Examination of Witnesses (Questions 20-39)
Mr Stephen Jakobi OBE and Ms Debbie Sayers
21 MARCH 2007
Q20 Chairman: You make it sound so
unhelpful and I really wonder if it is quite as unhelpful as that.
Surely, under this ESO you will get more decisions that it is
appropriate to grant bail because the trial state will at least
know that if this foreigner is bailed, he can be escorted back
to his home country for that home state to impose the necessary
conditions of bail and be able to monitor them, supervise them
and eventually guarantee—that is putting it high—and
do the best they can to ensure that he will finally return to
stand trial in the trial state?
Mr Jakobi: I would immediately say that if the
countries trusted each other to the latter extent, first of all,
we would surely have had more grants of bail under the European
Arrest Warrant cases and the practitioners reported to me there
was no change just because you could get them back and an arrest
warrant problem. Secondly, it employs the sort of trust between
countries, mutual recognition, that would make Eurobail work perfectly
well, and it is not there, which is why we have not even got the
current order and we do not appear to have proceeded with fundamental
rights legislation in its entirety, the keystone of which this
is just another brick. No progress has been made whatsoever on
defendants' rights, including the rights to bail. I would have
said that we are looking at something that would improve the lot
of 5 per cent at best of those who are being considered or should
be considered for bail and the other 95 per cent will not be considered
fairly and will not get bail. It is not curing the problem at
all. It is a political decision about what the Commission thought
they could get through the governments. They could not get it
through the governments, but the impact report I dissected at
some length. I thought that the whole thing was gerrymandered
in favour of forgetting about inherent merits of systems and political
expediency, which I will immediately accept is a proper consideration,
unfortunately, that took over everything to the point of skewing
the merits as well, which is something I think the Commission
should answer for.
Ms Sayers: May I add that I think one of the
problems with the potential increase in grants of bail through
the European supervision order is that it really relies upon the
order itself containing an effective coercive mechanism so that
states can reassure themselves that, if they grant this person
bail, that person is likely to be returned. My perusal of the
documents and the suggestion for a coercive mechanism would suggest
that the mechanism is not effective and may be quite unworkable.
If the trial state, for example, issues an order sending somebody
back to their own country and the executing state is then responsible
for monitoring the bail conditions, if that person breaches their
bail, for example if they had a condition to report to a police
station daily, there would be no power of arrest on the part of
the British police, for example, until the trial state, the issuing
state, then decides to take a decision that this person should
be arrested and transferred. That means there is a real difference
in the way that justice is administered between individuals in
a country and it leaves the police effectively powerless in their
own jurisdiction to apply the law that they know. I think that
could really hinder mutual trust.
Q21 Chairman: So you think the actual
scheme itself will not be effective and will in turn cause people
to lose confidence in its prospects and its potential?
Ms Sayers: Yes.
Q22 Lord Jay of Ewelme: This point
has partly been covered. I would find it helpful if Mr Jakobi
could briefly describe the Eurobail system, which I am not sure
I fully understood or have seen fully in the papers. You have
been working on this for many years. Could you deal with that
briefly and also why you think that scheme would cover far more
cases than the European supervision order, just to set the one
against the other?
Mr Jakobi: It evolves round the mechanisms for
the fundamental decisions on bail. There are various criteria
obviously, but behind the criteria, the possibility of flight
is the one thing that both systems deal with to some extent. The
likelihood of repeating a crime whilst on bail is one of them.
Once you look at the bottom line, it is ties with the community
and decisions on character that determine whether bail will be
granted. Local judges throughout Europe of course know where they
are with their native citizens in front of them and can judge
these matters. There is also a question of character evidence
and all this sort of thing, whereas if you are in a foreign jurisdiction,
views are likely to be taken without proper information and proper
background, social background, and without being able to judge
the cultural ties and all the rest of it of the foreigner, and
so the underlying decision has this built-in institutionalised
xenophobia. Eurobail solves this because, as we were discussing
earlier, there are some jurisdictions which just say that if you
are charged with murder, you cannot get bail or provisional liberty
and matters of this sort. The trying country's judges will know
about this and they will say, "This offence is not bailable"
and that is the end of it. So nobody needs to know anything other
than their own fundamental laws on criminal offences and bailability
but, if it is bailable, then there is a pretty simple mechanism;
the Home Office Central Authority uses a system for warrants and
evidence on all sorts of things. The same mechanism could very
well be used for arranging for somebody to be sent back in custody
for their own magistrates' court to take into account all the
proper factors in granting bail. It will be that country that
is responsible for sending people back for trial and ensuring
that they are available for interview over video connections,
videoconferencing, and matters of that sort, if they are needed
in the interim period. What you have is elimination of bail bites
which is so strong in practice that foreigners very rarely get
bail in England or anywhere else, unfortunately. It is not just
this fear of flight.
Q23 Lord Jay of Ewelme: I have not
quite worked out who does what and to whom in this. If you are
in prison in Greece and it is a bailable offence, under the Eurobail
system, what happens?
Mr Jakobi: You are sent back to the UK as your
country of residence.
Q24 Lord Jay of Ewelme: Who decides
that?
Mr Jakobi: It is automatic if you are bailable
under the new treaty, the Eurobail Treaty, unless quite obviously
there is going to be a trial within a week or two. There will
have to be time limits.
Q25 Lord Jay of Ewelme: Is it bailable
under the jurisdiction of Greece of Britain? If it is a Brit who
is up before the courts in Greece, under Eurobail, does he get
sent back?
Mr Jakobi: There is a two-stage process. The
first one is a Greek legal process: if you are not bailable, you
stay in prison in Greece.
Q26 Lord Jay of Ewelme: Let us assume
that it is a bailable offence.
Mr Jakobi: Then it is up to your home country.
You are sent to the UK. It will be up to your local magistrates
to decide whether you are bailable or not.
Q27 Lord Jay of Ewelme: Suppose it
is a bailable offence under Greek law but not under British law?
Mr Jakobi: Tough, you are going to sit in prison
because the local magistrates will not allow you bail and vice
versa.
Q28 Chairman: You are going to be
sitting in prison in England?
Mr Jakobi: Yes.
Q29 Chairman: I have only just rumbled
this myself that under Eurobail it is a purely legal issue as
to whether it is a bailable offence in the trial state which determines
whether the person is then sent back to his home country and even
if he is not bailed there, he will be remanded in custody there,
rather than returned to be in custody on remand in Greece?
Mr Jakobi: That is right.
Q30 Chairman: If you look at paragraph
27 of your written evidence, under the heading, "The only
alternative: Eurobail", paragraph 27, "Procedure",
states: "The authority where the foreign national was arrested
would consider if the offence, as committed, could result in provisional
liberty for a national of that country. If the offence and its
circumstances were too grave to permit provisional liberty, the
accused would be remanded in the custody of that authority. If
the circumstances of the offence might permit provisional liberty,
the arresting authority would notify the appropriate authority
in the accused's home country, whereupon the accused would be
sent home as expeditiously as possible for the disposal of his
application for provisional liberty." Now, provisional liberty
here means bail pending trial.
Mr Jakobi: Yes.
Q31 Chairman: Where you speak about
"If the offence and its circumstances were too grave to permit
provisional liberty", I have read that as meaning: if they
thought that this was such a serious offence that actually nobody
ought to be granted bail, then they would not make the provisional
decision to send you back. What you have now told us, as I at
last understand it, is that that is not the question. The question
is whether it is theoretically a bailable offence under the law
of the trial state.
Mr Jakobi: That is correct. What you are doing
is sending the body home and wherever the body is, that authority
takes responsibility for it, but with that body, if the system
is going to make any sense, you have got to send the trial country's
circumstances of crime.
Lord Jay of Ewelme: So that everything can be taken
into account by the home magistrates, and so that is the way that
is taken.
Q32 Chairman: One consequence of
the difference is that under Eurobail, to take Lord Jay's illustration,
the Brit in Greece accused of murder—and I have no idea
whether Greece allows you theoretically bail if you are charged
with murder or not but if they do—you are sent back here
and under that scheme you might find yourself remanded in custody
in England?
Mr Jakobi: Yes.
Q33 Chairman: But under the ESO,
there is no question of your being remanded in custody in your
home state. That must be right, must it not?
Mr Jakobi: I think that must be right, or at
least there is no provision—
Q34 Chairman: By definition, you
do not get into ESO unless the trial state has said, "This
is suitable for bail, provided always of course that the executing
nation, the home state, is prepared to supervise the conditions
that we impose for the grant of bail"?
Mr Jakobi: I think the standard case is likely
to be that you are sent home to a home prison to await trial.
To anybody who has done a lot of crime, and I think some of us
have here—
Q35 Chairman: Do not look at me!
I am not as experienced in crime as many of my colleagues!
Mr Jakobi: All I can say is that there will
be a lot of criminals who will not be let loose on the streets
under any conditions.
Chairman: Obviously I have had criminal
jurisdiction down the years to a degree.
Q36 Lord Mance: Can I test the point
that the Lord Chairman has been putting to you and which you have
been accepting? If it is right, it seems to me there has been
a fairly fundamental misconception in the European authorities
which have considered this. I certainly read your paragraph 27,
especially the word "might", "If the circumstances
of the offence might permit provisional liberty" then you
notify and send home as expeditiously as possible, as introducing
a discretion on the part of the issuing state. That is certainly,
if you look at page 73 (paragraph 5.2.5), how the European impact
assessment has understood your proposal, Eurobail. The sentence
in the middle of the paragraph reads: "The trial court makes
a preliminary assessment whether the offence is `bailable'."
The difficulty, it seems to me, about the opposite proposition
which you have had put to you by the Lord Chairman and which you
have accepted is that it means in many cases, in respect of states
for example which simply apply the European Convention on Human
Rights tests for bail, which are generally discretional tests,
you would have automatically to send people back to their home
state, even in cases where it was absolutely obvious that there
was no question of bail in fact, simply because it was possible
in principle in relation to that type of offence, albeit it was
a serious murder, to grant bail. That is the consequence of your
suggestion that you exclude all discretion. I cannot think that
that would be regarded as a very sensible situation and it would
impose on executing states effectively the burden of keeping in
prison people awaiting trial in a foreign country. You may think
that is a good idea. Just to give you one further reference, it
is quite plain on pages 83-84 that the impact assessment does
not understand Eurobail like that. Look at the foot of 83: "The
trial state authorities would have no control over how the supervision
measures are implemented and therefore would be reluctant to use
such alternatives in the first place." That postulates that
Eurobail involves some form of discretion in the issuing state.
As I say, while I see the attractions of Eurobail in many respects,
I do find it difficult to think that it is practical to have a
system whereby simply because in principle an offence might as
a type of offence involve a claim for bail, therefore any assessment
of a claim for bail must be done by the executing state. That
is the problem I have.
Mr Jakobi: I do not find that as a problem,
my Lord Chairman. The reason I do not is that quite obviously
we are looking at offences where people are going to wait a very
long time for trial. We are not looking at short-term things.
We are looking at serious offences with a long-term element where
the pre-trial period is many months. If people are merely to swap
the foreign country's jail for their own country's jail, this
has a number of social advantages to the prisoner, but otherwise
I cannot see any problem, unless of course mutual recognition
is not the basis on which the European legal space is founded,
and governments of course do not trust each other, in which case
we all go home and we forget about every piece of legislation
that is going through the European legal space. If they do, as
I have said, what is likely to happen is that those who are not
bailable will exchange one prison for another; those who should
have been bailable will be instead of sitting in a foreign prison
released on whatever conditions they are released within their
own country. That is the good that one is trying to get. The problem
with the European supervision order is that it does not address
the fundamental problem of bail at all and we will continue to
have this alarming discrepancy, with the exception of a few people
who are granted bail confined to the trying country who will be
enabled to go home. That is a very small proportion in my experience.
There is a considerable benefit to this group who would be bailable
in their own country but are not getting bail in the foreign country
and who would benefit. The others would just exchange one prison
for another.
Q37 Lord Mance: How would you distinguish
the short term from the long term? You said that we are looking
at offences where the trial will not occur for a long time. Is
there some way of distinguishing?
Mr Jakobi: One of the problems with international
crime or crime with an international element is that the moment
you get that element for evidence, any form of evidence, the pre-trial
stage lengthens over the normal latest stage. That is a very important
factor. What I was really thinking of is this. There is a summary
cut-off point where it is quite sure that if the trial is going
to occur in a month or two months, and it is not up to me to say
where the summary cut-off point is, it is not worth going through
the procedure. I recognise that. Somebody has to determine where
that cut-off point is, but if it is likely that there is not going
to be a trial for six months, this is a very important factor,
I would suggest. We have thought about it.
Q38 Lord Borrie: One of the big disadvantages,
as I understood from you, Mr Jakobi, about the framework decision
in front of us is that it will not make a lot of difference to
the problem that you have been looking at for many years that
the trial country, the trial state, in which someone is present
for a period but is not resident will not have very much knowledge
on which to base a decision that somebody ought to be given a
supervision order and what the conditions might be because a lot
of that information is really only feasible in the hands of the
country or the courts of the country where the person is resident.
If I have understood that point from Mr Jakobi and if I think,
as I do at the moment, that there is such a radical difference
between the system being put in front of us by the Commission
and a system of Eurobail, then I ask myself: is there any room
for some intermediate position, for example, as in accordance
with the Commission's proposal, where the trial state makes the
decision but is required before coming to the final decision to
have consultation, discussion, information, et cetera from the
country in which the person is resident on which to make a more
intelligent decision about a supervision order and what the conditions
might be.
Mr Jakobi: There are two very difficult problems
here, one of which is that unfortunately we do have institutional
xenophobia amongst magistrates in the bottom tier who take these
decisions. People are willing to admit it, if you ask them, that
once you are a foreigner, you are a little suspicious. That, I
am afraid, will still continue. The second is that by the time
you have the sort of exchanges of information within the EU, the
time for trial will have already passed. It is much easier for
the country of residence to have this information within days
than for a huge exchange system to work for further character
inquiries and all the things that go around an intelligent decision
whether to grant bail or not to operate. This is likely to take
months rather than days in the foreign country. You are defeating
the objective if you do this, whereas a simple circumstances of
the crime report, which is something that the trial country is
very capable of giving, will give the resident country magistrates
a very good idea of what they are dealing with and would be very
helpful in determining the gravity of the offence and things like
that for them to work the other perhaps more nebulous stuff that
we are looking at, to determine a decision to grant bail or not.
You did put your finger on it at the beginning. I cannot see for
myself a viable compromise because of what I have just said. It
is not only all or nothing. What we are being offered by the Commission
is nothing or virtually nothing. I think one of the very interesting
lines of inquiry is why. I would again suggest that practical
merit makes it much easier for everybody to apply their own laws,
which is really what I am trying to say, rather than learn new
laws and have complicated mechanisms for transfer of this and
that, which we can go into. We have come to the conclusion that
the ESO as it stands has an unworkable system anyway, and my colleague
would go into this in some detail if required, quite apart from
the impact report talking about equality of treatment as well
as and in conformity with the European Convention and all the
other things and forgetting about that entirely in its assessment
in favour of certainty of return, which it does something about.
I found the impact report quite extraordinary, particularly the
misunderstanding of Eurobail in the report as being financial
only, which is a common continental misconception, though at every
expert meeting I attend I make that very clear, and the submission
of evidence to the Commission made that very clear indeed, and
also, the fact that the independent contractor is British. So
somebody has been fiddling with the original report on the way
up to get this result as put in the Commission impact report.
I cannot believe that the independent contractor has made such
a mistake.
Q39 Chairman: On this misunderstanding
as to the scope of Eurobail, the report is written as if all that
can happen by way of Eurobail is the stipulation of a surety in
a particular sum or his own recognisance in a particular sum.
It is a financial sanction if you fail to surrender to your bail,
but that is the only condition to which you can subject pre-trial
release. Is that it?
Mr Jakobi: There are implications along those
lines, if you read the impact report and the merits, that that
is what is understood by some people who have been responsible
for the impact report. That worries me very much indeed because
our understanding of provisional liberty and bail is that the
two terms are totally interchangeable in modern parlance.
|
