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The Problems of Trans-border Evidence and European Initiatives to Resolve Them
Published online by Cambridge University Press: 27 October 2017
Extract
When a criminal case with trans-border ramifications is to be prosecuted within a given state, the following three problems typically arise:
— bringing the defendant, currently abroad, to that state, to enable the case against him to be tried;
— obtaining relevant evidence from other jurisdictions;
— persuading the courts of the state where the defendant is to be tried that they can use it.
The first of these problems is in principle the most important. Unless a legal system is prepared (as some were in the past) to try defendants in absentia and then punish them in effigy, the defendant’s physical presence within the jurisdiction of the court is usually required in order to bring the mechanism of the criminal law to bear upon him.
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References
1 As in France before 1789; see Carabasse, J-M Introduction historique au droit pénal (Paris, PUF, 1990) para 120 Google Scholar.
2 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, 2002/584/JHA, OJ 2002 L 190/1. The literature on the EAW is now substantial. See, inter alia, Allegre, S and Leaf, M The European Arrest Warrant: a Solution Ahead of its Time? (London, Justice, 2003)Google Scholar; Blekxtoon, R and van Ballegolij, W Handbook on the European Arrest Warrant (The Hague, TMC Asser Press, 2004)Google Scholar; Spencer, JR ‘The European Arrest Warrant’ (2003–4) 7 CYELS 201 Google Scholar. The UK implemented the European Arrest Warrant in Part I of the Extradition Act 2003, a piece of legislation which has already generated two appeals to the House of Lords: see King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, and Dabas v High Court of Justice, Madrid [2007] UKHL 6, [2007] 2 WLR 254. For a review of the workings of the EAW in the UK see the House of Lords European Union Committee, 30th Report of Session 2005–2006, European Arrest Warrant—Recent Developments, HL Paper 156.
3 See The Guardian, 22 Sept 2005.
4 See the Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States (revised version), COM(2006)8 final, 24 Jan 2006.
5 For an excellent account of mutual legal assistance, written from a practical angle, see Harris, L and Murray, C Mutual Assistance in Criminal Matters: International Co-operation in the Investigation and Prosecution of Crime (London, Sweet & Maxwell, 2000)Google Scholar.
6 European Treaty Series, no 30.
7 Convention of 19 June 1990, implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders.
8 Provisions implementing certain parts of Schengen in the UK are to be found in the Crime (International Co-operation) Act 2003.
9 EU Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ 2000 C 197/3.
10 Protocol established by the Council in accordance with Art 34 of the Treaty on European Union to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ 2001 C 326/2.
11 Framework Decision on the Execution in the EU of orders freezing property or evidence, 2003/577/JHA, OJ 2003 L 196/45.
12 In a recent case before the ECJ the Framework Decision establishing the European Arrest Warrant was challenged, inter alia on the ground that the removal of the ‘double criminality’ requirement was ‘contrary to the principle of equality and non-discrimination and to the principle of legality in criminal matters’. The challenge failed: see Case C–303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad, Grand Chamber, 3 May 2007, not yet reported.
13 See the written evidence of Dr Helen Xanthaki and Dr Constantin Stefanou to the House of Commons Home Affairs Committee, 4 Dec 2006.
14 Implementing legislation is contained in s 90 of and Sched 4 to the Crime (International Co-operation) Act 2003; but as of June 2007, the Government had not brought these provisions into force.
15 Proposal for a Council Framework Decision on the European Evidence Warrant (EEW) for obtaining objects, documents and data for use in proceedings in criminal matters, COM(2003)688 final, 14 Nov 2003.
16 11235/06 COPEN 74, 10 July 2006.
17 Proposal for a Council Framework Decision on Taking Account of Convictions in the member States of the European Union in the Course of New Criminal Proceedings, COM(2005)91 final, 17 Mar 2005.
18 Police and Criminal Evidence Act 1984 s 74.
19 Green Paper from the Commission—Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM(2003)75 final, 19 Feb 2003.
20 Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the European Union, 2004/0113 (CNS), 28 Apr 2004.
21 Green Paper—the Presumption of Innocence, COM(2006)174 final, 26 Apr 2006.
22 Ibid, para 1.1.
23 Swart, AHJ Een ware Europese rechstruimte (Deventer, Gouda Quint, 2001) 7 Google Scholar; cfPeers, S EU Justice and Home Affairs Law, (Oxford, OUP, 2006) 562 Google Scholar: ‘[o]verall, EU measures have failed to strike the right balance between the objective of ensuring public security and the protection of civil liberties, and some EU measures will contribute significantly towards the creation of a “surveillance society” across Europe’.
24 See Spencer, JR, above n 2, 210–11.
25 Consultation Document for Commission Proposal on Certain Procedural Rights During Criminal Proceedings throughout the European Union, 8 Mar 2005.
26 House of Lords European Union Committee, 2nd Report of Session 2006–2007 Breaking the Deadlock: What Future for EU Procedural Rights? HL Paper 20, para 50. And in its recent Report on Justice and Home Affairs Issues at European Union Level, the House of Commons Home Affairs Committee said: ‘[w]e recommend that the UK Government … give renewed consideration to the proposals in the Framework Decision’: Third Report of Session 2006–2007, 5 June 2007, HC 76-1, 4.
27 Rebalancing the Criminal Justice System in Favour of the Law Abiding Majority, Home Office, July 2006.
28 ‘Home Secretary Outlines Changes to System for Compensating Miscarriages of Justice’, Home Office press release, 19 Apr 2006.
29 Quashing Convictions—Report of a Review by the Home Secretary, Lord Chancellor and Attorney General, Office for Criminal Justice Reform, Sept 2006.
30 Tampere Presidency Conclusions, para 36.
31 Green Paper on Criminal Law Protection of the Financial Interests of the Community and the Establishment of a European Public Prosecutor, COM(2001)715 final, 11 Dec 2001.
32 Ibid, para 6.3.4.1.
33 Code de Procédure Pénale, art 59.
34 ‘A Latin formula, invented by the post-glossators, according to which a legal act is subject to the conditions as to form which are prescribed by the laws in force in the country where it was carried out’: Dalloz Lexiaue des Termes Juridiques 12th edn, (Paris, Dalloz, 1999). The UK is among the countries which applies the rule in criminal proceedings: R v McNab [2001] EWCA Crim 1605, [2002] 1 Cr App R (S) 72, [2002] Criminal Law Review 129.
35 The Corpus Juris project first appeared, in book form, as Delmas-Marty, M (ed) CORPUS JURIS —Introducing Penal Provisions for the Purpose of the Financial Interests of the European Union (Paris, Economica, 1997)Google Scholar. A revised version, the ‘Florence version’, was published three years later as Delmas-Marty, M and Vervaele, J (eds) The Implementation of the Corpus Juris in the Member States (Antwerp, Intersentia, 2000)Google Scholar, i, available at http://www.law.uu.nl/wiarda/corpus/index1.htm. See Spencer, JR ‘The Corpus Juris Project and the Fight Against Budgetary Fraud’ (1998) 1 CYELS 77 Google Scholar, and Spencer, JR ‘The Corpus Juris Project— Has it a Future?’ (1999) 2 CYELS 355 Google Scholar.
36 From the text as in the Florence version: see previous note.
37 33(1) In proceedings for one of the offences set out above (Arts 1 to 8) evidence must be excluded if it was obtained by Community or national agents either in violation of the fundamental rights enshrined in the ECHR, or in violation of the European rules set out above (Arts 31 and 32), or in violation of applicable national law without being justified by the European rules previously set out; but such evidence is only excluded where its admission would under mine the fairness of the proceedings to admit it.
33(2) The national law applicable to determine whether the evidence has been obtained legally or illegally must be the law of the country where the evidence was obtained. When evidence has been obtained legally in this sense, it should not be possible to oppose the use of this evidence because it was obtained in a way that would have been illegal in the country of use. But it should always be possible to object to the use of such evidence, even where it was obtained in accordance with the law of the country where it was obtained, if it has nevertheless violated rights enshrined in the ECHR or the European Rules (Arts 31 and 32).
38 I discussed this point at greater length in ‘An Academic Critique of the EU Acquis in Relation to Trans-border Evidence-gathering’ [2005] (Special Issue) ERA Forum 28.
39 Polanski v Condé Nast Publications Ltd [2005] 1 WLR 637.
40 See Stephen’s Digest of Criminal Procedure (London, Macmillan, 1883), arts 106 and 107. In the absence of an official Code of Criminal Procedure, the statutory texts on which this simple rule is based are complex and obscure. The Summary Jurisdiction (Process) Act 1881 regulates the position between England (plus Wales) and Scotland, and the Petty Sessions (Ireland) Act 1851 regulates the position as between Northern Ireland and the rest of the UK.
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