Select Committee on European Union Fortieth Report


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


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2007