Transcript Slide 1

EU Criminal Justice Conference
Safeguarding the use of expert evidence
in the European Union
Tuesday 23 September 2008
Co-financed by a grant under the
European Commission’s AGIS Programme
Expert Evidence – problem or solution?
Chair:
Bob Heslett, Vice President, The Law Society
Keynote speakers:
Lord Goldsmith QC, European Chair of Litigation,
Debevoise & Plimpton LLP & Former Attorney General,
Andrew Rennison, Forensic Science Regulator
Co-financed by a grant under the
European Commission’s AGIS Programme
Regulating forensic science
Andrew Rennison
Background

House of Commons Home Affairs Committee 1989

House of Lords Select Committee on Science and Technology 1993

Miscarriages of justice cases – ‘forensic science played a prominent part’

Royal Commission 1991 – 1993

Caddy report 1996

Forensic Science Working Group 1997 – practitioner registration

Parliament - Forensic Science on Trial 2005

England and Wales – competitive market

Scotland and Northern Ireland

Law Commission – expert evidence
Overseeing Quality
Regulation of standards
Practitioner
registration
ISO standards?
Overseeing Quality
Forensic Science Regulator
• Establish quality
standards (science)
Deal with complaints
about quality standards
• Monitor compliance
Provision of forensic
science services
National forensic science
databases:
•NDNADB
• Internal (police)
• External (suppliers)
Ensure accreditation of
suppliers and competence
of practitioners
•NBIS
To provide advice (Ministers, CJS…) and guidance
(suppliers) on quality standards
Overseeing Quality
Vision
To achieve:
 comprehensive standards framework
provider,
practitioner and
method (product or service)
training
 level playing field for all suppliers and practitioners
 UK – wide quality standards maintained in the face
of the changing market and increased competition
 Confidence in the use of forensic science.
Overseeing Quality
Strategy





Engage with stakeholders
Work with delivery partners
Rely on the domain experts
Identify and manage risk
Principles first
Overseeing Quality
Principles

Overriding obligation to the Criminal Justice System

Providers should be accredited by a recognised independent
body to accepted standards;

Practitioners should be able to demonstrate, through an
independent process, their on-going competence and
development;

Each method should be based on sound science supported by
sufficient data to justify its use within the CJS and a robust
interpretation model, and, where possible, validated according
to accepted scientific procedures;

Accountability for standards rests with senior managers; and

Records of accreditation, competence and validation must be
accurate, retained and available for disclosure through the
court process.
Overseeing Quality
Scope
Forensic science
Any scientific or technical
knowledge that is applied to
the investigation of crime and
the evaluation of evidence to
assist the courts in resolving
questions of fact in criminal
cases. Hard sciences.
Practitioner
Includes the work of all those
who contribute to the
collection, analysis and
reporting of the evidence.
UK criminal courts /
prosecution process
Equipment, scene, victim, suspect, collection, examination,
analysis, reporting, evidence…….
Overseeing Quality
Specialist groups







Quality standards – standards and validation
Andrew Rennison
The user requirement from the Court
perspective Ewen Smith
DNA analysis Karen Squibb-Williams
Digital forensics Prof Jim Fraser
Practitioner competency DCC Clive
Wolfendale
Forensic pathology Dr Millward-Saddler
Special reviews
Overseeing Quality
Law Commission
In every trial, juries are required to make determinations of disputed factual
issues. Where to do so requires specialised knowledge, experts in the relevant field are
called upon to help the jury interpret the evidence. This is to ensure that jurors do not
draw mistaken inferences from the evidence. Although juries should not defer to experts'
knowledge and opinions, there remains the danger that they will do so, especially if the
field of expertise is particularly difficult to comprehend.
This gives rise to a real danger if there are legitimate questions about the validity of the
expert's opinion. This may be because the expert's field is a new or developing science
with little in the way of peer review, or because there are doubts as to the validity of the
methodology employed. The problem is accentuated if there is no available expert in the
same field who can be called by the opposing party to provide an effective criticism. In
such cases, the jury may have no option but to defer to the view of the expert.
A related problem is that judges, advocates and jurors may not appreciate the limitations
of expert – and particularly scientific – evidence.
A number of cases in recent years have suggested that these are real difficulties which
require a solution. In this project we are seeking to address the problems outlined above
associated with the admissibility and understanding of expert evidence in criminal
proceedings.
Overseeing Quality
Changing standards framework
Skills for
Justice National
Occupational
Standards
Law
Commission
Expert
witnesses
Standards:
Provider
Practitioner
Validation
protocols
Methods
Training
Overseeing Quality
Other projects
Quality standards delivered in-house by
police forces
 Review of the forensic regulatory
function
 Complaints handling
 Risk management

Overseeing Quality
[email protected]
Chair:
Ian Kelcey, Chair, Criminal Law Society, The Law Society
The Prosecution Perspective
Karen Squibb-Williams, Strategic Policy Advisor, CPS
The Forensic Science Practitioner Perspective
Mike Allen, Council of Forensic Science Practitioners
Co-financed by a grant under the
European Commission’s AGIS Programme
Safeguarding the use of expert
evidence
The forensic practitioner and
registration
Mike Allen
Developmental projects consultant to Council for the Registration
of Forensic Practitioners
Purpose of presentation
To explore mechanisms for assessing the
quality of an expert witness.
What are the qualities of an expert
witness?
• Competence
• Integrity
What is competence?
• The quality of being competent;
adequacy; possession of required skill,
knowledge, qualification, or capacity.
How is competence measured?
•
•
•
•
Qualifications.
Reputation.
Years of experience.
Membership of approved
professional group.
None of the above
• Competence is doing what you do properly.
• Once you are deemed competent, there is a
presumption that you are doing your job to
the best of your ability – unless there is
evidence to the contrary (integrity).
Council for the Registration of
Forensic Practitioners
• This registration body has over 2700
registrants in nearly 30 specialties
(anthropology to linguistics to
fingerprints to firearms).
• It assesses current case work by peer
review.
Assessment process
• A selection of recent cases is assessed
against set criteria by an experienced
practitioner.
• The forensic process is similar in all
disciplines and the assessment process
reflects this.
Benefits
• Independent
• Reassures the courts
• Mechanism for complaints (Code of
Conduct)
www.crfp.org.uk
EU Criminal Justice Conference
Safeguarding the use of expert evidence
in the European Union
Coffee break
Co-financed by a grant under the
European Commission’s AGIS Programme
The Judicial Perspective
Speaker:
Mr Justice Fulford QC, International Criminal Court
Co-financed by a grant under the
European Commission’s AGIS Programme
The Defence Perspective
Chair:
Joanna Evans, Barrister, 25 Bedford Row
Panel members:
George Gebbie, Advocate, European Criminal Bar Association
Neil O’May, Partner, Bindmans LLP
Christopher Sallon QC, Doughty Street Chambers
Co-financed by a grant under the
European Commission’s AGIS Programme
George C. Gebbie, Advocate
Member of the List Counsel of the ICC
Coordinator of the EC BA Expert Witness Project
London 23rd September
2008
Cause for concern in the safeguarding of expert evidence in The
European Union
THE POLICEWOMAN, THE PRINTS
AND THE TREATY OF PRÜM
London 23rd September
2008
George C. Gebbie, Advocate
Member of the List Counsel of the ICC
Coordinator of the EC BA Expert Witness Project
The Policewoman
www.shirleymckie.com
The Prints
Madrid Train Bombings 11th March 2004
The Treaty of Prüm
“The aim of the Prüm Treaty is to intensify and accelerate the exchange
of information between law enforcement authorities. Data such as
DNA, fingerprints and vehicle registration details can be compared and
exchanged.”
Here!!
EU Criminal Justice Conference
Lunch
Strand Fleet & Bell Rooms
Co-financed by a grant under the
European Commission’s AGIS Programme
A European Union Perspective
Chair:
Louise Hodges, Chair, UK Task Force
Panel members:
Anders Aagaard, European Commission
Anand Doobay, Partner, Peters & Peters
Aled Williams, UK national member for Eurojust
Co-financed by a grant under the
European Commission’s AGIS Programme
EU PERSPECTIVE:
EUROJUST
Law Society 23 September 2008
Aled Williams
Outline

What is Eurojust ?

The future ?
– Treaty of Lisbon
– Expert evidence and amendments to
Eurojust Decision
SOME CJS CO-0PERATION
DATES

1995 Europol Convention
– Decision 2009

1996 Liaison Magistrates
– FR: 12+ LMs
– UK: FR ES IT PAK USA



1998 European Judicial Network+2008
2002 Eurojust Decision (revised 2008)
2007 Treaty of Lisbon
Free Movement
30 EU Legal
Systems
500m pop.
WHAT IS EUROJUST ?



‘Judicial Co-operation Unit of the
European Union’
27 MS prosecutors / judges/ police
Fight ‘serious cross border crime,
particularly when it is organised, and
involves two or more Member States’
- JHA Council Decision of 14 December 2000
SOME CRIME AREAS

Fraud

Drugs

THB

Terrorism
HOW EUROJUST WORKS

Case Referrals

Co-ordination Meetings

Strategic Meetings
OPERATIONAL MEETINGS
LEVEL I - meeting
SL
F
BE
L
27 National Members
...
PL
LEVEL II - meeting
D
BE
...
I
NL
UK
SL
S
Concerned
NM’s
UK
SL
SL
SL
BE
BE
BE
CONCERNED NAT. MEMBERS
+ JUDICIAL A/O POLICE
AUTHORITIES OF
CONCERNED COUNTRIES
UK
UK
UK
D
D
D
LEVEL III meeting
D
Co-ordination meeting
Case evolution
2002 - 2008
1200
1085
1000
757
771
800
588
600
381
400
300
202
200
0
2002
2003
2004
2005
2006
2007
2008
EXPERT EVIDENCE AND
EUROJUST ILLUSTRATION



Estonian armed gang operating in
various MS
Europol Liaison Bureaux
Eurojust co-ordination re collection of
evidence
CROSS BORDER FRAUD
EUROJUST ILLUSTRATION

Boiler room frauds

Jurisdiction
– Territorial; active; passive; universal

Practicalities
LIMITATIONS IN FIGHTING
CROSS BORDER FRAUD

Displacement

Extradition/EAW problems

Trial costs
SUCCESS IN FIGHTING
CROSS BORDER FRAUD

European Arrest Warrants

Restraint and Confiscation

Trial pending
OPERATION BAGHAD





Human trafficking/illegal immigration
9 MS
Europol analysis work file
Co-ordination meetings at Eurojust
Concerted action June 2008
– EAWs and searches

75 arrests
THE FUTURE: EUROJUST
AND EXPERT EVIDENCE

Treaty of Lisbon

Eurojust Decision amendments

ENFSI project
CRIMINAL JUSTICE
RD
(STILL) 3 PILLAR
EUROPEAN UNION
First : EC
Second:CFSP
Third : JHA/AFSJ
LISBON AND CRIMINAL
JUSTICE CO-OPERATION

PILLAR STRUCTURE DISMANTLED
– Treaty on European Union TEU
– Treaty on Functioning of the European Union TFEU

QMV

ECJ

CO-DECISION

EPPO
ENHANCING COOPERATION
EUROJUST TEU Art. 31.2
The Council shall encourage cooperation
through Eurojust by:
(a) proper coordination between ..national
prosecuting authorities;
(b) support for criminal investigations in
serious cross-border crime, particularly
organised crime, taking account, of analyses
carried out by Europol;
(c) cooperation between Eurojust and the
European Judicial Network, to facilitate
letters rogatory and extradition requests.
ENHANCING COOPERATION
EUROJUST TFEU Art. 85
..the European Parliament and the
Council, by means of regulations
adopted in accordance with the
ordinary legislative procedure, shall
determine Eurojust’s structure,
operation, field of action and tasks.
ENHANCING COOPERATION
EUROJUST TFEU Art. 85
“…ordinary legislative procedure, shall
determine Eurojust’s structure, …



Commission proposal
Council QMV
European Parliament co-decision
ENHANCING COOPERATION
AFTER LISBON: TFEU Art 85
(a)
initiation of criminal investigations,
..proposing the initiation of prosecutions
coordination of investigations and
prosecutions…;
(c) strengthening of judicial cooperation,
including by resolution of conflicts of
jurisdiction and by close cooperation with
the EJN
(b)
EUROJUST AND EPPO AFTER
LISBON? TFEU Art 86

TEU……

Constitutional Treaty ……III 274
“a EPPO from Eurojust”

Lisbon :”may establish a European Public
Prosecutor’s Office from Eurojust.”
EPPO AFTER LISBON?
TFEU Art 86
EPPO proposal
Unanimity
– 9/27
– Enhanced co-operation…Prüm ?
financial interests of EU….
EPPO AFTER LISBON?
TFEU Art 85..
(a)
initiation of criminal
investigations, ..proposing the
initiation of prosecutions
(b)
….EPPO by default ?
CHANGES TO EUROJUST
DECISION AND (EXPERT)
EVIDENCE IN GENERAL
Immediate MLA problems

Delay

Format and admissibility
CHANGES AND (EXPERT)
EVIDENCE IN GENERAL
Solutions to MLA problems?

Delay:
– strengthening Eurojust
– (direct transmission)

Format and admissibility MLAC Art.4
CHANGES TO EUROJUST
DECISION
Eurojust as precursor to
EPPO
Eurojust as alternative to
EPPO
CHANGES TO EUROJUST
DECISION
Operational capabilities
– Location
– On-call co-ordination
– Powers
Information exchange
Liaison magistrates
CHANGES TO EUROJUST
DECISION: POWERS

National Members acting through
Eurojust

Eurojust College

Common powers for national
members as national authorities?
CHANGES TO EUROJUST
POWERS VIA NM

Request special investigative measures

Response to requests “without undue delay”

Non-compliance with requests to be
justified, Article 8 ….”operational reasons”
CHANGES TO EUROJUST
POWERS AS COLLEGE

Non-binding opinions on conflicts of
jurisdiction

Complaints re judicial cooperation

Non-compliance with requests to be
justified, Article 8 ….”operational reasons”
POWERS VIA NMs as
NATIONAL AUTHORITIES

National Members acting as
national authorities

Common powers

Constitutional Clause
POWERS VIA NMs as
NATIONAL AUTHORITIES

“Ordinary powers”

Powers exercised in agreement

Urgent powers
POWERS VIA NMs as
NATIONAL AUTHORITIES
“Ordinary powers”



requests for judicial co-operation including
regarding instruments giving effect to the
principle of mutual recognition
Receive
Transmit
Facilitate execution
POWERS VIA NMs as
NATIONAL AUTHORITIES
Requests in agreement with national
authorities




Issue
Execute
Order investigative measures (coordination)
Authorise controlled deliveries
POWERS VIA NMs as
NATIONAL AUTHORITIES
Urgent cases
- Authorise and coordinate
controlled deliveries in own
State
- Execute in relation to own
State request for judicial
cooperation
POWERS VIA NMs as
NATIONAL AUTHORITIES
Safeguard clause 9f
(a) constitutional rules, or
(b) fundamental aspects of CJS re:
(i) division of powers between
police, prosecutors and judges,
(ii) functional division of tasks
between prosecution authorities
(iii) federal structure of MS
concerned.
INFORMATION
EXCHANGE Art 13.1
Member States shall
exchange with Eurojust any
information necessary for the
performance of its tasks….
INFORMATION
EXCHANGE Art 13.1
• JITs
• Serious cross-border crime
• Conflicts, deliveries,problems
INFO. EXCHANGE: MS
OBLIGATION NOTIFY EJ
Requests or decisions directly involving 3 MS if punishable
by min-max at least 5 years
AND listed offence
–
–
–
–
Arms, drugs, human trafficking
Sexual exploitation of children and child pornography
Corruption Fraud, euro counterfeiting, money laundering
Attacks against information systems
OR organised crime
OR serious cross-border dimension or EU repercussion
EXPERT EVIDENCE
ILLUSTRATION: MADRID

Locating the expert

Facilitation:
– Evidence format : EU 2000 MLAC

Extent of information recovery
– Partners: Spanish court, UKCA, Embassy

C(IC)A 2003 court nomination
2000 EU MLAC Art. 4:Format
Where mutual assistance is afforded, the
requested Member State shall comply with
the formalities and procedures expressly
indicated by the requesting Member State,
unless otherwise provided in this Convention
and provided that such formalities and
procedures are not contrary to the
fundamental principles of law in the
requested Member State.
BETTER EU EVIDENCE FLOW
THROUGH AMENDMENTS
•
•
Increased information flow
MS response re clauses
• Article 9f (powers)..reciprocity?
• Article 13.8a (information ex.)
•
Eurojust influencing tools
Eurojust
The Law Society: Criminal Justice Conference
23rd September 2008
Safeguarding the Use of Expert Evidence in
the European Union: A European Union
Perspective
Anand Doobay
Partner, Peters & Peters
Cross Border Use of Expert
Evidence
• Increase of cross border crime leading to increasing
numbers of criminal investigations / prosecutions
involving evidence from more than one Member State.
• Location of evidence
• Location of experts
MLA Framework in the UK
• Not necessary in the UK for expert evidence to be obtained from
overseas using an MLA process for it to be admissible.
•
Mutual legal assistance in the UK does not require the existence of a treaty
arrangement or international agreement.
•
Relevant treaty provisions must be taken into consideration when
interpreting the applicable domestic legislation.
•
The UK is party to a large number of multilateral conventions and
agreements dealing that deal with MLA such (e.g. UNCAC, UNCTOC)
supplemented by a number of bilateral MLA treaties (e.g. EU Convention on
MLA in Criminal Matters).
•
The provision of mutual assistance in criminal matters in the UK is
principally governed by the Crime (International Co-operation) Act 2003
(‘CICA 2003’) and the Proceeds of Crime Act 2002 (External Requests and
Orders) Order 2005 (‘the POCA order’).
UK Central Authority for MLA requests
•
Responsibility for mutual assistance in criminal matters in England & Wales
lies with the Secretary of State for the Home Department (“UK Central
Authority”)
•
Serious Organised Crime Agency (‘SOCA’) has primary responsibility for
processing requests for investigative help from overseas. Requests for
investigative assistance need not be sent to the UK Central Authority unless
it is a requirement of the foreign authority making the request.
•
The Mutual Legal Assistance Guidelines are published by the United
Kingdom Central Authority - requests both to and from the UK
CICA 2003
Chapter 2, section 7 of CICA 2003
Requests for assistance in obtaining evidence abroad
(1) If it appears to a judicial authority in the United Kingdom on an application made by a
person mentioned in subsection (3)—
(a) that an offence has been committed or that there are reasonable grounds
for suspecting that an offence has been committed, and
(b) that proceedings in respect of the offence have been instituted or that the
offence is being investigated, the judicial authority may request assistance
under this section.
(2) The assistance that may be requested under this section is assistance in obtaining
outside the United Kingdom any evidence specified in the request for use in the
proceedings or investigation.
Chapter 2, section 8 of CICA 2003
Sending requests for assistance
(1) A request for assistance under section 7 may be sent—
(a) to a court exercising jurisdiction in the place where the evidence is situated,
or
(b) to any authority recognised by the government of the country in question as
the appropriate authority for receiving requests of that kind.
Practical Issues
•
Admissibility / Weight
(including expertise)
•
Unable to attend trial
•
Expert Evidence / Assistance
•
Compulsion
Practical Issues
•
Disclosure
•
Availability of MLA for defence
•
Evidential chain
•
Compulsion to obtain evidence
EU PERSPECTIVE:
EUROJUST
Law Society 23 September 2008
Aled Williams
Outline

What is Eurojust ?

The future ?
– Treaty of Lisbon
– Expert evidence and amendments to
Eurojust Decision
SOME CJS CO-0PERATION
DATES

1995 Europol Convention
– Decision 2009

1996 Liaison Magistrates
– FR: 12+ LMs
– UK: FR ES IT PAK USA



1998 European Judicial Network+2008
2002 Eurojust Decision (revised 2008)
2007 Treaty of Lisbon
Free Movement
30 EU Legal
Systems
500m pop.
WHAT IS EUROJUST ?



‘Judicial Co-operation Unit of the
European Union’
27 MS prosecutors / judges/ police
Fight ‘serious cross border crime,
particularly when it is organised, and
involves two or more Member States’
- JHA Council Decision of 14 December 2000
ICC and Eurojust
SOME CRIME AREAS

Fraud

Drugs

THB

Terrorism
HOW EUROJUST WORKS

Case Referrals

Co-ordination Meetings

Strategic Meetings
OPERATIONAL MEETINGS
LEVEL I - meeting
SL
F
BE
L
27 National Members
...
PL
LEVEL II - meeting
D
BE
...
I
NL
UK
SL
S
Concerned
NM’s
UK
SL
SL
SL
BE
BE
BE
CONCERNED NAT. MEMBERS
+ JUDICIAL A/O POLICE
AUTHORITIES OF
CONCERNED COUNTRIES
UK
UK
UK
D
D
D
LEVEL III meeting
D
Co-ordination meeting
Case evolution
2002 - 2008
1200
1085
1000
757
771
800
588
600
381
400
300
202
200
0
2002
2003
2004
2005
2006
2007
2008
EXPERT EVIDENCE AND
EUROJUST ILLUSTRATION



Estonian armed gang operating in
various MS
Europol Liaison Bureaux
Eurojust co-ordination re collection of
evidence
CROSS BORDER FRAUD
EUROJUST ILLUSTRATION

Boiler room frauds

Jurisdiction
– Territorial; active; passive; universal

Practicalities
LIMITATIONS IN FIGHTING
CROSS BORDER FRAUD

Displacement

Extradition/EAW problems

Trial costs
SUCCESS IN FIGHTING
CROSS BORDER FRAUD

European Arrest Warrants

Restraint and Confiscation

Trial pending
OPERATION BAGHAD





Human trafficking/illegal immigration
9 MS
Europol analysis work file
Co-ordination meetings at Eurojust
Concerted action June 2008
– EAWs and searches

75 arrests
THE FUTURE: EUROJUST
AND EXPERT EVIDENCE

Treaty of Lisbon

Eurojust Decision amendments

ENFSI project
CRIMINAL JUSTICE
RD
(STILL) 3 PILLAR
EUROPEAN UNION
First : EC
Second:CFSP
Third : JHA/AFSJ
LISBON AND CRIMINAL
JUSTICE CO-OPERATION

PILLAR STRUCTURE DISMANTLED
– Treaty on European Union TEU
– Treaty on Functioning of the European Union TFEU

QMV

ECJ

CO-DECISION

EPPO
ENHANCING COOPERATION
EUROJUST TEU Art. 31.2
The Council shall encourage cooperation
through Eurojust by:
(a) proper coordination between ..national
prosecuting authorities;
(b) support for criminal investigations in
serious cross-border crime, particularly
organised crime, taking account, of analyses
carried out by Europol;
(c) cooperation between Eurojust and the
European Judicial Network, to facilitate
letters rogatory and extradition requests.
ENHANCING COOPERATION
EUROJUST TFEU Art. 85
..the European Parliament and the
Council, by means of regulations
adopted in accordance with the
ordinary legislative procedure, shall
determine Eurojust’s structure,
operation, field of action and tasks.
ENHANCING COOPERATION
EUROJUST TFEU Art. 85
“…ordinary legislative procedure, shall
determine Eurojust’s structure, …



Commission proposal
Council QMV
European Parliament co-decision
ENHANCING COOPERATION
AFTER LISBON: TFEU Art 85
(a)
initiation of criminal investigations,
..proposing the initiation of prosecutions
coordination of investigations and
prosecutions…;
(c) strengthening of judicial cooperation,
including by resolution of conflicts of
jurisdiction and by close cooperation with
the EJN
(b)
EUROJUST AND EPPO AFTER
LISBON? TFEU Art 86

TEU……

Constitutional Treaty ……III 274
“a EPPO from Eurojust”

Lisbon :”may establish a European Public
Prosecutor’s Office from Eurojust.”
EPPO AFTER LISBON?
TFEU Art 86
EPPO proposal
Unanimity
– 9/27
– Enhanced co-operation…Prüm ?
financial interests of EU….
EPPO AFTER LISBON?
TFEU Art 85..
(a)
initiation of criminal
investigations, ..proposing the
initiation of prosecutions
(b)
….EPPO by default ?
CHANGES TO EUROJUST
DECISION AND (EXPERT)
EVIDENCE IN GENERAL
Immediate MLA problems

Delay

Format and admissibility
CHANGES AND (EXPERT)
EVIDENCE IN GENERAL
Solutions to MLA problems?

Delay:
– strengthening Eurojust
– (direct transmission)

Format and admissibility MLAC Art.4
CHANGES TO EUROJUST
DECISION
Eurojust as precursor to
EPPO
Eurojust as alternative to
EPPO
CHANGES TO EUROJUST
DECISION
Operational capabilities
– Location
– On-call co-ordination
– Powers
Information exchange
Liaison magistrates
CHANGES TO EUROJUST
DECISION: POWERS

National Members acting through
Eurojust

Eurojust College

Common powers for national
members as national authorities?
CHANGES TO EUROJUST
POWERS VIA NM

Request special investigative measures

Response to requests “without undue delay”

Non-compliance with requests to be
justified, Article 8 ….”operational reasons”
CHANGES TO EUROJUST
POWERS AS COLLEGE

Non-binding opinions on conflicts of
jurisdiction

Complaints re judicial cooperation

Non-compliance with requests to be
justified, Article 8 ….”operational reasons”
POWERS VIA NMs as
NATIONAL AUTHORITIES

National Members acting as
national authorities

Common powers

Constitutional Clause
POWERS VIA NMs as
NATIONAL AUTHORITIES

“Ordinary powers”

Powers exercised in agreement

Urgent powers
POWERS VIA NMs as
NATIONAL AUTHORITIES
“Ordinary powers”



requests for judicial co-operation including
regarding instruments giving effect to the
principle of mutual recognition
Receive
Transmit
Facilitate execution
POWERS VIA NMs as
NATIONAL AUTHORITIES
Requests in agreement with national
authorities




Issue
Execute
Order investigative measures (coordination)
Authorise controlled deliveries
POWERS VIA NMs as
NATIONAL AUTHORITIES
Urgent cases
- Authorise and coordinate
controlled deliveries in own
State
- Execute in relation to own
State request for judicial
cooperation
POWERS VIA NMs as
NATIONAL AUTHORITIES
Safeguard clause 9f
(a) constitutional rules, or
(b) fundamental aspects of CJS re:
(i) division of powers between
police, prosecutors and judges,
(ii) functional division of tasks
between prosecution authorities
(iii) federal structure of MS
concerned.
INFORMATION
EXCHANGE Art 13.1
Member States shall
exchange with Eurojust any
information necessary for the
performance of its tasks….
INFORMATION
EXCHANGE Art 13.1
• JITs
• Serious cross-border crime
• Conflicts, deliveries,problems
INFO. EXCHANGE: MS
OBLIGATION NOTIFY EJ
Requests or decisions directly involving 3 MS if punishable
by min-max at least 5 years
AND listed offence
–
–
–
–
Arms, drugs, human trafficking
Sexual exploitation of children and child pornography
Corruption Fraud, euro counterfeiting, money laundering
Attacks against information systems
OR organised crime
OR serious cross-border dimension or EU repercussion
EXPERT EVIDENCE
ILLUSTRATION: MADRID

Locating the expert

Facilitation:
– Evidence format : EU 2000 MLAC

Extent of information recovery
– Partners: Spanish court, UKCA, Embassy

C(IC)A 2003 court nomination
2000 EU MLAC Art. 4:Format
Where mutual assistance is afforded, the
requested Member State shall comply with
the formalities and procedures expressly
indicated by the requesting Member State,
unless otherwise provided in this Convention
and provided that such formalities and
procedures are not contrary to the
fundamental principles of law in the
requested Member State.
BETTER EU EVIDENCE FLOW
THROUGH AMENDMENTS
•
•
Increased information flow
MS response re clauses
• Article 9f (powers)..reciprocity?
• Article 13.8a (information ex.)
•
Eurojust influencing tools
Eurojust
A Pan European Perspective
Comparative Approach
Chair:
Joanna Evans, Barrister, 25 Bedford Row
Panel members:
Janne Nyman, Finnish Task Force
Andrea Tassi, Italian Task Force
Matus Gemmes, Slovak Task Force
Hanne Rahbeak, Danish Task Force
Co-financed by a grant under the
European Commission’s AGIS Programme
EU Criminal Justice Conference
Conclusion:
Joanna Evans, Barrister, 25 Bedford Row
Co-financed by a grant under the
European Commission’s AGIS Programme