Examination of Witnesses (Questions 67-79)
Mrs Amanda Bowring, Mr Brian Gibbins and Mr Peter
Hall
18 APRIL 2007
Q67 Chairman: Good afternoon and
welcome. This hearing is in public. You will receive a copy of
the transcript and have an opportunity to correct it later but
meantime it goes on the Web in its existing form. I know you have
had notice of the area of questioning in which we shall hope to
take your evidence and gather the help you can give us on the
inquiry which we have started. We have had one evidence session
already into the proposed new European supervision order. We have
of course had your helpful written contribution where I think
in the roundest terms you acknowledge the need for something to
be done with a view to increasing the prospects of bail for those
who are to stand trial in another Member State but you voice obvious
concerns with the proposal as it presently stands. What is your
own experience of the problems of getting bail in this country,
of course for non-UK residents, and do you recognise the need
for some measure to try and improve the situation? I shall direct
my questions centrally to you, Mrs Bowring, but feel free to call
on your colleagues to answer or supplement your answers.
Mrs Bowring: When we had notice of this session,
we did email our 42 CPS areas. We put a finger in the wind, so
to speak, as to how this issue is being dealt with. I think firstly
that in some areas it is an issue; in other areas it is not. CPS
Wiltshire, for example, said it is not a problem; perhaps unsurprisingly,
CPS Kent said that this is an issue that frequently occurs. There
seems to be a stark choice for prosecutors that when a non-UK
resident appears in court, they are faced with either having to
request a remand in custody to cover the lack of community ties
or request bail with conditions that ensure the person stays within
the country because clearly conditions that go beyond this jurisdiction
are unenforceable. Lodging of a surety is the most common condition
but of course that is not foolproof. We had an example of a Turkish
lorry driver who was resident in Germany who was charged with
human trafficking offences in Suffolk. The condition of his bail
was a £20,000 security to be paid by members of his family
living in the UK, which they duly did, and he has now absconded
to somewhere in Germany and is subject to a European arrest warrant.
There have been some innovative solutions to this. Some courts
have a fast-track situation whereby such cases are brought on
earlier than other cases, domestic cases, and also the use of
imaginative conditions. For example, in Cambridge, taking the
lorry driver example, they ask the employer to lodge a bond with
the court. As to a need, I think we agree in principle that there
is clearly a need for a practical solution to this problem. We
are not talking about huge numbers here. The Home Office has supplies
some figures. There are 572 EU nationals in UK prisons at the
moment.
Q68 Chairman: Are there 572 EU nationals
in UK prisons awaiting trial?
Mrs Bowring: I am not clear about that. I think
it is awaiting trial but I can clarify that and write to you.
Lord Mance: One would have thought that must be.
Q69 Chairman: Absolutely; there must
be many more than that already standing convicted.
Mrs Bowring: The figure becomes slightly muddier
when you look aboard. The number of UK nationals who are remanded
in custody but are awaiting sentence is 840; they are not awaiting
trial but awaiting sentence. Those are the figures we have. We
are not talking about huge numbers here but clearly there is a
need. It does throw up problems. This is just really about the
correct instrument that the CPS is looking for in order to ensure
that there can be some pre-trial supervision.
Q70 Chairman: Are you ever consulted
in order to assist with regard to UK nationals who are subject
to trial, remanded in custody awaiting trial in some other Member
State?
Mrs Bowring: No, I believe we are not.
Q71 Chairman: Clearly one of the
important questions that arises, and this arose very prominently
when we took evidence a month ago from Stephen Jakobi, of whom
I suspect you will have heard, was: what is involved in what might
be said to be the main rival proposed scheme, Eurobail, which
is obviously one of the other policy options open to the Commission.
I do not know whether you have the Commission Impact Assessment,
paragraph 5.2.5. That describes the scheme under Eurobail as involving
the trial court making a preliminary assessment whether the offence
is "bailable". Certainly Mr Jakobi understands that,
and I want to know if you share his understanding, as meaning
simply whether as a matter of law the offence charged abroad is
amenable in any circumstances to bail.
Mrs Bowring: That is our understanding. It is
purely looking to see whether it is capable of bail. For example,
in the UK, all offences attract bail. I know there are the limited
exceptions under section 25 of the Criminal Justice and Public
Order Act which says that if you have a previous conviction for
murder, attempted murder, rape—
Q72 Chairman: And if you are charged
with that same category of offences again, then it is not bailable
but everything else is?
Mrs Bowring: The court has to be satisfied that
there are exceptional circumstances to release you on bail, even
though the offences are technically bailable, we would say, under
Eurobail.
Q73 Chairman: If that scheme applies
and we have a foreign national awaiting trial here, say for murder
and he has not committed murder before, as far as we know, under
this scheme we immediately have to send him back to his national
country. Is that right?
Mrs Bowring: That is our understanding, yes.
Q74 Chairman: It is for them either
to keep him in custody awaiting trial or to bail him, is that
right, and eventually to return him when we would be ready to
try him?
Mrs Bowring: That is correct. That is our understanding
of Eurobail.
Q75 Chairman: Is that a scheme in
which you see merit?
Mrs Bowring: That is our preferred option because
it is very simple if you compare it to the ESO. It is very clear
that the issuing state makes that preliminary assessment. They
send him/her back to his/her state of residence and then it is
just a matter of that state applying its legislation, its bail
proceedings, for the normal appeal procedures to take place. There
are no parallel jurisdiction problems; there are no problems about
information sharing and risk assessment. Then when the time for
trial comes, that person is then sent back, which the executing
state pays for, and they can stand trial in this country or vice
versa. It seems to be very straightforward.
Q76 Chairman: It means that all those
remanded in custody would be remanded in custody at least in their
own country. If in fact they are bailed and are made subject to
travel restrictions, that in the same way would be in their own
home state. They would have to surrender their passport in this
country with a view eventually to them being returned to France,
Germany, wherever, to stand trial. Is that right?
Mrs Bowring: That is correct and they could
continue working.
Q77 Chairman: What do you understand
to be the central objection to that in the Commission's assessment,
or indeed in your understanding of any other state's view of this?
Do you understand what is regarded as the reason not to adopt
that proposal, to favour the ESO instead?
Mr Gibbins: My Lord Chairman, I am not sure
that we do understand the difficulty with Eurobail because it
seems to us that it has very clear advantages because it separates
the proceedings in the issuing and the executing Member States.
It does not, in our view, risk the confusion and duplication that
we think is inherent in the European supervision order. It is
for that reason that we have expressed a preference for Eurobail.
I am not sure that we can assist on why the Commission went down
the road that it did.
Q78 Lord Mance: It is probably right,
is it not, that the objection is political? Although all European
countries within the European Community and Union are expected
to operate on a basis of mutual trust, this is a proposal which
requires unanimity and in reality, perhaps this may not therefore
be a matter on which you can comment very much, some countries
are likely to object to a situation which will put bail in the
hands of other legal systems, which they do not know about and
may not have complete confidence in.
Mr Gibbins: I think the position is that we
have not been party to the negotiations and we would not be in
a position to comment on that.
Q79 Lord Mance: The other aspect,
I suppose a practical one, is that there must be some impact on
the prison population. Whether it is an adverse impact or a beneficial
impact, it is a little difficult to know without more statistics.
We would have a whole lot of EU nationals in this country who
would not be in custody here; on the other hand, we would acquire
some British nationals from other countries who would be put into
custody. I do not suppose you could say one way or the other which
way the impact would be?
Mr Gibbins: I think there is a general sense,
and we cannot put anything more scientific than that, amongst
practitioners that we have discussed this with that the UK would
be more likely to be on the receiving end of European supervision
orders than it would be issuing them. I say that for these reasons.
As it is currently drafted, there is no precedence over European
arrest warrants, extradition requests, ICC (International Criminal
Court) surrender requests or domestic proceedings. What that would
mean is that if I was a prosecutor in an English court and I was
opposing bail and the court was considering whether to issue a
European supervision order in respect of a foreign resident, I
would I think be within my rights to alert it to the fact that
if it did grant a European supervision order and let him go back
to his country of residence, there would be the possibility that
the European supervision order, in its current draft, could be
trumped by any one of those four types of proceedings that are
mentioned as having precedence. That would clearly be something
that I think the court would want to take into account, particularly
if it looked at a defendant's antecedents and saw that he had
a significant criminal record so that it would not be beyond the
bounds of possibility that some other country might have a European
arrest warrant waiting in the wings for him. For that reason,
we suspect that our courts might be reluctant. However, the other
way round there is an important distinction and that is this.
It would be available for countries that, for example, used the
investigating magistrates' system where the offence was only at
the investigative stage. One can imagine the situation where a
British national is being investigated by an investigating magistrate
in a European state for an offence; it might not be a particularly
serious offence and the inquiries might not be at a particularly
advanced stage. The investigating magistrate may, at some stage,
wish to talk to him again, and indeed may at some stage want to
charge him, or whatever the equivalent would be. The European
supervision order would be a very attractive proposition in those
circumstances because it would involve supposedly little cost
by way of detention, which would be the alternative in that country's
courts. Send him back to the UK and you would, as it were, have
put your marker down on him if you needed him in the future. That
analysis leads us to believe that there is at least the potential
for us to be on the receiving end of significantly more than we
would send out.
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