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 originated | 17 August 2004
|
| Deposited in Parliament | 13 September 2004
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| Department | Home Office |
| Basis of consideration | EM of 2 November 2004
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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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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