Select Committee on European Union Thirty-First Report

CHAPTER 5: Enforcement and Return

Breach of an ESO

148.  Chapter 5 of the proposal deals with the question of breach of an ESO. The executing authority is obliged to report breaches—the Framework Decision provides a standard form for doing this (Article 16). When the breach has been reported to the issuing State the latter has to make a decision whether to revoke the ESO, amend or revoke one of the obligations in the ESO and/or order the arrest of the suspect (Article 17). When making a decision to order the arrest and transfer of the suspect the issuing authority has to "consider all the relevant circumstances, including the specific penalty involved, the consequences of the breach and, in particular, the willingness of the suspect to come back voluntarily to the issuing State" (Article 17(3)). Further, the suspect has to be heard and the executing State consulted (Article 17(4)). The hearing may take place by telephone or video conference and so the suspect need not return to the issuing State (Q 219).

149.  Before the issuing authority decides that the suspect should be arrested and transferred the suspect has a right to be heard by a judicial authority of the Member State on whose territory he is arrested (it may not always be the case that he is arrested in the executing Member State (Article 18(1)). If the suspect does not consent to transfer there are only limited grounds on which the Member State on whose territory he is arrested can refuse arrest and transfer (Article 18). The Framework Decision envisages the suspect being transferred speedily—Article 20 refers to "on a date mutually agreed between Member States concerned and in any event no later than three days following the arrest". Only exceptionally, for example for serious humanitarian reasons, may a transfer be postponed.

Determination of breach

Article 16—Obligation to report any breach

1. The executing authority shall, without delay, report to the issuing authority any breach of the obligations contained in a European supervision order of which it becomes aware. The report shall be made using Form B as set out in the Annex. The form shall be signed, and its contents certified as accurate, by the executing authority.

2. The report shall be transmitted by the executing authority directly to the issuing authority by any means capable of producing a written record under conditions allowing the issuing State to establish authenticity. A copy of Form A (the European supervision order), as issued by the issuing authority in accordance with Article 7, shall be annexed to the report.

150.  Article 16 appears to have been drafted upon the supposition that a breach will be self-evident—either there will have been a breach or there will not—but, as our witnesses confirmed, whether there has been a breach in any particular case may be disputed: for example, whether the subject has gone within a prohibited area or whether he has failed to attend the police when he has some perfectly good excuse.

151.  The Commission's text does not grapple with the question of how to decide, in a contested case, whether or not there has been a breach. It is clear that this is a matter which requires some consideration. Cases in which the existence of a breach is disputed are likely to be quite common. The Framework Decision needs to address expressly whether establishment of the existence of a breach is the responsibility of the executing State or whether it is a matter to be decided by the issuing State.

Division of competences between the issuing and executing States

152.  The question of the division of competences between the issuing State and the executing State in the establishment of a breach (and, as we discuss later, in any subsequent arrest and transfer proceedings) is a matter of both conceptual and practical significance. The principle of mutual recognition, on which so much EU judicial cooperation is based, generally accords prominence and priority to the issuing State. However, the exact extent of issuing and executing States' competence in each case is a matter for consideration. An interesting comparison can be drawn between the ESO proposal and the French and German Initiative for a Framework Decision on the recognition and supervision of suspended sentences and alternative sanctions, also currently under active discussion in the Council.[33] The latter proposal would allow for mutual recognition of judgments imposing suspended sentences and alternative sanctions, and the supervision in one Member State of such measures imposed in another. What is significant about the proposal is the substantial role it envisages for the executing State in comparison with that envisaged under the ESO. When one examines the detail of how the ESO would work, particularly as regards day to day supervision and enforcement, a strong case emerges for the executing State being given a greater role than presently appears in the Commission's text.

153.  If, as a number of witnesses thought, there is a lacuna in the Commission's text, this could be filled by a provision dealing with how any breach is to be established. Given that the breach will have occurred in the executing State the authorities there might, because of their knowledge of or easy access to the facts, be better placed to decide on whether there has been a breach and, if so, what the consequences should be. However, the issuing State, as the trial State, has a clear interest in maintaining overall control of pre-trial supervision.

154.  The Commission acknowledged that any breach of the supervision order had to be proved. But Mr Csonka said: "The issue at stake is, who controls the process? … This Framework Decision is predicated upon the concept that it is the issuing State which is in control of the process" (Q 223). The Commission did not see how responsibility for the supervision order could be transferred because of a particular breach to the executing State. Mr Csonka said: "Even if the facts of the matter happened in the executing State, even if the information is immediately available to the executing State, still the information can be communicated to the issuing State. There are means for that" (Q 228).

155.  Senior District Judge Timothy Workman agreed that in principle the decision should be one for the issuing State: "Provided there is a power to detain the defendant in custody pending that decision, then the decision effectively is one for the issuing State, because it is its case" (Q 390).

A tripartite procedure

156.  The Law Society of England and Wales proposed that, as in the case of procedure for the grant of an ESO (see para 93), the procedure relating to enforcement should also be a tripartite one, involving the issuing and executing States as well as the suspect. The Law Society did not believe that enforcement could be left exclusively to the executing State. Mr Anand Doobay, for the Law Society, said: "We do feel that the issuing State must be involved as well, simply because if they are kept out of that process then it may undermine their confidence in allowing an ESO to be granted in the first place" (Q 274).

157.  The Law Society suggested that in order to determine the breach there should be a hearing in the executing State, which the suspect could attend and to which there would be a video link to the issuing State. Evidence would be given as to whether a breach had or had not occurred. A finding would be made as to whether there had been a breach. Consideration should then be given to what the consequences of the breach should be (Q 286). The Law Society envisaged that findings of fact would be for the executing Member State, not least because they are closest to the application of the ESO in their State. Findings of law, and decisions on the consequences of any breach, would be for the issuing Member State (Q 287).

158.  While we have doubts about the practicability of tripartite hearings (not least because of the difficulties with video links and interpretation) we do believe that further consideration should be given to the suggestion that the executing State should, having heard the suspect, establish whether there has been a breach in the particular circumstances. The existence of a breach is essentially a matter of fact and it seems to us that there would be limited, if any, value in involving the issuing State in this determination. Furthermore, there is in our view no obvious reason why the issuing State would press for involvement in this stage of the procedure. The principle of mutual recognition requires not only that the executing State have trust in the ESO of the issuing State, but also that the issuing State have trust in the executing State's discharge of its duties to supervise the conditions of the ESO, including the satisfactory determination of whether there has been a breach.

Consequences of a breach

159.  Following the establishment of the existence of a breach, the proposal sets out the procedure to be followed by the issuing State to determine what the consequences of the breach will be. Article 17 provides that the issuing State may order the revocation of the ESO, the modification/revocation of one or more of the ESO conditions or the arrest and transfer of the suspect. The suspect has the right to be heard before a decision is made and the executing State must be consulted.

Article 17—Consequences of breach

1. In the event of a breach of the European supervision order, the issuing authority may, in accordance with the law of the issuing State, take the decision:

(a) to revoke the European supervision order;

(b) to amend or revoke one or more of the obligations contained in the European supervision order;

(c) to arrest and transfer the suspect, if the European supervision order was issued in respect of an offence for which pre-trial detention is justified under the law of the issuing State, in particular when it is necessary in order to attend a preliminary hearing or trial;

(d) to arrest and transfer the suspect, in the following circumstances:

(i) if the European supervision order was issued in respect of an offence for which pre-trial detention was initially not justified under the law of the issuing State; and

(ii) if the European supervision order contains limitations of his freedoms of a degree comparable to deprivation of liberty; and

(iii) if the arrest and transfer is necessary to attend a preliminary hearing or trial.

2. Before deciding on arrest and transfer, the issuing authority shall consider all relevant circumstances, including the specific penalty envisaged, the consequences of the breach and, in particular, the willingness of the suspect to come back voluntarily to the issuing State.

3. If the issuing authority decides that the suspect must be arrested and transferred and, at the time of that decision, the suspect is in the territory of another Member State, that State shall arrest and transfer the suspect under the conditions of Article 18.

4. Before the decision under paragraph 1 is taken, the suspect shall have the right to be heard by the issuing authority, in accordance with the law of the issuing State. This requirement may be satisfied through the use of appropriate video or telephone links between the executing and the issuing authority (hearing by video or telephone conference). The issuing authority shall also consult the executing authority.

Power of arrest

160.  In England and Wales, if somebody breaches their bail conditions (for example, by failing to report, not being at his home address as he should be or not attending an appointment) then the police can arrest him. However, it appears from the Framework Decision that in respect of a breach of an ESO the executing State could only arrest the suspect once it has received instructions from the issuing State to do so. The Commission's text appears to leave all decisions regarding enforcement to the issuing authority, subject only to duties on the part of the executing authority to report the matter (using Form B, set out in the Annex) "without delay" to the issuing State (Article 16(1)), as well as to arrest and retransfer the suspect to the issuing authority on the latter's request (Articles 17(3) and 18).

161.  Witnesses expressed concern that the executing authority may be unable to act speedily or effectively to revoke bail and arrest the suspect or to impose further conditions as may, in the light of information coming to its attention, be necessary at any time. The Crown Prosecution Service (CPS) commented on the fact that the authorities in the executing State might have to wait for the issuing State to authorise such an action: "This will promote an inequality of treatment between domestic and non-domestic defendants on bail and may undermine the very intention of the Framework Decision" (p 27).

Apprehended breaches

162.  Articles 16 and 17 are also silent on the question of anticipatory breach: Judge Workman said: "taking a rather absurd example, if a defendant in England, having been bailed by the French court, is seen to be getting on a plane to South America, it would be no use us reporting the matter to the French Court because by then he will have gone" (Q 377).

163.  Under our domestic law the police can act where a breach is apprehended. Judge Workman noted that this was a fairly recent change in our law, but "it is quite common now and a useful provision" (Q 384). Witnesses again expressed concern lest the Commission's text would not allow the executing State to take pre-emptive action in the event of anticipatory breach (QQ 280, 379). Chief Superintendent Hall, for the Association of Chief Police Officers, said: "we do have concerns that we would not have the power to arrest someone when contemplating a breach. As the agency there to protect the public and manage the risks associated by these people being at large in the UK, I think that is a cause for some concern" (Q 115).

The Commission's view

164.  The Commission did not accept that if there was a suspected breach of the ESO the executing authority could do nothing about it except make a report back to the issuing authority. In the Commission's view if, for example, the police here discovered that the subject of an ESO may be thinking of leaving this jurisdiction without permission, they would have power to arrest him (Q 176). There is no express provision in the Commission's text to this effect but, Mr Ljunquist said, "it follows from the principle that the Member State has to implement the Framework Decision" (Q 177). Mr Csonka added that there would not necessarily be any pre-requirement to refer back to the issuing State; it would depend on how the executing States chose to implement the Framework Decision in its domestic law (Q 179).

Need for certainty

165.  Other witnesses doubted whether such reliance could or should be placed on Member States' implementation of the Framework Decision. In the Law Society's view, a power of arrest in such circumstances would be "quite a significant power". If it was the intention that the authorities in the executing State should have such power then it should be explicitly set out in the text of the Framework Decision (Q 281). The Government also thought that the Framework Decision should be explicit on the question of whether the executing authority should have a power of arrest (Q 460).

166.  We agree that there is a need for clarity and certainty here. It is unsatisfactory to leave matters such as the power of the executing State to arrest following a breach or in anticipation of a breach to Member States' implementing legislation.

167.  It is a matter of some considerable concern that the Framework Decision appears not to allow the executing State any power to arrest or take other action preparatory to gaining the instruction of the issuing State. Articles 16 and 17 should ensure that there are the necessary powers to take action in the event of a breach of conditions. In our view this does not offend against the principle of mutual recognition as any arrest by the executing State would follow directly from the recognition, execution and enforcement of the issuing State's ESO. Any arrest would have the effect of protecting, and not undermining, the position of the issuing State. It would not therefore be inconsistent with the purpose of the Framework Decision for the executing State to be able to order arrest to prevent the suspect absconding.

168.  The Framework Decision must also make clear that the authorities in the executing State must be able to deal with apprehended or anticipatory breaches without the need for prior report to and authorisation from the issuing State. This is a serious omission from the present text.

Minor breaches

169.  Mr Doobay drew attention to the fact that the proposal makes no distinction in relation to the cause or severity of the breach: "there may have been a breach of a condition of the ESO through no fault of the suspect. … [T]he mechanism in the Framework Decision does not allow for any flexibility …" (Q 275). The Government also thought there should be a discretion for the executing State to deal with the minor infractions of an ESO (Q 460).

170.  We believe that the judge in the executing State should also be trusted to deal with minor or technical breaches, subject to a requirement to report the decision to the issuing State. In this way the executing State would in many cases be able to resolve practical problems which, with foreknowledge, they would have been able to deal with under the power of modification given them by Article 6(4).

Greater flexibility

171.  There is also an argument for the judge in the executing State having greater powers. Judge Workman thought that there should be some flexibility in the system: "What I would have liked to have seen is a power to the court to be able to move in both directions, so that if we had something such as a defendant brought before the court for breach of his reporting conditions to the police station and he had arrived at the police station an hour late because the train broke down, I would want to be able to see that the court would be able to re-bail him, either on the same or more onerous terms, without actually having to go through reporting it all to the issuing State. There may be occasions where there is a sufficiently serious breach of the conditions of bail to warrant a remand in custody, but because we do not know the state of the case in the issuing State a remand in custody in this country pending the information which is required after reporting the breach to the issuing State may well be the way to move forward, so that the court has a discretion to deal with the minor breaches but a power to transfer him back immediately or to seek advice from the issuing State if it is more serious" (Q 391).

172.  There may also be a case for enabling the authorities in the executing State to go further and deal, if only provisionally, with breaches of an ESO where immediate action is necessary in order to ensure public safety or the protection of individuals or evidence. This situation might arise where a breach of an ESO is not considered sufficiently serious to warrant the immediate arrest of the suspect but nonetheless would justify the urgent imposition of additional supervision measures (such as an increase in the frequency of a reporting obligation). Subject always to the issuing State remaining in overall control and decisions having to be reported back, the judge in the executing State should be able to vary the ESO temporarily given that there may be a delay before the issuing court can be fully seised of the matter. The suspect would be heard before any such variation is made.

Return of suspect

173.  It should be recalled that a mandatory condition in every ESO is the obligation on the suspect to attend his trial when summoned to do so. As with domestic bail, the suspect would not automatically be arrested and brought before the court for trial but would be expected to attend voluntarily. Only where he fails to do so would the question of arrest and transfer (on the basis of a breach of the mandatory obligation) arise. As we have noted in Chapter 3 the Framework Decision is silent on the issue of transfer of the suspect to his State of residence. By contrast a number of Articles deal with the return of suspects to the trial State following a failure to appear. Article 18 provides for his arrest and transfer to the issuing State. There is a tight timetable (within 3 days—Article 20). Other Member States must permit transit through their territory (Article 21).

Article 18—Conditions for arrest and transfer of the suspect

1. If the issuing authority decides that the suspect must be arrested and transferred to the issuing State, the suspect shall be heard by a judicial authority of the Member State on whose territory he is arrested.

2. If the suspect consents to his transfer the Member State on whose territory the suspect is arrested shall forthwith transfer him to the issuing State.

3. If the suspect does not consent to his transfer the Member State on whose territory he is arrested shall forthwith transfer him to the issuing State. It may refuse the arrest and transfer only

—if it is clear that criminal proceedings for the offence in respect of which that order has been issued would meanwhile infringe the ne bis in idem principle;

—if the suspect is being prosecuted in the executing Member State for the same facts as those on which the European supervision order is based;

—if the criminal prosecution or punishment of the suspect is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law;

—if the decision to arrest and transfer concerns new facts not covered by the European supervision order.

4. A Member State other than the executing State may also refuse to arrest and transfer the suspect on the basis of one or more of the grounds set out in Article 10.

Article 20—Time limits for transfer

1. The suspect shall be transferred to the issuing State pursuant to Article 18 on a date mutually agreed between Member States concerned and in any event no later than 3 days following the arrest.

2. The transfer of a suspect may exceptionally be temporarily postponed for serious humanitarian reasons, for example, if there are reasonable grounds for believing that transfer would manifestly endanger the suspect's life or health. The issuing authority shall immediately be informed of any such postponement and of the reasons thereof. The transfer of the suspect shall take place as soon as these grounds have ceased to exist on a date agreed between the Member States concerned.

Article 21—Transit

1. Each Member State shall permit the transit through its territory of a suspect who is being transferred pursuant to the provisions of this Framework Decision provided that it has been informed of:

(a) the identity and nationality of the person subject to the European supervision order;

(b) the existence of a European supervision order;

(c) the nature and legal classification of the offence;

(d) the circumstances of the offence, including the date and place.

2. Each Member State shall designate an authority responsible for receiving transit requests and the necessary documents, as well as any other official correspondence relating to transit requests. Member States shall communicate this designation to the Council.

3. The transit request and the information provided for in paragraph 1 may be addressed to the authority designated pursuant to paragraph 2 by any means capable of producing a written record. The Member State of transit shall notify its decision by the same procedure.

4. This Framework Decision does not apply in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing State shall provide the authority designated pursuant to paragraph 2 with the information provided for in paragraph 1.

174.  Witnesses identified a number of concerns. The CPS criticised these provisions relating to the physical return of the defendant for not being clear, especially as regards where the burden would lie in terms of costs (p 27).

Overriding considerations

175.  Judge Workman raised a further concern. "I am concerned about sending somebody back who may be seriously ill and I think it would be useful to have some provision to give discretion to the court if somebody needs to be returned under the supervision order where they are seriously ill. A power to defer, or something of that sort, would be sufficient." (Q 370-72).

176.  Article 20(2) of the ESO proposal enables transfer of a suspect to be temporarily postponed for "serious humanitarian reasons". A similar provision exists in the EAW Framework Decision (Article 23(4)). The latter has been implemented in the Extradition Act 2003. Under section 25 the judge must order a person's discharge or adjourn the extradition hearing where the physical or mental condition of the subject of the warrant is "such that it would be unjust or oppressive to extradite him". We recommend that consideration be given to the inclusion of a provision to similar effect when implementing the ESO.

ECHR rights

177.  As witnesses pointed out ECHR rights may apply at both stages of the breach procedure: the initial establishment of the breach; and then the arrest and transfer hearing before the issuing authority. Any decision as to whether to remand the accused in custody would have to be reached following procedures complying with the ECHR. The involvement of both the executing and issuing authorities was perceived to cause problems.

178.  As regards the arrest and transfer hearing, JUSTICE took the view that "the executing State cannot devolve this responsibility to the court of the issuing State and then simply carry out the judgment of that court". Support for the view that there should be a hearing in the executing State could, JUSTICE argued, be found in Article 18 which provides that, if the decision is made by the issuing State for the arrest and transfer of the suspect, then there must be a hearing before the court of the State in which the suspect is located. JUSTICE said: "However, the obligation to have a fair hearing does not only apply to cases where the decision is made to arrest and transfer. At the least the defendant must have the opportunity to challenge the legality of any action taken on the basis of the hearing in the courts of the executing State. This, however, raises difficult conflict of law questions" (p 99).

179.  The adequacy of the arrest and transfer hearings envisaged under the ESO proposal is not a matter on which we received many submissions. However, the concerns expressed by JUSTICE should be given careful thought by the Member States and the final Framework Decision should be ECHR-compliant. While all Member States are bound to observe the guarantees set out in the ECHR, we do not consider that it is satisfactory to leave the question of the hearings for Member States' implementing legislation.

Suspect in third Member State

180.  As is envisaged by the Framework Decision, it is possible that a suspect may go to a third Member State (i.e. a Member State other than the executing State) and the question then arises of his being arrested there. We asked the Commission under what authority such an arrest would be made, given that that Member State would not until then be formally involved in any ESO process. The Commission's text is again silent and once more the Commission has presumed that Member States will fill in the gaps.

181.  Mr Csonka, for the Commission, said: "We believe that when Member States transpose and implement this Framework Decision, in particular Article 17, paragraph 3, they will have to provide for the possibility of arresting the person who is being sought. So it will be under the authority of the national legislation transposing that Framework Decision" (Q 207).

182.  We believe that this position is unsatisfactory. There is a need for certainty and clarity in the Framework Decision as well as for consistency on the part of Member States in giving effect to its provisions. Articles 17 and 18 therefore need to be specific as to the responsibility and obligations of Member States other than the executing State where the arrest and transfer of the suspect has been ordered by the issuing State.

33   Doc 5325/07 COPEN 7 of 15 January 2007. Back

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