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

 “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 What is the proper function of a law of evidence?

 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 ECtHR and CJEU  Statute law- Parliamentary sovereignty 3 Common law

 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 Admissible evidence

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

 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  EJN

 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  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 EJN/Eurojust?

 Article 13 of the 2000 MLA Convention Article 13 of the 2000 MLA Convention  Framework Decision 2002/465/JHA Framework Decision 2002/465/JHA  Network of Contact Points Network of Contact Points  k/Pages/JITs-network.aspx k/Pages/JITs-network.aspx 9 JITs

David J Dickson Head of Extradition European Judicial Network Contact Point International Cooperation Unit Crown Office 25 Chambers Street Edinburgh EH1 1LA Direct dial: Fax: Contact