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I. Conflicts of Criminal Jurisdiction

  • Colin Warbrick and Kate Brookson-Morris

Extract

The expansion of claims of extended territorial and extraterritorial criminal legislative jurisdiction and the increasing facility with which States are able to obtain custody over defendants by way of more effective extradition arrangements is leading to a new problem in transnational criminal law. The result of these developments is that more than one State may have legitimate jurisdiction to legislate for the same conduct and the courts of more than one State may be entitled to exercise judicial jurisdiction over those persons charged with crimes arising from that conduct. For prosecutors, the problem may present itself as one of prosecutorial efficiency—how may the case be proceeded with expeditiously, in particular, in which jurisdiction is a conviction most likely to be secured? Considerations such as the availability of witnesses or the admissibility of evidence may influence the prospects of conviction and prospective punishments may be a factor when deciding in which system prosecutors prefer the case to go ahead. Defendants have different perspectives. In many cases involving extradition to face a charge based on an exercise of extended jurisdiction, the defendant will be removed from the place where he lives and works to another State. There may be adverse consequences for him compared to facing a trial where he is usually located. Criminal proceedings abroad will be in an unfamiliar legal system; bail may be harder to obtain because of a perceived greater danger of flight; the impossibility to continue working during the period in which the trial is being prepared may impose financial hardship; defendants will be removed from their families and social networks for considerable periods.

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References

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1 Warbrick, C, ‘Recent Developments in UK Extradition Law’ (2007) 56 ICLQ 199.

2 Bermingham (R on the application of) v Director of the Serious Fraud Office and the Home Secrerary [2006] EWHC (Admin) 200.

3 Norris v Government of the United States [2007] EWHC (Admin) 71.

4 ibid paras 155–80.

5 Mann, FA, ‘The Doctrine of Jurisdiction in International Law’ (1964–I) RC 1, in Studies in International Law (OUP, Oxford, 1973) 35.

6 Hansard HC vol 450, c 1393 (24 10 2006) (Ryan, Ms); Hansard HL vol 686, c 285–7 (1 11 2006) (Baroness Scotland). The Guidance was ‘shared’ with the Foreign and Commonwealth Office and the Home Office, and city law firms were consulted, letter from Attorney-General's office, Mar 2007.

7 The announcement that the guidance for handling cross-border cases between the UK and US had been agreed was made to the House of Lords by the Attorney-General on 25 Jan 2007. Hansard HL vol 688, c WS68 (25 01 2007) (Lord Goldsmith).

8 Available at <http://www.attorneygeneral.gov.uk/sub_publications_foi.htm>. Published 25 01 2007.

9 In cases arising in Scotland, the Lord Advocate will be responsible (para 15).

10 Avena and other Mexican Nationals (Mexico v United States) [2004] ICJ Rep 128.

11 See Guidance (n 8).

12 Dyer, C et al. , ‘Blair’s top lawyer to advise on cash for honours questions' The Guardian (4 11 2006).

13 ‘Saudi defence deal probe ditched’ BBC News 24 (15 12 2006). Available at <http://news.bbc.co.uk/1/hi/business/6180945.stm>.

14 See (n 30).

15 Green Paper, On Conflicts of Jurisdiction and the Principle of Ne Bis In Idem in Criminal Proceedings COM(2005) 696 final. Reference was made to the EC Green Paper and the Eurojust Guidelines, although little of the Guidelines was included in the Trilateral Guidance, letter (n 6).

16 Commission staff Working Document, Annex to the Green Paper, On Conflicts of Jurisdiction and the Principle of Ne Bis In Idem in Criminal Proceedings, SEC (2005) 1767. The public consultation period closed on 31 Mar 2006. See <http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_public_en.htm>.

17 Interestingly, the Attorney-General has requested clarification with regard to the Green Paper (n 15) over whether the implications for defendants of delays while conflicts of jurisdiction are considered have been fully appreciated. See House of Commons, Select Committee on European Scrutiny, 20th Report (20052006) (13 03 2006). 14 HO (27178) Green Paper on conflicts of jurisdiction and double jeopardy in criminal proceedings, para 14.21.

18 See Green Paper (n 15) 3.

19 ibid 4–6. The Staff Working Paper details further the three stages (n 16) 20–5.

20 See Green Paper (n 15) 4. See Guidance, para 2 above on ‘significant links’. Once again, what constitutes a ‘significant link’ is not elaborated.

21 See Working Paper (n 16) 31.

22 ibid 32.

26 ibid 31.

27 Section 2.3, Role of individuals and judicial review; section 2.5, Relevant Criteria.

30 See (n 14) discussing Guidelines (para 13).

31 See Green Paper (n 15) 67.Discussing further the role of suspects/defendants and their defence team, see Working Paper (n 16) 2629.

32 ibid (Working Paper) 26.

33 ibid 26.

35 ibid 27.

36 On this matter, see discussion above on a rule of priority.

37 Working Paper (n 16) 27.

38 These criteria draw on the 2003 Eurojust Guidelines for Deciding which Jurisdiction should Prosecute. Annex to the 2003 Annual Report. Available at <http://www.eurojust.europa.int/press_annual_report_2003.htm>

39 Working Paper (n 16) 37.

41 But cf Launder v United Kingdom (Application No 27279/95) (1997) 25 EHRR CD 67 on Article 8 ECHR, the right to private and family life, where it was held that ‘… only in exceptional circumstances [will] the extradition of a person to face trial on charges of serious offences committed in the requesting State […] be held to be an unjustified or disproportionate interference with the right to respect for family life’.

42 Working Paper (n 16) 38.

43 Response by the ECBA to the Green Paper and Working Paper on Conflicts of Jurisdiction and the Principles of Ne Bis In Idem in Criminal Proceedings Presented by the European Commission, para 2.5. Available at <http://www.ecba.org/extdocserv/jurisdictionnebisinidemresponsefinal.PDF>

45 Working Paper (n 16) 3540; Also, eg Ex p Postlethwaite [1988] AC 97.

46 The legislative proposal was tabled to be brought forward in the second half of 2006. At the time of writing, no movement on this matter has been observed.

* PhD Candidate, University of Birmingham.

I. Conflicts of Criminal Jurisdiction

  • Colin Warbrick and Kate Brookson-Morris

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