Examination of Witnesses (Questions 100-119)
Mrs Amanda Bowring, Mr Brian Gibbins and Mr Peter
Hall
18 APRIL 2007
Q100 Chairman: Those would be costs
for the CPS because you will be the people involved. Would you
be the people having to supervise those who are bailed over here,
our own nationals subject to bail? Would the CPS be involved in
that?
Mrs Bowring: We think the court will be the
authority, based on past experience. We do not see ourselves having
a direct role.
Q101 Chairman: Your role would be
in foreign suspects applying for the UK to make an ESO so that
they can be sent back on bail to France, Germany or wherever.
Is that it?
Mrs Bowring: That is correct. There is an issue
which Mr Gibbins will deal with on this.
Mr Gibbins: There is obviously a role in the
outgoing European supervision order. Obviously it would depend
on domestic implementing legislation but we could see us having
a very similar role to the role that we enjoy under section 191
of the Extradition Act where we act on behalf of the requesting
authority or the requesting state in proceedings before the courts
in this country. We would see a very similar role involving this.
The distinction of course is that with the European arrest warrant,
or indeed any extradition proceedings, those proceedings can only
take place in certain designated courts whereas, by its very nature,
this is something that would fall to be enforced across the country.
There would be a very significant resource impact I think for
us in equipping prosecutors across the country as opposed to a
small cadre within headquarters to deal with these quasi extradition
arguments that may occur during the life of the European supervision
order. There is also—and Mr Hall will be able to explain
this better—inevitably a liaison role that is contemplated
in this, whether it is facilitating the transmission of the information
about police stations or whether it is transmitting and obtaining
information about double jeopardy, which might be an extremely
complicated issue. We could see considerable merits in that process
being facilitated by a central authority. Your Lordships will
know that in the European arrest warrant the Serious Organised
Crime Agency is designated as the central authority for the receipt
and transmission of dealings on European arrest warrants and the
like. They have language facilities available. They have a 24-hour
capacity. Bearing in mind the turnaround times that the framework
decision contemplates, we think that is very important if we are
to stand any chance of meeting these deadlines.
Q102 Chairman: Although you are right,
you would have to service magistrates' courts countrywide, you
could have a central CPS unit doing this and if necessary there
could be individuals in the team who could travel out, could there
not?
Mr Gibbins: Yes, clearly it is technically possible
but of course one is talking countrywide. Separate considerations
would apply to Scotland and Northern Ireland of course.
Q103 Chairman: But the scheme would
hopefully free up a lot of prison places and they are very expensive,
with £35,000 to £40,000 a year being the present cost
of keeping somebody in custody.
Mr Gibbins: What we would say in respect of
that is that certainly if we are preparing to implement this,
we would very much welcome a UK-specific resource impact assessment
to ensure that all the agencies are covered, not just CPS but
the police and a central authority if there was to be one, and
we note that there is no provision for a central authority within
the framework decision in its current draft; it talks about direct
transmission.
Q104 Lord Burnett: Are you proposing
to have experts on this throughout however many areas you have?
What are you proposing? What is your problem about having one
central lot who are experts on this who could be shifted out to
Exeter or Hexham in Northumberland to deal with the case?
Mr Gibbins: Certainly that is possible but in
order to cover the whole country, of course one is talking about
potentially a very large unit and a very significant commitment
of resources.
Q105 Lord Burnett: How many people?
Mr Gibbins: Without knowing how many cases are
involved—
Q106 Lord Burnett: You have no idea?
Mr Gibbins: We would simply have no idea at
this stage and that is why I say that we would welcome a UK-specific
resource impact assessment.
Q107 Chairman: Mrs Bowring told us
at the very outset that you think there are 572 EU nationals awaiting
trial here—non-British EU nationals. It is not impossible
that the bulk of those might wish to make an application for a
European supervision order.
Mr Gibbins: My Lord, yes, but of course that
is bound to come in. One does not know what one would be at the
receiving end of.
Q108 Chairman: How many you would
have to supervise?
Mr Gibbins: Yes. Supervision is perhaps—
Q109 Chairman: Less of a burden?
Mr Gibbins: No, we would say more of a burden.
For the police of course they are really dealing with the supervision.
We would be dealing with the court proceedings and elements of
the liaison. The bulk of it we suspect would fall to the police
and/or to a central authority that was charged with it.
Q110 Chairman: Your main role would
be in deciding for the benefit of which foreigners in this country
European supervision orders should be made. In terms of the incoming
of UK nationals being returned here subject to foreign ESOs, it
would be the police supervising the orders.
Mr Gibbins: Yes, the day-to-day supervision
would fall to the police but in any of the court proceedings we
would be there to represent—
Q111 Chairman: There would not be
court proceedings for incoming ones, would there, unless they
had breached their bail conditions?
Mr Gibbins: Either a breach or a challenge.
Q112 Chairman: I suppose, of course,
the domestic court on the making of a foreign ESO has to execute
it. It will have received a document in the form we have here
at page 34, Form A: "This order has been issued by an issuing
authority." What do we do? I am directed to 12.1: "...decide
whether to recognise and execute it". So you would be playing
your part in reaching the decision to be taken under 12.1?
Mr Gibbins: Yes, but thereafter of course there
is the possibility for review both in the executing and the issuing
Member State.
Q113 Chairman: That is after 60 days.
Mr Gibbins: Of course 60 days is the maximum.
Q114 Chairman: I am sorry, within
60 days; you are quite right.
Mr Gibbins: That is the maximum period, and
so it might be that some Member States chose a shorter period.
Lord Bowness: Forgive me and I may be missing
your point. I would like to focus on this question of Articles
12, 17 and 18. I understood from the evidence we had from a previous
witness that if there was a breach of the order, there was absolutely
nothing that the executing authority could do about it, and that
they could not arrest him. I would like to put to the witnesses
whether they believe that to be correct or ought we to be looking
at Article 17 where arrest is only referred to in conjunction
with transfer—to arrest and transfer. Are there two separate
possible processes here: enforcement of the order by arresting
somebody for breach of the order; and arresting and transferring?
Obviously then Articles 17 and 18 deal with the situation where
the issuing authority wants to get the person back. The other
question I would ask, my Lord Chairman is this. In Article 18,
which I find extremely confusing and it may be the drafting, are
we supposed to draw any distinction between a reference to other
Member States as opposed to the executing authority? It seems
to me that in this draft the Member State, which is the issuing
authority, and the Member State that is the receiving authority,
the executing authority, are referred to as that almost all the
way through, but in 18, and I may be reading it wrongly, there
seem to be provisions which apply almost as if somebody has been
arrested in a third country. Is that right? Maybe everybody else
has understood that anyway.
Chairman: I thought it was a third country in 18.1,
and I think there is some support for that in 18.4.
Lord Bowness: In which case, my Lord Chairman, the
previous evidence that we had that our courts would have no means
of enforcing it because the person had to be heard and consent
and all the rest of it, as set out in 18, would not apply, would
it?
Q115 Chairman: Perhaps we can ask
the CPS for their comments on that. Do you see arrest and transfer,
which is explicitly dealt with of course under Article 17, as
something so to speak distinct from arrest per se, which
presumably could be effected by the executing state, for example
if the police supervising bail suddenly get a tip off that the
accused is about to cross the Irish Channel? Can they arrest him
to stop him doing that before alerting the issuing state and asking
what they want to do about it? How do you read this provision?
Mr Hall: I represent the Association of Chief
Police Officers. Our understanding on reading this, and I similarly
found some difficulty in penetrating some of the way this has
been drafted, is that we do have concerns that we would not have
the power to arrest someone when contemplating a breach. As the
agency there to protect the public and manage the risks associated
by these people being at large in the UK, I think that is a cause
for some concern. An attendant issue is one surrounding identity.
I am thinking here of UK nationals particularly who have been
arrested in another jurisdiction and have been released under
one of these supervision orders to the UK. If one of those people
does not have any previous convictions, then we are going to have
no fingerprint data, no DNA data, and there does not seem to be
any provision here for that information. I was similarly challenged
by the aspect of it you have highlighted, my Lord, and I wonder
whether by implication the issuing state can issue in effect an
arrest that can be executed in any other Member State as opposed
to just the executing state. It is not clear on my reading of
this. I do not know whether Brian Gibbins has anything to add.
Lord Bowness: This is interesting. Earlier on it
does say that the receiving state makes a decision to recognise
and execute. Otherwise, courts are in the position of issuing
meaningless pieces of paper. If it does not mean having some power
to do something with it, what does it mean?
Chairman: My understanding of that earlier reference
to recognising and executing, which is I think under Article 9,
is that it actually gives effect to the order. How does it give
effect to the order?
Lord Bowness: I was looking at paragraph 1 of Article
12, my Lord Chairman. I appreciate it is also in Article 9.
Q116 Chairman: I am beginning to
have doubts myself as to how one does execute it. It gets annex
Form A, as I understand it, which is the document at page 23.
The proposed regulation is at page 23 of the printed document,
the European Supervision Order. This of course is filled in by
the issuing state. What, if anything, does the executing state
do to this? Do they simply, so to speak, accept it and the execution
is simply therefore notification to the issuing state that they
have accepted it, recognised it, and they execute it by telling
the issuing state, "All right, we recognise this. Send him
back"? That, after all, is the object of the exercise. Only
when it is accepted and executed does the issuing state send the
person back. If it is France that is the issuing state for a British
national, then they send this document in Form A to us. The court
under 12.1 has to decide whether to recognise and execute it.
They inform France, if it is an English court that they accept
it, at which point France send this Englishman back. The conditions
to which he is subject, of which he has already been told, then
bite. Is that how it is understood to work?
Mrs Bowring: It is, apart from one fact that
you do have those provisions under Article 6, those conditions
which the executing state has to agree to that the issuing state
imposes. It is on page 13 of the document.
Chairman: Yes, but those will be already set out
in the ESO form, which will then be sent to us, and it is for
us then to decide whether to recognise and execute it. Execution
in that sense seems to me to mean simply saying, "Yes we
accept it" and getting receipt of the individual who at that
point is ex hypothesi released on bail subject to these
conditions, and we undertake then to enforce those conditions.
Lord Mance: May I suggest, my Lord Chairman, that
it goes a bit further than that. It is not only receipt but also
the obligation to report any breach, however that leads to questions
as to how you establish any breach, and furthermore execution
clearly means the obligation under Article 17.3, to arrest and
transfer the suspect back to the issuing state under Article 18,
if and when a decision has been taken by the issuing authority
under Article 17 that the suspect should be arrested and re-transferred.
Just dealing with Article 18, it is clearly right that Article
18 embraces not merely the executing state but also any other
state in which the chap happens to be. That state is in Article
18.4. That is clearly implied there. My view would be that under
the scheme as presently drafted that is the limit of the executing
state's power and that what has been said by Mr Hall seems an
extremely valid point, namely that the police would have no power
in the public interest or for public safety reasons to arrest
someone without having gone back to the issuing state. Furthermore,
as he has pointed out, they might have no means of ascertaining
who the someone was.
Q117 Chairman: They would have no
fingerprint or DNA and they would not be on the database. Mr Hall,
while you are making this contribution, what other if any problems
in particular do the police identify with this scheme?
Mr Hall: I think timescales to undertake inquiries:
the five days from receipt in order to agree the conditions. I
am sure that those inquiries will fall to the police. Our experience
with mutual legal assistance requests and also European arrest
warrant work indicate that those timescales, the five-day timescale
and also the three days and repatriation timescale once someone
has been arrested, would prove to be extremely challenging and
may not be achievable in every case.
Q118 Chairman: Will they be achievable
in the majority of cases?
Mr Hall: It is not my area of expertise but
I think in terms of European arrest warrants the timescales have
just been increased to 10 days so that might be—
Chairman: I see, no doubt that will be for negotiation.
Quite. Lord Bowness?
Q119 Lord Bowness: Can I come back
to this Article 18 and just look at it from another point of view.
Suppose Germany is the issuing authority, suppose France is the
executing authority, the person concerned comes over the Channel
to us; on what authority are we going to arrest that person under
Article 18? We have not been within receipt of the supervision
order. Is there an obligation? There is no obligation to all executing
authorities to circulate the other 26. What do we do from that
end of it?
Mr Gibbins: My Lord Chairman, may I assist on
this? I entirely concur that 18.4 raises a lot of question marks.
I suspect it may be done because it is possible to transfer a
European supervision order from the original executing Member
State to another Member State. I suspect that 18.4 is an attempt
to extend the ability to enforce to a state to which an ESO has
been transferred.
Chairman: Where is the provision for transfer
of the ESO?
Lord Mance: Surely the obligation on a third
state, the UK in Lord Bowness's example, is contained in 18.3?
Lord Bowness: My Lord Chairman, I understand
that is the obligation but what is our authority for executing
it? Do Mr Hall's men go and knock on the door and say, "Excuse
me, you are holidaying here. We have received a request from France
to arrest you for breaching a supervision order issued in Germany,"
and he says, "So?"
Lord Mance: We are now supposed to pass implementing
legislation to give effect to it.
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