- General Principles
- Resolving Jurisdictional Conflicts
- General Guidance
- Forum Bar - Domestic Prosecutor Guidelines
- Concurrent Jurisdiction with Scotland or Northern Ireland
- Concurrent UK-US Jurisdiction
- Money Laundering
- Ships at Sea
- Visiting Forces
- Annex A - Eurojust Guidelines For Deciding ‘Which Jurisdiction Should Prosecute?’ 2016
Prosecutors will have come across an increasing number of cases in recent years that are not solely confined to the jurisdiction of England and Wales.
Forum is the term used to describe the country in which a prosecution takes place. Where conduct has occurred in multiple jurisdictions, issues of forum will be considered by police authorities during the investigation, often in close co-operation with investigative authorities in the other country: e.g. in deploying resources, considering the availability and deployment of investigative techniques and in planning for arrests and searches. It is the prosecutors’ responsibility however to decide the issue of forum, and in which jurisdiction to prosecute the offender(s).
There are a number of factors that can affect the final decision, and this will depend on the circumstances of each case. Prosecutors should balance all of these factors carefully and fairly, as this will weigh heavily on whether there is enough evidence to prosecute and whether it would be in the public interest to do so.
There are several ways by which a state can exercise jurisdiction:
- Statute and Criminal Codes (i.e. explicit reference in statute to the jurisdictional reach of the offences created in the statute);
- Active personality (i.e. the offender may be prosecuted in the country of the nationality of the offender);
- Passive personality (i.e. the offender may be prosecuted in the country of the nationality of the victim); and
- Universal jurisdiction (i.e. the state will be able to prosecute regardless of the nationality of the offender, the victim, and where the offence was committed, e.g. torture).
Generally, an offence will only be triable in the jurisdiction in which the offence takes place, unless there is a specific provision to ground jurisdiction, for instance where specific statutes enable the UK to exercise extra-territorial jurisdiction:
- Extending the extraterritorial jurisdiction of the criminal courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences (section 72 of the Domestic Abuse Act 2021). This includes murder, manslaughter, an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861 (offences relating to bodily harm or injury), an offence under section 23 or 24 of that Act (administering poison); and an offence under section 1 of the Infant Life (Preservation) Act 1929 (child destruction). This applies to all of these offences and is not only limited to offending that occurs within a domestic abuse setting. It does not include inchoate offences such as conspiracy or attempts;
- Extending the extraterritorial jurisdiction of the criminal courts in England and Wales, under Part 1 Schedule 3 of the Act to harassment (s4 Protection from Harassment Act 1997), stalking (s4A Protection from Harassment Act 1997), controlling or coercive behaviour in an intimate or family relationship (s.76 Serious Crime Act 2015), and sexual offences (under s.72 Sex Offenders Act 2003);
- Sexual offences against children (s. 72 of the Sexual Offences Act 2003, an amended section 72 was substituted by the Criminal Justice and Immigration Act 2008 which came into effect from 14 July 2008 onwards. It is important to ensure that any prosecution is brought under the provision in force at the time the alleged conduct occurred as the terms of the substantive provisions and details of the offences they cover are not identical. For offences from 1st September 1997 to 30th April 2004 see s. 7 of the Sexual Offences Act 1997. For offences from 1st May 2004 to 13th July 2008 see s. 72 of the Sexual Offences Act 2003 as enacted);
- Offences identified in s. 4 of the Suppression of Terrorism Act 1978, which includes murder, manslaughter, kidnapping and some firearm offences;
- Some fraud and dishonesty offences (s. 2 of Criminal Justice Act 1993, as amended by the Fraud Act 2006, imposes extra-territorial jurisdiction for various fraud and dishonesty offence, including offences contrary to ss. 1, 6, 7, 9 and 11 of the Fraud Act 2006 and ss. 1, 17, 19 and 21 of the Theft Act 1968);
- Terrorism (ss. 59, 62-63 of the Terrorism Act 2000 and s.17 of the Terrorism Act 2006, and as amended by the Counter Terrorism and Border Security Act 2019);
- Bribery (The Bribery Act 2010 repeals the common law offences and the statutory offences of corruption for offences committed wholly on or after 1 July 2011. For those offences the Bribery Act imposes extra-territorial jurisdiction. Section 109 of the Anti-Terrorism Crime and Security Act 2001 still applies to provide extra-territorial jurisdiction in respect of offences committed wholly or partially before 1 July 2011).
Prosecutors should be alert to whether the offence that they have selected requires the consent of the Director of Public Prosecutions or the Attorney General. Further guidance on offences requiring consent to prosecute can be found in the legal guidance on Consents to Prosecute.
In cases involving England and Wales and other jurisdictions (including non-EU countries), the common law position is that an offence must have a "substantial connection with this jurisdiction" for courts in England and Wales to have jurisdiction. It follows that, where a substantial number of the activities constituting a crime takes place within England and Wales, the courts of England and Wales have jurisdiction unless it can be argued, on a reasonable view, that the conduct ought to be dealt with by the courts of another country (R v Smith (Wallace Duncan) (No.4)  3 WLR 229, per Lord Chief Justice Woolf).
Where jurisdiction is identified as an issue, best practice is for prosecutors and investigators of the relevant jurisdictions to meet face to face to consider and balance the different factors that should be considered when reaching a decision where to prosecute.
Prosecutors should consider the following factors:
- Whether the prosecution can be divided into separate cases in two or more jurisdictions
- The location and interests of the victim or victims
- The location and interests of witnesses
- The location and interests of the accused
These factors have been formulated into the Director's Guidelines on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas.
In 2016 Eurojust updated their ‘Guidelines For Deciding Which Jurisdiction Should Prosecute?’. Prosecutors can refer to these guidelines when considering such issues both when dealing with EU and non-EU states. The ‘main factors’ when making a decision on which jurisdiction should prosecute can be found at Annex A. The full guidelines are available at the Eurojust website.
The issue of forum can also be raised in extradition proceedings where overseas judicial authorities are seeking the extradition of a Requested Person (RP) to face prosecution overseas. A defendant may raise the ‘Forum Bar’ to contest extradition and argue that extradition would not be in the interests of justice and that proceedings should instead take place in the UK due to forum considerations. In considering such a challenge, CPS domestic prosecutors may be required to consider whether the offence(s) can be fairly and effectively tried in the UK.
The ‘Forum Bar’ to extradition was introduced by way of an amendment to the Extradition Act 2003 affected by the Crime and Courts Act 2013. The underlying aim of the Forum Bar is to prevent extradition where the offences can be fairly and effectively tried in the UK, and it is not in the interests of justice that the RP should be extradited (Love v The Government of the United States of America & Anor  EWHC 172 (Admin)). Where the court decides that an extradition request should be barred on grounds of forum, the RP will not be extradited. (Note, forum is not the only issue that the court will consider and extradition may or may not be ordered for other reasons).
Prosecutors within the CPS Extradition Unit act on behalf of the foreign state or authority in such proceedings, while relevant prosecutors with CPS Areas or a CCD will act as domestic prosecutors. This dual CPS function serves to assist the court in deciding whether the offences can be fairly and effectively tried in the UK, and whether it is in the interests of justice that the requested person should be extradited. The CPS Extradition Unit may notify a domestic prosecutor of a case where forum has been raised, assist with any procedural matters and engagement with a foreign state or authority, and advise a foreign state or authority on extradition matters prior to any proceedings.
These guidelines are to assist domestic prosecutors when issues of Forum are raised. Guidance for extradition lawyers can be found in Extradition - From the UK legal guidance.
Where forum is raised in extradition proceedings, the role of the CPS domestic prosecutor is to consider whether they have sufficient information to express a view, to the extradition court, on the possibility of the RP being prosecuted in the UK for the offences contained in the extradition request. In broad terms, there are three possible steps for a domestic prosecutor:
- Where it is assessed that the UK is not the most appropriate jurisdiction for a prosecution to take place, this view can be expressed to the court as a ‘prosecutors belief’. If provided, an extradition judge will have regard to that belief when deciding on the issue of forum.
- If this decision is a Full Code Test decision, a domestic prosecutor may instead issue a ‘prosecutor’s certificate’. If provided, an extradition judge must decide that the extradition is not barred by reason of forum.
- Where these steps are not possible, a domestic prosecutor may not offer a belief or issue a certificate at all. If neither is provided, the court may not hold that as factor in favour of barring extradition on the grounds of forum. forum grounds.
Alongside these guidelines, Prosecutors dealing with such cases should have regard to the Director's Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas, and in particular where consultation with prosecutors in other countries and the sharing of information may negate the need for an extradition request and potential Forum Bar procedures.
All references to ‘the Act’ in these guidelines, refer to the Extradition Act 2003.
The ‘prosecutor’s belief’ is akin to a point of view or a conclusion based upon certain facts and other considerations, and is not dependent upon a Full Code Test. It need not be a ‘decision’ (Shaw v United States  EWHC 4654 (Admin)) nor ‘any developed view’ (Piotrowicz v Regional Court in Gdansk Poland  EWHC 3884 (Admin)). The initiative whether or not to declare “a belief” lies with the domestic CPS prosecutor (Atraskevic v Prosecutor General's Office, Republic of Lithuania  EWHC 131 (Admin), and Scott v United States of America  EWHC 2021 (Admin)). The absence of a ‘prosecutor’s belief’ is a neutral factor (Scott v United States of America  EWHC 2021 (Admin)).
The belief has to be a firm one in the sense that the prosecutor has to have concluded that the UK is not the most appropriate jurisdiction in which to prosecute the person whose extradition is sought. Therefore, the UK might be an appropriate jurisdiction but, in the belief of the prosecutor, not necessarily the most appropriate.
To be relevant to the question of forum in extradition proceedings the belief must relate to the conduct and activity that is material to the commission of the extradition offence and alleged to have been performed by the RP, not other offences or other conduct that might be involved (Shaw v United States  EWHC 4654 (Admin)).
As a matter of policy, a prosecutor’s belief should only be considered where:
- the domestic prosecutor has sufficient information to be able to consider whether a domestic prosecution is feasible with reference to the Code for Crown Prosecutors. This includes any additional information that is provided by the Requesting State or Issuing Judicial Authority in the form of the Request or other information that they consent to be shared for this purpose;
- there is sufficient information to express a belief that will have likely weight in the extradition proceedings; and
- there is a particular feature of the case, such as the location of the loss or harm or connections to the UK which could lead to a conclusion the UK is the most appropriate jurisdiction.
If the domestic prosecutor is unable to engage, or a prosecutor’s belief is not provided, the court may not hold that as factor in favour of barring extradition on the grounds of forum. In the absence of a prosecutor’s belief, there can be no regard to that factor (Scott v United States of America  EWHC 2021 (Admin)).
If the domestic prosecutor considers there is insufficient information or declines to express a belief, the CPS extradition prosecutor must be informed. The CPS extradition prosecutor will then inform the judge that a prosecutor’s belief will not be provided.
Factors to consider
While not an exhaustive list, when considering the prosecutor’s belief a domestic prosecutor may wish to consider:
- The location of harm and in what jurisdiction the parties, including the injured parties, were at the time of the offence;
- The interests of the victims and witnesses;
- What are the RP’s connections to the UK;
- Whether the case involves alleged conduct that resulted in very serious harm to individuals in another jurisdiction;
- Where are other suspects/co-defendants located and what stage have proceedings overseas reached;
- The prospect of multiple prosecutions;
- The location of any linked prosecutions and the stage they have reached;
- Whether extradition would make it possible for all prosecutions to take place in one jurisdiction;
- In what jurisdiction the vast majority of evidence is located, whether it can be accessed and whether it can be used in accordance with UK domestic proceedings;
- Where and how investigations may be most effectively pursued;
- If there are strong public interest arguments favouring a domestic prosecution;
- Delay; and
- The legal framework for the management of sensitive information.
These considerations are also referred to as ‘specified matters’ in the Extradition from the UK guidance and further information on the weight that may be applied to these factors is included in the guidance.
However, a domestic prosecutor is not limited by the statutory factors in the same way that a judge is, and they may take anything that rationally bears on the question into account. Other examples may also include the dynamics of a trial and practical implications of having to investigate alleged offences and prosecute them in the UK, including resource implications. There may also be differences between the legal regimes in the requesting state and England and Wales which could have an impact on admissibility of evidence or raise other legal issues (Wyatt v Government of United States of America  EWHC 2978 (Admin)).
In most cases, a prosecutor’s belief will be informed by a domestic investigation that has taken place or has been commenced. The CPS has no power to instigate a police/law enforcement investigation, but a domestic prosecutor may choose to notify the relevant investigatory authorities of any allegations that they become aware of, and that have not previously been investigated or reported, for their consideration. There is no statutory mechanism that enables the court to compel further investigation by the police so as to put the CPS it in a position to have a belief as to the appropriate jurisdiction in which prosecution should take place.
Where there has been no domestic investigation a prosecutor’s belief could be based solely upon the facts stated in the extradition request (Scott v United States of America  EWHC 2021 (Admin) ), and the domestic prosecutor may not be required to look further than the material contained in the extradition request to establish the belief. However, it may also be possible to access the full case file from the requesting state if permission is granted, or if this information has already been offered. Consideration may be given to the resource required to verify or obtain any case information.
Any views of the prosecutor should be given to the Court in a formal and reasoned way and directed at the relevant issues. The mere say-so of a prosecutor about their belief, which is not supported by reasons, will carry little or no weight and the judge will be entitled to dismiss this as a factor seriously to be taken into account (Shaw v United States  EWHC 4654 (Admin)). Similarly, a statement that there is no intention to prosecute is not an expression of belief (Carpenter v Italy  EWHC 211 (Admin)). The more reasoned or explained the belief, the more likely it is to carry substantial weight (Wyatt v Government of United States of America  EWHC 2978 (Admin)).
If the domestic prosecutor takes the view that the case is not one in which the UK is the best forum for prosecution, they should draft a written prosecutor’s belief for use in the extradition proceedings, stating that:
- The extradition case has been referred to them for consideration of a UK prosecution.
- A decision has been taken, based on the available material, not to pursue the possibility of a UK prosecution (any reasons for this decision should be set out);
- At the current time and on the material before them, it is believed that the UK is not the most appropriate jurisdiction for prosecution;
- No inferences should be drawn about the possibility of a future UK prosecution.
It is important to emphasise that if the domestic prosecutor provides their written belief to the extradition judge, it is for the extradition judge to have regard to that belief when deciding on the issue of forum. A domestic prosecutor is not expected to be called to a Forum Bar hearing for cross examination. When previously this has been attempted by the defence, the request was dismissed by the court.
The decision to issue a prosecutor’s belief must be authorised by a Director of Legal Service before it is provided to the extradition prosecutor or the court.
A prosecutor’s belief template is available separately.
A domestic prosecutor can issue a prosecutor’s certificate under s.19D/83D of the Act, where they have made a decision not to prosecute on the basis of the Full Code Test or because of concerns about the disclosure of sensitive material. An extradition judge who is provided with a prosecutor’s certificate relating to the extradition must decide that the extradition is not barred by reason of forum (s.19C/83C).
Before issuing a certificate, a prosecutor must take into account the possibility of a challenge to the certificate under section s.19E/83D of the Act and consider whether they will be able sufficiently to protect sensitive material during any appeal proceedings. Any appeal against a ‘relevant certification decision’ will be conducted by the domestic unit which is dealing or has been dealing with the case.
If it appears to the prosecutor with conduct of the domestic prosecution that it may be appropriate to issue a certificate, they will draft a briefing note outlining why a certificate is appropriate together with a draft certificate using the template ‘Forum Bar Prosecutor's Certificate’ (template is available separately.). Once reviewed by a CCP/HoD, this should be sent to the relevant Director of Legal Services, before it is shared more widely. The Director of Legal Services will consider the prosecutor’s certificate along with the briefing note. If satisfied, the Director of Legal Services will authorise the issuing of a certificate. The certificate should then be signed by the relevant CCP or Head of Division.
If authorisation is given, the prosecutor will provide the signed certificate to the CPS Extradition Unit lawyer to enable them to provide a copy to the court and to serve it on other parties as appropriate.
A prosecutor’s certificate is unlikely to be used frequently and will be appropriate only in exceptional circumstances. This is because whilst the prosecutor retains the ultimate decision as to the appropriate forum for a prosecution, a decision to issue a certificate will require sufficient evidence (which may not be available in extradition proceedings) to apply the Full Code Test. Further, although the issue of a certificate will mean the Judge must determine forum against the RP, extradition may fail for other reasons. When considering the issue of a certificate a domestic prosecutor should also be mindful of any potential developments in the case. For example, should a decision be made that the public interest test is not met to warrant a prosecution in the UK, but extradition is still barred by forum, a domestic prosecutor may wish to revisit the public interest test in light of new evidence or information.
A domestic prosecutor may be notified by law enforcement, or the CPS Extradition Unit that there is a proposed or actual request for extradition where concurrent jurisdiction may be an issue.
Where the Forum Bar is engaged, the domestic prosecutor may either:
- Decide that the UK is the most appropriate jurisdiction for prosecution – in such an outcome, two options may apply:
- Procedurally, an adjournment will take place to allow the domestic prosecutor to first consider issuing a prosecutor’s certificate. A subsequent decision to charge and prosecute in the UK is then likely to be made following a police investigation and with reference to the Full Code Test in the Code for Crown Prosecutors. Once a charge is brought, the extradition proceedings are stayed until that charge is disposed of. If the charge is in relation to the same criminal conduct, the extradition case may not be maintained for reasons of double jeopardy; or
- Apply to join the extradition proceedings as a party (s.19B(5)/83A(5) of the Act) in circumstances where the prosecutor believes the UK may be the best jurisdiction for prosecution of the offences (but no decision to charge has yet been made) and a domestic prosecutor should be party to the proceedings on the question of whether RPs extradition is barred by reason of forum;
- Decide UK is not the most appropriate jurisdiction for prosecution - in such an outcome, two options may apply:
- Express a ‘prosecutor’s belief’ that the UK is not the most appropriate jurisdiction for prosecution of the RP in respect of the extradition offences (s.19B(3)(c)/83A(3)(c) of the Act), and supported by reasons as described above;
- The decision to issue a prosecutor’s belief must be authorised by a Director of Legal Service and the domestic prosecutor will then inform the CPS Extradition Unit and provide the template containing a record of that decision with the reasons underpinning it. If forum is raised in any subsequent extradition, the CPS Extradition Unit lawyer will inform the court of the domestic prosecutor’s belief and provide it with the record. Note that the court will require the prosecutor who made the decision to be identified in the record: Shaw-v-United States  EWHC 4654 (Admin) .
- It will then be for the District Judge to decide how a challenge to that belief, if there is one, is to be dealt with: Shaw-v-United States  EWHC 4654 (Admin) . Sections 19B(3)(c)/83A(3)(c) of the Act which deal with prosecutor’s belief are not intended to invite a review of the prosecutor's belief as to the more appropriate jurisdiction on grounds short of irrationality. They are certainly not intended to invite a debate with demands for documents justifying the belief: Dibden v Tribunal De Grande Instance De Lille France  EWHC 3074 (Admin); Piotrowicz v Regional Court in Gdansk Poland  EWHC 3884 (Admin) ; Shaw-v-United States  EWHC 4654 (Admin) .
- The District Judge must make that prosecutor a party to the proceedings under sections 19B(5)/83A(5) on the question of whether the RP’s extradition is barred by reason of forum if they are satisfied that the prosecutor has been considering prosecution in this jurisdiction.
- The prosecutor does not have to have formed a conclusion or even a “belief” on the desirability of prosecution in the UK before they can be joined: they simply have to have considered the offences. On the other hand, if the domestic prosecutor does not apply to the court, neither the court nor the RP can compel them to do so; there is no provision in the Act requiring such an application to be made by the prosecutor or for the appellate court to force any further investigations to be made: per Aikens LJ in Atraskevic v Prosecutor General's Office, Republic of Lithuania  EWHC 131 (Admin) [37-39].
- Issue a prosecutor’s certificate following a formal Full Code Test decision not to prosecute, or as a result of concerns regarding disclosure of sensitive material (s.19B(3)(c)/83A(3)(c), 19C/83C of the Act); A Director of Legal Services will authorise the issuing of a certificate. The certificate should then be signed by the relevant CCP or Head of Division.
- Express a ‘prosecutor’s belief’ that the UK is not the most appropriate jurisdiction for prosecution of the RP in respect of the extradition offences (s.19B(3)(c)/83A(3)(c) of the Act), and supported by reasons as described above;
- Decide not to express any view on appropriate jurisdiction:
- Decline to express a ‘prosecutor’s belief’ because the factors set out above as matters of policy have not been met or are not engaged. A decision to decline a prosecutor’s belief should be made in accordance with these factors.
Already charged in this jurisdiction
Prior to forum being raised, and where a domestic prosecutor has already decided to charge the requested person with offences corresponding with the conduct in the extradition request, sections 8A, 22, 76A or 88 of the Act will apply once the person has been charged. The extradition proceedings must be adjourned to allow the charges to be disposed of domestically.
The CPS extradition prosecutor should request regular updates on the domestic case to allow them to determine whether double jeopardy will bar extradition once the charge has been disposed of, under s.12 or s.80 of the Act.
Already decided the UK is the most appropriate jurisdiction
Prior to forum being raised, and where the domestic prosecutor has already engaged the Director's Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas | The Crown Prosecution Service (cps.gov.uk) and decided that a prosecution should be conducted in the UK, they will provide the CPS Extradition Unit with the template containing a record of that decision.
Where a domestic prosecutor intends to charge the RP with offences corresponding with the conduct contained in the extradition request, or where such an intention has not yet been fully formed but the prosecutor is of the view that the UK is or may be the most appropriate forum for prosecution, particular care must be taken because the interests of the domestic prosecutor will be in direct conflict with those of the extradition prosecutor, who acts for the requesting state.
Because of the conflict of interest which arises between the domestic and extradition prosecutors, where the domestic prosecutor wishes to express the view that the UK is the most appropriate forum for prosecution they should consider applying under s.19B(5)/83A(5) of the Act to become a party to the extradition proceedings on the question of whether the RP’s extradition is barred by reason of forum.
It should be noted that the ‘prosecutor’s belief’ which may be put forward under s.19B(3)(c)/83A(3)(c) of the Act is one that the UK is not the most appropriate jurisdiction. There is no statutory mechanism for a domestic prosecutor to put forward the opposite belief, other than by becoming a party to the proceedings.
The criminal legal system that operates in England and Wales has remained entirely separate from that of Scotland and Northern Ireland and they are considered as separate jurisdictions.
Prosecutors should therefore refer to the principles when considering cross-border cases between England and Wales and either Scotland or Northern Ireland.
Prosecutors should note that some offences may come within US extra-territorial jurisdiction even though none of the criminality occurred within US territory.
Prosecutors dealing with cases which have a factual nexus with the United States of America should refer to the "Agreement for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America".
For the purpose of Part 7 the Proceeds of Crime Act 2002, offences which were committed abroad are relevant predicate crimes if laundering acts are committed within our jurisdiction where the predicate offence committed abroad (from which proceeds were generated) would also constitute an offence in any part of the United Kingdom if it occurred here (S.340 (2)(b)) See the Proceeds of Crime and Money Laundering Offences legal guidance.
The law is quite complex but in simple terms the courts in England and Wales have jurisdiction to try British citizens for offences committed on UK ships in the ‘high seas’ or in ‘any foreign port of harbour’ or committed ‘on any foreign ship to which he does not belong’. The courts may also try foreign nationals for offences committed on UK ships in the ‘high seas’. The UK courts have jurisdiction over any offence committed in UK territorial waters regardless of the nationality of the offender or of the flag state that the ship is registered under.
The Visiting Forces Act 1952 together with the Visiting Forces and International Headquarters (Application of Law) Order 1999 make provision for dealing with offences committed by members of visiting naval, military and air forces from certain listed countries by their own service authorities and service courts rather than by United Kingdom authorities. See the Visiting Forces legal guidance.
Eurojust's role is to stimulate and facilitate co-operation in the investigation of serious cross-border crime, particularly organised crime. As such it deals with large and complex cross-border cases, involving two or more EU Member (and other) States. Jurisdiction and where best to prosecute are amongst key issues routinely addressed during Eurojust co-ordination meetings.
A number of factors should be considered when making a decision on which jurisdiction should prosecute. All of them can affect the final decision. The priority and weight which should be given to each factor will be different in each case.
Some of the factors that should be considered are:
A preliminary presumption should be made that, if possible, a prosecution should take place in the jurisdiction in which the majority – or the most important part – of the criminality occurred or in which the majority – or the most important part – of the loss was sustained. Hence, both the quantitative (‘the majority’) and the qualitative (‘the most important part’) dimensions should be duly considered.
Location of suspect(s)/accused person(s)
A number of elements can be considered in connection with this factor, such as:
- the place in which the suspect/accused person was found;
- the nationality or usual place of residence of the suspect/accused person;
- the possible strong personal connections with one Member State or other significant interests of the suspect/accused person;
- the possibility of securing the surrender or extradition of the suspect/accused person to another jurisdiction;
- the possibility of transferring the proceedings to the jurisdiction in which the suspect/accused person is located.
In situations in which several co-defendants can be identified, not only is their number relevant, but also their respective roles in the commission of the crime and their respective locations. Again, both the quantitative and the qualitative dimensions count.
The evaluation of these elements should also take into account all the applicable EU legal instruments, notably those relating to the principle of mutual recognition. Their application can affect the assessment of this factor and consequently the final decision on where to prosecute. For instance, the application of the Framework Decision on mutual recognition of judgments imposing custodial sentences (2008/909/JHA), in combination with the Framework Decision on the European Arrest Warrant (2002/584/JHA), may render the location of the suspect/accused person a criterion of secondary importance because at a later stage the sentenced person can be transferred to another Member State to serve the custodial sentence.
Availability and admissibility of evidence
Judicial authorities can only pursue cases using reliable, credible and admissible evidence. The location and availability of evidence in the proper form as well as its admissibility and acceptance by the court should be considered. The quantity and quality of the evidence in the concerned Member States should also be taken into account, although the legal framework introduced by the European Investigation Order (Directive 2014/41/EU) can be expected to facilitate the gathering of evidence across borders.
Obtaining evidence from witnesses, experts and victims
Judicial authorities will have to consider the possibility of obtaining evidence from witnesses, experts and victims, including, if necessary, the availability for them to travel to another jurisdiction to give that evidence. The possibility of receiving their evidence in written form or by other means, such as remotely by telephone or videoconference, should also be taken into account.
Protection of witnesses
Judicial authorities should always seek to ensure that witnesses or those who are assisting the prosecution process are not endangered. When making a decision on the jurisdiction for prosecution, factors for consideration may include, for example, the possibility of one jurisdiction being able to offer a witness protection programme, while another jurisdiction has no such possibility.
Interests of victims
In accordance with Directive 2012/29/EU on victims’ rights, judicial authorities must take into account the significant interests of victims, including their protection, and whether they would be prejudiced if any prosecution were to take place in one jurisdiction rather than another. Such consideration would include the possibility of victims claiming compensation.
Stage of proceedings
The stage of development of the criminal proceedings in the concerned Member States should be considered. When an investigation is already in an advanced stage in one jurisdiction, transferring the case to another jurisdiction might not be appropriate.
Length of proceedings
While time should not be the determining factor in deciding which jurisdiction should prosecute, when other factors are balanced, then judicial authorities should consider the length of time that proceedings will take to be concluded in a particular jurisdiction (‘justice delayed is justice denied’).
The existing legal framework, including obligations and requirements that are imposed in each jurisdiction, should be considered as well as all the possible effects of a decision to prosecute in one jurisdiction rather than in another and the potential outcome in each jurisdiction. However, judicial authorities should not decide to prosecute in one jurisdiction rather than another simply to avoid complying with the legal obligations that apply in one jurisdiction but not in another.
While it should be ensured that the potential penalties available reflect the seriousness of the criminal conduct that is subject to prosecution, judicial authorities should not seek to prosecute in one jurisdiction simply because the potential penalties available are higher than in another jurisdiction. Likewise, the relative sentencing powers of courts in the different jurisdictions should not be a determining factor in deciding in which jurisdiction a case should be prosecuted.
Proceeds of crime
The applicable EU and international legal instruments and, notably, the EU mutual recognition instruments on freezing and confiscation, should be taken into account when evaluating the powers available to restrain, recover, seize and confiscate the proceeds of crime. However, judicial authorities should not decide to prosecute in one jurisdiction rather than another only because such prosecution would result in a more effective recovery of the proceeds of crime.
Costs and resources
While judicial authorities should be mindful of costs and resources, the costs of prosecuting a case, or its impact on the resources of a prosecution office, should not be a factor in deciding whether a case should be prosecuted in one jurisdiction rather than in another, unless all other factors are equally balanced.
Member States' priorities
Judicial authorities should not refuse to accept a case for prosecution in their jurisdiction because it is not considered a priority in their Member State.