RESPONSE OF DAVID BERMINGHAM TO DPP CONSULTATION ON CPS GUIDELINES FORCONCURRENT JURISDICTION.INTRODUCTION
I am one of the so-called
whose extradition to the United States in 2006 was inlarge part the cause of the introduction by the then Attorney General of bilateral guidelines forprosecutors in cases involving concurrent jurisdiction with the US. Having spent a large amount of money judicially reviewing the refusal of the Director of the Serious Fraud Office to investigate ourcase, and having campaigned long and hard for the introduction of a
amendment to theExtradition Act 2003, I have a strong interest in ensuring that the CPS Guidelines (
)are fit for purpose. I hope that my submission will be taken in that light.
The introduction of these Guidelines is welcome. However, it is essential that when in final formthey dovetail with the forum bar to extradition that has yet to be placed on the statute book. Thedraft wording of that amendment is imminent, as the Home Secretary announced during SecondReading of the Crime & Courts Bill that it will be inserted at Commons Committee stage of that Bill,which is currently ongoing and ends on February 14
.Key to the efficacy of the forum amendment will be the presumption for or against extradition ininstances where more than one country could prosecute. If the presumption is against extradition,which it should be (in other words it would be for the Requesting State to satisfy a judge that theextradition should take precedence over the possibility of a UK disposition of the case), then theGuidelines should reflect that presumption.In practice, this would mean that para 8 of the Guidelines would start with an overarchingpresumption that if a case
be heard in the UK, then it
be investigated with a view toprosecution here. Such a presumption could of course be overcome by other factors in the decision-making process, but it would be the starting point. As currently drafted, there is no suchpresumption in the Guidelines.Although the draft Guidelines make mention of the Eurojust Guidelines, and indeed describe themas
, they have been drafted in such a way that the balance of factors and the weightof consideration thereof is subtly but importantly different from those in the Eurojust Guidelines. Ineffect, the Guidelines are replete with qualifications that would allow prosecutors great latitude inrefusing to investigate a case. The Guidelines are littered with phrases such as
so long as
provided it is practicable to do so
.It is unclear why the Guidelines do not simply adopt verbatim the Eurojust Guidelines, which wouldhave the advantage that there could never be conflict between them. Most neutral observers wouldagree that the Eurojust Guidelines are simple, fair, and balanced. Since the CPS has supposedly beenusing them for all non-US cases for the last 5 years or so, why not just formally adopt them as all-encompassing Guidelines for dealing with ALL cases of concurrent jurisdiction?