The European Public Prosecutor: Coming soon to a country near you?

An EPP working with UK authorities

Practical issues

Mike Kennedy President of Eurojust (2002-2007)

Chief Operating Officer CPS (2007-2012)

Starters

• Theses are my own views/observations• Not those of CPS, Eurojust, UK PLC, the

Commission or anyone else!• Whilst UK is against a EPP we should be very

careful not to cooperative with it• Do not want London as a financial centre to be

a safe haven for fraudulently obtained funds or for fraudsters

Coalition Agreement on the EU

• “We will approach forthcoming legislation in the area of criminal justice on a case by case basis with view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.

• Britain will not participate in the establishment of any European Public Prosecutor.”

Issues to Consider

• Much will depend on the how the EPP is structured• EP making LoR requests to the UK • EPP making extradition requests to the UK

– European Arrest Warrant ?• Conflict of Jurisdiction cases• Joint Investigation Teams ?

– EPP and SFO – EPP and National Crime Agency or Police Forces

• Eurojust

UK Authorities• Home Office

– Leads the UK’s international policy on police & prosecution matters – Extradition – ‘export’ handled by the CPS in court and – Mutual Legal Assistance – requests executed by Police, HMRC or SFO– Europol & Eurojust

• Ministry of Justice – Courts and judges

• Attorney General’s Office – Prosecution agencies – including Crown Prosecution Service (CPS) & Serious Fraud Office (SFO)

• Scotland – Crown Office & Procurator Fiscal Service (MLA & Extradition)

• Northern Ireland– Public Prosecution Service Northern Ireland(PPSNI)

Home Office - Mutual Legal Assistance

• UK Central Authority (UKCA)– Handles Mutual Legal Assistance requests – All in-coming and out-going requests where direct

communication does not apply • Incoming Letters of Request (LoR)

– Pass to police forces or HMRC to execute– BUT LoRs in Serious Fraud cases dealt with by SFO

• CPS - no involvement execution of incoming LoRs

EPP making LoR requests to the UK

Section 13 of the Crime International Cooperation Act 2003

Requests for assistance from overseas authorities

(1) Where a request for assistance in obtaining evidence in a part of the United Kingdom is received by the territorial authority for that part, the authority may—

(a) if the conditions in section 14 are met, arrange for the evidence to be obtained under section 15, or(b) direct that a search warrant be applied for under or by virtue of section 16 or 17 or, in relation to

evidence in Scotland, 18.

(2)The request for assistance may be made only by—(a) a court exercising criminal jurisdiction, or a prosecuting authority, in a country outside the United

Kingdom,(b) any other authority in such a country which appears to the territorial authority to have the function of

making such requests for assistance,(c) any international authority mentioned in subsection (3).

(3) The international authorities are—• (a) the International Criminal Police Organisation,• (b) any other body or person competent to make a request of the kind to which this section applies under

any provisions adopted under the Treaty on European Union.

Extradition requests by EPP to UK? • UK Extradition Act 2003

– “Category 1 territories” = for EAW - 26 EU states– “Category 2 territories” = long list of other states– EPP is not a “territory”– Should be less challenge if EAW request issued by court/judicial

authority in a territory • A legislative amendment or special order would be required to

allow the EPP to seek extradition by EAW. Potentially controversial • Special UK enabling legislation for extradition to the ICTY, ICTR

etc. [eg the United Nations (IT)(FY) & (IT)(R) Orders 1996]• To the International Criminal Court by ICC Act 2001• Suspect pressure to try defendants in the UK if possible

Conflicts of Jurisdiction

• Eurojust 2003 Guidelines “Which Jurisdiction Should Prosecute”

• Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings [COM(2005) 696 Greek proposal

• The Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings – stipulates the exchange of information, through direct

consultations between the competent authorities in case the parallel criminal proceedings are already confirmed.

Joint Investigation Teams ?

• Will the UK take part in JITs – with the EPP alone – with the EPP and other member states ?– SOCA/NCA, HMRC, CPS, SFO

• Technically possible but will there be political support for such collaboration

• Under the present government I find hard to envisage the UK signing a JIT with the EPP

Eurojust & the EPP

Eurojust & the EPP

An EPP within Eurojust

European Public

Prosecutor

Thank you!