Examination of Witnesses (Questions 1-19)
Mr Stephen Jakobi OBE and Ms Debbie Sayers
21 MARCH 2007
Q1Chairman: Mr Jakobi and Ms Sayers, welcome
and thank you for coming to help us. As you may know, this is
the opening session of this particular inquiry. You are our first
witnesses. I know, Mr Jakobi, you have given evidence to this
committee on at least one earlier occasion, so you know the form.
I would be grateful if you would correct or supplement the transcript
when you receive it. You have had notice of the area of questions,
the sort of matters we want to ask you about and a copy of the
written evidence submitted to us by the Law Society and the CPS,
both fairly brief.
Mr Jakobi: That is correct.
Q2 Chairman: We have two background
questions we would like to ask but we can perhaps take them broadly.
It is fairly evident from your own involvement in the development
of this idea over the years, and indeed from the helpful written
evidence that you have submitted, that you see a compelling need
for something to be done to redress the balance, the injustice,
that has for many years existed in relation to what one might
call foreign suspects, who, down the years, have always been more
likely to have been remanded in custody than their counterparts
from the trial state. Plainly, unless there are international
arrangements, it is more difficult to ensure that they will eventually
attend trial.
Mr Jakobi: That is partially correct, my Lord.
That is one of the problems.
Q3 Chairman: What would you say was
the other main problem?
Mr Jakobi: Sheer prejudice, bias against foreigners
in one way or another, thrown up by the legal system. It is institutionalised
prejudice that we are battling against, if I could put it that
way and rather simply. I am indebted to my colleague, Debbie Sayer,
who pointed out to me that for example in 2005 there were under
6,000 European arrest warrants issued in Europe, so we are dealing
with greater numbers than that. It does put things in some sort
of perspective.
Q4 Chairman: The sort of figures
that you will have seen canvassed in the various explanatory memoranda,
and I think in your own evidence, suggest that there are getting
on for 10,000 EU nationals detained in other Member States per
annum, 4,500 at any given time. These are the sorts of statistics
that we have. Does that remain about the size of it?
Mr Jakobi: I think so. The figures from the
independent contractor, from the Commission, are greater than
the ones I found 10 years ago when I tried to account for the
difference. We have similar orders of magnitude accounting for
the greater problem. From everything one can see, it is going
to increase. The EU has more Members.
Q5 Chairman: Exactly, and there is
greater movement across borders?
Mr Jakobi: Yes.
Q6 Chairman: On the statistics again,
about four-fifths, about 8,000, quite possibly would be advantaged
by some scheme which enabled, instead of custodial remand, a pre-trial
release on conditions. One particular part of the initial question
is this. Have there been problems particular to certain offences
and/or Member States? Is there a particular problem in identifiable
areas either as to offending or as to individual Member States?
Mr Jakobi: I think that the general institutional
problem is throughout, but, on the other hand, my own experience
is mainly involving British, Dutch, Spanish and German citizens
facing trial or investigation in Spain, France, Belgium, Italy,
Greece and Portugal. Bluntly, we [Fair Trials Abroad] never managed
to cover Europe properly in my watch. This is where we have clients,
for one reason or another. These are the countries where miscarriages
of justice reported to us most frequently took place: the Spanish
and French jurisdictions. Since we only got cases of merit and
we tried to work that out, our experience is not universal but,
on other hand, they are the hard luck bail stories because if
you are guilty and you do not get bail, it is not nearly as much
of a problem, than if you are spending time inside prison and
you are innocent. That was a Fair Trials Abroad problem. That
is what my experience relates to essentially.
Q7 Chairman: This is not going to
cure miscarriages of justice. Whatever the scheme is, it is intended
to lead to the return of the person concerned to the foreign state
to stand trial. If a miscarriage of justice occurs, it occurs
on his return.
Mr Jakobi: Yes, but if you are imprisoned unnecessarily
before the trial, this is in itself in various practical aspects
possibly prejudicial to the trial. We did note a number of cases,
quite glaring cases, where people were sentenced at trial to rather
ridiculous terms which coincided with time served. This sort of
problem did occur, especially in France and Spain. One particular
example, and an example is always useful, is of a lorry driver
who was sentenced to 10 years at first instance and the sentence
was reduced to nine months on appeal.
Q8 Chairman: That happened to coincide
with the period he had already spent in custody?
Mr Jakobi: That is right. We have another case
of a so-called football hooligan who was not guilty and who was
eventually declared innocent by a constitutional court in Belgium,
who was sentenced to immediate imprisonment of six months at first
instance. That was altered to a suspended sentence on appeal.
I am quite convinced that was because he was immediately bailed
after an early summary trial, or else he would have seen time
served again the other way round. So there is some indication
of what I talk about in this. We were talking about the possibility
of particular types of case, basically, the cases we had followed,
cases with an international element to them perforce, and the
staple diet is of drug offences, international drug offences.
A very large proportion of the clients we had were lorry drivers
crossing frontiers and being arrested with goods in their loads,
so experience has very largely been accumulated through that type
of case: also offences against the person, rape cases and violence,
but very little fraud or white collar crime. I do not think I
can take it much further.
Q9 Chairman: Besides obviously people
being remanded in custody when, if they were nationals of the
trial state, shall we call it that, they would be getting bail,
is it also a problem that the very fact that they are in custody
or subject to a travel restriction abroad is a harsher penalty
upon them than if they were in custody on remand, or indeed subject
to travel restrictions, in their own home state?
Mr Jakobi: It is obviously better for things
like family relationships if you are in custody in your own home
state on remand. I have always freely admitted that if Eurobail
is to work, people should be escorted in custody back to their
local magistrates' court and a large percentage will remain there
until they are called upon for trial. That is surely what would
happen. I never pretended that it would make bail easier, but
it would make it fairer.
Q10 Chairman: Let me clarify this.
Eurobail was an earlier scheme and I think one that you have in
fact yourself supported, but that has now given way to the present
proposal, which is the European supervision order, which as I
understand is in contrast to Eurobail in this critical regard
that under the proposed scheme, ESO, it is the trial state, the
issuing state, which will in fact lay down the conditions of bail.
Mr Jakobi: I am afraid it is a classic case
of having a problem and not seeking the solution to the problem
but seeking what is politically expedient to deal with undercurrent
conditions. Their proposed scheme will make very little difference
indeed because the prejudices involved—institutionalised
prejudice, I am not looking at individuals—in granting bail
to foreigners will persist. The lack of ability and the lack of
a fair ability to assess such things as the community ties of
foreigners will mean that foreigners will continue not to receive
bail. It is these things that Eurobail was trying to tackle. The
only thing that the Commission's proposed order would solve is
the problem, and it is a small problem—it affects not thousands
but 100 or 200 so far as we can see—of the marooned. That
is, people who have been granted bail in a foreign country and
are confined to that country pending trial. This can go on for
a very long time and you have side effects, such as, unfortunately,
the non-interchangeability of social security between countries,
which means that the marooned may be without means of financial
support if they have been granted bail and have to stay near the
court. Particularly in France and Spain we have come across this.
Q11 Lord Clinton-Davis: What proportion
of that quite small number are in receipt of Legal Aid?
Mr Jakobi: It depends of course where we are
talking because we do not grant Legal Aid to UK citizens abroad,
and nor does any other country, so far as I am aware.
Q12 Lord Clinton-Davis: I am talking
about any form of Legal Aid, whether it is from here or somewhere
else.
Mr Jakobi: That again depends where they are.
Legal Aid in any acceptable sense, and we would find the practice
in most countries in Europe not acceptable for our Legal Aid,
would mean somebody sitting by you at trial, and that still only
covers something like 50 per cent of the current EU. We come across
this huge problem of non-qualified students acting under the direction
of university professors trying to assist foreigners under serious
charges in various countries in the EU. Therefore, if we are talking
about a qualified lawyer of some sort assisting you at trial,
we are still only covering 10 countries, maybe 12 countries, out
of 25, something like that.
Q13 Chairman: Can I press you a little
on the contrast between the Eurobail scheme and this scheme, the
ESO scheme? Under the Eurobail scheme, it was still going to have
to be for the trial state to take the preliminary decision as
to whether this was a case for bail or not?
Mr Jakobi: That is right, yes. Different countries
have different laws on what is bailable. The good thing about
Eurobail is that nobody really needs to know any other law than
that of their own country.
Q14 Chairman: I had rather understood
that it was not simply a legal question as to whether the offence
was bailable but also it would require the trial state to form
some view as to whether it was or might be an acceptable case
for bail at all, or is that not so?
Mr Jakobi: That is not so.
Q15 Chairman: I have misunderstood
then.
Mr Jakobi: What I would hope the trial court
would do is have a memorandum of the circumstances of the crime
to be sent over. That is the way that would get in to the system
in the executing state. The magistrates of the home state would
have the circumstances of the crime as found out by the trying
state in front of them as one of the important ingredients for
deciding whether the person is bailable or not.
Q16 Chairman: In this country, you
can get bail, even if you are charged with murder.
Mr Jakobi: Yes.
Q17 Chairman: If we were the trial
state and it was a Frenchman, and it was under the Eurobail scheme,
would we simply automatically send the accused, the suspect, back
to France, saying, "This is a bailable offence and it is
for you, the French, to decide whether or not to release him on
bail"?
Mr Jakobi: And they would have the circumstances
of the crime.
Q18 Chairman: Exactly, but that is
how it would work, is it?
Mr Jakobi: Yes.
Q19 Chairman: But under the ESO,
in the illustration I have just given, it would be for the UK
court to decide whether this was a suitable case for bail and,
if so, to decide on the conditions and then simply issue one of
these European supervision orders, and tell the French, "Make
sure you report daily and are subject to a curfew, you cannot
go out after seven in the evening". That is how it works
under the ESO?
Mr Jakobi: Yes. The ESO changes absolutely nothing
except for a decision where bail would be granted anyway. What
we are looking at is the various prejudicial factors and trying
to get rid of them which prevent almost all foreigners being granted
bail if they are accused of any sort of fairly serious offence.
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