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RESPONSE OF DAVID BERMINGHAM TO DPP CONSULTATION ON CPS GUIDELINES FOR CONCURRENT JURISDICTION.

INTRODUCTION I am one of the so-called NatWest Three whose extradition to the United States in 2006 was in large part the cause of the introduction by the then Attorney General of bilateral guidelines for prosecutors 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 our case, and having campaigned long and hard for the introduction of a forum amendment to the Extradition Act 2003, I have a strong interest in ensuring that the CPS Guidelines (the Guidelines) are fit for purpose. I hope that my submission will be taken in that light. GENERAL OBSERVATIONS The introduction of these Guidelines is welcome. However, it is essential that when in final form they dovetail with the forum bar to extradition that has yet to be placed on the statute book. The draft wording of that amendment is imminent, as the Home Secretary announced during Second Reading 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 14th. Key to the efficacy of the forum amendment will be the presumption for or against extradition in instances 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 the extradition should take precedence over the possibility of a UK disposition of the case), then the Guidelines should reflect that presumption. In practice, this would mean that para 8 of the Guidelines would start with an overarching presumption that if a case could be heard in the UK, then it should be investigated with a view to prosecution here. Such a presumption could of course be overcome by other factors in the decisionmaking process, but it would be the starting point. As currently drafted, there is no such presumption in the Guidelines. Although the draft Guidelines make mention of the Eurojust Guidelines, and indeed describe them as complementary, they have been drafted in such a way that the balance of factors and the weight of consideration thereof is subtly but importantly different from those in the Eurojust Guidelines. In effect, the Guidelines are replete with qualifications that would allow prosecutors great latitude in refusing to investigate a case. The Guidelines are littered with phrases such as so long as, and provided it is practicable to do so. It is unclear why the Guidelines do not simply adopt verbatim the Eurojust Guidelines, which would have the advantage that there could never be conflict between them. Most neutral observers would agree that the Eurojust Guidelines are simple, fair, and balanced. Since the CPS has supposedly been using them for all non-US cases for the last 5 years or so, why not just formally adopt them as allencompassing Guidelines for dealing with ALL cases of concurrent jurisdiction?

SPECIFIC OBSERVATIONS Para 8 The way in which para 8 is drafted suggests that sub-paras 8.1 and 8.2 are the primary factors to take into consideration. This is at odds with the Eurojust Guidelines, which make it clear that whilst there should be a preliminary presumption of a trial in the place where most of the criminality or most of the loss or harm occurred, all relevant factors should be taken into consideration on a case by case basis, and that none has a pre-eminence. Para 8.1 The first two lines should be deleted. They serve only as a convenient excuse for prosecutors not to do their job, and for foreign prosecutors to draft charges in such a way that a UK case could not be brought that would cover all of the alleged offending behaviour. It is notable that the DPP hid behind exactly this formulation of wording when refusing to contemplate bringing charges against Gary McKinnon, ignoring the many legal mechanisms at his disposal (and in particular the provisions of the Mutual Legal Assistance Treaty between the UK and the US, which would have COMPELLED assistance from the US on matters of evidence, and where provision can be made for witness appearance by videolink if the relevant person is unwilling to travel to the UK). Para 8.2 This paragraph should be redrafted. As currently drafted it enables a foreign prosecutor to ensure extradition by simply refusing to make available evidence to the UK prosecutors. Para 8.4 As currently drafted, this suggests that these factors have a degree of importance less than those at paras 8.1 and 8.2. This is wholly inconsistent with the Eurojust Guidelines. Prosecutors should have a duty to recognise the impact of extradition on people ordinarily resident in the UK, and such considerations should be given at a minimum the same degree of importance in the decision-making process as factors which make prosecutors jobs easier. Para 9 This should be deleted. It is a naked encouragement for foreign prosecutors to commence proceedings before engaging with their UK counterparts. Para 10 This should be deleted, for exactly the same reasons as for para 9 above. Para 11 This is nonsense and should be deleted. Most of the contentious US extradition cases concern aggressive extraterritorial jurisdiction by US prosecutors. It is exactly those sorts of cases that the Guidelines SHOULD cover. 30 January 2013