Select Committee on European Scrutiny Thirty-Sixth Report


10 Non-custodial pre-trial supervision measures

(25937)

12243/04

COM(04) 562

+ ADD 1

Commission Green Paper on mutual recognition of non-custodial pre-trial supervision measures

Legal base
Document originated17 August 2004
Deposited in Parliament13 September 2004
DepartmentHome Office
Basis of considerationEM of 2 November 2004
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

10.1 In England and Wales, the decision whether to grant an accused person bail or to remand him in custody is taken by a court under the provisions of the Bail Act 1976, and in Scotland under the provisions of the Criminal Procedure (Scotland) Act 1995. Pre-trial detention of persons in other Member States is governed by the relevant national law. All Member States are bound by the European Convention on Human Rights (ECHR), Article 5(1) of which guarantees the right to liberty of the person. One of the exceptions to this right is the lawful arrest or detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence. Such arrest and detention must be in accordance with a procedure prescribed by law.

10.2 According to general principles common to the Member States (and confirmed and reinforced by their ECHR obligations), the detention of a person pending trial is limited to those cases where it is really necessary. Nevertheless, and according to the Commission, the excessive use and length of detention pending trial "is one of the main causes of prison overpopulation". The Commission also observes that "owing to the risk of flight, non-resident suspects are often remanded in custody, while residents benefit from alternative measures". Such considerations have led the Commission to issue a Green Paper on the possibility of adopting a legal instrument providing for the mutual recognition of pre-trial orders which do not involve the detention of the accused.

The Commission Green Paper

10.3 The Commission Green Paper discusses the need for a new legal instrument on the mutual recognition of orders relating to the supervision of defendants to criminal proceedings which do not involve detention. The aim of such an instrument would be to allow the substitution of non-custodial supervision in place of an order remanding the defendant in custody. The Green Paper refers to the risk that non-resident defendants may be remanded in custody for even minor offences, because of the risk of absconding, whereas residents benefit from alternative non-custodial measures.

10.4 In this connection, the Green Paper argues that the adoption of a legal instrument along these lines would help reduce the number of non-resident pre-trial detainees in the European Union. It also suggests that this would "reinforce the right to liberty and the presumption of innocence in the European Union seen as a whole (i.e. in the commo [34] area of freedom, security and justice) and would decrease the risk of unequal treatment of non-resident suspected persons." The main idea of such a new instrument would be to substitute a non-custodial order of a supervisory nature in place of a remand in custody and to provide for the transfer of such a measure to the Member State of the defendant's normal residence. This would allow the defendant to be subject to a supervision measure in his normal residence until trial takes place in the foreign Member State.

10.5 The staff working paper which accompanies the Green Paper discusses various alternatives to pre-trial detention. The paper points out that in their domestic systems most Member States provide for orders to report to a suitable authority from time to time and, in some cases, for prohibitions on travel. The Commission notes that these are mentioned in Recommendation No. R(80) 11 of the Council of Europe, so that this solution "would not impose a legal instrument that is foreign to the legal traditions of the EU Member States". Various models are suggested, the first being an order to report (a "European reporting order") under which, as an alternative to custody, the defendant would be required to report to an appropriate authority from time to time and be subjected to a prohibition on travel.

10.6 The paper suggests there might be differing degrees of involvement of the issuing authority in the enforcement of such an order. The issuing authority might specify in detail the nature of the supervision measures (such as the frequency with which the defendant might be required to report) and the paper even suggests that the issuing authority might specify the wearing of an electronic tag. Under such a model, the authorities in the Member State of the defendants' residence "would simply execute the detailed order of the issuing Member State". Alternatively, the role of the issuing authority might be limited to requiring that the defendant should report to an authority. It would then be for the authorities in the executing Member State to designate the appropriate authority, to decide the frequency of reporting and to impose any additional obligations. As a further alternative, the choice of any coercive measures would be left entirely to the executing State. The issuing authority in the Member State claiming jurisdiction would simply specify the objective of keeping the defendant under supervision and securing his return to face trial. It would then be for the executing State to decide on the most appropriate means for achieving these objectives under its own law. The paper suggests that a reason for leaving the choice of coercive measures to the executing State is that it is "best placed to take account changes in the situation of the suspect" and that "equality of treatment would be ensured".[35]

10.7 A second suggested model is the so-called "Eurobail" model, which was presented at an experts' meeting in May 2003. According to this model, it would be for the trial court to make an initial assessment of whether the offence is "bailable" i.e. the offence is one for which a defendant may be released on bail. If it is such an offence, the defendant would be sent back to his country of residence, where the appropriate court would decide whether or not the defendant is to be released on bail. The paper suggests that, in order for the European Arrest Warrant to be applied (presumably, in the case of a breach of the bail conditions) a new category of "enforceable offence" should be created and "added" to the European Arrest Warrant. The paper suggests that this category might be called "fugitive from justice".

10.8 The paper considers what grounds, if any, should be available to the executing authority to refuse the transfer of a defendant under supervision. It makes the (not unreasonable) general point that, as the alternative to transfer under supervision would be remand, or continued remand, in custody only limited grounds for refusal should apply. Consideration is also given to the measures which may be taken by the executing State in the event of a breach of the conditions relating to supervision, in particular the question of whether the executing State should be entitled to return the defendant before the date of trial has been set.

10.9 The paper suggests that, by reason of the limits on its scope and the various mandatory and optional grounds for refusing the surrender of a person, the European Arrest Warrant is insufficient or inadequate to provide a guarantee that a person subject to supervision will be returned to the state of trial. A European Arrest Warrant may be issued "for the purposes of conducting a criminal prosecution" (Article 1(1)) but may only be issued for an offence which is a serious offence under the law of the issuing Member State (i.e. it must be punishable by a sentence of imprisonment of at least one year). The paper also refers to the time-limits under the European Arrest Warrant within which a decision must be taken to arrest and return the suspected person. The paper points out that a person arrested under such a warrant might be held in custody for several weeks before his surrender, whereas the object of any new instrument would be to avoid the use of pre-trial detention.

10.10 The paper therefore advocates the adoption of a new instrument aimed at reducing pre-trial detention "in the European Union as a whole". It concludes that a coercive mechanism is necessary, as a last resort, to make such a system work. However, with the model suggested, there would be no element of compulsion on the defendant to accept transfer and supervision in his country of residence. In all cases, the issuing authority would be required first to obtain the consent of the defendant to present himself for trial, or to allow the court to try him in absentia. The defendant would also be required to signify his consent to the consequences of not appearing at the trial. If such consents are given, the issuing State would then give the executing State the opportunity to object to transfer under the permitted grounds of refusal. If there are no grounds for objection, the transfer would take place, and the defendant would become subject to supervision in the State to which he has been transferred.

10.11 The paper discusses the question of what should be the consequence of a failure by the defendant to observe a condition of his supervision. It suggests that it should be open to the executing State to postpone the return of the defendant, notably where he has been remanded in custody or where there are humanitarian reasons related to the person's health for delaying his return. The paper suggests that where these grounds for postponement do not exist, the suspected person "can be arrested on the basis of a court order of the issuing authority and returned to the issuing authority". It concludes that "to allow other grounds for refusal at this stage of the procedure would probably make the coercive mechanism under the new instrument useless".

10.12 Once the date of trial has been fixed, the defendant would be under an obligation to attend his trial. The issuing State would send the summons to the executing authority, which would assume responsibility for its due service. In the event that the defendant did not answer the summons, it would be for the issuing State to decide whether to require the executing authority to arrest the defendant (or, where this is possible under the domestic law, to proceed to try the defendant in his absence).

The Government's view

10.13 In her Explanatory Memorandum of 2 November 2004 the Parliamentary Under-Secretary of State at the Home Office (Caroline Flint) explains that the Government will be consulting on, and giving detailed consideration to, the questions posed by the Green Paper on the development of a mutual recognition measure for non-trial supervision and will provide us with its detailed view of the Green Paper in due course.

10.14 The Minister adds that the Commission proposal offers a useful development of judicial cooperation in the EU, that it would have the benefit of promoting equality of pre-trial treatment for non-nationals, allowing more UK citizens charged with offences in other Member States to return home under supervision instead of being held in custody in the State of the alleged offence, and that the same would be true of other EU nationals facing trial in this country, which would help maintain home ties and aid long-term rehabilitation.

10.15 The Minister makes the following further comments:

    "The decision to remand in custody or to transfer supervision under suitable conditions will depend on a reliable assessment of the risk. This would be addressed in part by developments at EU level on the sharing of information from criminal records. There may also be demands for assessment reports from the relevant UK authorities in support of criminal proceedings in other Member States, which may have resource implications.

    "Conditions and methods of supervision are not consistent across the EU and the Government sees advantage in a system of mutual recognition which provides the executing State with appropriate flexibility to reflect national practice and resources. The National Probation Service does not supervise or monitor defendants on bail in this country (other than those on bail for very serious offences) and we would therefore wish to seek discretion to decide the authorities involved in supervision of a transferred defendant. We would also need to be satisfied that robust arrangements could be put in place to deal with breaches of supervision conditions or the defendant's failure to surrender for trial. The Green Paper's suggestion to create a new coercive measure, rather than relying on the [European Arrest Warrant], will also require further detailed consideration."

Conclusion

10.16 We agree with the Minister that this proposal could be of benefit to UK nationals detained in other Member States and awaiting trial. It could allow more UK nationals to return home under supervision instead of being remanded in custody abroad.

10.17 We note that the Government is engaging in consultation on the ideas proposed in the Green Paper and undertakes to let us know its more detailed view in due course. We look to the Minister to provide this information in sufficient time to allow us to comment further before the reply to the Green Paper is sent to the Commission. In the meantime, we agree that the detailed arrangements for supervision should be a matter for the State in which the defendant resides, and we see difficulty in a regime which allows the issuing State to be over-prescriptive.

10.18 We shall hold the document under scrutiny pending further information from the Minister.


34   It is to be noted that Article 2 EU does not, in terms, set an objective of the Union to create a common area of freedom, security and justice. Neither does Article 29 EU refer to such a common area. Back

35   Presumably what is meant is that the defendant to the foreign proceedings would be treated in the same way as a defendant to domestic proceedings. Back


 
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