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I. Conflicts of Criminal Jurisdiction

Published online by Cambridge University Press:  17 January 2008

Extract

The expansion of claims of extended territorial and extraterritorial criminal legislative jurisdiction and the increasing facility with which States are able to obtain custody over defendants by way of more effective extradition arrangements is leading to a new problem in transnational criminal law. The result of these developments is that more than one State may have legitimate jurisdiction to legislate for the same conduct and the courts of more than one State may be entitled to exercise judicial jurisdiction over those persons charged with crimes arising from that conduct. For prosecutors, the problem may present itself as one of prosecutorial efficiency—how may the case be proceeded with expeditiously, in particular, in which jurisdiction is a conviction most likely to be secured? Considerations such as the availability of witnesses or the admissibility of evidence may influence the prospects of conviction and prospective punishments may be a factor when deciding in which system prosecutors prefer the case to go ahead. Defendants have different perspectives. In many cases involving extradition to face a charge based on an exercise of extended jurisdiction, the defendant will be removed from the place where he lives and works to another State. There may be adverse consequences for him compared to facing a trial where he is usually located. Criminal proceedings abroad will be in an unfamiliar legal system; bail may be harder to obtain because of a perceived greater danger of flight; the impossibility to continue working during the period in which the trial is being prepared may impose financial hardship; defendants will be removed from their families and social networks for considerable periods.

Type
Current Developments: Public International Law
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Warbrick, C, ‘Recent Developments in UK Extradition Law’ (2007) 56 ICLQ 199.CrossRefGoogle Scholar

2 Bermingham (R on the application of) v Director of the Serious Fraud Office and the Home Secrerary [2006] EWHC (Admin) 200.Google Scholar

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7 The announcement that the guidance for handling cross-border cases between the UK and US had been agreed was made to the House of Lords by the Attorney-General on 25 Jan 2007. Hansard HL vol 688, c WS68 (25 01 2007) (Lord Goldsmith).Google Scholar

9 In cases arising in Scotland, the Lord Advocate will be responsible (para 15).

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22 ibid 32.

26 ibid 31.

27 Section 2.3, Role of individuals and judicial review; section 2.5, Relevant Criteria.

30 See (n 14) discussing Guidelines (para 13).

31 See Green Paper (n 15) 67.Google ScholarDiscussing further the role of suspects/defendants and their defence team, see Working Paper (n 16) 2629.Google Scholar

32 ibid (Working Paper) 26.

33 ibid 26.

35 ibid 27.

36 On this matter, see discussion above on a rule of priority.

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38 These criteria draw on the 2003 Eurojust Guidelines for Deciding which Jurisdiction should Prosecute. Annex to the 2003 Annual Report. Available at <http://www.eurojust.europa.int/press_annual_report_2003.htm>

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41 But cf Launder v United Kingdom (Application No 27279/95) (1997) 25 EHRR CD 67Google Scholar on Article 8 ECHR, the right to private and family life, where it was held that ‘… only in exceptional circumstances [will] the extradition of a person to face trial on charges of serious offences committed in the requesting State […] be held to be an unjustified or disproportionate interference with the right to respect for family life’.

42 Working Paper (n 16) 38.Google Scholar

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46 The legislative proposal was tabled to be brought forward in the second half of 2006. At the time of writing, no movement on this matter has been observed.