Examination of Witnesses (Questions 80-99)
Mrs Amanda Bowring, Mr Brian Gibbins and Mr Peter
Hall
18 APRIL 2007
Q80 Chairman: The receiving end of
the supervision orders?
Mr Gibbins: Yes, in our capacity as executing
Member State.
Q81 Chairman: These people would
not be in custody therefore by definition; they would be at liberty?
Mr Gibbins: Our understanding is that in European
states it is possible to remand somebody in custody at the investigative
stage.
Q82 Chairman: Under the ESO, as I
understand it, the scheme only works if the trial state is prepared
to release the foreign accused back to his home state on bail?
Mr Gibbins: Yes, my Lord.
Q83 Chairman: I am saying that if
we receive more of these orders, we are receiving the people back
but we are receiving them back on bail. What we have to do then
is to supervise the terms upon which the trial state has made
him subject to conditions of bail. Is that not right?
Mr Gibbins: We suspect that actually the process
of doing that is rather more complex than may appear on the face
of it. One of our big concerns is that effectively this will lead
to the development of a jurisdiction very similar to that in extradition
cases, but in fact it will be more complicated because you will
have functions carried out by both the issuing authority and the
executing authority and we can see the possibility of effectively
twin-track, if you like, appeal processes in both the issuing
and the executing Member State. It is that I think that leads
us to favour the Eurobail option, which draws a very clear distinction
between the functions in the issuing Member State, which are effectively
those of the trial court, and the functions in the executing Member
State, which are those of monitoring and, if necessary, enforcing
bail conditions.
Q84 Chairman: I do see the attraction
of the Eurobail scheme and the simplicity of its operation and
effectively, not least because of ECHR constraints on pre-trial
custody, almost every offence will have to be regarded as bailable
and therefore almost every foreign accused will have to return
to his home state for the home state to decide whether he should
be remanded in custody to await his trial abroad or whether he
should be released on bail to await his trial abroad. That I can
entirely see but when it comes to the ESO, the central decision
is taken by the trial state on the face of it. There is no express
provision at that stage for any liaison with the home state at
all. Is that not right?
Mr Gibbins: Respectfully, I do not think we
agree with that.
Q85 Chairman: When you say you do
not agree with it, you mean you would not like that to be so but
that is at the moment how the proposal stands, is it not? There
is not any express provision to get in touch with the home state
before the trial state decides yes or no whether to make one of
these orders.
Mr Gibbins: If one looks at the relevant Articles,
it may be that it is not as clear-cut as that, would that it were.
Q86 Lord Mance: You are referring
to Article 6, paragraph 2, and the opening phrase which seems,
on the face of it, to read in the air `may or may not relate to
Article 12'?
Mr Gibbins: My Lord, yes.
Q87 Chairman: 6.2: subject to agreement
between the issuing authority and the executing authority, they
can impose a variety of these obligations. It might be said to
be implicit in that that there should be some machinery for discussion
between the two states in advance of the decision but there is
not any explicit provision for it in so far as you can read it
into 6.2.
Mr Gibbins: We would say that it would be extremely
important for that consultation to take place. It might be at
the purely administrative level as to the suitability of an address
or the availability of a particular police station; it might be
on much more complex matters.
Q88 Chairman: I see one of the conditions
may be that he undergoes specialised medical treatment. On the
face of it, one would really need to discover whether that sort
of treatment is available, how easily it can be provided for,
and that sort of thing.
Mr Gibbins: Indeed, but once the initial decision
has been taken to issue a European supervision order in the issuing
Member State, it is then sent back to the executing Member State
to make a decision as to whether it is going to run with it.
Q89 Chairman: But it only has very
limited grounds for declining to run with it. Is that not right?
Mr Gibbins: I am not sure that that is necessarily
the case. If by analogy one looks at the process under the European
arrest warrant, and there are very clear parallels between the
two framework decisions that your Lordships are looking at, before
a court in this country can return somebody pursuant to a European
arrest warrant, it has to be satisfied that to do so would be
compatible (which I think is the word that the Extradition Act
uses) with his ECHR rights. Of course it is that that opens the
door to all sorts of arguments on fairness of trial, defendant's
personal situation and so forth. We think, whether explicitly
or implicitly, that our domestic legislation in having to comply
with the ECHR would necessarily involve that kind of process in
dealing with a European supervision order.
Q90 Chairman: I have to say that
you do rather surprise me. Article 9 here says: "...the executing
authority shall recognise a European supervision order... without
any further formality being required, and shall forthwith take
the necessary measures for its execution". Then Article 10
tells you under 10.1 the one basis on which you must refuse to
do that. You must not have double jeopardy, the ne bis in idem
principle, and then 10.2 sets out three circumstances in which
you have a discretion to refuse. Those apart, with the best will
in the world, it seems to me that under this scheme you are bound
then to recognise and execute it, are you not? Speaking for myself,
I must say, as to your analogy with the European arrest warrant
there is very, very limited scope, in my view, not to execute
a European arrest warrant on human rights grounds.
Mr Gibbins: The possible objection that I raise
of course does not simply apply at this initial phase of recognition
and enforcement. In our submission, it would apply throughout
the whole life of a European supervision order so that, for example,
if one looks a little bit further down the line, imagine that
a defendant had breached his European supervision order—I
know we are getting into different territory—and the issuing
state had said, "Right, please revoke it and transfer him
back to us", he is entitled under Article 18 to be heard
by the authorities in the executing Member State.
Q91 Chairman: That is provided for
under 18.1.
Mr Gibbins: Indeed.
Q92 Lord Mance: What I do not understand
at the moment is why these are particular objections to the European
supervision order. It may be a more complicated procedure but
these types of objections, in so far as they are good, could also
be raised in relation to a Eurobail scheme. One would have thought
that the language of the Eurobail scheme would also make, or try
to make, it pretty clear that sending back for trial was automatic
or pretty automatic, but if there is the sort of argument you
mention, surely it could equally be raised in relation to Eurobail?
Mr Gibbins: I accept that there is an element
at which it could come in. The substantive difference is of course
that under the Eurobail system, you do not have two courts dealing
with the process of enforcement and so you do not have a court
in the issuing state and a court in the executing state having
to make decisions into which process the defendant has an input,
both in the issuing and the executing Member State. Similarly
at the breach stage or at whatever stage it happens to be, you
have the potential for proceedings in both the issuing and the
executing Member State. We think that that is not a situation
that would apply under Eurobail. There is a slight difficulty
here because the Eurobail proposal is perhaps much more tenuous
in terms that it has not evolved as far, and so it is difficult
to compare specifics because there is no framework decision on
Eurobail.
Q93 Lord Mance: One might think that
is a pity. One criticism that can be made of the present scheme
is that it is extremely badly drafted. I wondered whether there
had been any input from experts, like yourselves, in its drafting.
We have already drawn attention to a phrase which hangs in the
air and invites further elaboration, but there are a large number
of aspects of this document which seem to be very problematic.
Mr Gibbins: We have not been involved in the
drafting of the framework decision itself.
Q94 Lord Mance: Has the UK had involvement,
as far as you know?
Mr Gibbins: Our understanding is that there
are certainly negotiations going on in which the UK is clearly
involved. I am afraid I cannot assist as to whether the UK was
involved in the original drafting.
Q95 Chairman: I think in the ordinary
way it probably would not be. This is a Commission proposal. It
is only at that stage that it comes for consideration. That is
part of the process of scrutiny on which we are presently embarked.
Mr Gibbins: I think, if I may make this observation,
the practical difficulties that arise from implementing this as
it stands we think derive, to a very considerable extent, from
what I might term a mismatch between adversarial court proceedings
that would inevitably occur in the United Kingdom as opposed to
the continental model, which is much more inquisitorial, almost
an official sitting in an office who is much better able to pick
up the phone and confer directly with his opposite number in another
Member State. That of course poses enormous problems for our adversarial
system if one looks at the difficulties for us, and I suppose
there would be similar difficulties for Ireland as well, being
the other common law jurisdiction that would be involved in this.
Q96 Chairman: Really they are such
different schemes, Eurobail which as you say is not yet worked
out in detail but the basic provisions of which are clear as we
have already discussed, and this scheme. It is rather difficult
to think of actually importing ingredients of one into the other
to make it better than either. You have got to just make your
choice between one or other as to who takes the basic decision
and where, if it is a refusal of bail, is the accused to be remanded
in custody. Eurobail says that is the home state; this says that
is the issuing state, the trial state.
Mr Gibbins: Can I mention one aspect of Eurobail
that I think would be usefully introduced into this scheme and
that is the ability to arrest immediately upon a breach or indeed
if there is an imminent breach suspected.
Q97 Chairman: That is, rather than
having to consult with the issuing state and to ask them whether
they want to do anything about it under the proposal here?
Mr Gibbins: Yes, because the reality is that
if somebody is on the brink of absconding, they are not going
to wait around while this process, as it is set out, is gone through.
Q98 Chairman: I am grateful for that
and I follow that entirely. Can we then turn to the question of
cost? The CPS has concerns on that. Where do these questions of
cost come in? What are the particular concerns there?
Mrs Bowring: We have broken it down. We have
noted what the impact assessment says, that there will be no additional
operational expenditure. We are slightly unclear as to how this
conclusion was reached. As we see this, there will be real costs
in training of the judiciary, court staff, CPS, defence practitioners
and the police at the moment. Mr Gibbins can give you more detail
if you need it. Obviously, when it comes to extradition, there
are very few courts, skilled practitioners and police officers
who deal with this. Clearly, with the European supervision order,
it is open; it can be applied in any magistrates' court by any
prosecutor; any defence practitioner will come up against it;
and more police officers will have to understand it. There are
real training issues which obviously have costs attached to them.
Q99 Chairman: That is just simply
setting up a new system. That is training our people to operate
the scheme with a view to sending abroad foreign suspects due
for trial here, rather than receiving back on bail and supervising
our nationals who will eventually have to be returned for trial
abroad. There are two separate aspects.
Mrs Bowring: That is right. Obviously there
is the cost attached to the latter group of people coming back
and being supervised. There is the liaison aspect, as my Lord
Chairman has touched upon, that when we receive the European supervision
order from the issuing authority, for certain conditions they
need our agreement. We do have to look at it. It is complex and
you need the people there to deal with it in a skilled manner.
Obviously there is a cost in manpower hours as well as in the
training involved. We consider that will be a huge cost particularly
for the CPS.
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