European Courts
Principle
It is essential to distinguish between the jurisdictions of the European Court of Justice and the European Court of Human Rights, as The CPS will very rarely be concerned with the former and is much more likely to be involved with the latter, particularly since the coming into force of the Human Rights Act 1998.
Other prosecuting authorities such as HM Customs & Excise and the Department of Environment, Food and Rural Affairs are more likely to have cases that are referred to the European Court of Justice because much of their work falls within its jurisdiction.
The full implementation of the HRA 1998 on 2nd October 2000 has had the effect that a defendant in a criminal prosecution, for example, is required to puruse a challenge relying on Convention rights in the domestic courts first of all.
European Court of Justice
European Community law is part of the law of the United Kingdom by virtue of section 2 of the European Communities Act 1972. Article 234 of the Treaty of Rome (establishing the European Community) gives the European Court of Justice in Luxembourg jurisdiction over questions of interpretation of the treaty, validity and interpretation of acts of the Community institutions and interpretation of statutes of bodies established by an act of the Council of Ministers, where provided for in those statutes.
The European Court of Human Rights
This court in Strasbourg was established in 1959 following the adoption of the European Convention on Human Rights in 1950 by the Council of Europe of which the United Kingdom was a member. Article 34 of the Convention states that the Court may receive applications from 'any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto'.
The Human Rights Act 1998 came into force fully on 2nd October 2000 and S.2 obliges any court or tribunal determining a question relating to a Convention right to take into account the jurisprudence of the European Court of Human Rights. Sections 3 and 4 respectively, deal with interpretation of UK legislation and declarations of incompatibility with Convention rights.
Guidance
References to the European Court of Justice by a criminal court in cases prosecuted by The CPS, for a decision on a point of European Communities' law are unlikely to occur because the treaties do not yet create a general jurisdiction in criminal matters. Policy on Justice and Home Affairs is dealt with under the 'Third Pillar' of the Maastricht Treaty on European Union by way of inter-governmental co-operation and is not within the general jurisdiction of the European Court of Justice.
References in criminal cases are most likely to be in value added tax, export refund and agricultural subsidy cases as these areas of tax and agriculture fall directly within the scope of the Treaty, namely, the treaty which established the Economic Community in 1957. These cases are dealt with by HM Customs and Excise, and the Department of Environment, Food and Rural Affairs.
The CPS has not yet been involved in any such references and as the procedure is one initiated by a judge, the possible contribution to be made by the Service would be to provide a statement of law and copies of relevant evidence.
For general references to the European Community <see Stones 2001 - 8-9800 et seq>
In Archbold 2001 the index refers to the European Convention on Human Rights and separately, the European Court. This reference refers to the European court of Justice and deals with the procedure for references under Article 234 of the Treaty.
Applications to the European Court of Human Rights
These will require responses from the Foreign & Commonwealth Office, who will involve the Home Office on an ad hoc basis as the lead department for applications arising out of criminal prosecutions.
In many human rights cases arising from the administration of the criminal justice system, such as maltreatment in custody or prison and misdirections in court, The CPS may not be involved.
As to cases where The CPS is likely to be called on for information, contact must be made with the European and International Division of Policy Directorate in HQ via 020-7796-8000, or by fax on 020-7796-8520; this will assist with ensuring coherence of responses and, in any event, identifying the appropriate unit in the Home Office with which to lodge the papers will depend on the subject matter of the application.
The Foreign Office ask that direct contact should not be made with them as there are many cases in Europe at different stages of progress.
References to the European Court of Justice (ECJ)
Where a question of European Community law is raised and the Crown Court or the Court of Appeal considers that it cannot give judgement without a decision on that question, either court may refer the question to the ECJ for a preliminary ruling under Article 234 of the Treaty. The relevant procedural rules of court are to be found at Archbold 2-207 and 7-305 to 7-307.
In the magistrates' court, a similar procedure is followed whereby the points of law to be referred for decision are specified by order of the Court.
N.B. Evidence for proceedings in the ECJ can be taken in the UK as the Evidence (European Court) Order, 1976 (SI 1976 No.428), applies Sections 1-3 of the Evidence (Proceedings in Other Jurisdictions) Act, 1975 to that Court.
N.B. A person, who in evidence before the European Court of Justice, makes any statement which she/he knows to be false or does not believe to be true shall, whether he/she is a British subject or not, be guilty of an offence and may be proceeded against and punished as for an offence under S.1(1) Perjury Act 1911 by virtue of S.11(1) of the European Communities Act, 1972.
The European Court of Human Rights.
The CPS will be contacted by the Home Office on behalf of the Foreign & Commonwealth Office, and Areas should contact the relevant team in the Policy Directorate, (as indicated above in this section) to discuss any response and ensure that a central record of such cases is maintained.
Useful links
European Court of Human Rights <www.echr.coe.int>
European Union General Website www.Europa.eu.int (very useful as a link to the sites of all the EU institutions and law databases).
European Court of Justice www.curia.eu.int
European Judicial Network www.ue.eu.int/ejn/inten/html
Home Office www.homeoffice.gov.uk
Lord Chancellor's Department www.lcd.gov.uk
Metropolitan Police www.met.police.uk
European Commission's Office in London: EU-UK-Press@cec.eu.int