Select Committee on European Scrutiny Twelfth Report


5 Recognition and supervision of suspended sentences

(28287)

5325/07

Draft Council Framework Decision on the recognition and supervision of suspended sentences and alternative sanctions

Legal baseArticles 31(1)(a) and (c) and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament23 January 2007
DepartmentHome Office
Basis of considerationEM of 28 February 2007
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

5.1 The laws of EU Member States provide for a range of measures in relation to criminal offences which do not involve the imposition of a sentence of imprisonment (to be served immediately) or a fine. Such measures include ones which are analogous to a suspended sentence, or Community Service Orders (in Scotland and Northern Ireland) or a community sentence (in England and Wales). Such measures generally involve some condition or restriction being imposed on the sentenced person as an alternative to imprisonment or a fine.

5.2 A number of Member States (not including the UK) have ratified the 1964 Council of Europe Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders.[21] The Convention provides for the Contracting Party of the offender's ordinary residence to supervise, when so requested, probation orders or suspended sentences imposed in other Contracting Parties. The Convention requires that the relevant offence for which the sentence has been imposed should be an offence under the laws of both the requesting and requested State (i.e. dual criminality is required). The 1964 Convention has been ratified by Austria, Belgium, Czech Republic, Estonia, France, Italy, Luxembourg, the Netherlands, Portugal, Slovakia, Slovenia and Sweden.

The draft Council Framework Decision

5.3 The draft Framework Decision is proposed by Germany and France. It seeks to achieve an objective similar to that of the 1964 Council of Europe Convention, namely to promote the social rehabilitation of an offender in the country in which he ordinarily resides as an alternative to being imprisoned in a foreign country. To achieve this objective, the proposal provides for mutual recognition of suspended sentences and alternative sanctions and for their supervision in the requested State.

5.4 By virtue of Article 2, the proposal applies to suspended sentences, "alternative sanctions" (obligations imposed as an independent sanction which is not a custodial sentence, detention order or financial penalty) and "conditional sentences" (these latter being defined as "conditionally suspending the imposition of a sentence or detention order by imposing one or more suspensory measures".

5.5 Article 3 provides that the proposal "shall not have the effect of modifying the obligations to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union".[22] Article 4 provides for the Member States to determine which judicial authority, or authorities, are competent for the purposes of the proposal.[23]

5.6 Article 5 provides for the transfer of a judgment to a Member State in which the offender is "legally and ordinarily resident" if the judgment imposes one or more non-custodial measures. The measures in question are an obligation to notify any change of residence, orders not to leave or enter certain localities without permission and other orders "relating to life-style, residence, education and training, professional activity or leisure activities", orders to report at certain times, to avoid contact "with persons and objects which could form an incitement to commit further offences", to "compensate for the prejudice caused by the offence", to carry out community service, to undergo therapeutic treatment or treatment for addiction and probation orders. Member States may inform the Secretariat General of the Council of any additional measures which they are prepared to supervise.

5.7 Article 6 provides the procedure for forwarding the judgment, together with a certificate signed by a judicial authority, to the supervising State. By virtue of Article 7 the supervising State must recognise the judgment and immediately take all necessary measures for the supervision of the suspensory measures and alternative sanctions, unless there are grounds under Article 9 to refuse recognition. In cases where the measures imposed by the sentencing State are incompatible with the statutory provisions in the executing State, the latter may adapt those measures to accord with its own provisions relating to similar offences, but the measures adopted must "correspond as far as possible" to those imposed in the sentencing State and may not in any event be more severe than those originally imposed.

5.8 Article 8 disapplies the principle of dual criminality in respect of a list of 32 types of conduct. The list includes such items as "computer-related crime", "environmental crime", "racism and xenophobia", "swindling" and "sabotage". In respect of these items (and provided they are punishable in the sentencing State by a sentence of at least three years' imprisonment) the executing State may not refuse to recognise and enforce an order on the grounds that the same conduct would not be criminal within the national territory.

5.9 Article 9 provides a number of grounds on which an executing State may refuse to recognise and enforce an order. These include cases where in the executing State the rule against double jeopardy would be infringed, where a prosecution would be statute-barred, where the sentenced person is below the age of criminal responsibility, and where the judgment provides for medical or therapeutic treatment which the executing State is unable to supervise "in view of its legal or healthcare system" or where no agreement can be reached with the executing State on the adaptation of the measures ordered.

5.10 Article 10 fixes a time limit of 10 days for responding to a judgment from the sentencing State, and Article 11 provides that it is the law of the executing State which is to govern the supervision of orders in that State.

5.11 Further provision is made in Article 12(1) to confer jurisdiction on the executing State for decisions relating to the modification of suspensory measures, the "revocation of a suspension" and decisions to impose a sentence where a condition has not been complied with. However, in this latter case, under Article 12 (2) the State in which sentence was first passed may reserve to itself the power to take decisions relating to conditional sentences. Under Article 12(3), the executing State may declare that it will not assume responsibility for taking decisions relating to the order made by the sentencing State. Such a declaration does not, it seems, affect the obligation to give effect to the order under Article 7(1).

5.12 Article 14 deals with the case where the executing State has assumed jurisdiction for subsequent decisions in relation to the original order and Article 15 provides for the case where such jurisdiction is reserved by the sentencing State. In the circumstances covered by Article 14, the executing State is required to inform the sentencing State of any adaptation, revocation or imposition of a sentence where a condition has not been complied with. Conversely, under Article 15 the sentencing State must inform the executing State of any variations. In cases where a sentence is imposed for failure to comply with a condition the sentenced person "must be given a judicial hearing"[24]

5.13 Article 16 preserves the power of both States concerned to grant an amnesty or pardon. Article 17 provides for the transfer of jurisdiction by an executing State to the sentencing State in any case where the sentenced person leaves the executing State and establishes his "lawful habitual residence" in another Member State.

5.14 Article 20 permits Member States to continue to apply or to conclude bilateral or multilateral agreements insofar as they allow the objectives or prescriptions of the Framework Decision to be "extended or enlarged and help to simplify or facilitate further the procedures for the supervision of suspensory measures and alternative sanctions".

The Government's view

5.15 In her Explanatory Memorandum of 28 February the Minister of State for the criminal justice system and offender management at the Home Office (Baroness Scotland of Asthal) explains that the Government broadly welcomes the proposal, which would encompass in the jurisdictions of the UK what would normally be regarded as release on licence, suspended sentences and community orders. The Minister considers that the proposal supports the objective of reducing reoffending and believes that enabling an offender to be supervised in his home State rather than requiring him to stay in another State until he has completed his sentence is "likely to be beneficial to that end". The Minister adds that the Government also believes that public protection would be enhanced by the ability to impose supervision on offenders who have committed crimes abroad when they have returned here, provided this is consistent with the terms of their sentence.

5.16 On the other hand, the Minister states that the Government is concerned that the scope of the proposal is too wide. In the Government's view, the main benefits of the proposal would flow from the transfer of supervision of more serious offenders following their release from custody, rather than from transfer of wholly suspended custodial sentences or community sentences. The Minister adds that during the negotiations the Government will be "trying to shape the Framework Decision in this way so as to maximise the benefit for public protection".

5.17 The Minister also comments that there is a wide disparity in legal and practical provision for alternative sanctions across the EU and that these would require considerable attention to detail in implementing the provisions of the proposal.

5.18 The Minister comments, in relation to Article 4 (which provides for the designation of judicial authorities which are competent for the purposes of the Framework Decision), that "this will not work in the UK", since "what are essentially administrative rather than judicial matters" are dealt with by the executive. The Minister adds that the Government will press for a reference to a "competent authority" rather than a "competent judicial authority".

5.19 The Minister states that the Government is concerned by the breadth of the measures listed in Article 5 and questions how much advantage there might be in transferring some of the requirements involved. The Minister states that the Government's initial position is that it is more persuaded of the benefits following release from custody than in respect of alternative sanctions.

5.20 In relation to Articles 11 and 12, the Minister considers that it seems "entirely right" that the law of the supervising State should apply to the supervision in that State, and that the Government is not certain of the practicability or desirability of Article 12 which provides an exception from this principle, and that it will wish to explore this further during the negotiations.

Conclusion

5.21 We agree with the Minister that the proposal is broadly to be welcomed. In our view, it seems probable that UK nationals convicted abroad will be less likely to be imprisoned if a reliable and secure alternative means were available whereby they could be dealt with by supervision in this country.

5.22 We ask the Minister to explain in more detail the Government's intention to seek to shape the proposal so as to concentrate on the more serious offenders who are released on licence, rather than on the transfer of wholly suspended custodial sentences or community sentences. It seems to us that this approach might limit the benefits of the proposal as applied to the position of UK nationals abroad, and we ask the Minister to what extent the Government's views are focused on the transfer to other Member States of non-national prisoners held here, rather than on the position of UK nationals convicted abroad.

5.23 We note the Minister's comment in relation to the designation of administrative, rather than judicial, authorities under Article 4, but we ask the Minister to confirm that the decisions or orders which are eligible for mutual recognition and enforcement will, in all cases, be ones imposed by an authority with recognisably judicial functions.

5.24 We ask the Minister to explain if there is any risk that it might be inferred from Article 20 that the United Kingdom's freedom to conclude or maintain agreements in this area with third countries has been limited.

5.25 We shall hold the document under scrutiny pending the Minister's reply.




21   European Treaty Series No.51. Back

22   This has become a standard form provision in a number of Framework Decisions, but it is not clear how a Framework Decision could, in any event, alter a Member State's treaty obligations . Back

23   The Article would appear to allow the UK to designate more than one authority, so as to reflect the different legal districts of England and Wales, Scotland and Northern Ireland.  Back

24   Presumably, the hearing is to take place in the sentencing Member State. Back


 
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