7 Non-custodial pre-trial supervision
measures
| (27783)
12367/06
+ ADDs 1-2
COM(06) 468
| Draft Council Framework Decision on the European supervision order in pre-trial procedures between the Member States of the European Union
|
| Legal base | Articles 31(1)(a) and (c), 34(2)(b)EU; consultation; unanimity
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 5 February 2007
|
| Previous Committee Report | HC 34-xxxvii (2005-06), para 23 (11 October 2006) and see (25937) HC 42-xxxvi (2003-04), para 10 (10 November 2004)
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| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
7.1 On 11 October 2006 we considered a draft Framework Decision
for a non-custodial pre-trial supervision order (such as an order
for bail) 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 objective of the proposal would be to help
reduce the number of non-resident persons held in custody pending
trial.
7.2 The order (a "European supervision order")
would be made by a judicial authority in the Member State of trial
and would be entitled to recognition and enforcement in another.
The order would allow the non-resident person charged with an
offence to benefit from a supervision regime in another Member
State (normally the Member State of residence). The Member State
of normal residence would be responsible for the supervision of
the person awaiting trial and would be obliged to report to the
Member State of trial on any breaches of the conditions attached
to the order, so that the latter can decide on the arrest and
transfer of the suspect if this is thought necessary.
7.3 We considered 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, and therefore welcomed the
proposal in principle. We also welcomed the fact that the detailed
conditions of the supervision order would be subject to agreement
with the State in which the supervision was to be carried out.
7.4 We drew attention to a number of detailed points,
particularly relating to the remedies for a breach of a supervision
order, where we considered the proposal to be unclear. We asked
the Minister for her views on three points, first, if it was intended
that a decision on whether there has been a breach of the order
should be taken only by a person exercising judicial functions,
secondly, on the arrangements for "arrest and transfer"
under Articles 17 and 18 (which appeared to us to provide for
a new form of coercive measure in addition to the European Arrest
Warrant) and, thirdly, on the narrowness of the grounds on which
a Member State could refuse to arrest and transfer a resident
subject to the supervision order.
7.5 We also asked the Minister if she could provide
information on the number of UK nationals or residents currently
remanded in custody in other Member States pending trial.
The Minister's reply
7.6 The Minister of State at the Home Office (Baroness
Scotland of Asthal) replies to our concerns in her letter of 5
February 2007. The Minister informs us that a Council Working
Group considered the proposal at a meeting on 9-10 January 2007.
Although there was no detailed consideration of the proposal,
the Minister informs us that there were discussions on its benefits
and scope, the type of supervision measures in issue, the grounds
for not recognising a supervision order and the consequences of
breach and the arrangements for arrest and transfer. The Minister
reports that there was general support from many Member States,
but also calls for a simplified procedure and concerns over costs
and resources.
7.7 In reply to our specific questions, the Minister
first informs us that, as the proposal now stands, it requires
a person exercising judicial functions to decide whether or not
there has been a breach of the supervision order and to report
it to the issuing State. The Minister comments that this is not
in accordance with the procedure in the UK "where the police
and prosecution would take such action". The Minister adds
that the Government believes it will be necessary to seek clarification
on this point.
7.8 Secondly, in reply to our points on the arrangements
for "arrest and transfer" under Article 17 and 18, (in
particular whether it was necessary to envisage a new form of
coercive measure in addition to the European Arrest Warrant, and
the narrowness of the grounds for refusing to arrest and transfer)
the Minister comments that the first of these issues was raised
by several Member States in the working group. The Minister notes
that, as currently drafted, the proposal is intended to cover
all criminal offences, whereas the EAW is limited to the more
serious offence, so that the EAW would not be sufficient to ensure
that there is a mechanism forcibly to return a defendant where
necessary. The Minister considers that it would not be desirable
to extend the scope of the EAW simply to bring it into line with
the current proposal, nor would it be desirable to limit the scope
of the current proposal. The Minister adds that the Government
therefore believes that it is necessary to create a specific power
of arrest and transfer to meet the requirements of the proposed
scheme.
7.9 On the narrowness of the grounds on which an
executing State can refuse to arrest and transfer a person subject
to a supervision order, the Minister comments that the limitations
on the right to refuse to arrest and transfer reflect those which
usually attach to proposals which relate to mutual recognition
within the EU. The Minister adds that there needs to be a balance
between the concerns of the executing State in returning the defendant
for prosecution and the needs of the issuing State to be confident
that a defendant released subject to a European supervision order
"can be forcibly returned if necessary".
7.10 In her Explanatory Memorandum, the Minister
informed us that in July 2006 there were 620 EU nationals remanded
in custody in England and Wales, but that not all of these would
become subject to a European supervision order, as some might
be remanded in custody for reasons other than their residence
in another Member State. The Minister now informs us that in June
2006 there were 820 UK nationals remanded in custody and awaiting
trial in another Member State, but that this figure does not,
of itself, indicate how many might have been made subject to a
European supervision order, since in some cases the court might
have decided to remand the person in custody notwithstanding the
availability of the order.
Conclusion
7.11 We thank the Minister for her letter. We
shall look forward to an account, in due course, of the Government's
attempts to clarify whether the decision on whether there has
been a breach of the supervision order and to report it to the
issuing State may be made by authorities which are not judicial
in character. In our view, it would not be appropriate for a non-judicial
authority to make such a finding if this were to be given any
automatic effect in the issuing State. There would be less objection
to the finding being treated merely as evidence in the issuing
State, to be taken into account along with other circumstances,
before any order is made requiring arrest and transfer.
7.12 We note that the grounds for refusing an
order for arrest and transfer are very limited, but we also note
the comments made by the Minister on the need for a balance between
the interests of the issuing State in being certain that the defendant
will attend the trial and those of the State responsible for supervising
the defendant under a supervision order. We also note that, in
any event, the proposal requires the issuing State to give the
defendant a hearing before deciding to revoke a supervision order.
7.13 We are grateful for the information from
the Minister on the number of UK nationals held in EU States awaiting
trial. It seems likely that at least some of these would benefit
from the present proposal, by being allowed to return to the UK
under supervision rather than being held in custody.
7.14 We shall hold the document under scrutiny
pending a further account from the Minister in due course on the
progress of negotiations.
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