EU Criminal Justice Conference Safeguarding the use of

EU Criminal Justice Conference Safeguarding the use of expert evidence in the European Union Tuesday 23 September 2008 Co-financed by a grant under the European Commission’s AGIS Programme

Expert Evidence – problem or solution? Chair: Bob Heslett, Vice President, The Law Society Keynote speakers: Lord Goldsmith QC, European Chair of Litigation, Debevoise & Plimpton LLP & Former Attorney General, Andrew Rennison, Forensic Science Regulator Co-financed by a grant under the European Commission’s AGIS Programme

Regulating forensic science Andrew Rennison

Background n House of Commons Home Affairs Committee 1989 n House of Lords Select Committee on Science and Technology 1993 n Miscarriages of justice cases – ‘forensic science played a prominent part’ n Royal Commission 1991 – 1993 n Caddy report 1996 n Forensic Science Working Group 1997 – practitioner registration n Parliament - Forensic Science on Trial 2005 n England Wales – competitive market n Scotland Northern Ireland n Law Commission – expert evidence Overseeing Quality

Regulation of standards Practitioner registration ISO standards? Overseeing Quality

Forensic Science Regulator • Establish quality standards (science) Deal with complaints about quality standards • Monitor compliance Provision of forensic science services National forensic science databases: • NDNADB • Internal (police) • External (suppliers) Ensure accreditation of suppliers and competence of practitioners • NBIS To provide advice (Ministers, CJS…) and guidance (suppliers) on quality standards Overseeing Quality

Vision To achieve: n comprehensive standards framework provider, practitioner and method (product or service) training n level playing field for all suppliers and practitioners n UK – wide quality standards maintained in the face of the changing market and increased competition n Confidence in the use of forensic science. Overseeing Quality

Strategy n n n Engage with stakeholders Work with delivery partners Rely on the domain experts Identify and manage risk Principles first Overseeing Quality

Principles n Overriding obligation to the Criminal Justice System n Providers should be accredited by a recognised independent body to accepted standards; n Practitioners should be able to demonstrate, through an independent process, their on-going competence and development; n Each method should be based on sound science supported by sufficient data to justify its use within the CJS and a robust interpretation model, and, where possible, validated according to accepted scientific procedures; n Accountability for standards rests with senior managers; and n Records of accreditation, competence and validation must be accurate, retained and available for disclosure through the court process. Overseeing Quality

Scope Forensic science Any scientific or technical knowledge that is applied to the investigation of crime and the evaluation of evidence to assist the courts in resolving questions of fact in criminal cases. Hard sciences. Practitioner Includes the work of all those who contribute to the collection, analysis and reporting of the evidence. UK criminal courts / prosecution process Equipment, scene, victim, suspect, collection, examination, analysis, reporting, evidence……. Overseeing Quality

Specialist groups n n n n Quality standards – standards and validation Andrew Rennison The user requirement from the Court perspective Ewen Smith DNA analysis Karen Squibb-Williams Digital forensics Prof Jim Fraser Practitioner competency DCC Clive Wolfendale Forensic pathology Dr Millward-Saddler Special reviews Overseeing Quality

Law Commission In every trial, juries are required to make determinations of disputed factual issues. Where to do so requires specialised knowledge, experts in the relevant field are called upon to help the jury interpret the evidence. This is to ensure that jurors do not draw mistaken inferences from the evidence. Although juries should not defer to experts' knowledge and opinions, there remains the danger that they will do so, especially if the field of expertise is particularly difficult to comprehend. This gives rise to a real danger if there are legitimate questions about the validity of the expert's opinion. This may be because the expert's field is a new or developing science with little in the way of peer review, or because there are doubts as to the validity of the methodology employed. The problem is accentuated if there is no available expert in the same field who can be called by the opposing party to provide an effective criticism. In such cases, the jury may have no option but to defer to the view of the expert. A related problem is that judges, advocates and jurors may not appreciate the limitations of expert – and particularly scientific – evidence. A number of cases in recent years have suggested that these are real difficulties which require a solution. In this project we are seeking to address the problems outlined above associated with the admissibility and understanding of expert evidence in criminal proceedings. Overseeing Quality

Changing standards framework Skills for Justice - National Occupational Standards: Provider Practitioner Methods Law Commission Expert witnesses Validation protocols Training Overseeing Quality

Other projects Quality standards delivered in-house by police forces n Review of the forensic regulatory function n Complaints handling n Risk management n Overseeing Quality

Andrew. Rennison 4@homeoffice. gsi. gov. uk

Chair: Ian Kelcey, Chair, Criminal Law Society, The Law Society The Prosecution Perspective Karen Squibb-Williams, Strategic Policy Advisor, CPS The Forensic Science Practitioner Perspective Mike Allen, Council of Forensic Science Practitioners Co-financed by a grant under the European Commission’s AGIS Programme

Safeguarding the use of expert evidence The forensic practitioner and registration Mike Allen Developmental projects consultant to Council for the Registration of Forensic Practitioners

Purpose of presentation To explore mechanisms for assessing the quality of an expert witness.

What are the qualities of an expert witness? • Competence • Integrity

What is competence? • The quality of being competent; adequacy; possession of required skill, knowledge, qualification, or capacity.

How is competence measured? • • Qualifications. Reputation. Years of experience. Membership of approved professional group.

None of the above • Competence is doing what you do properly. • Once you are deemed competent, there is a presumption that you are doing your job to the best of your ability – unless there is evidence to the contrary (integrity).

Council for the Registration of Forensic Practitioners • This registration body has over 2700 registrants in nearly 30 specialties (anthropology to linguistics to fingerprints to firearms). • It assesses current case work by peer review.

Assessment process • A selection of recent cases is assessed against set criteria by an experienced practitioner. • The forensic process is similar in all disciplines and the assessment process reflects this.

Benefits • • • Independent Reassures the courts Mechanism for complaints (Code of Conduct)

www. crfp. org. uk

EU Criminal Justice Conference Safeguarding the use of expert evidence in the European Union Coffee break Co-financed by a grant under the European Commission’s AGIS Programme

The Judicial Perspective Speaker: Mr Justice Fulford QC, International Criminal Court Co-financed by a grant under the European Commission’s AGIS Programme

The Defence Perspective Chair: Joanna Evans, Barrister, 25 Bedford Row Panel members: George Gebbie, Advocate, European Criminal Bar Association Neil O’May, Partner, Bindmans LLP Christopher Sallon QC, Doughty Street Chambers Co-financed by a grant under the European Commission’s AGIS Programme

George C. Gebbie, Advocate Member of the List Counsel of the ICC Coordinator of the EC BA Expert Witness Project London 23 rd September 2008

Cause for concern in the safeguarding of expert evidence in The European Union THE POLICEWOMAN, THE PRINTS AND THE TREATY OF PRÜM London 23 rd September 2008 George C. Gebbie, Advocate Member of the List Counsel of the ICC Coordinator of the EC BA Expert Witness Project

The Policewoman www. shirleymckie. com

The Prints Madrid Train Bombings 11 th March 2004

The Treaty of Prüm “The aim of the Prüm Treaty is to intensify and accelerate the exchange of information between law enforcement authorities. Data such as DNA, fingerprints and vehicle registration details can be compared and exchanged. ”

Here!! Here!!

EU Criminal Justice Conference Lunch Strand Fleet & Bell Rooms Co-financed by a grant under the European Commission’s AGIS Programme

A European Union Perspective Chair: Louise Hodges, Chair, UK Task Force Panel members: Anders Aagaard, European Commission Anand Doobay, Partner, Peters & Peters Aled Williams, UK national member for Eurojust Co-financed by a grant under the European Commission’s AGIS Programme

EU PERSPECTIVE: EUROJUST Law Society 23 September 2008 Aled Williams

Outline n What is Eurojust ? n The future ? – Treaty of Lisbon – Expert evidence and amendments to Eurojust Decision

SOME CJS CO-0 PERATION DATES n 1995 Europol Convention – Decision 2009 n 1996 Liaison Magistrates – – n n n FR: 12+ LMs UK: FR ES IT PAK USA 1998 European Judicial Network+2008 2002 Eurojust Decision (revised 2008) 2007 Treaty of Lisbon

Free Movement 30 EU Legal Systems 500 m pop.

WHAT IS EUROJUST ? n ‘Judicial Co-operation Unit of the European Union’ n 27 MS prosecutors / judges/ police n Fight ‘serious cross border crime, particularly when it is organised, and involves two or more Member States’ - JHA Council Decision of 14 December 2000

SOME CRIME AREAS n Fraud n Drugs n THB n Terrorism

HOW EUROJUST WORKS n Case Referrals n Co-ordination Meetings n Strategic Meetings

OPERATIONAL MEETINGS LEVEL I - meeting L SL F BE 27 National Members . . . PL SL SL SL NL BE UK BE CONCERNED NAT. MEMBERS + JUDICIAL A/O POLICE AUTHORITIES OF CONCERNED COUNTRIES UK UK UK BE . . . I S BE LEVEL II - meeting D SL Concerned NM’s UK D D D LEVEL III meeting D

Co-ordination meeting

Case evolution 2002 - 2008

EXPERT EVIDENCE AND EUROJUST ILLUSTRATION n Estonian armed gang operating in various MS n Europol Liaison Bureaux n Eurojust co-ordination re collection of evidence

CROSS BORDER FRAUD EUROJUST ILLUSTRATION n Boiler room frauds n Jurisdiction – Territorial; active; passive; universal n Practicalities

LIMITATIONS IN FIGHTING CROSS BORDER FRAUD n Displacement n Extradition/EAW problems n Trial costs

SUCCESS IN FIGHTING CROSS BORDER FRAUD n European Arrest Warrants n Restraint and Confiscation n Trial pending

OPERATION BAGHAD Human trafficking/illegal immigration n 9 MS n Europol analysis work file n Co-ordination meetings at Eurojust n Concerted action June 2008 n – EAWs and searches n 75 arrests

THE FUTURE: EUROJUST AND EXPERT EVIDENCE n Treaty of Lisbon n Eurojust Decision amendments n ENFSI project

CRIMINAL JUSTICE RD PILLAR (STILL) 3 EUROPEAN UNION First : EC Second: CFSP Third : JHA/AFSJ

LISBON AND CRIMINAL JUSTICE CO-OPERATION n PILLAR STRUCTURE DISMANTLED – – Treaty on European Union TEU Treaty on Functioning of the European Union TFEU n QMV n ECJ n CO-DECISION n EPPO

ENHANCING COOPERATION EUROJUST TEU Art. 31. 2 The Council shall encourage cooperation through Eurojust by: (a) proper coordination between. . national prosecuting authorities; (b) support for criminal investigations in serious cross-border crime, particularly organised crime, taking account, of analyses carried out by Europol; (c) cooperation between Eurojust and the European Judicial Network, to facilitate letters rogatory and extradition requests.

ENHANCING COOPERATION EUROJUST TFEU Art. 85. . the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust’s structure, operation, field of action and tasks.

ENHANCING COOPERATION EUROJUST TFEU Art. 85 “…ordinary legislative procedure, shall determine Eurojust’s structure, … Commission proposal n Council QMV n European Parliament co-decision n

ENHANCING COOPERATION AFTER LISBON: TFEU Art 85 (a) initiation of criminal investigations, . . proposing the initiation of prosecutions coordination of investigations and prosecutions…; (c) strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the EJN (b)

EUROJUST AND EPPO AFTER LISBON? TFEU Art 86 n TEU…… n Constitutional Treaty ……III 274 “a EPPO from Eurojust” n Lisbon : ”may establish a European Public Prosecutor’s Office from Eurojust. ”

EPPO AFTER LISBON? TFEU Art 86 EPPO proposal Unanimity – 9/27 – Enhanced co-operation…Prüm ? financial interests of EU….

EPPO AFTER LISBON? TFEU Art 85. . (a)initiation of criminal investigations, . . proposing the initiation of prosecutions (b) …. EPPO by default ?

CHANGES TO EUROJUST DECISION AND (EXPERT) EVIDENCE IN GENERAL Immediate MLA problems n Delay n Format and admissibility

CHANGES AND (EXPERT) EVIDENCE IN GENERAL Solutions to MLA problems? n Delay: – strengthening Eurojust – (direct transmission) n Format and admissibility MLAC Art. 4

CHANGES TO EUROJUST DECISION Eurojust as precursor to EPPO Eurojust as alternative to EPPO

CHANGES TO EUROJUST DECISION Operational capabilities – Location – On-call co-ordination – Powers Information exchange Liaison magistrates

CHANGES TO EUROJUST DECISION: POWERS n National Members acting through Eurojust n Eurojust College n Common powers for national members as national authorities?

CHANGES TO EUROJUST POWERS VIA NM n Request special investigative measures n Response to requests “without undue delay” n Non-compliance with requests to be justified, Article 8 …. ”operational reasons”

CHANGES TO EUROJUST POWERS AS COLLEGE • Non-binding opinions on conflicts of jurisdiction • Complaints re judicial cooperation n Non-compliance with requests to be justified, Article 8 …. ”operational reasons”

POWERS VIA NMs as NATIONAL AUTHORITIES n National Members acting as national authorities n Common powers n Constitutional Clause

POWERS VIA NMs as NATIONAL AUTHORITIES n “Ordinary powers” n Powers exercised in agreement n Urgent powers

POWERS VIA NMs as NATIONAL AUTHORITIES “Ordinary powers” requests for judicial co-operation including regarding instruments giving effect to the principle of mutual recognition n Receive n Transmit n Facilitate execution

POWERS VIA NMs as NATIONAL AUTHORITIES Requests in agreement with national authorities n n Issue Execute Order investigative measures (coordination) Authorise controlled deliveries

POWERS VIA NMs as NATIONAL AUTHORITIES Urgent cases - Authorise and coordinate controlled deliveries in own State - Execute in relation to own State request for judicial cooperation

POWERS VIA NMs as NATIONAL AUTHORITIES Safeguard clause 9 f (a) constitutional rules, or (b) fundamental aspects of CJS re: (i) division of powers between police, prosecutors and judges, (ii) functional division of tasks between prosecution authorities (iii) federal structure of MS concerned.

INFORMATION EXCHANGE Art 13. 1 Member States shall exchange with Eurojust any information necessary for the performance of its tasks….

INFORMATION EXCHANGE Art 13. 1 • JITs • Serious cross-border crime • Conflicts, deliveries, problems

INFO. EXCHANGE: MS OBLIGATION NOTIFY EJ Requests or decisions directly involving 3 MS if punishable by min-max at least 5 years AND listed offence – Arms, drugs, human trafficking – Sexual exploitation of children and child pornography – Corruption Fraud, euro counterfeiting, money laundering – Attacks against information systems OR organised crime OR serious cross-border dimension or EU repercussion

EXPERT EVIDENCE ILLUSTRATION: MADRID n Locating the expert n Facilitation: – Evidence format : EU 2000 MLAC n Extent of information recovery – Partners: Spanish court, UKCA, Embassy n C(IC)A 2003 court nomination

2000 EU MLAC Art. 4: Format Where mutual assistance is afforded, the requested Member State shall comply with the formalities and procedures expressly indicated by the requesting Member State, unless otherwise provided in this Convention and provided that such formalities and procedures are not contrary to the fundamental principles of law in the requested Member State.

BETTER EU EVIDENCE FLOW THROUGH AMENDMENTS • • Increased information flow MS response re clauses • Article 9 f (powers). . reciprocity? • Article 13. 8 a (information ex. ) • Eurojust influencing tools

Eurojust

The Law Society: Criminal Justice Conference 23 rd September 2008 Safeguarding the Use of Expert Evidence in the European Union: A European Union Perspective Anand Doobay Partner, Peters & Peters

Cross Border Use of Expert Evidence • Increase of cross border crime leading to increasing numbers of criminal investigations / prosecutions involving evidence from more than one Member State. • Location of evidence • Location of experts

MLA Framework in the UK • Not necessary in the UK for expert evidence to be obtained from overseas using an MLA process for it to be admissible. • Mutual legal assistance in the UK does not require the existence of a treaty arrangement or international agreement. • Relevant treaty provisions must be taken into consideration when interpreting the applicable domestic legislation. • The UK is party to a large number of multilateral conventions and agreements dealing that deal with MLA such (e. g. UNCAC, UNCTOC) supplemented by a number of bilateral MLA treaties (e. g. EU Convention on MLA in Criminal Matters). • The provision of mutual assistance in criminal matters in the UK is principally governed by the Crime (International Co-operation) Act 2003 (‘CICA 2003’) and the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (‘the POCA order’).

UK Central Authority for MLA requests • Responsibility for mutual assistance in criminal matters in England & Wales lies with the Secretary of State for the Home Department (“UK Central Authority”) • Serious Organised Crime Agency (‘SOCA’) has primary responsibility for processing requests for investigative help from overseas. Requests for investigative assistance need not be sent to the UK Central Authority unless it is a requirement of the foreign authority making the request. • The Mutual Legal Assistance Guidelines are published by the United Kingdom Central Authority - requests both to and from the UK

CICA 2003 Chapter 2, section 7 of CICA 2003 Requests for assistance in obtaining evidence abroad (1) If it appears to a judicial authority in the United Kingdom on an application made by a person mentioned in subsection (3)— (a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and (b) that proceedings in respect of the offence have been instituted or that the offence is being investigated, the judicial authority may request assistance under this section. (2) The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom any evidence specified in the request for use in the proceedings or investigation. Chapter 2, section 8 of CICA 2003 Sending requests for assistance (1) A request for assistance under section 7 may be sent— (a) to a court exercising jurisdiction in the place where the evidence is situated, or (b) to any authority recognised by the government of the country in question as the appropriate authority for receiving requests of that kind.

Practical Issues • Admissibility / Weight (including expertise) • Unable to attend trial • Expert Evidence / Assistance • Compulsion

Practical Issues • Disclosure • Availability of MLA for defence • Evidential chain • Compulsion to obtain evidence

EU PERSPECTIVE: EUROJUST Law Society 23 September 2008 Aled Williams

Outline n What is Eurojust ? n The future ? – Treaty of Lisbon – Expert evidence and amendments to Eurojust Decision

SOME CJS CO-0 PERATION DATES n 1995 Europol Convention – Decision 2009 n 1996 Liaison Magistrates – – n n n FR: 12+ LMs UK: FR ES IT PAK USA 1998 European Judicial Network+2008 2002 Eurojust Decision (revised 2008) 2007 Treaty of Lisbon

Free Movement 30 EU Legal Systems 500 m pop.

WHAT IS EUROJUST ? n ‘Judicial Co-operation Unit of the European Union’ n 27 MS prosecutors / judges/ police n Fight ‘serious cross border crime, particularly when it is organised, and involves two or more Member States’ - JHA Council Decision of 14 December 2000

ICC and Eurojust