6 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 base | Articles 31(1)(a) and (c) and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 21 March 2007
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| Previous Committee Report | HC 41-xii (2006-07), para 5 (7 March 2007)
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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
6.1 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, but impose some condition or restriction as an alternative
to imprisonment or a fine.
6.2 We considered this proposal by Germany and France on 7 March
2007. We noted that it sought 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. Provision is accordingly made for the
transfer of a judgment to a Member State in which the offender
is "legally and ordinarily resident" and for the supervision
in that State of non-custodial measures.
6.3 We agreed with the Minister that the proposal was broadly
to be welcomed as it seemed probable that UK nationals convicted
abroad would 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. We asked the Minister
to explain the Government's intention to seek to shape the proposal
so as to concentrate on the more serious offenders released on
licence, rather than on the transfer of wholly suspended custodial
sentences or community sentences, as it seemed to us that this
approach might limit the benefits of the proposal as applied to
the position of UK nationals abroad, and we asked to what extent
the Government's views were focused on the transfer to other Member
States of non-national prisoners held here, rather than on the
position of UK nationals convicted abroad.
6.4 We noted the Minister's concern that the UK should be free
to designate administrative, rather than judicial, authorities
as being competent authorities for the purposes of the proposal
and asked the Minister to confirm that the decisions or orders
which would be eligible for mutual recognition and enforcement
would, in all cases, be ones imposed by an authority with recognisably
judicial functions.
6.5 We noted that Article 20 of the proposal permitted Member
States to continue to apply or to conclude bilateral or multilateral
agreements insofar as these allowed the objectives of the proposal
to be "extended or enlarged" and we asked the Minister
to explain if there was any risk that it might be inferred from
this provision that the United Kingdom's freedom to conclude or
maintain agreements in this area with third countries had been
limited.
The Minister's reply
6.6 In her letter of 21 March the Minister of State for the criminal
justice system and offender management at the Home Office (Baroness
Scotland of Asthal) explains that the Government's objectives
are both to provide opportunities for the better rehabilitation
of British citizens (and nationals of other Member States) convicted
in a Member State other than their own, and to improve public
protection. The Minister adds that the second of these objectives
is not currently explicit in the recitals, but that it ought to
be made so and that there were considerable advantages to be obtained
if a British offender convicted of a serious crime abroad could
serve his licence under supervision in this country, rather than
being required to serve it abroad, and then permitted to return
here with no supervision.
6.7 The Minister further explains that the Government is concerned
about the potential costs, bureaucracy and practicality of a system
to cater for the full range of sentences which are currently within
the scope of the proposal. In reply to our comment that the narrowing
of the scope of the proposal might limit the benefits which would
otherwise be made available for UK nationals convicted abroad,
the Minister notes that the Government's concerns are ones of
practicality, rather than with any particular concern over foreign
prisoners held here. The Minister states that the Government is
not persuaded, for example, that "the benefits of transferring
an order for a small number of hours of unpaid work would outweigh
the considerable administrative effort required to do that".
The Minister adds that the definition of "alternative sanctions"
varies very significantly across Member States and that the Government
questions how easy it would be in practice to transfer such sanctions.
6.8 The Minister notes further that, whilst the above considerations
apply to some extent to wholly suspended sentences, there is a
better understanding of these across the EU where they tend to
be regarded, as here, as more serious than community sentences.
The Minister points out that the Government is not seeking to
have this kind of sentence taken out of the scope of the proposal.
6.9 In relation to our concern over the designation of administrative,
as well as judicial, authorities as competent authorities for
the purposes of the proposal, the Minister confirms that "only
court judgments" would be recognised under the proposal.
The Minister further explains that in some Member States, the
court makes the decision to impose a conditional or alternative
sanction (as opposed to imprisonment) but that the precise nature
of the sanction is then determined administratively. The Minister
adds that the Member States concerned are seeking to include such
measures within the scope of the proposal, as without them the
Framework Decision would be unworkable in their jurisdictions.
The Minister states that the Government does not consider this
to be a problem as the judgment would be given by a court, and
compares the situation with that of a domestic Community Order
supervision where the nature and frequency of reporting requirements
are determined by the Probation Service, rather than by the court.
6.10 With regard to our concern over the effect of Article 20
of the Framework Decision on the freedom of the UK to conclude
agreements with third countries, the Minister comments that this
provision would "effectively require" Member States
not to enter into agreements which would conflict with the Framework
Decision. However, the Minister states that the Government "cannot
imagine" that it would wish to do so. The Minister agrees
that the provision may give rise to some theoretical constraint,
but states that the Government does not consider that in practice
its freedom of manoeuvre would be restricted.
Conclusion
6.11 We thank the Minister for her helpful letter. We note
the Government's concern with public protection in relation to
the release on licence of the more serious offenders, and we readily
understand the point the Minister is making. However, we also
consider that a major benefit of the proposal is that it may lead
to a lesser likelihood of a UK national being imprisoned abroad
in circumstances where a national of that country would not. We
look to the Minister not to lose sight of this benefit in her
attempts to narrow the scope of the proposal.
6.12 We are grateful for the Minister's explanation that the
judgments to be recognised under the proposal would in all cases
be made by a court. We accept, in principle, that detailed arrangements
such as frequency of reporting requirements are in fact made by
administrative authorities and that such administrative arrangements
may need to be included within the scope of the proposal. We look
forward to a further account from the Minister in due course as
to how the point is being addressed.
6.13 We are reassured, to an extent, by the Minister's analysis
of the provisions of Article 20 and accept that it would be unlikely
that the UK would wish to enter into an agreement with a third
country which would conflict with the operation of the Framework
Decision. However, the terms of Article 20 appear to allow Member
States to conclude agreements with third countries only "in
so far as" such agreements allow the prescriptions of the
Framework Decision to be extended or enlarged. This appears to
us to be a more extensive restriction than an obligation not to
conclude agreements conflicting with the Framework Decision, and
we ask the Minister if it would not be preferable to seek an amendment
to correspond more closely with the Minister's explanation to
us.
6.14 We shall hold the document under scrutiny, pending further
information from the Minister.
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