statutory time
limits in custody, as mentioned in paragraph 2 above) and, possibly,
violations of Article 6 ECHR. The right to a fair hearing requires
everyone who is a party to a case to have a reasonable opportunity
of presenting his case under conditions which do not place him
at a substantial disadvantage in relation to his opponent. Thus
the defendant must be able to show and find out that proper consultation
and discussion took place in accordance with an established and
transparent procedure. If discussions were put in terms of a "duty",
and prosecution were to take place without any discussion or consultation,
or if the defendant could not show that it had, it is possible
that it could be considered an abuse of process as the procedure
itself could be flawed, even if the defendant could receive a
fair trial. Any legal duty in this respect could be exploited
by defendants as a means of delaying or frustrating proceedings.
11. This raises similar concerns to the
previous question in terms of inflexibility.
QUESTION 4
Is there a need for an EU model on binding agreements
among the competent authorities?
12. There would be no need for a binding
agreement since in the UK prosecutors already have authority and
a broad discretion to terminate proceedings. The UK cannot see
why logically anyone else would want them either. Is it suggested
that binding agreements might make a ceding of discretion to EU
law more palatable? Even if there were binding agreements, it
seems that a prosecutor would still have to exercise discretion
to enter into one. How would such agreements help?
QUESTION 5
Should there be a dispute settlement/mediation
process when direct discussions do not result in an agreement?
What body seems to be best placed to mediate disputes on jurisdiction?
13. It is desirable to avoid positive conflicts
of jurisdiction even in situations where Member States cannot
reach an agreement between themselves. As with questions 2 and
3, the UK would support any steps that encourage an open-minded
and informed decision as to the appropriate venue for proceedings.
A mediation process might be advantageous in exceptional cases,
however this should be an option open to the interested parties
rather than anything mandatory.
14. Eurojust already has what the House
of Lords Select Committee described as "a pivotal role to
play in facilitating decisions on where to prosecute cross-border
offences".[144]
The Committee's inquiry into the role of Eurojust in 2004[145]
concluded that "it might be premature to give Eurojust or
any other body a power to take binding decisions on which jurisdiction
should prosecute".
15. The United Kingdom's current national
member is Mr. Mike Kennedy, who was elected by the College of
Eurojust as its first President. A Scottish procurator fiscal
from the Crown Office and Procurator Fiscal Service in Scotland
has been appointed as an additional United Kingdom representative.
It is particularly helpful to have a Scottish member in the College
in view of the differences between the criminal justice systems
of England and Wales and Scotland (although the Scottish member
does not work exclusively on Scottish cases).
16. However, were Eurojust promoted as the
mediator, the UK would probably encourage it to develop its methodology
beyond its present guidance to ensure that the college had the
appropriate competence to determine these often complex questions
of jurisdiction. Eurojust's skill and experience at facilitating
discussions seems quite different from resolving the issue when
the parties cannot agree.
QUESTION 6
Beyond dispute settlement/mediation, is there
a need for further steps in the long run, such as a decision by
a body at EU level?
17. A case for this has not been made out
and similar concerns arise about inflexibility and the resources
that would have to be committed to parallel litigation. Were the
case made out, Eurojust is the existing European body which appears
best placed to evolve from a co-ordinating and mediating role.
QUESTION 7
What sort of mechanism for judicial control or
judicial review would be necessary and appropriate with respect
to allocations of jurisdiction?
18. If, which is not agreed, Eurojust were
given binding powers to decide which jurisdiction was the most
appropriate, it should be subjected to a degree of judicial oversight
of such decisions. One possibility suggested by the House of Lords'
European Scrutiny committee was "a specialised EU court of
first instance in criminal matters".[146]
Parliamentary scrutiny of Eurojust's activities would be an added
guarantee and could anchor Eurojust's authority more firmly in
a democratic legitimacy. This could be done by the European Parliament
and Member States' evaluation of Eurojust's activities, for example
as called for by the Constitutional Treaty at Articles 1-42(2)
and III-273.
QUESTION 8
Is there a need for a rule or principle which
would demand the halting/termination of parallel proceedings within
the EU? If yes, from what procedural stage should it apply?
19. See the response to question 1. The
UK is not convinced that it is necessary or that it would be desirable
to abandon the existing informal, flexible arrangements in favour
of a regulated, binding, bureaucratic regime. Any rule that would
demand the termination of parallel proceedings would add nothing
to either the doctrine of double jeopardy or, as is more commonly
used in the UK, the power of the court to suspend "in parallel"
proceedings, either temporarily or permanently.
QUESTION 9
Is there a need for rules on consultation and/or
transfer of proceedings in relation to third countries, particularly
with parties to the Council of Europe? What approach should be
taken in this respect?
20. No, there is no need for rules on consultation
or transfer: it would be too prescriptive and undermine flexibility.
The approach should be to raise awareness of the issues and encourage
early, voluntary consultation. Eurojust has a legal personality,
which enables it to conclude formal agreements with third parties.
Therefore, it is able to deal with third countries that are willing
to enter such an agreement without a need for prescriptive rules.
This is illustrated by the agreement concluded with Norway, Iceland
and Romania and approved by the Council in 2005.
21. Eurojust seeks to enter into discussions
with third countries and appoint "points of contact"
in other Council of Europe countries. It has worked towards developing
relationships wider than Europe and has entered negotiations with
the US, Switzerland and Ukraine. An agreement with Russia is likely
to start mid 2006. Eurojust has a range of contacts points worldwide,
which shows a willingness and ability to cooperate with third
countries on a voluntary basis, rendering unnecessary any formal
rules for consultation or transfer of proceedings.
QUESTION 10
Should a future instrument on jurisdiction conflicts
include a list of criteria to be used in the choice of jurisdiction?
(See answer to question 11 below).
QUESTION 11
Apart from territoriality, what other criteria
should be mentioned on such a list? Should such a list be exhaustive?
22. (Questions 10 and 11 taken together)
A list of criteria might be useful as shown by Eurojust's Guidelines
for deciding which jurisdiction should prosecute. However every
case is different and any provision should allow for some flexibility
to take account of the specific circumstances of a case. This
is why such a list should not be exhaustive and should cater for
all relevant elements to be taken into account. It would also
be very difficult to think of all the elements of a case that
could make a difference in deciding the location of the prosecution.
For example, if several states are in a position to prosecute,
consideration should be given to the timescales of the procedure
in each country, ie how long it would take for the proceedings
to be concluded. It is difficult and would not be desirable to
envisage an exhaustive list of criteria.
QUESTION 12
Do you consider that a list should also include
factors which should not be considered relevant in choosing the
appropriate jurisdiction? If yes, what factors?
23. No, for the reasons stated above. The
Eurojust guidelines advise that all factors should be considered,
and it is the UK's view that nothing relevant should be disregarded.
See below.
QUESTION 13
Is it necessary, feasible and appropriate to "prioritise"
criteria for determining jurisdiction? If yes, do you agree that
territoriality should be given a priority?
24. Strictly prioritised criteria would
be difficult to agree, though it is true that some factors are
more relevant than others. Again, the guidelines set out by Eurojust
are illustrative of the need to reflect the weighting which should
be given to each factor will be different in each case".[147]
25. In particular, we do not agree that
territoriality should be given priority, especially since in some
cases offences will have been committed in more than one territory.
Prioritising criteria could be far too restrictive.
QUESTION 14
Is there a need for revised EU rules on ne bis
in idem?
26. The UK is not persuaded that the case
to reopen this topic at this time has been made out. The previous
initiative foundered initially basically because of the diversity
of cases and criminal justice systems. It is unclear what has
changed so as to prevent the same issues resurfacing to defeat
further initiatives of this type. The ne bis in idem principle
is embedded in most legal systems, at national and international
level. The UK has known and applied the basic principle of double
jeopardy for centuries but it would be very concerned to ensure
that it should not be prevented from operating the present exceptions,
such as the provisions applicable to England and Wales where re-trial
after an acquittal is permitted where there is new, compelling
evidence.
27. As there is no evidence that the current
arrangements, which appear to allow a degree of flexibility, are
causing any undue difficulty to our citizens, there seems to be
no need currently to go beyond the Schengen provisions. Article
58 of the Convention Implementing the Schengen Agreement (CISA)
allows Member States in any case to take things further at their
individual discretion.
QUESTION 15
Do you agree with the following definition as
regards the scope of ne bis in idem: "a decision in criminal
matters which has either been taken by a judicial authority or
which has been subject to an appeal to such an authority"?
28. This question would appear to overlap
with questions 16 and 19. The first question to answer in trying
to define the scope of ne bis in idem is the definition
of idem. Part of the doctrine holds that idem means
same facts, whereas the proposed definition focuses on the authority
making the decision. As set out below, a factual approach
to idem seems to be broader and fairer, and one consistent
with the ECJ jurisprudence on Article 54 CISA.
29. By focussing on the nature of the decision,
and limiting it to "judicial" decisions, the principle
might not cover all the situations of administrative sanctions,
or sanctions taken by administrative authorities, and the specific
question of fixed penalty notices. The ECJ in its jurisprudence,
in contrast, appears to have adopted a position suggesting that
some decisions by administrative authorities can have ne bis
in idem effect. A definition of idem would need to
factor this in.
30. In the UK, when considering whether
a person should be placed in double jeopardy for being prosecuted
a second time, consideration is given to whether the evidence
necessary to support the second indictment or charge, or whether
the facts which constitute the second offence, would have been
sufficient to procure a legal conviction upon the first indictment
or charge. The focus is therefore upon the "facts" rather
than the nature of the authority. This might be considered a sound
starting point for considering the scope of ne bis in idem.
It should be borne in mind that any definition of a "judicial
authority" would need to cover a conviction by a jury.
QUESTION 16
Do you agree with the following definition of
"final decision": "... a decision, which prohibits
a new criminal prosecution according to the national law of the
Member State where it has been taken, unless this national prohibition
runs contrary to the objectives of the TEU?
31. The definition of "final decision"
was one of the most difficult issues during past discussions on
double jeopardy and it is doubtful whether Member States would
be in a better position to agree on such a definition now. It
could also have the unintended effect of harmonising Member States'
criminal laws. It is difficult to construe phrases such as this
in isolation; it rather depends on the context. We would wish
to consider carefully whether to include non-prosecutorial penalties,
such as cautions, conditional cautions, FPNs/PNDs, bind-overs,
ASBOs and control orders. The UK would wish to ensure that only
decisions in the nature of criminal convictions, ie a substantive
determination of guilt, are captured. On the last occasion the
policy was that "final decision" should refer to there
being a "substantive determination of guilt, so that decisions
taken on merely procedural grounds are excluded", and we
would wish to take the same line again. We have also taken this
line in relation to any definition of "conviction" in
the context of the Draft Framework Decision on taking account
of convictions in the Member States of the European Union in the
course of new criminal proceedings.
QUESTION 17
Is it more appropriate to make the definition
of "final decision" subject to express exceptions? (eg
"a decision which prohibits a new criminal prosecution according
to the law of the Member State where it has been taken, except
when ...")
32. It would be very important for the UK
(see also response to question 14 and 21). It could help to include
in the scope of the definition some convictions that are specific
to some Member States, such as our fixed penalty notice. It is
not a judicial decision, nor an appealable one, even if it can
be contested, and yet is a penalty/sanction, and the same careful
consideration, as mentioned above, would need to be given.
QUESTION 18
In addition to the elements mentioned in question
16 and 17, should a prior assessment of the merits be decisive
on whether a decision has an EU wide ne bis in idem effect?
33. In its staff working document, the Commission
bases the decision to prosecute on the merits of a case, ie the
legality or illegality of the relevant behaviour. This raises
the issue of prescription as well as that of pardon/amnesty. A
priori, on the latter, it would seem unjust to re-try someone
who served a sentence and was afforded an amnesty. Regardless
of the location, the convicted person has been punished according
to a Member State's legislation, and the fact that justice has
already been rendered should be recognised in other Member States
to prevent punishing that person again.
34. The question seems to suggest that even
where a decision was taken by a competent authority in a Member
State, this would only be final upon judicial review.
35. Finally, double jeopardy would seem
more likely to occur in extradition (surrender) cases. It should
be confined to cross-border cases otherwise some domestic cases
might be tried twice. Some assessment of the cross-border element
seems indispensable.
QUESTION 19
Is it feasible and necessary to define the concept
of idem, or should this be left to the case law of the ECJ?
36. The definition of idem would
need to be the first step of the exercise but might bring the
discussions to a halt again if Member States' judicial systems
remain incompatible. A factual approach to idem seems to
be broader and fairer, as suggested at paragraph 28 and 30 above.
The role of the ECJ and its case law should be limited to the
interpretation of community laws, not extended to creating law:
in its recent judgment in case C-436/04[148],
the ECJ gave a useful clarification of the concept of idem.
It held that "because there is no harmonisation of national
criminal laws, a criterion based on the legal classification of
the acts or on the protected legal interest might create as many
barriers to freedom of movement within the Schengen territory
as there are penal systems in the Contracting States". The
Court appeared to give weight to the fact that a situation may,
in principle, constitute a set of facts which, by their very nature,
are inextricably linked. This would appear to support a "facts"
based approach. The Court found that it is ultimately for the
competent national courts to determine whether the material acts
at issue constitute a set of facts which are inextricably linked
together in time, in-space and by their subject-matter.
QUESTION 20
Do you see any situations where it would still
be necessary to retain an enforcement condition, and if yes, which
ones? If yes, can the condition be removed if a mechanism for
determining jurisdiction is established?
37. As stated in the rest of this response,
the enforcement mechanisms in place seem to work satisfactorily
and until such a time where there is compelling evidence for its
abolition, the UK would like to retain the enforcement condition
as laid out in Article 54 CISA.
QUESTION 21
To what extent can the derogations in Article
55 CISA still be justified? Can they be removed if a mechanism
for determining jurisdiction is established, or would you see
a need for any further measures to "compensate" for
a removal of the derogations under these circumstances?
38. The right to a re-trial in England and
Wales has been introduced in the Criminal Justice Act 2003 in
Part 10 of the Act, in force since April 2005. It has relaxed
the principle of ne bis in idem in allowing a re-trial
of serious offences when new compelling evidence has appeared.
A revision of EU rules on ne bis in idem would have to
respect the exceptions set out in the Schengen Convention and
the declaration made by the UK in that respect. A Framework Decision
stemming from this Green Paper could be incompatible with that
legislation.
QUESTION 22
Should ne bis in idem be a ground for mandatory
refusal of mutual legal assistance? If yes, which EU law provisions
should be adapted?
39. The difficulty with this proposal is
that, unless there were truly harmonised law on ne bis in idem,
it would require the authority/State contemplating giving assistance
to review whether or not proceedings were barred in the jurisdiction
seeking assistance. The UK doubts whether that degree of harmonisation
would be desirable or effective. Executing authorities would be
likely to require expert evidence on foreign law. This would do
little to promote effective and timely mutual legal assistance.
The UK entered a reservation to the 1959 Mutual Legal Assistance
Convention securing the right to refuse Mutual Legal Assistance
on the basis of, effectively, the ne bis in idem principle.
QUESTION 23
Is there a need for a more coherent approach on
the ne bis in idem principle in relation to third countries? Should
one differentiate between parties of the Council of Europe and
other countries?
40. The UK tends to agree with the Commission
that exceptions similar to Art 55 CISA are justified in an international
context and a balanced approach could be beneficial for EU citizens.
QUESTION 24
Do you agree that with a balanced mechanism for
determining jurisdiction
(a) certain grounds for non-execution
in the EU mutual recognition instruments could become unnecessary,
at least partly? Which grounds, in particular?
(b) certain grounds for optional non-execution
should be converted into grounds for mandatory non-execution or
vice versa? Which grounds, in particular?
41. We agreed that this issue should be
considered in parallel and that, in principle, the suggestions
of the Commission are compatible with the idea of a common area
of justice—ongoing prosecution for the same act. A decision
not to prosecute, or to halt proceedings, should be mandatory
(rather than optional grounds for non-execution). Territorial
aspects should no longer be a ground for such decisions. However
it would be premature to attempt to identify grounds for non-execution
in advance of clarifying the mechanism and criteria for resolving
conflicts of jurisdiction. It appears that the current arrangements
for execution are functioning satisfactorily.
Letter from the Chairman to Rt Hon Lord
Goldsmith QC
Thank you for your letter of 22 March 2006 which
was considered by Sub-Committee E (Law and Institutions) at its
meeting of 7 June 2006.
While we welcome your response to the Commission's
Green Paper, it is somewhat disappointing that you do not directly
request the Commission to gather and analyse evidence on conflicts
of jurisdiction. The Committee wishes to be assured that the current
system is adequate and is therefore keen to see that the Commission
has factual evidence to inform its position. We would be grateful
if you would provide us with any data gathered or provided by
the Commission on this matter. We will, of course, pay close attention
to any proposal for a Framework Decision adopted by the Commission
in due course.
The Committee has decided to clear the Green
Paper from scrutiny. As you know, we are also holding document
16258/03 (DROIPEN 89) Proposed Framework Decision on the application
of the ne bis in idem principle under scrutiny. Given the
current negotiations, it seems unlikely that this proposal will
be revived. We would be grateful to receive your assurances that
any document forming the basis of discussions for a proposal on
ne bis in idem will be deposited for scrutiny at Parliament.
If you provide these assurances, we will be pleased to clear this
document from scrutiny.
8 June 2006
Letter from Rt Hon Lord Goldsmith QC to
the Chairman
Thank you for your letter of 8 June on this
subject.
You asked what data the Commission has collected
to inform its position on this matter. At the end of May the Commission
held an Experts' Meeting to give Member States representatives
and independent experts a second opportunity to express their
views and take part in a discussion on the proposals in the Commission's
Green Paper. The UK was represented at that gathering and reiterated
points made in our response to the Green Paper.
I have not seen an official report from that
meeting. However I understand that a clear majority of Member
States took the view that the introduction of a mechanism to resolve
conflicts of jurisdiction, along the lines suggested by the Commission,
was neither necessary nor desirable. Most Member States advocated
direct communication between themselves on these issues, without
the need for recourse to an intermediary.
At the same meeting Commission representatives
stated their intention to complete a study in the course of this
year to "ascertain the size and characteristics of the problem
of jurisdiction conflicts". This, along with the information
gathered at the meeting I referred to, could provide data of the
kind you rightly indicate is required to justify the exercise.
You asked for an assurance that any document
forming the basis of discussions for a proposal on ne bis in
idem will be deposited for scrutiny in Parliament, and I am
happy to give you this assurance.
12 July 2006
Letter from the Chairman to Rt Hon Lord
Goldsmith QC
Thank you for your letter of 12 July which has
been considered by Sub-Committee E (Law and Institutions).
We are grateful for the information you provide
on the views expressed by Member States' representatives and independent
experts at the recent meeting and look forward to seeing the results
of the Commission's study in due course.
On the basis of the assurances you provided,
we have decided to clear document 16258/03 (DROIPEN 89) from scrutiny.
25 July 2006
142 COM (2005) 475 final, 4/10/2005. Back
143
Opinion on the proposal for a Council Framework Decision on the
protection of personal data processed in the framework of police
and judicial cooperation in criminal matters, 6329/06, 13 February
2006, p 2. Back
144
House of Lords-European Union-Twenty-Third Report, 13/07/2004,
paragraph 50. http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/138/13802.htm Back
145
House of Lords-European Union-Twenty-Third Report, 13/07/2004.
http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/138/13802.htm Back
146
House of Lords-European Union-Twenty-Third Report, 13/07/2004,
paragraph 49. http://www.publications.parliament.uk/pa/Id200304/ldselect/Ideucom/138/13802.htm Back
147
Annual report of Eurojust 2004, Document 9522/05, Annex IV, "Guidelines
for deciding which jurisdiction should prosecute", page 64. Back
148
Reference for a preliminary ruling under Article 35 TEU [...]
in the criminal proceedings against Leopold Henri Van Esbroeck,
9 March 2006. Back
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