Th e manner of establishing criminal jurisdiction by domestic courts of competent criminal jurisdiction presents the most important aspect of the relation between states and international tribunals. Th e analyses of the jurisprudence of international courtsand tribunals pertaining to the principle ne bis in idem has resulted in the conclusion that this principle can be fully understood and applied in conjunction with the principle of complementarity.
Law enforcement agencies have adapted their detection and investigative strategies in accordance with proactive intelligence-led policing of suspected offenders that include surreptitious undercover methods. While such measures are necessary and proportionate to safeguard society from harm caused by offenders, some forms of proactive policing methods could be regarded as entrapment. Allegations of entrapment are typically raised in circumstances where undercover law enforcement officers have actively participated in the creation of a crime, have tested the virtue of people instead of directing their detection and investigative strategies on persons against whom there are reasonable grounds for suspicion, or have gone beyond merely creating the circumstances and effectively induced the suspect to commit an offence. Criminal justice systems have typically responded to allegations of entrapment with judicial discretion to grant a stay of the prosecution for an abuse of the courts process, relying on judicial integrity and the imperative of constitutional principles and international human rights standards being adhered to by courts of justice. Undercover methods bordering entrapment might require the exercise of judicial discretion to either exclude impugned evidence or as a mitigating factor reducing the sentence imposed on convicted offenders. This article evaluates the judicial responses to successful pleas of entrapment in foremost common law jurisdictions underpinned by constitutional principles of due process and international human rights standards in accordance with the rule of law. Keywords: Abuse of process; Agent provocateur; Defence; Entrapment; Exclusion of evidence; Judicial discretion; Stay of criminal proceedings
The ne bis in idem principle (procedural defence) proscribes multiple criminal proceedings and punishments for the same criminal offence/conduct, which is predicated on a final verdict of acquittal or conviction by a court of competent jurisdiction. Incorporated as a fundamental human right through Article 4 of Protocol No. 7 annexed to the ECHR and fundamental right safeguarded through Article 50 CFR, the principle is conjoined with the right to free movement of persons through Article 54 CISA. An evaluation of the characteristics, substance, rationale, scope, and limitations associated with the autonomous procedural defence reveals corresponding purposes. CJEU and ECtHR jurisprudence have delineated the scope and limitations of the procedural defence and the two European courts have reciprocally influenced their respective case law. Definitive and practical judicial guidelines on the application of the principle facilitate consistency of approach by diverse national legal systems consistent with the principle of legality. The article provides an interpretative analysis of the procedural defence and associated jurisprudence of the two European courts that aim to ensure consistency of approach by national legal systems notwithstanding the applicability of the margin of appreciation and the principle of subsidiarity. The article concludes with an evaluation of the narrow same criminal offence criterion ( idem crimen) commensurate with broader proscribed conduct ( idem factum) criterion that is pivotal to the application of the procedural defence and evidently the most litigated aspect of the ne bis in idem principle. The main issue causing tensions between the different streams of case law seems to be the question of the combination of distinct types of proceedings (administrative and criminal), and there is a reciprocal influence of the ECHR and CJEU on this issue.
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