CROSS BORDER GATHERING EVIDENCE BEST PRACTICES IN MUTUAL

CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE EUROPEAN JUDICIAL TRAINING NETWORK BRUSSELS, 15 – 16 March 2016 David J Dickson Solicitor Advocate

What is the proper function of a law of evidence? “A simple answer is that where a court or tribunal has to decide a disputed issue of fact it is the proper function of the law of evidence to assist it by providing intelligible and acceptable rules which will indicate what evidence it may receive in order to elucidate the truth in relation to the matter in dispute. ” (SLC Report 149/1995) Purpose : “In all our criminal courts in Scotland the object of trial is to enable the Crown to secure the conviction of the guilty by proof beyond reasonable doubt upon evidence sufficient in law; and at the same time to ensure that the protection which the law seeks to afford to the innocent is denied to none. ” (Lord Emslie“ The Role of Judges in Society in Scotland" (1974) 2

Common law Three legal jurisdictions within the UK Law developed on basis of precedent Judicial decisions develop the application of the law Direction/development of the law Seeks consistency of application Application of the ECHR Jurisprudence of the ECt. HR and CJEU Statute law- Parliamentary sovereignty 3

Admissible evidence Requires to be relevant Hearsay evidence: not automatically inadmissible Unlawfully obtained evidence: “Irregularities require to be excused and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. ” Lawrie v Muir 1950 JC 19 4

Its about cooperation! Overcome the potential tension in execution and use Direct contact EJN Eurojust JITs EAW- Article 29 and Box G-differences in national law 5

EJN Council Decision 2008/976/JHA National contact points Bilateral, direct contact Swift, efficient, effective Third state networks Art 10: EJN CPs on a case by case basis inform their Eurojust national Member of cases they deem EJ in a better position to deal with http: //www. ejn-crimjust. europa. eu/ejn/ 6

Eurojust Council Decision 2002/187/JHA (as amended) Each MS represented Liaison magistrates CD Art 6: obligation on national authorities to advise Eurojust National Member of “requests for or decisions on judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition, have been transmitted to at least two Member States” Limited to list offences, OCG, serious cross border dimension Obligation to advise of conflict of jurisdiction, controlled delivery and repeated difficulties in execution of MR instruments http: //eurojust. europa. eu/Pages/home. aspx 7

EJN/Eurojust? CD Art 25(1)(a): national members shall, on a case-by-case basis, inform the European Judicial Network contact points of all cases which they consider the Network to be in a better position to deal with; Joint Task Force Paper: EJN and EJ: What Can We Do For You? 8

JITs Article 13 of the 2000 MLA Convention Framework Decision 2002/465/JHA Network of Contact Points http: //eurojust. europa. eu/Practitioners/JITs/jitsnetwor k/Pages/JITs-network. aspx 9

Contact David J Dickson Head of Extradition European Judicial Network Contact Point International Cooperation Unit Crown Office 25 Chambers Street Edinburgh EH 1 1 LA Direct dial: 0044 131 243 3055 Fax: 0044 131 243 8153 10