Examination of Witnesses (Questions 40-59)
Mr Stephen Jakobi OBE and Ms Debbie Sayers
21 MARCH 2007
Q40 Lord Bowness: There is one minor
point, Mr Jakobi, and forgive me. I think I have probably misunderstood
you. At one stage I thought you said that the only difference
the ESO in practice would make was that people would be in their
own jail rather than in a foreign jail. You must have been referring
to Eurobail in that regard.
Mr Jakobi: I was referring to those who cannot
be released on bail. They would be sitting awaiting trial in their
own country's jail instead of in a foreign jail.
Chairman: That is under Eurobail.
Q41 Lord Bowness: That is Eurobail
not ESO.
Mr Jakobi: ESO does not really have anything
to say whatsoever about it.
Q42 Lord Bowness: That has clarified
that point. The other point that I would really like to pursue
with you is the suggestion that with the ESO there are no sanctions
for breach. There is a whole chapter in the draft framework decision
on breach of a European supervision order, including such things
as if the issuing authority decides 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 should arrest
and transfer the suspect. There are provisions for the suspect
to be heard by way of a video or telephone link and there are
some articles dealing with the conditions of arrest. I am not
quite sure why you say there are no teeth or are you just saying
that the United Kingdom just would not be interested in enforcing
a supervision order issued by one of the other countries?
Mr Jakobi: I am going to ask my colleague to
answer this.
Ms Sayers: Clearly there is a coercive mechanism
set out in the European supervision order proposal. The point
is that it may not be as workable as you would want it to be.
If it is not a workable coercive mechanism, then will states be
motivated to use the European supervision order? It is not workable
for several reasons. Firstly, as I indicated before, the power
to grant a power of arrest rests with the issuing state. In the
UK, in England and Wales, if somebody breaches their bail conditions,
then the police officer could automatically arrest them for failing
to report or not being at their home address as they should be
or for not attending an appointment or for any of the conditions
that were on their bail conditions. That would not happen under
this order. What would happen is that under Article 16 the executing
state has to refer back immediately to the issuing state. The
issuing state then has to make a decision about whether or not
they should order the arrest and transfer of the suspect. Then
they have to do two things before making such a decision. Firstly,
they have to decide whether that arrest and transfer should take
place, looking at all the circumstances of the situation and also
looking to speak to the executing state about the situation. There
is also an ability of the suspect to be present at the hearing,
via a video link if necessary, so they can make representations.
My point as a former practising criminal lawyer is: how does the
suspect end up at the hearing if there is no power of arrest?
If somebody has breached their bail conditions, are we suggesting
that the arrest and transfer decision could take place in the
suspect's absence? Otherwise, the police would not have the power
of arrest to go out an arrest a suspect and bring them to a hearing
at which they could make representations.
Q43 Chairman: With all the in-built
delaying mechanism; if the chap does not report to the police,
the best the police can do is to tell the home state authority,
and the best they can do is to email, or however they would do
it—they have to do it in writing—the trial state authority.
The trial state authority then has in fact to refer to him and
he has at least by video link to have an opportunity to say why
he still should not be arrested. By this time, he could have gone
to anywhere else you care to mention.
Mr Jakobi: Could I say something about this
general type of problem? I have been a practitioner all my life.
The people who worked on Eurobail with me were defence practitioners,
defence lawyers from various countries in Europe. We tried to
devise a practical scheme that would work. What we were faced
with was a whole lot of, and I hope they will forgive me, highly
intelligent bureaucrats who have seen very little, if any, practice
of criminal law trying to devise schemes without regard to practicality.
Every time you look at the other schemes, they fall apart on these
practical points. This is another reason. I was pleased to see
that the Crown Prosecution Service supported Eurobail, for example.
Q44 Chairman: I noticed that, absolutely,
but I wonder if their understanding of Eurobail is what you now
tell us is the correct understanding, which I have to tell you,
and indeed must have been obvious, was not my nor Lord Mance's
understanding from the documents of how it worked. Can I go back
with you to paragraph 5.2.5 of the impact assessment, "Summary
of policy option 5: `Eurobail'." Do you see that paragraph?
Mr Jakobi: Yes.
Q45 Chairman: If you look at the
second line at the end: "In the model suggested so far, there
would be a division of functions between the trial court and the
court of the suspected person's country of residence. The trial
court makes a preliminary assessment whether the offence is `bailable'."
As I understand your evidence, Mr Jakobi, you say bailable means
simple as a matter of law, yes or no, does the law in any circumstance
allow for the possibility of bail for this particular offence?
Mr Jakobi: That is correct. This is precisely
what I meant. I do not think that they got it wrong in saying
what they said.
Q46 Chairman: A preliminary assessment
whether the offence is bailable, could be read in either of two
ways. You could say: simply as a matter of theoretical law, does
the law actually forbid bail in a case of murder, say, or you
could read it as: do they think, having regard to all the circumstances
of the case, it is the sort of offence where a court might on
conditions be prepared to grant bail? It could mean either of
those two but you say it means the former?
Mr Jakobi: I hope you will forgive me for saying
this. The danger is that the moment you move away from matters
of law, you are beginning to get this xenophobic discretion.
Chairman: Of course you are but it is
a question of what is understood by it in the entirety of the
European publications.
Lord Leach of Fairford: Might I just
suggest that the fact that `bailable' is put in inverted commas
may carry much more weight than you would normally attach to it.
That may be saying technically bailable. They may be trying to
do that by putting it in inverted commas.
Q47 Lord Mance: Can I go back to
a different point? Let us accept what you have said obviously
about your aims and wishes regarding Eurobail. I wonder, taking
up Lord Borrie's point, whether there is not a middle ground,
which in fact I think the CPS may be supporting rather than your
understanding of Eurobail. The CPS at paragraph 5.3 states: "There
needs to be a closer liaison between the issuing and executing
State on the conditions to be imposed. Both authorities should
be involved early in the decision-making process, and the ESO
should not be issued without such consultation." Then in
5.4 they go on to make the valid points that you and your colleague
have just made about the complete unenforceability or unworkability
of the proposed scheme at a later stage. Let us just concentrate
on the original making of the order. Can I direct you then to
the actual draft, Article 6, paragraph 2? It does perhaps contain
the seeds of something that might be an intermediate situation.
If you look at it at page 13 it starts, "Subject to agreement
between the issuing authority and the executing authority".
The difficulty is it does not actually go on to tell us how the
agreement is reached. Then it talks, in Article 8, about transmission,
as if you have a fully-fledged order. Then in Article 10 it talks
about grounds for non-recognition and non-execution, but one would
have thought that if discussion and agreement is contemplated
at the early stage, things like non-recognition and non-execution
would have been sorted out at that stage as well. It seems inconceivable
that you could discuss the terms, then transmit the order, and
then find the receiving state saying, "Sorry, we are not
recognising this". One does not want to put it too strongly,
but I think that the drafting is very inadequate from a practical
point of view. I wonder whether there are not the seeds of something
on which we might build, or someone might build, in the beginning
of paragraph two, if one could work out a workable scheme for
co-operation, such as Lord Borrie was, I think, suggesting.
Mr Jakobi: I was trying to work on this business
of the circumstances of the crime as being the important contribution
of the issuing state, that that is something they would know about
and be able to transmit to the executing state. That was really
I think all they could properly contribute. The rest of it starts
building in a bias against the accused.
Q48 Lord Mance: They might know a
bit about it, might they not? The arresting state probably does
know a bit about the background to the person. The circumstances
of arrest may give some indication as to whether he 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 and so on.
Mr Jakobi: Yes, but I think we are talking about
the offence itself in circumstances of arrest. Certainly one could
get that built in to the documentation. It would be one document
and only one necessity to get that document from one country to
another. 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.
Q49 Lord Mance: There might be a
situation where, if one could develop the practice of use of liaison
judges or informal communications between judicial authorities,
a foreign judge could email or communicate with some judicial
authority over here and say, "Look, are these conditions
practicable and what is the correct reporting authority? Do the
police welcome reporting restrictions that require you to turn
up once every 24 hours?" The answer is "definitely not"
and it is the sort of thing that an English judge would actually
discuss in court with counsel and perhaps with the police and
maybe a probation officer. I can see the input would be very valuable.
I wonder whether you could not build it into the issuing authority's
decision in an informal way.
Mr Jakobi: What I find very difficult about
this is that surely the accused has an absolute right to be present
when these decisions are taken? Playing games with foreign authorities
and getting their opinion in the accused's absence that are going
to make for bail or no bail is quite dangerous. One could see
a practice building up where these decisions are taken in the
absence of an accused, which is surely not right. I think that
we can be generous and liberal looking at the circumstances of
the crime but certainly this is going to be the trying court's
chief contribution to the debate and it is very important that
that should be heard and it means one document, which should carry
due weight with the executing court, as we hope that executing
court's considerations would carry due weight with the issuing
court. That is their contribution. Their contribution is the circumstances
of the offence and surrounding circumstances, which must be taken
very seriously in all these considerations.
Q50 Lord Borrie: I am not sure why,
Mr Jakobi, it should be regarded as so difficult for the court
in the country of residence to give information at the request
of the trial court to do with the background and knowledge that
is held by authorities, probation type authorities in other countries
and so on, which would be of use to the trial court in determining
whether they should be bailed. Indeed, if I may make another point,
picking up on what you have said, you said it would be a rather
bad thing in principle for the trial court to rely on information
which was given by the court of residence that would not have
had the presence of the accused in front of them. I am talking
about information which may well be of great benefit to the accused
because the whole point of the ESO, and indeed the whole point
of the Eurobail proposal, is to make it more likely that there
will be bail on appropriate conditions and so on than custody,
which surely must be a good thing from the accused's point of
view. Of course in various countries modern communication, email
and all the rest of it, surely can quite rapidly convey information
from one to another. Courts in this country often have to wait
for a medical report or a probation officer's report and so on
and there is a delay built into that, but it is not a delay because
one reporting body is in France or Greece or somewhere and the
other is in Britain. There are often these things from different
parts of one's own country.
Mr Jakobi: That is certainly true to an extent
but, and the but is I think that in order to formulate an opinion,
magistrates will frequently hear character witnesses. It is not
all a matter of court formality in any country. I have been in
French courts and Spanish courts and the same thing happens of
course. If you get a letter from a character witness, you cannot
question it, or if you do, there is enormous delay. Although it
looks reasonable that the formalities will be observed, this is
in effect a built-in, prejudicial factor. Secondly, unfortunately,
in a perfect world I would completely agree with what was said
about reports and things but when a foreign court asks for a probation
report, local priorities tend to be on their own affairs, for
obvious reasons. Things are put to the back of the file. All I
will tell you is that French courts that ask for appropriate information
on previous convictions and things like this were complaining
that there was several months' delay before they got the information.
All these requests go up to ministries of justice, our Home Office,
and down again and it does not work. I have always wanted to see
a practical system for working bail. I feel, and other practitioners
from different countries totally agree, we had not one dissenting
voice from our family on this, that this would work. It obviously
does not work for very short-term decisions and someone has to
take a decision: if the trial is likely to come on within two
months, do not let us bother with the system. I accept that that
in itself is a practical limitation. Given that I am very aware
that in countries like France and Spain, foreigners sometimes
spend two years on remand waiting trial, lorry drivers and people
of that ilk, it is quite common—not the average time of
wait because they were waiting for foreign evidence and things—that
there is quite a lot at stake for some people. I do not think
I can take it any further than that.
Q51 Lord Bowness: At the risk of
taking more of the Committee's time, could I go back to this business
about enforcement? Is it really so weak as we suppose or is it,
as Lord Mance has suggested, a question of drafting? I hesitate
to make this point because it may not be a very good point but
I will make it nevertheless. The criticisms of Article 17, consequences
of breach, seem to be the same; people cannot be arrested for
breach of the order. Do not Article 17 and 18 talk about arrest
and transfer and arrest to make the transfer? It is not about
enforcing the actual breaches of the order, which the framework
decision seems to me to impose an obligation on Member States
to enforce. "Enforce" must mean something. It cannot
just mean that the court signs at the bottom of a piece of paper.
Member States shall execute any European supervision order (Article
3). Surely, when a decision on enforcement comes before the relevant
court, it talks about the court recognising and then executing
it. It goes on later in Article 12: if it has been postponed for
any reason, the competent authority shall take the necessary measures
for the execution of the European supervision order. Surely with
all these provisions which are possible under the Articles, once
our own court (and I am assuming it is the United Kingdom in this
example enforcing that) decides to do this and impose these conditions,
does it not become an order of our own court? The provisions about
arrest and taking the person back to the country, that is arrest
and transfer. It does not seem to me that those provisions are
actually prevention from enforcing the orders.
Mr Jakobi: I just want to say, and I did point
out earlier, that even if we had a fairly perfect enforcement
mechanism, it would not apply to many under current conditions.
I would agree with you it is possible to make better draftsmanship
in the draft framework decision. I should also point out that
it would be the obligation of 27 governments to translate whatever
framework decision there is. I think most of the Committee here
will have some idea of the trouble we ran into with the European
Arrest Warrant. Any sloppiness anywhere is going to cause constitutional
ructions, I would have thought.
Q52 Lord Bowness: It cannot be beyond
the wit of the translators to make it clear that if our court
executes an ESO, they have the power to enforce the conditions,
which is actually quite different from the provisions about arrest
and transfer back to those courts?
Mr Jakobi: I was trying to make the point that
you need two things. You need a fair and equal playing field for
bail, which is what we are trying to do for people, so that institutionalised
problems go in allowing bail. You need an absolutely firm mechanism
for getting people back. I always say that the alternative to
bail is jail and if there is not a cast-iron mechanism for getting
people back to the trying country with as little formality as
possible, the whole scheme breaks down. I would accept that too.
We are looking at part two, and it may be that that can be cured.
I think that is the only positive benefit one gets from the ESO
that it tries to provide a good mechanism for return, and that
is a good. The great majority of bail decisions are going to be
adverse ones for the reasons I suggested. Therefore, it is I think
of little use. The other problem is the sort of Gresham's Law
of law, that a bad piece of legislation that does not cure the
problem will delay a good piece by 10 years in Europe. Everybody
will say, "We have dealt with that". I think, given
the enormous likely delay in getting anything through, we have
time to have second thoughts and to do a better job. If it was
already a done deal, which it is not or likely to be in the near
future, I would agree we are talking theory here, but we are not;
we are talking about the practical ability to have a decent practical
system and there are problems with Eurobail. I will not pretend
that we have looked at the administration or anything like this
that could be ironed out in the meantime. There is this horrible
question of age of criminal responsibility, which we have not
turned to, my Lord Chairman.
Q53 Chairman: No, and that is indeed,
as you rightly point out, one of the questions we should discuss.
There is a huge age range for criminal responsibility, as someone
pointed out, of seven in Ireland, 16 in Portugal and there are
differences in the UK with eight in Scotland and 10 in England
and Wales. That is a discretionary bar, as I understand it, unlike
under the European Arrest Warrant. It is a discretionary ground
on which you can decline to recognise and execute an ESO under
this proposal. Is that not right?
Mr Jakobi: I think not. I attended as an expert
the inquiry on post-conviction alternatives to custody and probation.
It was the view of the Commission, and this is when it came up,
that because the European Arrest Warrant had given this bar as
an absolute bar that all other measures produced across the spectrum,
the European legal space, of similar nature would have the same
force.
Q54 Chairman: I am looking at Article
10 of the proposal. Article 10 (1) is mandatory if it is a ne
bis in idem case, a double jeopardy case, and then you have
got to refuse. Under 10(2), you may refuse to recognise and execute
the European supervision order on one or more of the following
grounds of which the first is: "If, under the law of the
requested State, the suspect may not, owing to his age, be held
criminally responsible for the acts on which the ESO is based."
Mr Jakobi: I think that is a pious hope. There
is no country that is going to send back somebody who is under
their own age of criminal responsibly. It is not in any way practical.
Q55 Chairman: If you do not do that,
then you are simply condemning this youth, who is under age under
your law, to custody on remand and he will be tried in the trial
state.
Mr Jakobi: I totally accept that and I pointed
this out.
Q56 Chairman: You have a discretion
so that you can in fact at least ensure that he has pre-trial
bail.
Mr Jakobi: Under the European Arrest Warrant,
the reason why it was made a mandatory exception was because no
country would do it. If we were the 16-year-olds, which we are
not, we are at the bottom end of the spectrum, you cannot see
Parliament allowing under-age children to be shipped back to a
foreign country. We would never allow such a law to pass. That
really was the problem with the European Arrest Warrant. It is
a pious hope by the framers. I think the only solution is to have
some sort of approximation of age of criminal responsibility,
however hard that may be to attain.
Q57 Chairman: I am sorry to go back
to it, but it is so important at the end of the day to have clearly
in mind what other options there are that I want to pursue this
Eurobail. If in fact, you are right, the question then is simply:
is this a bailable offence under the law of the issuing trial
state? The other point Lord Mance made, and it struck me as having
great force, is this. Why, under ECHR, is not every offence theoretically
bailable? There is no basis on which you can say: we do not bail
people for murder, or we do not bail people for rape or anything
else. You simply cannot have such a law because of the Strasbourg
jurisprudence which says you can only have pre-trial custody on
specific grounds, such as if there is a real risk of flight, real
risk of interference with witnesses, real risk of committing other
offences. I do not understand, without making a specific judgment
as to whether one of those risks is a real one, how you can ever
deny that an offence was bailable, in which case, on that approach,
you would have to send back every accused foreigner for the question
as to whether he should be released on bail pre-trial to be determined
by his home state.
Mr Jakobi: It is a nice theoretical point because
honestly if every country obeyed the European Convention on Human
Rights and decisions made by the European Court on Human Rights,
we would not need any of this mechanism at all. Unfortunately,
it does not happen in practice. The difference between what happens
at ground level and on what the European Court on Human Rights
very sensibly often makes its decisions is appalling. We have
had 25 years of a fundamental European decision on the provision
of interpretation and translation services for the accused. About
two countries obey that, this being one, after 25 years. You have
all these problems and in effect, if we start playing with different
national views on what is bailable, we are entering another problem.
I thought it was best to put it this way.
Q58 Chairman: In the conclusion of
the Commissions explanatory memorandum, at paragraph 6.3 on page
29 of their document, in the final paragraph it states: "Policy
option `Eurobail' (Option 5) 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." Do you accept
that it has met strong opposition from Member States, and, if
so, how do you explain that?
Mr Jakobi: I explain it that it is an attack
of sovereignty overriding mutual recognition because it is not
a really realistic argument if you do have mutual recognition
and you have confidence in another state's ability to comply with
its obligations. It has met strong opposition. Given the current
constitution, it would only take one opponent and we would make
no progress, which is, I would suggest, why we have this most
peculiar impact report that does not seem to treat Eurobail fairly,
and we are mixing up political expediencies, as I pointed out.
This is not, under current circumstances, a politically expedient
solution; it is a merit solution. If circumstances changed, and
we are going to need that to get any progress at all under any
of these provisions, I think it would be easier because it would
take more states and there would be more influence by parliaments
that are concerned about freedom on the process, but at the moment
no progress is made on any front because of the current constitution.
Q59 Chairman: Even in the 1999 report
of the Select Committee on prosecuting fraud on the Community's
finances, the Corpus Juris, one of the views expressed
by the Committee at that stage was that `a preferable solution
to Eurobail might be a European Union regime for the mutual recognition
and enforcement of conditions of bail, which in our view might
be simpler to operate and more attractive to Member States'. So
eight years ago now this Committee, having taken evidence, seems
to have formed the view that there were problems even then with
Eurobail and that the scheme, which is now represented by the
Commission proposal might be preferable, might be simpler to operate
and more attractive to Member States. You would take issue with
that and you do.
Mr Jakobi: I would only take issue because the
alternatives were not suitably investigated by anybody at that
stage. Nobody had even looked at the problem, and in trying to
approximate conditions of bail a great deal of work was done by
the Commission and it was found unworkable. It is a great theoretical
idea. It would be wonderful but of course they went through it
country by country and then found out that, apart from some fairly
obvious conditions common to most, one of them being reporting
to the police (that, it seemed, almost everybody did but a couple
of countries did not do that for example), it varied tremendously
how these things were arranged. It is probably easier to try and
get a system that works from one country to another than trying
to approximate criminal procedure and justice. That is very difficult.
It has been done for terrorism, I believe, and money laundering
but almost nothing else in Europe. It is quite a problem.
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