Last week the DPP issued guidance setting out the approach to be taken by the CPS in determining whether a multi-jurisdictional case should be prosecuted in the UK, in another jurisdiction or indeed in more than one jurisdiction. The guidance seeks to achieve this by encouraging meaningful, and early, cooperation between the competing jurisdictions. But in compiling this guidance, a basic truth appears to have been overlooked: co-operation is a two-way process.

The guidance directs Prosecutors to adopt a collaborative approach. The recommended steps are designed to foster a cooperative dialogue between the competing jurisdictions with an interest in the case. Early dialogue and the sharing of information lie at the heart of the guidance, and its importance is underlined with Prosecutors being urged to “agree a coordinated strategy ... that respects the independence of the individual jurisdictions but recognises the benefits of co-operation in achieving effective law enforcement”.

The most striking difficulty with this stage of the guidance is that some jurisdictions simply do not have the discretion to decide whether to prosecute; they are obliged to do so regardless of how strong the arguments may be to conduct a trial elsewhere. One such example is Italy, whereupon being informed of a criminal act Prosecutors are obliged under the Constitution to investigate, that decision effectively marking the start of the prosecution.

Even where both jurisdictions have discretionary prosecution regimes, co-operation of the type encouraged may require subordination of what a prosecutor considers to be in the interest of his nation beneath that of the other nation. Historically as between the UK and USA prosecutors have frequently demonstrated a competitiveness rather than co-operation, most recently in the charging of Tom Hayes for Libor related offences in the UK despite an extant US indictment and extradition request.

Although in principle guidance for dealing with complex concurrent jurisdiction cases is to be welcomed, the extent to which “co-ordinated strategies” will become more common remains to be seen.

For the full guidance, please visit the CPS website: 'Director's Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas'.