House of Lords - European Union - Thirty-First Report

Select Committee on European Union Thirty-First Report

European Supervision Order

CHAPTER 1: Introduction

1. The Commission's proposal for a European supervision order[1] (ESO) seeks to address a situation of unequal treatment that currently exists in the criminal courts across the Union. Persons resident in the Member State where they are suspected of having committed a crime may be granted bail while suspects resident in another Member State may be remanded in custody. The "foreign" suspect is more likely to be detained because of the risk of flight while the local resident might be subject merely to bail conditions such as a reporting obligation or travel prohibition.

Bail/liberty denied to thousands

2. The Commission estimates that at any one time some 4,500 EU nationals (10,000 each year) are held in custody in EU countries other than their normal country of residence.[2] In the absence of an international instrument specifically enabling the transfer of bail or other pre-trial supervision measures from one Member State to another, these "foreigners" may be detained for many months pending the outcome of the criminal investigation or trial. A number of them would be unlikely to be granted bail in any event because of the serious nature of the crimes of which they are suspected (e.g. murder, rape and robbery). But the Commission believes that as many as 80 per cent of EU nationals held in pre-trial custody each year could be subject to an alternative pre-trial non-custodial measure.

The cost to the individual

3. The present situation has implications for both the individual concerned and Member States. A person kept in custody in a foreign State may be cut off from family and friends and, if the detention lasts for any substantial time, may lose his job. It is desirable, as the Council of Europe has recently recommended, for humanitarian and social reasons to restrict custody pending trial to the minimum compatible with the interests of justice.[3] The Commission has also assessed the economic cost to the individual, if detained (for an average 5.5 months) and acquitted at trial, at €11,000 (€2,000 euros per month).[4] Stephen Jakobi, founder and formerly director of Fair Trials Abroad and currently consultant, Cross-Border Justice, described the Commission's attempt to quantify the individual's experience in economic terms, by reference to compensation sums, as "risible". However he acknowledged the potential seriousness of refusal of bail for the individual concerned: "The psychological effect on the innocent is devastating, and frequently long-term or permanent. Suicide on release, though rare, is not unknown" (p 1).

4. Businesses, and in particular small firms, may also be seriously affected. The Freight Transport Association (FTA) pointed out that many transport undertakings comprise sole traders with just one vehicle or are small businesses with no more than two or three lorries. Detention of what amounts to perhaps one third or one half of a small operator's driver employees could therefore lead to serious difficulties for the continuing viability of that business (p 95).

The cost to the State

5. Keeping persons in pre-trial detention has significant cost implications for the public authorities concerned. Such costs vary between Member States, and in the UK are not insignificant. The Commission quotes the cost per person per year in the UK as €36,473 (€3,039 per person per month) which is just below the average (€36,996 and €3,079 respectively) across the Union.

6. The Commission also notes that the excessive or unnecessary use and length of pre-trial detention contribute to prison overcrowding, which may impact on conditions of detention and the effectiveness of a State's penal policy.

Present position unacceptable

7. In the English courts bail may be refused where there is a risk of re-offending, of interference with evidence or witnesses, or of flight. The Law Society of England and Wales (the Law Society) recognised that the risk of flight may be perceived as greater for a non-resident and that conditions, such as a fixed address and community ties, might be more problematic for a non-resident. But, the Law Society said: "the near-automatic denial of bail is unacceptable" (p 55, QQ 229-31). We agree. It concerns us acutely that people are not being given bail in the trial State at the moment on the basis that, as non-residents, they are likely to abscond and go back to their State of residence, or for more technical reasons, such as a lack of fixed address in the trial State. The numbers (quoted above) are not huge but they are substantial.

How the European supervision order could help

8. The Commission's proposal is aimed at enhancing the right to liberty (a fundamental right set out in the European Convention on Human Rights and Fundamental Freedoms (ECHR), Article 5), reinforcing the presumption of innocence (Article 6, ECHR) and removing any discrimination against non-residents. The ESO would do this by providing a mechanism under which a judicial authority in Member State A could impose a non-custodial supervision measure on the foreign suspect which would be recognised and enforced in Member State B where he is normally resident. The authorities in Member State B would supervise compliance with the order and would also be responsible for returning him for trial were he not to return on his own when summoned to do so by the trial State.

9. The ESO would not just deal with the case of the non-resident denied bail. At present, persons made subject to a pre-trial non-custodial order may have to remain in the trial State because there is currently no mechanism for that order to be policed in the home State and the person concerned to be returned for trial. Stephen Jakobi referred to such persons as the "marooned" (Q 10). The ESO would help them too.

The European arrest warrant

10. It might be thought that with the introduction of the European arrest warrant (EAW) courts would be more willing to grant bail to persons normally resident in another Member State. In theory the EAW provides a simple mechanism to ensure their return.[5] However, EAW cases are dealt with at the City of Westminster Magistrates' Court and, the Law Society commented, other judges and legal practitioners are therefore not necessarily familiar with the EAW scheme. Even where they are they may still be concerned that there are grounds for non-execution of an EAW (QQ 233-7). It is not automatic that a suspect will be returned under an EAW, so the court may have a residual concern that it will not be able to secure the return of a suspect who does abscond. Further, the EAW only applies in the case of offences punishable by a minimum of one year's imprisonment whereas it is envisaged that the ESO would also be available for less serious offences (including, for example, road traffic offences).

ESO—a welcome measure

11. Response from our witnesses to the ESO has been positive. There is general agreement that there is a real problem which the ESO could, with some amendment, address. The Government themselves "welcome the general idea in principle": Baroness Scotland of Asthal QC, then Minister of State, Home Office, acknowledged that the ESO could bring "real benefits". Their approach is, however, a cautious one: "safeguards would need to be in place to protect our national law and our policies" (QQ 421, 446).

Attitudes/level of support in the Council

12. The Hague Programme was adopted by the European Council on 4-5 November 2004 and sets out a work programme for 2005-2009 in the field of justice and home affairs. It makes no reference to the ESO, a silence to which we drew attention in our 2005 Report on the Hague Programme.[6] The only specific mention in the Hague Programme of protection of the rights of the defendant was in relation to the proposed Framework Decision on procedural rights in criminal proceedings. This measure was to be agreed by the end of 2005. As we have noted elsewhere,[7] the proposal has proved to be controversial and only recently have Member States moved towards the possible adoption of a much restricted measure.[8] However, despite the priority given to agreement of the Framework Decision by the German Presidency and the apparent progress towards an acceptable solution, Member States failed to reach a consensus on the proposal at the 12-13 June Justice and Home Affairs Council meeting.[9] The European Council has subsequently called on Member States to continue work on the Framework Decision.[10]

Competing priorities

13. The Council of Ministers has yet to accord any priority to the ESO. The proposal was adopted by the Commission in August last year (2006) but to date there has been very little consideration of the proposal in the Council. There has been one meeting in a Council working group (officials) and the Government told us that the current Portuguese Presidency "have indicated a wish to have an orientation debate to establish whether Member States support the general principle of EU action in this area and whether it should be taken forward or not" (Q 421). The Government's own work on the proposal is at an early stage and the Minister indicated that there was still much to do in considering the detail and the possible costs implications (Q 456).

14. We were told that there is no evidence of general will for the ESO on the part of Member States to date (Q 430). Baroness Scotland spoke of "a plethora of other competing important work upon which we also have to deliver which is very, very pressing" (Q 466). But, as the then Minister also said, the fact that so much time, energy and commitment has been devoted to the ESO by the Commission is a clear indication that they believe that this is a pressing European issue that the Council should grip (Q 431).

Engaging Member States' attention

15. The significant problems encountered in the Council in relation to rights-based instruments such as the Framework Decision on procedural rights was remarked upon by some of our witnesses. JUSTICE said: "We are very concerned that while greater judicial co-operation is taking place between EU Member States, sufficient provision for common standards for suspects and defendants' rights has not been made" (p 96). The Commission acknowledged the political difficulties which the Framework Decision had faced but it retained the hope that it would be adopted because, although the Commission's text has been considerably watered down, the Framework Decision would bring some added value to the rights provided in the ECHR, in particular with regard to legal assistance and the right to interpretation and to translation (Q 214).

16. It would be regrettable if the ESO proposal were to meet a similar fate to that of the Framework Decision on procedural rights. It therefore seems necessary to engage Member States' attention to the practical benefits of the ESO. Baroness Scotland said: "What we have seen taking place more and more is that countries are seeking to concentrate, actually in a very British way, in a pragmatic way, on what works, what will deliver real benefits, how we can get a practical outcome out of this, and it very much depends, I think, on whether it is perceived to be a Europe-wide issue" (Q 427).

17. The ESO would have the result of releasing on bail people who should be granted bail rather than being detained on remand and who might well eventually be acquitted and would therefore have spent time in custody when they should not have. As mentioned it is the Commission's case (and we have seen no evidence to dispute their analysis) that at any one time some 4,500 foreign nationals may be being held in custody, 80 per cent of whom might be suitable for pre-trial supervision. This is a substantial number which Member States should be slow to neglect. In addition, there are the potential savings resulting from freeing up prison places. Although, as we accept, the executing State will bear the costs of executing the ESO, a substantial part of which burden is likely to fall on local police forces, it would be extremely regrettable if Member States, with more people detained abroad than other country nationals held at home, were to determine their approach to the ESO on the basis of the numbers, as Baroness Scotland suggested could be the case (Q 446).

18. To date EU action in criminal law has focussed primarily on enforcement measures at the expense of human rights and civil liberties—a fact which is entirely understandable given the pressing need for States to cooperate in attacking terrorism and organised crime. Progress on measures, such as the Framework Decision on procedural rights, primarily addressed at safeguarding and strengthening the rights of the individual, has in contrast been slow and disappointing.

19. The ESO, whose aim is to enhance the right to liberty and the presumption of innocence, is therefore a welcome measure. The Commission's proposal addresses a serious issue affecting the liberty of the individual. It has the potential to reduce hardship for some thousands of EU citizens and is a proposal which, we believe, deserves prompt attention by Member States. However, as we explain in Chapters 3 to 5, there are a number of places where the ESO needs to be improved if it is to be workable.

Other parliaments

20. We are aware that a number of other parliaments have the ESO under scrutiny. We have had the benefit of seeing the opinion and recommendations of the German Bundesrat and await the reactions of other national parliaments with interest. The European Parliament's LIBE Committee has appointed a rapporteur and discussion in the Committee of a draft report on the proposal is currently scheduled for September 2007. Copies of this Report will be provided to the European Parliament and other national parliaments as is our regular practice.

Conduct of inquiry