Examination of Witnesses (Questions 60-66)
Mr Stephen Jakobi OBE and Ms Debbie Sayers
21 MARCH 2007
Q60 Chairman: I begin to think that
ultimately there is a stark decision between two dramatically
different alternatives. If it is Eurobail, then effectively in
every case, the home state as opposed to the trial state is going
to be taking the decision yea or nay should there be bail, and,
if there is not to be, pre-trial custody will be served in the
home state not the trial state. That is the one possibility. The
other is what is before us, which is the Commission proposal,
which simply, you say, will not have any or sufficient practical
effect; it will not solve the problem, but will in fact at least
provide a possibility for a trial state to say, "I will let
this foreigner have bail when otherwise I would not because at
least I know that his home state where he will be on bail will
be policing his conditional release, policing the conditions of
bail, which I wish to set." Those are the stark alternatives.
Mr Jakobi: I would like to re-emphasise just
the one thing, that what I have called the marooned, people who
have been granted bail confined to the country of trial—
Q61 Chairman: Subject to travel restrictions,
therefore?
Mr Jakobi: Yes, they are stuck in that country.
Q62 Chairman: They have had to give
up their passport to the foreign trial state.
Mr Jakobi: Yes. There was one dramatic result
a couple of years ago when a lorry driver was reduced to doing
work on a chicken farm in return for board and lodging in order
to survive on bail because there is no interchangeable social
security services and matters of the sort attached to the European
legal space at the moment. They are very rare. They are the people
who will benefit by the proposals we have here. I think I omitted
that from my report. They are very rare. Most people will not
be affected by this.
Q63 Chairman: Are they the 5 per
cent?
Mr Jakobi: Yes.
Ms Sayers: May I add this point following on
from that? There is a need perhaps to understand that different
criminal justice systems operate in a different way from our own.
For example, in France, it is not the trial itself but the investigation
period which is the essential period in the criminal justice system.
It is accepted by many commentators that custody is used as a
tool of the investigative period so that it may not just be the
fact that somebody is foreign as the reason that they do not get
bail; it may be because the examining magistrate decides that
that is the most effective way of applying pressure to the accused.
Although the actual power to remand the accused in custody was
taken away from the examining magistrate in France about five
years ago, the research which is available has suggested that
that has not resulted in any decrease in the levels of pre-trial
detention in France.
Q64 Chairman: That is of natives
as well as foreigners?
Ms Sayers: Yes. What is effectively happening
is, rather than threatening a suspect with a remand in custody,
they threaten them with a referral to the custody judge. There
are deeper problems about bail across Europe rather than just
this issue of discrimination. Unless those problems are tackled,
if you leave the decision to the issuing state, that does not
tackle the problem perhaps of the other reasons attached to the
failure to grant bail as an issue.
Q65 Lord Mance: The difficulty with
that is that that is not a matter which goes to discrimination
against foreigners. That is a matter which equally affects French
nationals, though one knows in fact that the French have just
had a terrific scandal, have they not, where in a sexual matter
people were kept in prison I think for four years on detention
and ultimately every single accused was acquitted either at first
instance or on appeal and the Minister of Justice, in so far as
he is able, is investigating the custody judge. It was a young
man, I think.
Mr Jakobi: There were two separate such scandals,
one at the Pas de Calais and the other in Paris.
Q66 Lord Mance: The point I am making
is that we cannot expect this measure to resolve all domestic
problems around Europe. That is the difficulty.
Ms Sayers: Another reason may be that the executors
said they took the state of residence but because it is more impartial,
it is not going to use the issue of bail as a tool of the investigation.
It may be a reason to justify sending the person back to their
state of residence.
Lord Mance: It would certainly be nice
obviously for foreigners. They would escape the rigours of some
national systems, but one must have some sympathy for the local
nationals. We cannot do anything about them. I am not sure this
is the tool.
Chairman: Unless any Member of the Committee has
any further questions, we will bring this to a close. There are
one or two other questions which we previously outlined to you
which we think could conveniently be dealt with briefly in writing.
Could you let us have a brief response in writing? That would
be enormously helpful. I repeat the thanks that I know the Committee
feels and our gratitude to you for helping us with this inquiry
and getting us off to such a stimulating and informative start.
We have clearly quite a long way to go. You have set an interesting
scene for us. Thank you very much indeed.
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