Letter dated 28 March 2007 from Gerry
Sutcliffe MP, Parliamentary Under-Secretary of State, Home Office
DRAFT COUNCIL
FRAMEWORK DECISION
ON THE
APPLICATION OF
THE PRINCIPLE
OF MUTUAL
RECOGNITION TO
JUDGEMENTS IN
CRIMINAL MATTERS
IMPOSING CUSTODIAL
SENTENCES OR
MEASURES INVOLVING
DEPRIVATION OF
LIBERTY FOR
THE PURPOSE
OF THEIR
ENFORCEMENT IN
THE EUROPEAN
UNION 13080/06
I was grateful for the opportunity to debate
the draft EU prisoner transfer agreement at the meeting of Scrutiny
Committee B on 20 February. During the debate I undertook to write
to the Committee on some of the issues raised. I am sorry for
the delay in doing so.
I would first like to repeat my regret that
it was not possible to hold the debate before the Government participated
in a general approach at JHA Council on 15 February.
As you know, the Scrutiny Committee made its
request for a debate on 29 November 2006, shortly before JHA Council
which was held on the 4-5 December. The JHA Council failed to
resolve the difficulties of one Member State. As a result the
issue was referred to the incoming German Presidency to resolve
through bilateral discussions. At that point the Government did
not expect the Framework Decision to return to Council before
Easter.
Arrangements were made for the Committee to
debate the Framework Decision on 20 February. This date was acceptable
to both Ministers and to the Committee. On 11 January Michael
Connarty wrote seeking clarification of the Government's intention
to give agreement to the Framework Decision. On 24 January Joan
Ryan explained that the Government had never intended to give
its agreement to the Framework Decision at December Council but
had instead sought to participate in a general approach. Participation
in a general approach enables a Member State to re-open substantive
discussions on the text of the agreement if necessary. In light
of the Committee's concerns and the then likelihood that the Framework
Decision would return to JHA Council in February, my officials
sought to bring forward the date of the debate but no mutually
acceptable time could be found when both the Committee and a Minister
were available.
The draft EU prisoner transfer agreement provides
a mechanism or the transfer of prisoners between Member States
of the European Union. The Agreement will not apply to the transfer
of prisoners to or from non-Member States. Member States will
continue to apply existing international arrangements in their
dealings with non-Member States. Transfers to and from Turkey,
for example, will continue to be dealt with under the terms of
the Council of Europe Convention on the Transfer of Sentenced
Persons.
The draft Framework Decision is not expected
to be adopted until later this year; as a consequence the Framework
Decision will not enter into force until late 2009 at the earliest.
Prisoners sentenced prior to the date of adoption will not qualify
for transfer under this Agreement. However those sentenced between
the date of adoption and date of implementation will form a pool
of between 500 and 1,000 prisoners who could be transferred under
these arrangements. An assessment of the annual cost of implementing
this Agreement or of the annual savings to the Prison Service
as a result of transferring prisoners has not been made. As I
explained at the Committee this agreement is not primarily about
cost savings, as important as that is, it is about the rehabilitation
of the prisoner and through that improved public protection. However
we expect that the UK will be a net "exporter" of prisoners
and benefits will flow from freeing up valuable prison places.
Detailed work on the implementation of the Framework
Decision including procedures for considering individual cases,
will take place over the course of the coming months. However,
in practice, the arrangements are likely to be broadly as follows:
The Framework Decision requires each Member
State to designate a Central Authority for the purpose of processing
transfer requests. In England and Wales applications for transfer
under the Framework Decision wilt be dealt with administratively
and the Offender Policy & Rights Unit of the National Offender
Management Service will be the designated Central Authority. This
Unit is currently responsible for the consideration and determination
of applications for repatriation to and from England and Wales
under existing prisoner transfer arrangements and so has considerable
experience in dealing with such matters. Separate Central Authorities
will be designated for Scotland and for Northern Ireland.
Arrangements will be put in place to identity
EU nationals on reception into prison following sentence and for
notification to be forwarded to the Central Authority. The Central
Authority will look at each case in accordance with the criteria
for forwarding a certificate set out in Article 3 of the Framework
Decision. Those prisoners who appear to meet one or more of the
criteria will be notified of their liability to be transferred
and of the consequences for them of such a transfer. They will
then be invited to give their opinion in writing. The opinion
of the sentenced person will be taken into account when deciding
whether to proceed with the transfer, and to which country a certificate
should be forwarded, but the prisoner will not be required to
give consent to transfer and will not therefore be able to veto
transfer simply by withholding consent. In reaching a decision
about whether or not to forward a certificate and judgment to
the executing State, due weight will be given to the prisoners
links, if any, with the United Kingdom, and his links with the
executing State. As the issuing State the United Kingdom has a
responsibility to satisfy itself that transfer serves the interest
of the social rehabilitation of the prisoner concerned.
A prisoner will be notified of any decision
taken with regard to his transfer. The draft Framework Decision
does not provide a mechanism enabling a prisoner to appeal a decision
to forward a certificate and to request transfer. The Government
does not intend to build in a formal appeals process. However,
prisoners will be free to notify the Central Authority of any
information that could materially affect the decision to transfer.
A prisoner will retain the right to seek judicial review of the
Secretary of State's decision to forward the certificate and judgment.
It is difficult to estimate the number of prisoners who may seek
to challenge the decision to transfer by way of judicial review.
We expect that initially a number of prisoners may seek to do
so. However, we expect quickly to build up a body of case law
which will feed into the decision making process. Any costs incurred
should be seen in the light of ongoing annual savings associated
with the freeing up of a prison place.
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