Memorandum by the Crown Prosecution Service
1. INTRODUCTION
1.1 The Crown Prosecution Service (CPS)
has been requested by the Sub-Committee of the House of Lords'
Select Committee on the European Union to submit views on:
— the need for EU action on pre-trial
supervision measures;
— the major legal and practical implications
of the Commission's proposal;
— the adequacy of the system proposed,
and in particular whether one of the other options considered
by the Commission would be preferable; and
— what amendments might be made to
the proposal to improve the procedure;
in regard to the European Commission's Proposed
Framework Decision on the European Supervision Order in pre-trial
procedures between Member States.
1.2 Fundamentally, this is about the extent
to which decisions regarding bail (including conditional bail)
are "transportable" between EU Member States.
2. THE NEED
FOR EU ACTION
ON PRE-TRIAL
SUPERVISION ORDERS
2.1 The CPS agrees that there is a need
for such a Framework document as presently there are no international
instruments that specifically allow the transfer of pre-trial
supervision measures from one Member State to another. The European
Commission has proposed a draft Council Framework Decision on
the European Supervision Order in Pre-Trial Procedures between
Member States of the European Union. This provides a mechanism
for a court in one Member State to impose bail conditions on a
defendant, which can then be monitored and enforced in another
Member State, where the defendant is resident.
2.2 The proposal is a further step towards
the implementation of the principle of mutual recognition in criminal
matters, in the common area of freedom, security and justice.
It supports the principle of fairness and equal treatment of suspects,
with regard to both resident and non-resident EU citizens in the
pre-trial process.
2.3 In principle, the proposed action seems
to be a feasible and viable option. However, there are general
concerns about the detail in the Framework Decision namely:
— complexity of the proposed process;
and
— the different bail rules within the
European Union (EU), in particular some Member States having a
more serious threshold for remand in custody.
3. THE MAJOR
LEGAL AND
PRACTICAL IMPLICATIONS
OF THE
COMMISSION'S
PROPOSAL
3.1 The proposal that the issuing State
(the State where the person is facing prosecution) can make bail
decisions without reference to the executing State (the State
to which the defendant is being released on conditional bail),
is of great concern to us. It means that the issuing court would
not be making a fully informed decision, nor would it be taking
local concerns or resource issues in the executing State into
consideration. This would have both potential legal and practical
implications in terms of fairness and proportionality.
3.2 The involvement of the executing State
in the decision-making process should not impinge upon the judicial
authority of other Member States.
3.3 The proposed mechanism for dealing with
breaches of bail conditions does not allow the executing State
to make an immediate arrest. Instead, it has 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.
3.4 The process for the physical return
of the defendant following a failure to appear and where the burden
lies in terms of costs is unclear.
4. THE ADEQUACY
OF THE
SYSTEM PROPOSED,
AND IN
PARTICULAR WHETHER
ONE OF
THE OTHER
OPTIONS CONSIDERED
BY THE
COMMISSION WOULD
BE PREFERABLE
4.1 There are five suggested options:
— new legislative instrument for mutual
recognition of pre-trial supervision measures;
— new legislative instrument for mutual
recognition of pre-trial supervision measures and extension of
the European Arrest Warrant;
— co-operation Programme; and
While this draft Framework Decision of the European
Union is the preferred policy option by the European Commission,
the CPS prefers the Eurobail option.
4.2 The Eurobail model includes the executing
State much more in the decision- making process. It also reduces
the chances that the relevant information in the bail decision-making
process would not be available—not just antecedents, but
details on local conditions which may affect a successful supervised
period of bail. It also ensures that the concerns of the executing
State in relation to public protection would be taken into account.
4.3 The proposed option would be more acceptable
if some of the elements of Eurobail approach, in particular the
role of the executing State, were included.
5. WHAT AMENDMENTS
MIGHT BE
MADE TO
THE PROPOSAL
TO IMPROVE
THE PROCEDURE?
5.1 The identity, nationality and residence
of the person concerned should be established before a European
Supervision Order (ESO) is issued.
5.2 The issuing State should have before
it not only the details of the alleged offence but also the background
of the defendant and the local circumstances. This may affect
the conditions imposed, in addition to balancing the need to protect
the public; to support the presumption of innocence; and to maintain
the principle of proportionality. The current proposal seems to
allow the issuing State to make an ESO without any reference to
the executing State.
5.3 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 an ESO should not be issued without such consultation.
5.4 The current proposal for both the revocation
of the ESO (Article 17), and the arrest and transfer (Article
18) should be simplified to ensure that the enforcing State has
the necessary powers to take action in the event of a breach of
conditions. As currently drafted, a person exercising judicial
functions needs to undertake this duty. However, under UK procedure,
these issues are dealt with by the police and prosecution.
5.5 This Framework Decision should be closely
linked with proposals concerning the exchanges of information
in criminal proceedings, which would reinforce close cooperation
between issuing and executing States.
6. CONCLUSION
6.1 Whilst the CPS agrees in principle with
the idea of the Framework Decision, we have concerns about the
current detail and the practicalities. There are considerable
legal, practical and resource implications which would impact
on the criminal justice system and careful negotiation would have
to be undertaken to ensure that this proposal will work in practice.
25 January 2007
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