House of Lords - European Union - Thirty-First Report

Select Committee on European Union Thirty-First Report

CHAPTER 3: Grant of an ESO

64. Witnesses drew attention to a number of concerns relating to the practical application of the ESO. A number of questions also arose from the drafting of the Framework Decision. In parts the text is opaque and in some instances it seems to produce a result at odds with what the Commission intends. In this Chapter we look in detail at those Articles dealing with the making of the ESO. Chapter 4 deals with issues relating to the recognition and execution of an ESO. Finally, Chapter 5 looks at enforcement and return of the suspect.

Involvement of the suspect

65. Article 5 provides that an ESO may be issued after the suspect has been informed of the obligations to be imposed pursuant to Article 6 (i.e. bail conditions) and of the consequences of a breach of the ESO and the conditions for arrest and transfer of the suspect back to the issuing State (the State where the person is under investigation or facing prosecution). The form of the order is set out in an Annex to the Framework Decision. The issuing State is obliged to translate it into the official language of the executing State (the State to which the defendant is being released on conditional bail) (Article 7).

Article 5—Information of the suspect[24]

1. A European supervision order may be issued by the issuing authority after having informed the suspect of any obligations to be imposed pursuant to Article 6 and of the consequences, in particular of those set out in Articles 17 and 18.

2. The issuing authority shall record the information given to the suspect in accordance with the procedure laid down by the national law of the issuing State.

66. Significantly, the draft makes no express reference to, and sets out no mechanism for, the participation of the suspect in the making of an ESO. Witnesses pointed out that there are practical reasons why the suspect should be involved. As the Law Society of England and Wales indicated, there were points on which the suspect would be best placed to provide information, for example, in relation to any residence condition in a specific locality. Further, some of the matters set out in Article 10 as grounds for non-recognition and non-execution would probably only be known to the defendant (such as the existence of double jeopardy or an immunity or privilege).

67. We would have expected Article 5 not merely to refer to the suspect being informed, but also that he should have the opportunity to make representations about any conditions to be imposed, before any ESO is made. The suspect has a right to be heard in our domestic proceedings; he can speak to any conditions to which his bail may be made subject (QQ 327, 345). The silence in Article 5 is the more surprising because, by contrast, Article 13 (review of ESO) expressly provides that the subject of the order be heard (Article 13(4)) and that he be provided with interpretation and legal advice (Article 13(8)).

68. Article 5 of the European Convention on Human Rights (ECHR), which guarantees the individual's right to liberty and security, is relevant here.[25] The Commission acknowledged that Article 5 ECHR would apply and agreed that there would have to be a hearing and that the suspect would have an opportunity to say, "I should have one of these orders and you shouldn't impose this, that or the other condition" (QQ 152-3). Mr Ljungquist explained why the Commission's text contained no reference to a hearing: "we think that all the Member States already have such a provision, but I can say that maybe for the sake of clarity it would have been better to remind the Member States of this in Article 5 [of the Framework Decision]" (Q 157). As to the difference in the drafting of Article 13, the Commission considered that it was necessary to make express reference to a hearing there because a right of review was not expressly provided for in the ECHR (Q 158).

69. As we shall explain, it is clear that in many, if not all, cases there will have to be some liaison between the authorities in the issuing and executing State before an ESO is made. But the use, for example, of liaison judges or of informal communications between judicial authorities heightens the risk of decisions being taken without due regard to the rights of the suspect. As Stephen Jakobi, consultant, Cross-Border Justice, said: "One could see a practice building up where these decisions are taken in the absence of an accused, which is surely not right" (Q 49).

70. Article 5 ECHR entitles the suspect to be heard on the issue of bail. We believe that it would be helpful for Article 5 of the Framework Decision to provide that the suspect has a right to be heard before an ESO is made and in particular on what obligations, if any, should be attached to the order. While the precise details of the manner and means by which the suspect is to be heard should be left to Member States the basic right should be expressly set out in the Framework Decision.

Importance of the conditions

71. The conditions to be attached to an ESO are likely to be a matter of great importance to Member States. The conditions must be effective so as to ensure appropriate supervision and ultimately the suspect's return for trial. They must also be workable in practice in the executing State where the "normal" bail conditions and resources available for their supervision may differ from those in the issuing State. In this context we note that the Government's support for the ESO is dependent on there being no adverse impact on domestic bail law and practice, although it is not clear what sort of negative effect they are contemplating here. Baroness Scotland of Asthal QC, then Minister of State, Home Office, said: "This whole issue is about what the conditions are going to be, who is going to set them, how they are going to be exercised, how they are going to be enforced and 'what happens if'" (Q 432). The Commission's text sets out a scheme in Article 6 but Baroness Scotland envisaged that there would be considerable discussion in the Council before any agreement was reached (Q 432).

Article 6—Imposition of pre-trial supervision measures
and obligations of the suspect

1. The issuing authority shall impose an obligation on the suspect to make himself available for the purpose of receiving summons for his trial and to attend the trial when summoned to do so. Obstructing the course of justice or engaging in criminal activity may constitute a breach of the European supervision order. The issuing authority may impose one or more of the following obligations on the suspect:

(a) to attend preliminary hearings relating to the offence(s) with which he has been charged; or

(b) not to enter specified places in the issuing State without authorisation; or

2. Subject to agreement between the issuing authority and the executing authority, the issuing authority may impose one or more other obligations on the suspect which may include, but are not limited to, the following:

(a) to travel at a particular time and on a particular date to a specified address in the executing State;

(b) to report to the executing authority at a specified place or places at specified times;

(d) to be at his specified place of residence, which may include a bail hostel or a specialised institution for young offenders in the executing State, at specified times;

(e) to be at his specified place of work in the executing State at specified times;

(f) not to leave or enter specified places or districts in the executing State without authorisation;

(g) not to engage in specified activities, which may include involvement in a specified profession or field of employment;

(h) to undergo specified medical treatment.

3. Any obligations imposed by the issuing authority in accordance with paragraphs 1, 2 and 3 of this Article shall be recorded in the European supervision order.

4. In addition to the obligations provided for in the European supervision order, the executing authority may, in accordance with the law of the executing State, modify the obligations contained in the European supervision order as is strictly necessary for the purpose of executing the European supervision order.

More mandatory conditions

72. Article 6(1) provides that the issuing authority "shall impose an obligation on the suspect to make himself available for the purpose of receiving summons for his trial and to attend the trial when summoned to do so". The Article goes on to say that obstructing the course of justice or engaging in criminal activity "may" constitute a breach of the ESO; it is not clear whether this is intended to be a mandatory condition but it appears to be treated as such (Q 138). Other conditions are optional. So the issuing authority may order him "to attend preliminary hearings", "not to enter specified places in the issuing State" and "to reimburse the costs for transferring him to a preliminary hearing or trial". Questions arise as to the scope of the conditions set out in Article 6(1) and also, more generally, on the need for and desirability of mandatory conditions.

73. JUSTICE identified a number of difficulties with Article 6(1), noting that it "appears to contradict the preamble by stating that the issuing authority shall order the defendant to 'attend the trial when summoned to do so' and may order him 'to attend preliminary hearings' and 'to reimburse the costs for transferring him to a preliminary hearing or trial'. 'Attend' may refer to video link but this is by no means clear. Secondly, the discretion to order reimbursement could result in impecunious defendants being denied an ESO because they would clearly be unable to pay the costs of their return. This would contradict Article 14 ECHR, which states that the Convention rights (including the right to liberty under Article 5) shall be secured without discrimination on the grounds of, inter alia, property or other status" (p 97).

74. On the more general issue of the scope of Article 6(1), we asked witnesses whether there should be more mandatory conditions. Would it be useful to impose an obligation on the suspect to return to his State of residence, i.e. the executing State, when the ESO has been made in his case? Should there be a mandatory reporting obligation so that there would be a scheme for checking that the suspect has not absconded or been lost track of?

75. The general reaction of our witnesses was not to favour any further mandatory conditions. The Law Society's starting point was that bail was, in every case, particular to the individual's circumstances. Mr Anand Doobay, for the Law Society, said: "One thing which we feel may be missing from the Framework Decision is a requirement that only those conditions which are both proportionate and necessary are imposed, and therefore to have mandatory conditions may impose conditions which a court does not, in fact, feel are required to meet their concerns about releasing the defendant pursuant to a European Supervision Order" (QQ 260, 264).

76. We agree with the Law Society that there is a need for flexibility in relation to the granting of bail and this would not be assisted by having further mandatory conditions. The court is best placed to determine what conditions are required to meet its concerns about releasing an individual. An ESO must contain a condition that the accused "make himself available for the purpose of receiving summons for his trial" and this appears to us to be an adequate basic means of keeping track of individuals. An issuing State seeking further assurances may stipulate additional conditions. There is no need for more mandatory conditions.

Common conditions

77. The Law Society reported that a recent study conducted by them in conjunction with the Czech and Spanish Bars has revealed that there is no standardisation in terms of conditions which courts impose for bail.[26] Conditions which are commonplace in the UK, such as restrictions relating to place of residence or surrender of passports, may meet with fundamental or constitutional objections from other Member States (QQ 250, 252). The Law Society has been advocating a pan-EU study, to try to identify the basic common conditions which no EU Member State would find alien to its system and which all Member States would find easy to implement. Mr Doobay said: "The Commission has not chosen to follow that route, but certainly we see the force in having such a study, because it is very difficult to argue that each Member State has trust in the other Member State's legal system when we cannot even have a common definition of the basic conditions which are applied throughout the EU for bail" (Q 256).[27]

78. Senior District Judge Timothy Workman supported the Law Society's suggestion that research should be undertaken to see what common conditions there are. In his view it would cut down the need for consultation between the relevant authorities. He envisaged five or six common conditions (perhaps relating to security, residence, curfew, reporting to the police, surrender of passport and contact with any specified victim or witnesses) which could properly be imposed in any State. The issuing authority could then decide which (if any) of them it wished to attach to the ESO. Consultation with the executing authority might then only be needed to establish the practicalities, for example, of which police station the suspect should report to, or whether his address was a valid one (QQ 320-1, 323, 328, 331, 350).

Need for liaison

79. The Framework Decision does not currently provide for the involvement of the authorities of the executing State in the proceedings leading to an ESO. However, the Article 6(2) list of optional bail conditions are "subject to agreement" between the issuing and executing authorities, which implies some level of consultation. Witnesses pointed to the need for some liaison between issuing and executing authorities at the early stages of making an ESO. The Law Society, for example, suggested that the executing authority needs to be involved lest the issuing State put in place obligations that the executing State would not be able to supervise or monitor (QQ 246, 251)

80. While there should be no controversy surrounding the imposition of the Article 6(1) mandatory conditions (Q 155), the imposition of further conditions (Article 6(2)) may require consultation between the issuing and executing States. For example, one of the conditions in the Commission's list is that the suspect should undergo "specified medical treatment" (Article 6 (2)(h)). The trial court would need to discover whether the sort of treatment envisaged was available and how easily it could be provided. Mr Ljungquist said: "Of course the issuing authority must investigate if the executing State has the means to provide for such treatment". He also acknowledged that it would be possible to discuss the grounds for non-recognition and non-execution at this stage: "This is not provided for explicitly in the Framework Decision, but of course we have to have an Article which tells us on what grounds such an ESO can be non-recognised. So it is foreseen that there are contacts between the two authorities" (Q 156).

81. Under the Commission's proposal, the issuing State could make decisions granting bail without reference to the executing State. With the exception of Article 6(2) there is no express provision for any liaison with the home State at this stage. This was a matter "of great concern" to the Crown Prosecution Service (CPS): "It means that the issuing court would not be making a fully informed decision, nor would it be taking local concerns or resource issues in the executing State into consideration. This would have both potential legal and practical implications in terms of fairness and proportionality" (p 26).

82. The issuing State may already have some information on which to base its decision. The circumstances of arrest may give some indication as to whether the suspect is someone who is likely to abscond and the circumstances of the offence alleged may give rise to some inference about likelihood of commission of further offences but as Mr Gibbins, for the CPS, said: "We would say that it would be extremely important for that consultation to take place. It might be at the purely administrative level as to the suitability of an address or the availability of a particular police station; it might be on much more complex matters" (Q 87). The CPS proposed that the identity, nationality and residence of the person concerned should be established before a ESO was issued. Further, "the issuing State should have before it not only the details of the alleged offence but also the background of the defendant and the local circumstances. This may affect the conditions imposed, in addition to balancing the need to protect the public; to support the presumption of innocence; and to maintain the principle of proportionality" (p 27).

83. The Commission acknowledged that there was a question whether the trial court has sufficient information to make a risk assessment. To some extent this might be provided by the current proposal for an EU system of criminal records[28] and the effective electronic exchange of information to which that might lead (Q 146). The Commission nonetheless accepted that there would have to be communication between the two relevant authorities. How much would depend on the particular case. Mr Csonka, for the Commission, said: "If it is a very straightforward case, a traffic offence, for example, I do not think it would be necessary to have extensive consultations with the resident. If it is a person whose personal situation is complex, family-wise or otherwise, or there are indications that he or she is a repetitive offender, I think there would be consultations between the two States, particularly as to the suitability of some of these additional supervision measures, such as reporting to the police, appearing at the workplace at certain times, withdrawing the passport and perhaps other identification documents" (Q 154).

84. Although there is no express provision in Article 6(2) for communication and consultation between the authorities in the respective Member States it seems implicit in the fact that any Article 6(2) conditions are "subject to agreement" that there should be some machinery for discussion between the two States in advance of such a decision. We agree with the CPS that there needs to be a close liaison between the issuing and executing States on the conditions to be imposed. Both authorities should be involved early in the decision-making process, and an ESO should not be issued without such consultation.

Effective and timely liaison

85. If there is to be communication between the respective authorities it needs to be simple and capable of speedy application. Otherwise delays might easily occur. Judge Workman explained that experience seeking further guidance under the EAW "takes quite a long time. I would say it measures in weeks rather than days, but probably not months" (Q 325). Speaking from his experience at Fair Trials Abroad Stephen Jakobi said: "The practicality of toing and froing means that anything other than a simple effective scheme with very little documentary transmission and query will defeat the purposes of a remand scheme of any sort because if things are not finalised, the wretched defendant, no matter whether he should be bailed or not, will be sitting inside until they are" (Q 48).

86. A number of practical suggestions emerged from our discussion with practitioners.

(I) CENTRAL AUTHORITY

87. The Framework Decision, unlike the EAW,[29] makes no provision for a central authority but contemplates direct transmission between authorities in the issuing and executing States. The CPS could see "considerable merits in that process being facilitated by a central authority". Mr Gibbins pointed out that 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. SOCA had language facilities available and a 24-hour capacity. The CPS believed that a central authority would be important if they were to meet the turnaround times and deadlines contemplated by the Framework Decision (QQ 101, 103).

88. Judge Workman described his experience under the EAW: "as between the judicial authorities of the requesting State and receiving State there is very little contact initially. We receive the warrant and we get on with it, but I do know that before that it passes through the Serious Organised Crime Agency and I believe there are a number of occasions when those warrants are examined by the Agency and further questions which arise from them are answered" (Q 317). But there have been occasions when the executing authority here has asked for further advice and guidance from the EAW's issuing authority (Q 318). As regards the ESO, the approach of Judge Workman was to look for ways to reduce the need for consultation, for example, by common conditions (see below) or administrative means not requiring the court (for example, to identify the local police station to which the suspect must report) (QQ 328, 343, 348).

89. The Law Society also envisaged communication between issuing and executing Member States taking place via a designated central authority: "the Framework Decision leaves it to each Member State to appoint their own executing authority, and obviously it would be desirable to have a central executing authority in the UK so that there was a nominated agency which was a point of contact … we would see that authority as being the participant from the UK which would be able to say 'These are conditions which we can practically deal with'" (Q 249).

90. The executing authority and the central authority need not be the same person. Baroness Scotland made clear that the executing authority in the UK for the ESO would be the court but she did not exclude the possibility that there might also be a separate central authority. The issue gave rise to a number of questions in the mind of the Government: "If there is going to be a central authority, who should that central authority be? Should there be a central authority in each country similar to the central authority we have, say, on the Hague Convention in relation to child abduction? If so, how is that going to be paid for? What are going to be the rules that will operate in relation to how the central authority will work in unison with the executing authority?" (QQ 434-6).

(II) VIDEO LINKS

91. The Framework Decision appears to place weight on the ability to carry out hearings using video links. The Commission believed the technology to be well established and available in most Member States (Q 206). The Law Society envisaged video links being used not just when an ESO was being reviewed (under Article 13) but more widely throughout the procedure: for example, at the early stage in order to get an agreement both from the issuing State and the executing State (Article 6) and, later, in dealing with possible breaches of the order (QQ 245-6).

92. However, as JUSTICE pointed out, video links might not always be available and it is by no means certain that all courts in all Member States will adopt the same attitude to hearings via video links (p 97). There was, Judge Workman said, some experience in dealing with other jurisdictions via video links. Not every court in England and Wales had such facilities but there was a central court within most areas that had a video-link. The procedure was not, however, without its difficulties: "I have to say that our experience of video-links is that it becomes extremely difficult in terms of interpreters. It can be managed, but it is not easy" (QQ 354, 356).

(III) TRIPARTITE PROCEEDINGS

93. As mentioned, the Law Society believed that the process of making an ESO required the involvement of the suspect and also the executing authority. The Society envisaged that there could be a tripartite hearing (using video links where necessary—see above) before an ESO was made. Such tripartite hearings might also be relevant at later stages of the process. So, once the person is transferred, any hearings of substance, whether of review of the ESO or of breach of an ESO, would again require those three parties to be involved in those decisions (Q 245).

How prescriptive should the Framework Decision be?

94. There seems to be no dispute that there should and in many cases would be communication and liaison between the authorities in the issuing and executing States. Mr Ljungquist said: "How these contacts are going to take place is not specifically provided for in the Framework Decision and I think maybe it could also be dangerous to regulate that in detail" (Q 156).

95. We believe that while the Framework Decision should leave a substantial measure of discretion to Member States in implementing the Framework Decision nevertheless there could usefully be included in Article 5 an obligation on the authority in the issuing State to consult the relevant authority/ies in the executing State before making an ESO which contains Article 6(2) conditions. The ESO is a complicated scheme, whose effectiveness in a particular case will be dependent upon setting conditions which will satisfy the issuing court and can be operated by the executing authority. This requires a substantial measure of initial cooperation and consultation.

96. We note the reliance placed by the Framework Decision on video links but are sceptical as to whether they will suffice. We therefore recommend that ways should be sought, wherever possible, to facilitate consultations between Member States' authorities and reduce the range of the discussions to ensure that they can be conducted quickly and effectively. A list of common conditions (described above) is one way in which this might be done.

97. We believe that there might be practical benefits if the ESO proposal included provision for recourse to a central authority. Experience in relation to the EAW would suggest that informal consultations can usefully take place between administrative authorities in the respective Member States, thus reducing the need for judge to judge contact. We urge the Government to examine this suggestion which, as described above, has across-the-board support from practitioners. The extent of involvement of a judicial body in the final agreement of any Article 6(2) conditions will need careful consideration in implementing legislation.

98. The consultation should focus on the conditions in the ESO but should also cover other matters. For example, Article 10 deals with grounds for non-recognition and non-execution. It seems inconceivable that the authorities could discuss the terms of an ESO, then formally transmit the order (under Article 8), and then the executing State say that it will not recognise it. The executing State should be under an obligation to provide the issuing State with such information as it needs to decide whether to make an ESO and if so on what terms.

99. We consider below the question of a timetable and therefore fixing time limits within which such liaison should in principle be accomplished.