House of Lords - European Union - Thirty-First Report

Select Committee on European Union Thirty-First Report

CHAPTER 2: The Proposal in Outline

23. Whether the ESO will encourage criminal judges to grant bail to non-residents where they would not do so at present is uncertain and to some degree contentious. As we explain in Chapters 3 to 5, there will, we believe, need to be a number of changes if the scheme proposed by the Commission is to be sufficiently clear and secure as to command the confidence of prosecutors and judges in the trial State and to be workable in both the issuing and executing States. In this Chapter we look at the ESO in outline and at the principle of mutual recognition on which it is based. Eurobail, a rival proposal, is briefly compared. Finally we consider how the burden of the ESO would be born in the UK and the important question of costs.

The question of need

24. There was general support from our witnesses for the introduction of measures allowing pre-trial supervision of non-resident defendants in their country of residence in the EU—there was a problem which the ESO, perhaps with suitable adaptation, could address. As the Crown Prosecution Service (CPS) pointed out, there are no international instruments that specifically allow the transfer of pre-trial supervision measures from one Member State to another (p 26). Mrs Bowring, for the CPS, said: "There seems to be a stark choice for prosecutors that when a non-UK resident appears in court, they are faced with either having to request a remand in custody to cover the lack of community ties or request bail with conditions that ensure the person stays within the country because clearly conditions that go beyond this jurisdiction are unenforceable. Lodging of a surety is the most common condition but of course that is not foolproof." Mrs Bowring said that the courts had adopted some innovative solutions to the problem, including using fast track procedures and imposing "imaginative" bail conditions (Q 67).

25. The numbers, as mentioned, are substantial. As stated, the Commission reckons that there are, at any one time, at least 4,500 EU nationals held in custody in EU countries other than their normal country of residence. The CPS supplied some figures in relation to the UK. At 31 March 2007 there were 580 EU nationals in UK prisons, of whom 405 were untried and 175 were convicted but unsentenced (p 37). Mrs Bowring concluded: "We are not talking about huge numbers here but clearly there is a need" (Q 69).

26. When we examined the proposed Framework Decision on procedural rights, the potential implications for individuals detained in relation to road traffic offences committed outside their State of residence was thought to be substantial.[11] But as regards the ESO, neither the Automobile Association nor the Freight Transport Association (FTA) thought that there were large numbers of UK nationals involved. The FTA said: "Those who are detained by foreign authorities tend, in the main, to have fallen foul of traffic regulations or the rules relating to driving and rest times, as well as the use of the tachograph recording instrument". Drivers detained abroad simply because of their lack of knowledge of local traffic regulations and those with no previous record of an infringement of the driving times and tachograph rules in the particular Member State concerned should, in the FTA's view, be released "at the earliest opportunity" (p 95).

The Commission proposal

27. In the explanatory memorandum to the draft Framework Decision, the Commission summarises its proposal as follows:[12]

i.e.

e.g.

i.e.

The proposal for a Framework Decision does not oblige the judicial authority to issue a European supervision order. It 'may' do so. This wording indicates that it is for the issuing authority to decide whether it wants to make use of this possibility. Although the suspect may request that a European supervision order be issued, he or she has strictly speaking no 'right' to it. However, the issuing authority must always, as a general principle, assess the elements of the case in the light of the right to liberty, the presumption of innocence and the principle of proportionality. Benefiting from a pre-trial supervision [order] in one's State of normal residence is probably often seen as less cumbersome than being subject to a supervision measure in the State where the alleged offence was committed, not to speak of being in pre-trial detention in that State.

i.e.

in absentia

e.g.

i.e.

The proposal is in principle based on an obligation for the State of normal residence of the suspect to execute a European supervision order issued by the trial State. There are, however, some, although limited grounds for refusal that may be invoked by the executing State."

28. The following flowcharts, which we have prepared, show how the procedures (a) for issuing and recognising an ESO; and (b) following breach of a condition of an ESO, would work.

FIGURE 1

Issuing and recognising an ESO

FIGURE 2

Breach of condition of ESO

Mutual recognition—the basis of ESO

29. Before looking at the detail of the Commission's proposal it is, we believe, helpful to consider the conceptual basis of the ESO proposal, i.e. the principle of mutual recognition, and its adequacy in the present context. Mutual recognition requires that a judicial decision made in one Member State be recognised and enforced in all other Member States. However, in our view the ESO is not a simple or straightforward mutual recognition measure. The duty of the executing State is not limited to "recognition" of the ESO but extends to its day to day "execution" and "enforcement", which calls for a greater role for the authorities than in many other mutual recognition instruments. In later chapters we therefore suggest that the mutual recognition principle may require some adaptation in relation to the ESO.

Importance of principle of mutual recognition

30. The principle of mutual recognition has been described as the "cornerstone" of judicial cooperation in EU criminal matters. As recital 5 to the Framework Decision on the European arrest warrant[13] states, "Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice". Mutual recognition, which seeks to minimise the need for harmonisation of laws and procedure, has, as mentioned, been endorsed by Member States at the highest level in the Tampere Conclusions and the Hague Programme. The ESO refers to Tampere,[14] though not to Hague.[15]

The importance of trust

31. The success of the ESO will be dependent on the existence of a high level of trust, not only between courts of different Member States but also in relation to other Member States' supervisory arrangements for defendants on bail. In comparison, the level of trust required for the operation of the European arrest warrant is limited: the simplified extradition procedure provided by the EAW requires the executing Member State to have trust in the issuing Member State's warrant (that it was correctly obtained, that the process offers adequate guarantees etc). In contrast, the ESO requires the issuing Member State to have trust in the courts and authorities of another Member State to carry out functions in relation to the former's own investigations and prosecutions and to return the suspect for trial in the issuing State if necessary. In short, in the case of an EAW, the issuing State has nothing to lose by using it; in the case of an ESO, the issuing State does have something to lose and may consider its interests best served by retaining the suspect on its own territory.

32. JUSTICE doubted whether a sufficient level of trust existed between at least some Member States. Discrimination could arise if some States were to be trusted more than others, because, for example, of their high levels of bail supervision in relation to domestic cases and the quality of their police forces and judicial systems, and defendants from certain Member States were granted bail to return to those States while those from others remained in custody. JUSTICE was concerned that the ESO would face the problem that other mutual recognition measures had faced—that they envisage mutual trust in a situation where standards are not equivalent across the EU. Not all Member States might exercise the same high degree of supervision of bailed suspects available in England and Wales, including curfews, electronic monitoring, reporting to police stations, etc (pp 96-97).

33. Senior District Judge Timothy Workman reported that the EAW has worked to speed up the extradition process in many cases and the principle of mutual trust had been effective in securing this (QQ 312-3). But while mutual trust was the right basis for the ESO, it was a more complex proposal than the EAW and if the detail was not sufficiently worked out the ESO might not evoke the necessary confidence in judges expected to use it (Q 315).

The rival proposal—Eurobail

34. The Commission describes the concept of Eurobail in the following way:

"This model is based on a division of functions between the trial court and the court of the suspect's country of residence. The trial court makes a preliminary assessment whether the offence is "bailable". If the answer is yes, the suspect is sent back to his or her country of residence, where the court makes the final decision on the provisional release. The State of residence is responsible for sending the person back to the trial State (if required)."[

35. The fundamental difference between the ESO and Eurobail lies in who determines the type and conditions of the pre-trial supervision measure. Under the ESO it would be the court in the trial State; under Eurobail the trial court would simply determine whether the offence was "bailable" and the court in the State of residence would decide on whether to grant bail and what conditions to impose. Consequently, where bail is refused, the suspect would, under the ESO, serve pre-trial custody in the trial State. Under Eurobail, he would be remanded in custody in his home State.

36. Because the Commission opted for a mutual recognition measure, the Eurobail concept has not been developed in a detailed proposal. There was some debate regarding what would be involved in an assessment of whether an offence was "bailable". One view is that that would require the trial court to determine whether the offence was, as a matter of law, one in respect of which bail could be granted.[17] This was the approach taken by Stephen Jakobi (the author of Eurobail) and the CPS (QQ 14, 15 and 71). But the Commission's understanding was different: the trial court would have to go further, to make an assessment on the facts and form a view as to whether it was or might be an acceptable case for bail (Q 137).

Eurobail v ESO—views of our witnesses

(I) MR JAKOBI

37. We had the benefit of hearing from Stephen Jakobi, the founder and until last year the Director of Fair Trials Abroad and, as mentioned, the author of Eurobail. Not surprisingly, he argued the case for Eurobail strongly. He believed that the ESO would "make very little difference indeed because the prejudices involved—institutionalised prejudice, I am not looking at individuals—in granting bail to foreigners will persist" (Q 10). Mr Jakobi strongly believed that Eurobail would be fairer (Q 9). He accepted, however, that Eurobail would not necessarily result in more suspects being bailed and might therefore lead to the situation where executing States effectively bear the burden of keeping in prison people awaiting trial in a foreign country. Mr Jakobi believed that this had a number of social advantages to the prisoner (Q 36).

38. Mr Jakobi did accept, however, that the ESO could help the "marooned", that is, those granted bail in a foreign country but confined to that country pending trial. The number concerned was small, "not thousands but 100 or 200 so far as we can see" (Q 10).

(II) THE COMMISSION

39. In light of the mutual recognition approach adopted in the field of EU criminal justice, it was not surprising that Mr Csonka, for the Commission, while accepting that there were arguments in favour of both schemes (Eurobail and the ESO), defended the Commission's choice of the ESO. He did not accept that there was institutionalised prejudice affecting Member States' decisions on whether to grant bail to non-residents (Q 146). He argued that the decision on bail should be in the hands of one Member State, and that this should be the trial State. He also believed that the authorities in that State would be well placed to make a decision on bail because all the evidence in the case would be gathered by the prosecutor there. Eurobail, the ESO's main rival, would, in Mr Csonka's view, dent the concept of mutual recognition and create significant difficulties between the trial State and the suspect's State of residence. He did not think Member States would depart from the principle of mutual recognition in favour of Eurobail (QQ 136, 141, 145, 215).

(III) THE CPS

40. The CPS preferred the Eurobail option: it was simpler and involved the executing State much more in the decision-making process. Mrs Bowring said: "it seems to be very straightforward". The issuing State having made the preliminary assessment, the suspect would be sent back to his home State which would apply its own legislation. Unlike the ESO, there were no parallel jurisdiction problems nor problems about information sharing and risk assessment. The CPS believed that Eurobail reduced the chances that relevant information in the bail decision-making process would not be available—not just antecedents, but details on local conditions which may affect a successful supervised period of bail. It would also ensure that the concerns of the executing State in relation to public protection would be taken into account (p 27, Q 75). Notwithstanding their preference for Eurobail, the CPS described the ESO as "a feasible and viable option". They did, however, have concerns about the detail of the proposal; notably costs; complexity of the proposed process; and the different bail rules within the European Union (EU), in particular some Member States having a more serious threshold for remand in custody (p 26).

(IV) THE LAW SOCIETY

41. The Law Society of England and Wales, on the other hand, expressed a preference for the ESO: "We believe that mutual recognition is the appropriate basis for any measures requiring enhanced cross-border cooperation and certainly in this instance" (p 55). The Law Society noted that the Eurobail concept had not been tried and tested or put through the scrutiny procedures that the ESO had, albeit at the pre-draft stage, with Commission consultations. There had been no discussions on the detail of Eurobail, of how and when the suspect would be transferred, on whether Member States would readily consent to persons being returned or to receiving them as the case may be, and on how much of the evidence would need to be transferred to the second Member State to make its determination (QQ 239, 240 and 242). The Law Society did, however, recognise that the ESO was not without its problems: "We did take the position that the supervision order was preferable, but we can see that there are lots of improvements which need to be made" (Q 239).

(V) THE JUDGES

42. Judge Workman also thought that the ESO, rather than Eurobail, was the way forward (Q 316). He said: "the best court for deciding bail is the court which is actually responsible for the offence". The trial court had the "prime responsibility". However, he added, "If it were possible to devise a system where, if they were refused bail, they could be remanded abroad then I suppose there is some merit in that" (QQ 414-7). Again, he recognised that the devil was in the detail: "I think its principle is quite simple and clear and clearly worthwhile, but the detail I think is much more difficult to work out than the European arrest warrant" (Q 407). The Magistrates Association considered that "the practical difficulties appear huge" (p 99).

(VI) JUSTICE

43. JUSTICE said that the ESO faced "major practical difficulties, especially if it is to avoid discriminatory application". The Framework Decision did not incorporate human rights protections and, in JUSTICE's view, wrongly envisaged that Member States could "out-source" their human rights obligations to one another (p 96).

(VII) THE GOVERNMENT

44. The Government acknowledged that "if you do have individuals who are not given bail for the sole reason that they are a national from another country and therefore are at risk in terms of what that judicial system sees as being a non-returner, that is obviously very serious" (Q 423). They would have preferred the Eurobail option but accepted that the ESO could "deliver some real advantages across Europe" (Q 422). However, Baroness Scotland of Asthal QC, then Minister of State, Home Office, said: "the devil really will be in the detail and that detail has not really been gone through to any extent to date" (Q 421). A particular concern of the Government in taking the proposal forward was that the ESO should "not trespass on own bail law" (QQ 422, 434).

Views of the Committee

45. When, in 1999, we considered the proposed bail rules of the Corpus Juris (a draft code of criminal law aimed at fraud on the Communities' finances) we expressed a preference for a regime based on mutual recognition and enforcement of bail conditions. We believed, at that time, that such a system might be simpler and more attractive to Member States than that of Eurobail as was then being proposed by Mr Jakobi and Fair Trials Abroad.[18] However, when the detail of the ESO, a system clearly based on the principle of mutual recognition, is examined the comparative simplicity of Eurobail is noteworthy.

46. In the conclusion of its explanatory memorandum[19] the Commission states that Eurobail "would to a certain extent address the problems in the current situation. It has already met a strong opposition from the Member States, who argued that in this model, the trial State would lose control over the pre-trial process and the executing State would be in charge of proceedings when the crime was not committed in its territory". Stephen Jakobi said: "It is a political decision about what the Commission thought they could get through the governments" (Q 20). Seen against the backdrop of the key role played by the principle of mutual recognition in the development of EU criminal law without, or with the minimum of, harmonisation of national laws, that may well be right. Any Framework Decision on bail would require unanimity and in reality some countries are likely to object to a situation, as is envisaged under Eurobail, which would put bail in the hands of other legal systems, which they do not know about and in which they may not have complete confidence.[20]

47. We also query whether the ESO would be as unhelpful in practice as Stephen Jakobi suggested. There might be more decisions that it is appropriate to grant bail because the trial State would at least know that if the foreigner was bailed, he could be escorted back to his home country for that home State to impose the necessary conditions of bail and be able to monitor him, supervise him and eventually do its best to ensure that he would finally be returned to stand trial in the trial State. Trust in the foreign system would be stronger if, as we recommend below, the Framework Decision's provisions on breach of bail conditions were made clear and strengthened in favour of local enforcement.

48. The ESO is the way forward though, as we discuss below, the mutual recognition principle might be usefully supplemented by allowing a greater role for the executing State than is currently envisaged in the ESO proposal.

Division of competence between issuing and executing States

49. The principle of mutual recognition does not exclude the possibility of a division of competence and responsibility that accords a measure of control to the executing State. The French and German initiative for a Framework Decision on the recognition and supervision of suspended sentences[21] is a case in point and provides an interesting comparison with the ESO. The Framework Decision would allow non-resident offenders on whom suspended sentences or alternative sanctions have been imposed to return to their home States to serve the sentences there. However, unlike the ESO, the suspended sentences proposal envisages that once a judgment imposing a suspended sentence or alternative sanction has been transferred to the executing State, the sentencing (or "issuing") State would no longer have competence to take further decisions relating to the sentence, including revoking or modifying the suspensory measure or indeed imposing a sentence in the case of conditional sentences, although there is provision allowing the sentencing State to reserve competence in relation to conditional sentences. We note that in this case the Government are strongly in favour of full transfer of suspended custodial sentences and release on licence cases to the State of residence.[22]

50. At first glance it may be thought that there is some inconsistency in approach between the suspended sentences and ESO proposals. However, closer examination reveals this not to be the case. Where the ESO applies, the issuing State has a strong interest in retaining control over the procedure as it is expected that the accused will ultimately return to the issuing State for trial. In contrast, the suspended sentences proposal deals with transfer of a sentenced person once the trial process has been completed and, in most cases, no further procedure is envisaged in the sentencing State. The importance of this difference is highlighted by the distinction drawn in the suspended sentences proposal between suspended sentences (a custodial sentence has been imposed but its execution is suspended) and conditional sentences (a custodial sentence has not been imposed but may yet be imposed). As noted above, the sentencing State is entitled to reserve competence in relation to conditional sentences, which implicitly recognises that the sentencing State—as the "owner" of the judicial process—has a strong interest in imposing any sentence itself.[23] Thus it can be seen that the question of division of competences is not clear-cut. We return to this issue in Chapter 5 where we deal with the question of enforcement of the ESO.

Greater involvement of the executing State—a hybrid approach

51. As the detailed analysis of the proposal set out in Chapters 3 to 5 reveals, the proposed Framework Decision requires substantial amendment, at least in parts, if it is to be clear and workable. In some instances amendment may be needed simply to make clear what the Commission's scheme currently intends as part of its implementation by Member States. It is not just a question of trust (or lack of it). There are, as we explain in Chapter 5, sound practical reasons why greater responsibility and even a measure of control should be given to the executing State. While we support a mutual recognition measure here, we believe that such a measure will not work in this context without substantial augmentation.

52. Whether greater involvement of the executing State in the issuance and enforcement of an ESO would mean that the outcome could or should be characterised as a hybrid, as the Law Society at one point seemed to suggest (Q 239) and Baroness Scotland did not dismiss (Q 425), is debatable. The ESO would remain the order of the judge in the issuing State.

Practical burden—how the ESO might affect the UK

53. There is no clear evidence or even estimate as to what the effect of the ESO would be as regards the UK. Baroness Scotland said: "We are not certain of how many numbers we are talking about, how many people would have to come back and how many people would be sent. We are looking at the options internally. We are trying to discover what the practical implications would be because once we have done that, of course it better enables us to advocate a system which we think would work" (Q 458).

54. Mr Gibbins, for the CPS, said that there were concerns among practitioners that the UK would be more likely to be on the receiving rather than the issuing end of ESOs. One reason for this related to the definition of "issuing authority" and the different nature of criminal proceedings in some other Member States. The ESO, Mr Gibbins explained, would be available for countries using the investigating magistrates' system: "One can imagine the situation where a British national is being investigated by an investigating magistrate in a European State for an offence; it might not be a particularly serious offence and the inquiries might not be at a particularly advanced stage. The investigating magistrate may, at some stage, wish to talk to him again, and indeed may at some stage want to charge him, or whatever the equivalent would be. The European supervision order would be a very attractive proposition in those circumstances because it would involve supposedly little cost by way of detention, which would be the alternative in that country's courts" (Q 79).

55. The CPS also drew attention to the difference between the ESO and the EAW. Extradition is dealt with by a specialist division within the CPS and is dealt with by a limited number of judges at designated courts and a relatively limited number of defence practitioners. EAW cases are dealt with at the City of Westminster Magistrates' Court. By contrast, the CPS envisaged the ESO procedure being applied in any magistrates' court and therefore any prosecutor and defence practitioner could come up against it (Q 98). The CPS noted that the Framework Decision made no provision for a central authority but contemplated direct transmission between authorities. In relation to the EAW the Serious Organised Crime Agency (SOCA) had been designated as the central authority for the receipt and transmission of dealings on EAWs (QQ 101, 103).

56. We consider that there may be a case for designating one or more central authority/ies in the UK to deal with incoming ESOs. This is a question we consider further in Chapter 3.

The general costs burden

57. The CPS expressed concerns over costs. It envisaged that in England and Wales the police would have the responsibility for dealing with the day to day supervision of ESOs. The CPS would deal with the court proceedings and elements of the liaison between the issuing and executing authorities. The bulk of the work would fall to the police and/or to a central authority that was charged with it (p 26, Q 109).

58. Mrs Bowring said: "We have noted what the [Commission's] impact assessment says, that there will be no additional operational expenditure. We are slightly unclear as to how this conclusion was reached. As we see this, there will be real costs in training of the judiciary, court staff, CPS, defence practitioners and the police at the moment". There would also be costs in relation to the liaison aspects of the ESO: "when we receive the European supervision order from the issuing authority, for certain conditions they need our agreement. We do have to look at it. It is complex and you need the people there to deal with it in a skilled manner. Obviously there is a cost in manpower hours as well as in the training involved." There would also be costs for the police in carrying out the supervision of those subject to ESOs. Mrs Bowring concluded: "We consider that will be a huge cost particularly for the CPS" (QQ 98-9).

59. As mentioned, much of the responsibility and cost of supervision would likely fall to the police. Chief Superintendent Hall, for the Association of Chief Police Officers, said: "we have concerns about the numbers of these cases that may be forthcoming from other Member States. Certainly the experience in the recent past with mutual legal assistance and the European arrest warrant indicates that these are rising significantly and the concern would be that these provisions would also lead to a significant increase in work. I think it is the point that was made earlier, which is that they may be available within inquisitorial systems much earlier in the investigative process and that might broaden the net for European States in a way in which it would not in the UK, so the resourcing implications for policing in the UK may be significant" (Q 120).