Back in November we wrote about the present consultation being run by the CPS in relation to cases of concurrent jurisdiction.

The consultation opens:

“Investigators and prosecutors in England and Wales are committed to working with investigation and prosecution agencies in other countries to combat crime. Where crime is committed in more than one jurisdiction, different offences may be committed in different locations. This document provides guidance for CPS prosecutors in cases where it is apparent that a course of criminal conduct may have resulted in the commission of offences in different jurisdictions and where criminal investigations have been commenced in more than one jurisdiction.”

The consultation is largely common sense stuff in that it advocates a very sensible approach to investigating and prosecuting where law enforcement of more than one country is involved.

Broadly the principle is a presumption that where possible the prosecution takes place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained.

This dovetails with the Eurojust guidelines.  The EuroJust guidelines begin with a presumption that where possible the prosecution takes place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained.

However, we are aware that some argue that the new CPS guidance DOES NOT apply to corporates and the Bribery Act.  The doubt appears to stem from this wording in the consultation:

“11. A few offences allow the courts of England and Wales to try UK nationals for offences committed wholly abroad, which is known as extraterritorial jurisdiction. Specific public policy considerations apply in these cases which the current Guidelines are not designed to cover. Accordingly prosecutorial decisions in such case are not bound by these Guidelines.” [our emphasis]

Applicability of CPS guidelines

Put another way the phrase UK Nationals (which is most usually associated in the context of a human with the context of immigration and/or citizenship status) has been interpreted by some as encompassing UK corporates under the Bribery Act.

We recommend that this uncertainty is addressed and that it is confirmed that the guidance DOES apply to UK corporates under the Bribery Act by clarifying the definition of “UK Nationals” in paragraph 11 of the CPS Guidelines specifically referencing the terminology used in Section 12 of the Bribery Act.

This would put the technical question beyond doubt (we note that the phrase UK National is only used once in Section 12 of the Bribery Act and then only in the context of a human).

This would provide some certainty around the principles to be applied in the context of corporate wrongdoing overseas involving bribery.

The US

Sadly common sense does not tie into motherhood and apple pie. The agreement between the UK and the US on concurrent jurisdiction stops well short of principles which should apply in the context of determining prosecution.  The US/UK Agreement provides that first there should be sharing of information, second prosecutors should consult, third if prosecutors cannot agree then the offices of the relevant parties Attorney General should take the lead with the aim of resolving those issues.

Paragraphs 4 – 6 of the CPS Guidelines reflect paragraphs 10-11 and 14 of the guidance agreed between the UK and US in January 2007 on handling criminal cases with concurrent jurisdiction (“UK/US guidance”).  Extracts from the relevant paragraphs of this guidance are set out below.

10.   Discussions between UK and US prosecutors should take place with the aim of developing a case strategy on issues arising from concurrent jurisdiction.  The information shared between the UK and US should include the facts of the case, key evidence, representations on jurisdictional issues, and, as appropriate, any other consideration which will enable the prosecutors to develop a case strategy and resolve issues arising from concurrent jurisdiction.

11.   The information shared in accordance with this guidance is provided in order that prosecutors in the UK and US may reach decisions on issues arising from concurrent jurisdiction.  The information should not be disclosed to other countries without permission of the originating state…

14.   The aim of consultation, having shared the information set out at paragraph 10, will be to enable each country’s prosecutors to decide on the issues arising from concurrent jurisdiction through bi-lateral discussion, but not limited to:

a.    where and how investigations may be most effectively pursued;

b.    where and how prosecutions should be initiated, continued or discontinued; or

c.    whether and how aspects of the case should be pursued in the different jurisdictions

It is of course for the prosecuting authority, having applied the guidance, to decide that a case should properly be prosecuted in its country, where that is in accordance with the law and public interest.

The UK/US guidance is, however, silent as to the principles to be applied in determining which jurisdiction will prosecute, which are set out in paragraph 8 of the CPS Guidelines, which is repeated below for ease of reference.

PRINCIPLES TO BE APPLIED

8.    In deciding where a case with concurrent jurisdiction should be prosecuted, CPS prosecutors in England and Wales should apply the following principles:

1)         So long as appropriate charges can properly be brought which reflect the seriousness and extent of the offending supported by admissible evidence, a prosecution should ordinarily be brought in the jurisdiction where most of the criminality or most of the loss or harm occurred.

2)         Where potentially relevant material may be held in another jurisdiction, the prospects of the material being identified and provided to prosecutors in England and Wales for review in accordance with disclosure obligations in this jurisdiction will be an important consideration in deciding whether appropriate charges can be properly be brought in England and Wales.

3)         Provided it is practicable to do so and consistent with principles 1) and 2) above, where crime is committed in more than one jurisdiction, all relevant prosecutions should take place in one jurisdiction.

4)         Other factors relevant to any determination by CPS prosecutors as to where a prosecution should take place include:

i)            the location of the witnesses, their ability to give evidence in another jurisdiction and where appropriate, their rights are protected;

ii)           the location of the accused;

iii)          the location of any co-defendants and/or other suspects; and

6)         Although the relative sentencing powers and/or powers to recover the proceeds of crime should not be a primary factor in determining where a case should be prosecuted, CPS prosecutors should always ensure that there are available potential sentences and powers of recovery to reflect the seriousness and extent of the offending supported by the evidence.

In our view then the real issue here is whether the UK will be seeking to revise the existing agreement with the US and whether the US will be willing to sign up to the principles set out in the CPS Interim Guidance?

Given the long arm reach of certain US legislation and the fact that the US are not bound by double jeopardy in the way that the UK is, if they do not agree to these principles then in cases where there may be US jurisdiction the CPS guidelines are, sadly, much ado about nothing.