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Consultation on CPS Interim Guidelines on the Handling of Cases Where the Jurisdiction to Prosecute is shared with Prosecuting Authorities Overseas - Summary of Responses

Contents

Introduction

This is a summary of the responses to: 'CPS Interim Guidelines on the Handling of Cases Where the Jurisdiction to Prosecute is shared with Prosecuting Authorities Overseas'. It sets out:

  • the background to the consultation;
  • a summary of the responses; and
  • our conclusions.

Background

In October 2012, the Crown Prosecution Service (CPS) launched a public consultation on its Interim Guidelines on the Handling of Cases Where the Jurisdiction to Prosecute is shared with Prosecuting Authorities Overseas ('Interim Guidelines'). The aim of the consultation was to seek the views of interested parties about the factors the CPS should consider when deciding where criminal proceedings should be brought.

The publication of the interim guidelines followed the Report of the Review of the UK's Extradition Arrangements by the Hon. Sir Scott Baker, which recommended that that the prosecution authorities in the United Kingdom (the Director of Public Prosecutions, the Director of Public Prosecution for Northern Ireland and the Lord Advocate) should prepare and make publicly available guidelines (based on the Eurojust Guidelines) on decision-making in cases where the United Kingdom shares jurisdiction to prosecute with another territory. The Review also recommended that the guidelines should address the significance to be accorded to the residence or nationality of a suspect when making a decision to prosecute.

Since the publication of that report Parliament has passed legislation introducing a new power by which in certain circumstances a court can bar extradition; this is known as the forum bar.

The CPS consulted the Director of the Serious Fraud Office, the Association of Chief Police Officers, Her Majesty's Revenue & Customs, the Metropolitan Police Service and City of London Police among others in the development of the Interim Guidelines.

Respondents to the public consultation exercise were asked to provide their comments or views on the Interim Guidelines, which came into force on the day that the consultation exercise was announced. The consultation period closed on 31 January 2013 but any amendments to the Interim Guidelines were delayed to ensure that any final guidelines were consistent with the forum bar legislation. A small number of responses were received after this date and we have taken into account in considering revisions to the Interim Guidelines. All replies have been included in the summary of responses. We are very grateful to everyone who took the time to respond to the consultation.

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Consultation criteria

The six consultation criteria are as follows:

  • Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.
  • Be clear about what your proposals are, who may be affected, what questions are being asked and the time scale for responses.
  • Ensure that your consultation is clear, concise and widely accessible.
  • Give feedback regarding the responses received and how the consultation process influenced the policy.
  • Monitor your department's effectiveness at consultation, including the use of a designated consultation co-coordinator.
  • Ensure your consultation follows better regulation and best practice, including carrying out a Regulatory Impact Assessment if appropriate.

These criteria must be reproduced within all consultation documents.

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From Interim Guidelines to Final Guidelines

From 17 July 2013, the final Guidelines on Concurrent Jurisdiction came into force, superseding the Interim Guidelines which were published in October 2012. The final guidelines can be accessed on the CPS website.

As a result of the consultation, and taking into account the forum bar legislation passed by Parliament and which came into force on 29 July 2013, we have made a number of changes to strengthen the final Guidelines. The key changes include revisions to make it clearer that:

  • the Guidelines apply to every case where criminal investigations are known to have been commenced in more than one jurisdiction and which involve suspected criminal conduct which could be prosecuted in more than one country;
  • there should be sharing of information relevant to the forum discussion between prosecutors having an interest in the case and that sharing should be as far as the law of each relevant country permits;
  • Under the new forum bar legislation the extent to which the accused person has connections to the United Kingdom is a relevant factor to which the court must have regard when considering whether to bar extradition and accordingly we have placed this additional factor into the guidelines to prosecutors considering questions of venue or forum for trial;
  • Decisions will be recorded In order to assist the court in coming to its decision on forum.

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Summary of Responses

In total there were 17 responses to the consultation, seven from organisations and 10 from individual respondents. In addition the President of Eurojust noted the consultation and asked to be informed of its outcome.

Each response has been considered but we have not made changes to reflect all the points we received. A number of the suggestions and points made went beyond the scope of guidelines that are addressed to prosecutors. The purpose of the guidelines is to set out the principles which should be applied by prosecutors when considering whether the jurisdiction to prosecute should be asserted here or in another country. It is not the role of the CPS to set wider extradition policy or to determine the nature of the relationship between the United Kingdom and other States through its Treaty obligations.

In a similar vein, some respondents suggested that the CPS should use its discretion not to co-operate with foreign law enforcement agencies as a way of influencing domestic policies in other countries, especially with regard to human rights. As a public authority for the purposes of the Human Rights Act 1998 the CPS cannot act in a way which is incompatible with any of the human rights and protections guaranteed by that Act and prosecutors must apply the principles of the European Convention on Human Rights at each stage of a case. However, the courts have repeatedly made clear that it is for the Secretary of State and the courts, as part of the extradition process, to take account of the requested person's Convention rights, not for the CPS. If the suspect's Convention rights would be infringed, he or she cannot be extradited in any event.

Overall, there was a general welcome for the introduction of guidelines in this complex and difficult area and those who commented on this aspect saw the publication of the Guidelines as a move in the right direction towards a more transparent extradition system. Others commented that, subject to some reservations, the Guidelines are clear and well drafted. Almost all of those who responded suggested amendments to the text which, in their view, would lead to improvements in the guidance.

The introduction of the forum bar into the Extradition Act 2003 has meant that it has been important to ensure that the Guidelines are consistent with the statutory framework. This has meant, for instance, that in certain specifics we have had to prefer the wording of the Extradition Act to that contained within the Eurojust Guidelines on Concurrent Jurisdiction. For example, we have adopted the wording of the statute in extending the definition of loss and harm to cover the location where most of the loss or harm was intended to occur.

Parliament has settled the manner in which the forum bar is to operate in future extradition proceedings and the CPS must work within the legislative framework. We believe the revised guidelines are consistent with the statutory scheme.

Responses to specific paragraphs in the Interim guidelines

Paragraph 1

A sole respondent suggested that the Guidelines should be applied to every situation where concurrent jurisdiction issues arise and that there should therefore be a positive obligation on prosecutors to identify all jurisdictions where a prosecution is possible and where there is a real chance of securing a conviction.

Paragraph 3

There were two responses specifically on this paragraph. One respondent was concerned that the procedures established by the various law enforcement agencies may well be very different and, potentially, inconsistent. This would lead to difficulties as to the extent to which investigators and prosecutors can consult from the outset of investigations. It was suggested that this potential difficulty could be addressed by ensuring that the procedures established are broadly consistent with one another rather than assuming that all investigators and prosecutors will be bound by the same investigatory procedures.

The other specific comment concerned the extent to which agreements such as the Eurojust Guidelines and the Attorney-General's guidance for handling cases affecting both the UK and the US were being applied properly, so that the UK authorities were made aware of a case by their foreign counterparts at the start of the investigation. It was also said that, if there had previously been a decision under the Guidelines not to prosecute, it was important that any new evidence or changes in circumstance was considered.

Paragraph 4

One respondent expressed concern that the phrase "where it is possible and appropriate to share information" was inherently vague and therefore likely to create difficulties for the CPS when trying to follow the guidelines. They felt that the guidelines, as currently worded, allowed investigators and prosecutors (whether in this jurisdiction or another) far too great a degree of latitude in deciding whether or not it is appropriate to share information. It was suggested that the final guidelines should give further guidance as to the general circumstances when it should be "possible and appropriate" to share information.

Another respondent recommended that the guidelines included a reference to the potential use of Interpol's tools and services in the context of such an investigation, notably in the part concerning sharing of information.

Paragraph 5

In relation to the disclosure of evidence from sensitive sources (covert surveillance, informants etc), one respondent noted that the ability of the proposed forum jurisdiction to protect sources and witnesses should also be a critical factor in determining the extent of co-operation. It was suggested that the reference to this in paragraph 5 of the draft ought to be made more concrete.

Paragraphs 6 and 7

A single respondent commented that there was an unexplored vagueness in the term in 6(a) "where and how investigations may be most effectively pursued" and said that the criteria of effectiveness might benefit from greater clarity in setting out the standards against which effectiveness was to be measured.

This view was echoed by another response which pointed to what it saw as a lack of public confidence in the extradition system because of the seemingly opaque decision-making process and apparent negotiation between British and overseas prosecutors over prosecutorial decisions. This led to a widespread perception of unfairness particularly so because of high profile cases where the issue of forum has arisen, such as that of Gary McKinnon. The response recommended the utmost of transparency to ensure that the public as well as the individuals subject to extradition proceedings are aware of the reasons why a prosecution decision is made.

Paragraph 8

This paragraph generated the greatest number of comments. Some respondents pointed to what they saw as a divergence between the interim guidelines and similar guidelines issued by Eurojust and those who commented expressed a preference for the Eurojust document which was seen as offering a better balance between the factors to be taken into account when deciding between competing jurisdictions.By contrast the CPS interim guidelines were said to allow prosecutors great latitude in refusing to investigate a case. In addition, one respondent suggested that regard should be had by prosecutors to the opinion of Eurojust and its view as to which jurisdiction is to be preferred.

A number of responses expressed concern about the use of the phrase "most of the criminality or most of the harm" in sub-paragraph (1) when describing what should be the primary consideration in determining where charges should ordinarily be brought. This phrase was said to be vague and subjective and thus open to differing interpretations; and it was said to be of little help in offences involving the use of computers where conduct could take place in one jurisdiction and harm or loss in another. Others suggested that this principle should be strengthened to become a presumption in favour of prosecution where all or a substantial part of the alleged criminality took place in this jurisdiction; It was further suggested that it should be made clear that purely hypothetical loss and harm in another jurisdiction should not steer prosecutors towards extradition.

The first sub-paragraph was also said to encourage "forum shopping" by prosecutors: looking at where most admissible evidence is available could lead prosecutors to favour jurisdictions with more flexible admissibility rule than the UK. People should not be extradited to stand trial in foreign countries hundreds of miles from home merely because there are fewer procedural safeguards in place in another jurisdiction.

Sub-paragraph 8(2) was criticised in one response on the grounds that as currently drafted it enabled a foreign prosecutor to ensure extradition by simply refusing to make available evidence to the UK prosecutors.

There were three specific comments on sub-paragraph 8(3). The inclusion of the location of the accused as a factor to be taken into account was welcomed but those who commented on this aspect wished to see this factor given special significance, at least where other factors were equal. One response also recommended that the nationality (as opposed to the location) of the accused should become a factor in the decision-making matrix. It was suggested that the guidelines should also include a requirement that decisions are made applying the European Convention on Human Rights and ensuring that the human rights of the suspect are protected.

The instruction in sub-paragraph 8(6) that relative sentencing/asset recovery powers should not be a primary factor was welcomed by one respondent. Another suggested, however, that the guidelines should explicitly state that the relative sentencing powers should not be taken into account at all.

Paragraph 9

One response specifically welcomed the recognition that decisions in cases of concurrent jurisdiction may need to be reviewed where circumstances change. This response acknowledged that where proceedings are already underway in one jurisdiction there would need to be a particularly compelling case for these to be discontinued and commenced elsewhere. However, it added that where is a material change in circumstances, such as the availability of new evidence or a material deterioration in the defendant's health, discontinuance may be appropriate and it is important that this is kept in mind throughout the decision-making process. Another response, however, said that this aspect had not been addressed in sufficient detail in the interim guidelines. Given that changes of circumstances were likely to be rare greater clarity and more detailed instructions were needed on the approach to be taken.

The third response to comment specifically on this paragraph said that it should be deleted as it was a naked encouragement for foreign prosecutors to commence proceedings before engaging with their UK counterparts.

Paragraph 10

There were two comments on this paragraph. One response agreed that there is no reason that an extradition request should, in itself and with no other change in circumstances, cause this decision to be re-visited. However, it suggested that even if investigators or prosecutors are not aware of a case until the extradition request is received, then, if that request raises issues of concurrent jurisdiction, a decision on whether to prosecute in the UK should be made under the guidelines. The other response said, simply, that paragraph 10 should be deleted because, once again, it was a naked encouragement for foreign prosecutors to commence proceedings before engaging with their UK counterparts.

Paragraph 11

Only one response referred to paragraph 11 expressly and it appeared to have misunderstood what was meant by an extra-territorial offence under English law.

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Conclusion

The CPS is grateful to all those who responded to the consultation and the time that they have invested in doing so. We have carefully considered all the responses we received, and have taken them into account when considering whether to revise the Interim Legal Guidelines. The changes have been reflected in the final version of the Guidelines.

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