Select Committee on European Scrutiny Thirty-Seventh Report


23 Non-custodial pre-trial supervision measures

(a)

(25937)

12243/04

+ ADD 1

COM(04) 562

(b)

(27783)

12367/06

COM(06) 468

+ ADDs 1-2


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



Draft Council Framework Decision on the European supervision order in pre-trial procedures between the Member States of the European Union

Legal base(b) Articles 31(1)(a) and (c), 34(2)(b)EU; consultation; unanimity
Document originated(b) 29 August 2006
Deposited in Parliament(b) 6 September 2006
DepartmentHome Office
Basis of considerationEM of 20 September 2006
Previous Committee Report(a) HC 42-xxxvi (2003-04), para 10 (10 November 2004)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decision(a) Cleared

(b) Not cleared; further information requested

Background

23.1 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 permits the 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.

23.2 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. According to the Commission's Green Paper (document (a)), 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 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 did not involve the detention of the accused. The previous Committee considered this Green Paper on 10 November 2004.

23.3 The previous Committee noted the argument in the Green Paper that the adoption of such a legal instrument would help reduce the number of non-resident pre-trial detainees in the European Union and also the Commission's view 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 common [63]area of freedom, security and justice) and would decrease the risk of unequal treatment of non-resident suspected persons".

23.4 The previous Committee agreed with the then Minister that some form of mutual recognition of pre-trial orders would have the benefit of promoting equality of pre-trial treatment for non-nationals and would allow 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. The Committee also agreed that the detailed arrangements for supervision should be a matter for the State called upon to supervise the person in question, and saw difficulty in a regime which allowed the issuing State to be over-prescriptive.

The draft Council Framework Decision

23.5 The draft Framework Decision (document (b)) pursues the option described in the Green Paper of a non-custodial pre-trial supervision order which would be recognised and enforced in another EU Member State pending the return of the defendant to the EU Member State of trial. The proposal follows two meetings of experts which discussed the options referred to in the Green Paper.

23.6 According to the Commission's account of the results of those meetings, most Member States "welcomed the idea of applying the mutual recognition principle to non-custodial pre-trial supervision measures". However, different opinions were expressed on the scope of a proposal (i.e. whether it should apply to the less serious offences not covered by the European Arrest Warrant (EAW)), the grounds for refusing recognition, whether the issuing or executing State should "have the main influence" over pre-trial supervision and on whether the EAW should be relied on to secure the transfer of the person to the issuing State to face trial or whether some new mechanism should be devised. The Commission also noted that a "small number" of Member States questioned the added value of a new EU instrument on this issue, considering that it would apply to only a restricted number of defendants. To meet this criticism, the Commission engaged a consultant to provide statistical data which is referred to in the Commission's impact assessment. The impact assessment estimates that around 10,000 EU nationals are detained pending trial in a country other than that of their nationality. A further estimate, apparently based only on data from the Netherlands and Finland, indicates that as high a proportion as 80% of this 10,000 could be subject to a pre-trial non-custodial supervision order, leading to the conclusion that as many as 8,000 EU non-resident prisoners could be dealt with by such an order.

23.7 In outline, the proposed "European supervision order" would be an order made by a judicial authority in one Member State which would be entitled to recognition and enforcement in another. The order would allow the suspect to benefit from a supervision regime in another Member State (i.e. the Member State of his normal residence). The proposal does not require the issuing State to make an order, and the proposal does not suggest that the suspect has any right to the making of such an order. The Member State of normal residence would be responsible for the supervision of the suspect and would be obliged to report to the issuing State on any breaches of the conditions attached to the order, so that the issuing State can decide on the arrest and transfer of the suspect if this is thought necessary.

23.8 The detailed provisions of the draft Framework Decision may be summarised as follows. Article 1 defines a European supervision order as a judicial decision made in respect of a non-resident suspect for the purpose of the return of that person to his Member State of residence on condition that he complies with supervision measures to ensure that he will be available to stand trial in the State making the order. Article 2 defines the issuing State as the State in whose territory a European supervision order is issued and an executing State as the State in whose territory the order would be carried out. Article 3 imposes on Member States an obligation to execute a European supervision order, and Article 4 provides for each Member State to inform the Council of which authorities are entitled under the national law to issue and enforce a European supervision order.

23.9 Articles 5 to 7 are concerned with the substance of the European supervision order. Article 5 provides that the order may be made by the issuing State after it has informed the suspect of the conditions to be imposed (under Article 6) and the penalties for breach of the order. Article 6(1) requires the issuing State to impose an obligation on the suspect to make himself available for receiving a summons for trial and to attend for trial.[64] Article 6(1) provides that the issuing State may also impose conditions requiring the suspect to attend preliminary hearings, to refrain from entering specified places in the issuing State and to reimburse the costs of transferring him to the issuing State for preliminary hearing or trial. Article 6(2) provides for further optional conditions which may be imposed subject to the agreement of the executing authority. Such conditions include (but are not limited to) travel restrictions, reporting obligations, surrender of passports, obligations to reside or work at a particular location, restrictions on engaging in a particular profession or to undergo specified medical treatment. Article 6(3) provides for such conditions to be recorded in the order and Article 6(4) provides that the executing State may modify the obligations to the extent that this is "strictly necessary" for the purpose of executing the order. Article 7 provides for the form of a European supervision order, the terms of which are set out in a form annexed to the Framework Decision.

23.10 Articles 8 to 14 are concerned with the recognition and enforcement of the order. Article 8 provides for the transmission of the order and Article 9 requires Member States to give effect to the order "without any further formality being required". Article 10 specifies grounds on which recognition and enforcement of an order must or may be refused. Accordingly, recognition and enforcement must be refused in the executing State where it is "clear" that criminal proceedings in the issuing State would infringe the ne bis in idem principle (i.e. the rule against double jeopardy). The executing State may refuse recognition and enforcement if, under its own law, the suspect cannot be held criminally liable by reason of his age for the acts on which the order is based, or where there is a privilege or immunity which prevents execution of the order, or where the alleged offence is covered by an amnesty and the executing State has jurisdiction to prosecute.

23.11 In cases where the suspect is a national or resident of the executing State, Article 11 provides that the latter State may make execution of the supervision order subject to a condition that the person is returned to the executing State to serve any custodial sentence.

23.12 Article 12 provides for the recognition and enforcement of the supervision order in the executing State. A decision to recognise the order (or refuse recognition on one of the permitted grounds) is to be taken within 5 days of receipt of the order from the issuing State, but provision is also made for a postponement of such decision where the order is "incomplete". Articles 13 and 14 provide for the review and revocation, respectively, of the order by the issuing State. Although the executing State may request a review of the order by the issuing State, no provision is made to permit the executing State to review or revoke the order. Pursuant to Article 14, the issuing State may revoke the order at any time so as to benefit the suspect and must revoke the order once the suspect has fulfilled all of the obligations which it has imposed.

23.13 Article 15 provides that the existence of a supervision order shall not prejudice the executing State's obligations to enforce a European Arrest Warrant, to comply with a request for extradition from a third country, or to comply with the Statute of the International Criminal Court.[65] By virtue of Article 15, the executing State remains free to initiate and pursue its own criminal proceedings.

23.14 Articles 16 to 22 are concerned with procedures for dealing with breaches of the order and with the return of suspects to the issuing State. Article 16 requires the executing authority to report any breach of the supervision order using a form (Form B) annexed to the Framework Decision. (Form B must be signed, but it is not clear if the person signing must be a "court, a judge, an investigating magistrate or a public prosecutor" or if it is sufficient for administrative staff to sign the form on behalf of the executing authority).

23.15 Article 17 provides that, in the event of a breach of the supervision order, the issuing State may amend or revoke the order or may "arrest and transfer" the suspect. In a case where the suspect is in the territory of another Member State, that State is required by Article 17(3) to "arrest and transfer" him in accordance with the provisions of Article 18. (The provisions of Article 17(1)and (2) are difficult to follow in that they seem to envisage a decision by the issuing State to "arrest and transfer" the suspect, whether or not he is still to be found within the national territory. If the suspect is within the national territory of the issuing State, no question of "transfer" seems to arise. On the other hand, if the suspect is within the territory of another Member State, it will be that State, not the issuing State, which will carry out the arrest and effect the transfer of the suspect). Before any decision is taken by the issuing State under Article 17(1) (i.e. to "arrest and transfer") the suspect must be given the right to be heard.

23.16 Where the issuing State has made a decision that a suspect must be "arrested and transferred" to the issuing State, Article 18(1) requires the suspect to be given a hearing before a judicial authority in the executing State.[66] However, the grounds for refusing to arrest and transfer such a suspect are limited. If the suspect consents to the transfer, the executing State must transfer him "forthwith" to the issuing State (Article 18(2)). If the suspect does not consent, Article 18(3) provides that the executing State may refuse to arrest and transfer the suspect only if it is "clear" that the proceedings in the issuing State would infringe the rule against double jeopardy, or if the suspect is being prosecuted in the executing State in respect of the same facts, or if criminal proceedings in respect of the same facts are within the criminal jurisdiction of the executing State and are statute-barred there, or if the decision in the issuing State to "arrest and transfer" concerns new facts not covered in the supervision order.

23.17 A Member State making a decision for the "arrest and transfer" of a suspect must inform the executing authority of such decision immediately (Article 19). A transfer must be effected within 3 days of the arrest, unless there are "serious humanitarian reasons" for a postponement. Article 21 requires Member States to permit the transit through their territory of a suspect who is being returned. Article 22 requires the issuing State to deduct from any eventual custodial sentence any period of detention arising from the arrest and transfer of the suspect under Articles 17 and 18.

23.18 The remaining provisions (Articles 23 to 27) are general and final provisions. Article 24 permits Member States to continue to apply existing multilateral or bilateral agreements and to conclude new agreements, notwithstanding the Framework Decision.

The Government's views

23.19 In her Explanatory Memorandum of 20 September 2006 the Minister for Justice at the Home Office (Baroness Scotland of Asthal ) welcomes the proposal in principle, since it promotes equality of treatment of residents of other EU Member States and ensures that pre-trial custody is only used in appropriate cases. The Minister notes that the proposal identifies the risk that non-resident defendants in criminal proceedings may be remanded in custody for even minor offences because of the danger of absconding, whereas resident defendants may benefit from non-custodial measures.

23.20 The Minister adds that there are at present no international instruments which specifically provide for the transfer of non-custodial measures from one Member State to another and that the Government is formulating its position on the details of the proposal made by the Commission and will inform us of any developments. The Minister notes that the proposal is likely to have an impact on police resources in monitoring the conditions of supervision orders and taking any action which may be required, but that the saving of remand places (in England and Wales) is likely to be small. The Minister informs us that in July 2006 there were 620 EU nationals remanded in custody in England and Wales, but that not all of these would be affected by the present proposal as there would be a number who would be remanded in custody for reasons other than residing in another EU Member State.

Conclusion

23.21 The previous Committee noted, and we agree, that this proposal could be of benefit to UK nationals detained in other Member States while awaiting trial by allowing them to return to the UK under supervision instead of being remanded in custody.

23.22 We therefore welcome the proposal in principle. We were concerned that the Green Paper proposals might lead to over-prescriptive arrangements being imposed by other Member States on supervision in the UK, but we now welcome the provision which has been made for the detailed conditions of the supervision order to be subject to agreement with the State in which the supervision is to be carried out.

23.23 Nevertheless, we draw attention to a number of detailed points, particularly relating to the remedies for a breach of a supervision order, where we consider the proposal is unclear. First, we ask the Minister if it is intended that the decision on whether there has been such a breach and to report it to the issuing State should be taken only by a person exercising judicial functions.

23.24 Secondly, we ask the Minister for her views on the arrangements for "arrest and transfer" under Articles 17 and 18. These appear to us to provide for a new form of coercive measure, and we ask the Minister if such a measure is necessary, rather than relying on the European Arrest Warrant. We also ask the Minister for her views on the narrowness of the grounds for refusing an arrest and transfer.

23.25 Finally, the Minister helpfully informs us of the number of EU nationals presently held in custody awaiting trial, and who might potentially benefit from this proposal, but we ask the Minister if she can provide similar information on the number of UK nationals or residents currently held in custody in other Member States.

23.26 As the Green Paper (document (a)) is now effectively spent, we are content to clear it from scrutiny, but we shall hold the draft Framework Decision (document (b)) under scrutiny pending further information from the Minister.




63   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

64   Article 6(1) also provides that "obstructing the course of justice or engaging in criminal activity may constitute a breach of the European supervision order", but it is not clear whether this is to assessed under the law of the issuing or executing State. Back

65   See Rome Statute of the International Criminal Court 1998 and the International Criminal Court Act 2001. Back

66   Since Article 17(4) requires a hearing to be given in the issuing State before a decision under Article 17(1) is made, it would seem that two hearings are required before the arrest and transfer of a suspect. Back


 
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