Slide 2 We will discuss different areas where co operation with the judicial authorities may be important for prosecutors of environmental crime.

Transcription

1 Slide 1 There is an increase in environmental law having transboundary implications. This is particularly the case in transfrontier shipment of waste but many pollution offences particularly those involving air or water pollution can have significant transboundary implications. Air Quality is one area where a joined up approach to environmental protection across Europe is essential. The quality and flow of European rivers and other water bodies is also of primary importance. 1

2 Slide 2 We will discuss different areas where co operation with the judicial authorities may be important for prosecutors of environmental crime. There are many different areas in which criminal proceedings may be assisted by information or evidence obtained from other member states. These range from intelligence, to assistance with the collection of evidence and the taking of sworn statements as evidence which may be used in criminal proceedings in another member state. The most important mechanism for co operation may ultimately be the production of a suspect or prisoner under the European Arrest Warrant Procedure. 2

3 Slide 3 Note the long standing nature of these commitments. The first convention on mutual assistance in criminal proceedings was signed as long ago as There are two additional protocols, the first additional protocol in 1978 and the second additional protocol in The most important of these currently is the 2000 Convention which establishes the modern framework for MLA. 3

4 Slide 4 There are many sources for mutual legal assistance to be aware of. The rules are different within Shengen states, established by the Schengen Agreement 1985 to which the UK is not a signatory. The UN has introduced some rules of general application in relation to transnational organised crime. The EAW framework has become increasingly important in recent years. 4

5 Slide 5 Simple intelligence gathering may fall outside of the MLA framework ie it does not require the same degree of formal request as for evidence. Requests for intelligence can be made on a police to police basis and a different process for this is followed. It is worth being able to direct investigating officers towards enforcement contacts. Some will act purely as contacts and facilitate the production of information such as previous convictions and the like. However some will act much more formally as gateways to information and ascertain that the request is lawful and proportionate. Interpol is the world s larges international police organisation, with 188 member countries. It facilitates cross-border police co-operation and supports and assists all organisations, authorities and services whose role is to prevent or combat international crime. Europol is the European Union law enforcement organisation that handles criminal intelligence. Its aim is to improve the effectiveness and cooperation between the competent authorities of the member states in preventing and combating serious international organised crime and terrorism. Eurojust is an EU sponsored body established to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States. The European Judicial Network is a network of national contact points but also a hugely important source of information for the facilitation of judicial co operation in criminal matters. 5

6 Slide 6 Mutual Legal Assistance is the formal way in which countries request and provide assistance in obtaining evidence located in one country to assist in criminal investigation or proceedings in another country. Due to the increasingly global nature of crime MLA is critical to criminal proceedings and ensuring justice for victims of crime. A request for MLA in criminal matters is only appropriate if evidence (as opposed to intelligence) is required. It can be easier and quicker to obtain intelligence and in many countries this will constitute admissible evidence in criminal trials. Requesting countries will need to determine whether, in relation to their legislation, a request for evidence or intelligence is more appropriate. There is a wide range of MLA that can be provided by the receiving member state conditional on the correct criteria being met. The types of MLA available include : service of procedural documents, witness evidence, banking and telecommunications data, search and seizure and temporary transfer of convicted prisoners 6

7 Slide 7 Requests for MLA must be sent through formal channels. Any competent body under the law of the requesting country may make a request. These must be directed to a competent recipient. In the UK this will be primarily to the United Kingdom Central Authority (UKCA) a division of the Home Office, though some other Agencies have their own remit, eg the UK Border Agency. Requests to the Environment Agency of the UK should be made via the UKCA. Within the Schengen community requests are not required to be made via a central authority but may be made of counterparts in other member states. LORs must always be in writing and should contain prescribed information. It is possible and very often desirable for overseas authorities to use police to police enquiries or other intelligence sharing networks prior to making an MLA request. This can help improve the quality of the MLA request and the subsequent service received. Environmental specialists may be able to obtain some guidance from their counterparts in other member states through the emerging prosecutors networks. These are the IMPEL TFS network which as the name suggests is for specialists involved in the trans frontier shipment of waste. An emerging association. the European Network of Prosecutors for the Environment holds a network of contacts dealing with environmental prosecutions 7

8 in member states. Jean Philippe Rivaud (Fr) and Anne Brosnan (UK) are involved. 7

9 Slide 8 Double criminality is a feature of international extradition law by which states may refuse to provide assistance and in particular to extradite fugitives if the conduct which is alleged to have constituted a criminal offence in the state requesting assistance or extradition would not have resulted in the committal of a criminal offence in the state being asked to provide assistance or effect the extradition. It is likely that the effect of Directive 2008/99 will be to nullify this issue as comparable criminal offences and penalties arise across all member states. 8

10 Slide 9 The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. An EAW can only be issued for the purposes of conducting a criminal prosecution (not merely an investigation), or enforcing a custodial sentence. It can only be issued for offences carrying a maximum penalty of 12 months or more. Where sentence has already been passed an EAW can only be issued if the prison term to be enforced is at least four months long. The introduction of the EAW system was intended to increase the speed and ease of extradition throughout EU countries by removing the political and administrative phases of decision-making which had characterised the previous system of extradition in Europe, and converting the process into a system run entirely by the judiciary. Since it was first implemented in 2004 the use of the EAW has steadily risen. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3,000 in 2004 to 13,500 in There are strict qualifying criteria for the issue of a European Arrest Warrant, but once issued and executed a suspect is likely to face extradition to the requesting jurisdiction within 60 days. For suspects who agree the average period for production is 14days. 9

11 Slide 10 The handbook for EAWs as drafted by the EU is an extremely useful document containing useful precedents. The procedural starting point is domestic legislation. An EAW requires a qualifying offence or conviction, see below, and an application to remove a suspect from an external jurisdiction. An EAW may be issued by a national judicial authority if: The person whose return is sought is accused of an offence for which the maximum period of the penalty is at least one year in prison or He or she has been sentenced to a prison term of at least four months. Proportionality Because of adverse comment as to the number of EAWs issued for fairly minor offences the judicial authorities in member states are being asked to apply a proportionality check by considering the seriousness of the offence, the length of the sentence and the costs and benefits of executing an EAW. Fairness Proposals are being developed to ensure fairness to those suspected or accused of a crime, in particular, disclosure of the prosecution case, a right to an interpreter and translation of proceedings, notification of rights as a suspect, 10

12 access to a lawyer and communication with family members. 10