Crown Prosecution Service – Supplementary evidence (EXL0075)

CPS INTERNAL PROCESS FOR DEALING WITH FORUM BAR CASES

1. This process is to assist extradition and domestic prosecutors who have cause to apply the Guidelines on the Handling of Cases where the Jurisdiction to Prosecute is shared with Prosecuting Authorities Overseas (“the Guidelines”) or where he/she is dealing with a case where there appears to be a forum issue.   

2. The extradition and domestic units within CPS will share information unless it is inappropriate or unlawful to do so in accordance with general principles. 

3. The Extradition Unit will inform requesting states or judicial authorities generally or on a case by case basis that this information will be shared in cases where forum may be an issue.  

4. Decisions on forum will be taken by a domestic prosecutor as the Extradition Unit acts for the foreign state making the extradition request. 

5. The Extradition Unit will provide advice on how forum might apply in extradition if requested by a domestic prosecutor.

6. Where a domestic prosecutor is involved in a case where the guidelines are engaged, the case must be registered on CMS and flagged as a concurrent jurisdiction case so that it is easily traceable.  The prosecutor will also make a record of the decision using the template provided (see Annex B). This record should include a note of the extent to which the prosecutor has been able to consider the specified matters set out in the forum bar and any relevant information regarding each.  Where public interest or other considerations determine that information cannot be shared publically it should be recorded elsewhere.

7. Four separate scenarios may be envisaged.

No domestic prosecutor is or has been engaged

8. Where it is obvious from the extradition request that forum will be in issue the Extradition Unit lawyer will check CMS to see if a domestic case has been registered and also contact directly the relevant Central Casework Division and Complex Casework Units to find out if a domestic prosecutor is or has been engaged in the case. 

9. If it appears that no prosecutor is or has been seized of the case but it appears to be a case where one might expect contact under the guidelines, the Deputy Head of Division (Extradition) will notify the Head of Special Crime and Counter Terrorism Division to decide if any further action is required.        

10. If forum is raised and there has been no domestic involvement, the Extradition Unit lawyer will inform the judge.  The Extradition Unit lawyer will assist the court with the specified matters as far as is possible.  If further information is requested by the court, a domestic prosecutor may need to confirm that the CPS is not engaged domestically and that they have no evidence to consider.  

A decision to charge in this jurisdiction

11. Where a domestic prosecutor has decided that it is appropriate to charge the requested person with corresponding offences, Section 8A or 76A of the Act applies and the extradition proceedings must be adjourned.

A decision that England and Wales is not the most appropriate jurisdiction

12. Where a prosecutor has engaged the guidelines without making a formal Code Test decision and it has been decided that a prosecution should be conducted elsewhere he/she will inform the Extradition Unit and provide the template containing a record of that decision. If forum is raised in the subsequent extradition, the Extradition Unit lawyer will inform the court of the domestic prosecutor’s decision and will assist on the specified matters using the template and any relevant material from the extradition papers. 

13. In the event that the extradition court needs further information, the Extradition Unit lawyer will consider whether it is necessary to seek an adjournment so that the prosecutor who made the relevant decision may be made a party to the proceedings. 

A decision to issue a prosecutor’s certificate 

14. A prosecutor can issue a certificate where he/she has made a decision whether or not to prosecute on the basis of the Full Code Test or where it is appropriate to do so because of concerns about the disclosure of sensitive material.    A prosecutor considering the issuance of a certificate must consider in doing so, his/her ability to protect that material during any appeal proceedings under s19E.

15. If it appears to the prosecutor with conduct of the domestic prosecution that it may be appropriate to issue a certificate, he/she will draft a briefing note outlining why a certificate is appropriate together with a draft certificate using the template attached (see Annex C).  This should be sent in the first instance, via the CCP, to the Head of Special Crime and Counter Terrorism Division (SCCTD) (or in her absence the Head of Specialist Fraud Division (SFD)).  The prosecutor’s certificate will be considered, authorised and given under the signature of the Head of SCCTD, the Head of SFD or the Principal Legal Advisor in consultation with the Director of Public Prosecutions.      

16. If authorisation is given, the prosecutor will provide the signed certificate to the Extradition Unit lawyer to enable him/her to provide a copy to the court and to serve it on other parties as appropriate.

17. Any appeal against a ‘relevant certification decision’ should be conducted by the domestic unit which is dealing or has been dealing with the case.   

Role of the Extradition Unit lawyer in the forum hearing

18. Where the fugitive provides sufficient information for the court to determine that the forum bar is engaged, the court may require the Extradition Unit lawyer to provide further information to assist in deciding whether a substantial measure of the relevant activity occurred within the United Kingdom and/or information about any of the specified matters listed at ss (3).   If the Extradition Unit lawyer is unable to assist from the information contained in the extradition request or the template provided by a domestic prosecutor (if engaged), further enquiries should be made of the requesting state or the relevant prosecutor.  

19. Where appeal proceedings are being conducted by a prosecutor following the issuing of a prosecutor’s certificate, the Extradition Unit lawyer should assist by providing the records of any extradition hearing and any relevant advice about law and procedure.   

European Arrest Warrant Statistics 2009-2014[i]

The NCA is the Central Authority for the EAW and collates the official statistics for all export (Part 1) and import (Part 3) cases[1].

Export EAW cases

The NCA is responsible for certifying requests under section 2 of the Extradition Act 2003.  Once an EAW is certified the requested person can be arrested in this jurisdiction.  The CPS has conduct of extradition proceedings from the point that a requested person is produced at court following an arrest and up until his/her extradition is ordered or discharged.  NCA have responsibility for arranging the surrender of those whose extradition is ordered.

• Poland accounts for about 60% of EAW proceedings per year (909 out of 1,660 in 2013-14).  The next highest figures are for Romania and Lithuania, at about 8% each (119 and 137 respectively).

• Fewer than 5% of EAW arrests and surrenders are of UK nationals.

• Whilst the number of arrests has been increasing each year, the number of surrenders has remained steady for the last 3 years, indicating that the courts are discharging more defendants each year.  The NCA figures support the anecdotal evidence that since 2012 the courts have been more willing to discharge warrants for older and less serious offences under Article 8 ECHR - the right to a private and family life[2]. 

• CPS does not record routinely the reason why someone is discharged.  However, a review of appeals between January-September 2014 shows that in the 130 cases in which the requested person argued that extradition was not compatible with Article 8, 26 were successful.  This is a success rate of 20%, which contrasts with the 6% success rate on extradition appeals generally referred to the in Scott Baker Review.  This doesn’t mean necessarily that courts are applying a less strict test, but could be that the test is being met more frequently where offences are older and less serious. 

Import EAW cases

The CPS issues most of the EAWs in the UK, alongside Scottish and Northern Irish prosecutors, SFO and other government departments. NCA figures are for the UK as a whole, but CPS accounts for about 90%.

• EAWs are issued to all participating countries rather than targetted at a particular jurisdiction.  The highest number of arrests on UK EAWs take place in Spain (26%), Republic of Ireland (19%) and the Netherlands (15%).

• Requests are issued for a very wide range of offences, the most common being drug trafficking (18%), fraud (14%) child sex offences (11%), murder (8%) rape (7%) and GBH (6%).  This is consistent with the CPS applying a proportionality test before issuing an EAW.

• Over half (55%) of all requests are for British citizens.

16 October 2014