7 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
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 14 May 2007
|
| Previous Committee Report | HC 41 -xviii (2006-07), para 6 (18 April 2007); HC 41-xii (2006-07), para 5 (7 March 2007)
|
| 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 We considered this proposal by Germany and France for the
recognition and enforcement of suspended and other non-custodial
sentences on 7 March and 18 April 2007. We noted that the proposal
sought to promote the social rehabilitation of an offender in
the country in which he ordinarily resides by providing for the
mutual recognition of suspended sentences and alternative sanctions
and for their supervision in that country, rather than the country
of conviction.
7.2 We broadly welcomed the proposal, 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. In reply
to our question about the Government's intention to cause the
proposal to concentrate on the more serious offenders released
on licence, rather than on the transfer of wholly suspended custodial
sentences or community sentences, the Minister explained that
the Government's objectives were both to provide opportunities
for the better rehabilitation of British citizens, and to improve
public protection. In relation to the latter 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 post-custodial supervision.
7.3 The Minister also explained that the Government was concerned
about the potential costs, bureaucracy and practicality of a system
to cater for the full range of sentences which were currently
within the scope of the proposal, questioning for example whether
the benefits of transferring of an order for a small number of
hours of unpaid work would outweigh the considerable administrative
effort which would be required. We understood the points
the Minister was making, but we recalled our view that a major
benefit of the proposal was that it might lead to a lesser likelihood
of a UK national being imprisoned abroad in circumstances where
a national of that country would not, and looked to the Minister
not to lose sight of this benefit in her attempts to narrow the
scope of the proposal.
7.4 In reply to our question about designating administrative,
rather than judicial, authorities as being competent authorities
for the purposes of the proposal, the Minister confirmed that
only court judgments to impose a conditional or alternative sanction
(as opposed to imprisonment) would be recognised under the proposal,
but that in some Member States, the precise nature of the sanction
(such as the nature and frequency of reporting requirements) is
then determined administratively. We acknowledged 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
and looked forward to a further account as to how the point was
being addressed.
7.5 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 commented that this provision would effectively
require Member States not to enter into agreements which would
conflict with the Framework Decision, and accepted that it might
give rise to a theoretical constraint, but that the Government
did not consider that in practice its freedom of manoeuvre would
be restricted. We accepted 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 appeared to us to impose a more
extensive restriction than an obligation not to conclude agreements
conflicting with the Framework Decision, and we asked the Minister
if it would not be preferable to seek an amendment to make the
provision correspond more closely to the meaning explained to
us.
The Minister's reply
7.6 In her letter of 14 May 2007 the Minister of State for the
criminal justice system and offender management at the Home Office
(Baroness Scotland of Asthal) reassures us that that the Government
is bearing in mind that one of the benefits of the proposal is
that a UK national convicted abroad might be less likely to receive
an immediate custodial sentence where a national of that country
would not, but also repeats her earlier view that the scope of
the proposal needs to be narrowed if it is to be workable.
7.7 The Minister also informs us that the discussion of the definitions
in Article 2 of the proposal will include consideration of the
way in which administrative arrangements following a court conviction
are to be dealt with. The Minister explains that new definitions
of "conditional release" and "probation decision"
are under consideration, in order to cover the case where the
executive decides on a release on licence or determines the exact
nature of an alternative sanction.
7.8 In relation to Article 20, the Minister explains that its
wording is identical to that of the Framework Decision on the
mutual recognition of custodial sentences,[24]
and that, accordingly, attempts to amend the drafting would be
unlikely to succeed and "may have the undesirable consequence
of different interpretations of the two provisions".
7.9 The Minister adds that the Presidency intends to discuss this
proposal at the Justice and Home Affairs Council on 12/13 June,
with a view to "getting a steer on five key issues: aim;
scope; types of suspensory measures and alternative sanctions;
dual criminality and the division of competence between the issuing
and executing State".
Conclusion
7.10 We thank the Minister for her helpful letter, and we look
forward to a further account in due course of the negotiations
on the scope of the proposal, the treatment of administrative
arrangements following a conviction and of the outcome of the
discussions at the forthcoming Justice and Home Affairs.
7.11 We note the Minister's comments on the feasibility of
negotiating an amendment to Article 20. In our view, there is
a difference between a provision which permits agreements to be
made with third countries "in so far" as such agreements
allow the prescriptions of the Framework Decision to be "extended
or enlarged", and a provision which merely obliges Member
States not to make agreements which contradict the Framework Decision.
The Minister has explained in her earlier letter to us that the
UK's freedom of manoeuvre would not in practice be restricted,
and we place weight on that assurance. Nevertheless, we think
that the wording of Article 20 is unfortunate, and we trust it
will not be used as a precedent in future proposals.
7.12 We shall hold the document under scrutiny pending a further
account from the Minister on the negotiations.
24 I.e. The draft Council Framework Decision on the
application of the principle of mutual recognition to judgments
in criminal matters imposing custodial sentences or measures involving
deprivation of liberty for the purpose of their enforcement in
the European Union. Back
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