Memorandum by The Law Society of England
and Wales
INTRODUCTION AND
GENERAL REMARKS
1. The Law Society ("the Society")
regulates and represents solicitors in England and Wales. This
response is from the representation arm of the Law Society which
represents the views and interests of solicitors in commenting
on proposals for better law and law making procedures in both
the domestic and European arenas. Representatives of the Law Society
EU Criminal Law Working Group have discussed this issue and their
views are the basis for this response.
2. The Law Society welcomes this opportunity
to comment on the European Commission's draft Framework Decision
on the European supervision order in pre-trial procedures between
Member States of the European Union of August 2006. The European
Commission presents the proposal recalling that according to both
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) and general principles of law, pre-trial
detention shall be regarded as an exceptional measure and the
widest possible use should be made of non-custodial supervision
measures. The Law Society responded to the previous Green Paper
on this issue in 2004 and the position is re-stated here.
THE NEED
FOR EU ACTION
ON PRE-TRIAL
SUPERVISION MEASURES
3. We note that at present, there are no
international instruments that specifically allow the transfer
(recognition) of pre-trial supervision measures from one Member
State to another. In its Green Paper the European Commission identified
that the excessive use (and length) of pre-trial detention is
one of the main causes of prison overpopulation. Owing to the
risk of flight, non-resident suspects are often remanded in custody,
while residents benefit from bail on the grounds that alternative
measures such as reporting to the police or travel prohibition
reduce the risk of flight.
4. In responding to the Green Paper we agreed
that EU level action to introduce a system of bail transfer between
Member States will strengthen the presumption to the right of
liberty and reduce the negative effects of pre-trial custody on
the individual and their private life. We recognised that although
Member States apply the same fundamental principles regarding
pre-trial detention, based on international legal obligations
and commitments, the way that this is carried out in practice
is diverse. Whilst we recognise that the risk of flight may be
perceived as greater for a non-resident and that, indeed, other
conditions such as a fixed address may be more problematic for
a non-resident, the near-automatic denial of bail is unacceptable.
By introducing a system of mutual recognition and a European bail
transfer scheme between Member States we hope this can be minimised.
5. We echo the European Commission's belief
that any such system is an important development to reduce negative
discrimination caused by a defendant's normal place of residence.
The Law Society conducted an EU funded study entitled "Better
Bail Decisions" carried out in co-operation with bar associations
in the Czech Republic and Spain. During this study local practitioners
identified the considerable disadvantage non-resident defendants
suffered because of their status.[1]
6. We therefore broadly support the European
Commission's intentions in principle. We believe that mutual recognition
is the appropriate basis for any measures requiring enhanced cross-border
co-operation and certainly in this instance in relation to a European
supervision order mechanism. We consider that out of the number
of policy initiatives that could have been taken, identified in
the explanatory memorandum, this is indeed the appropriate course
of action.
7. However, we have several concerns as
to the practical application of such a system as discussed below.
Moreover, many of the practical details of the mechanism for transfer
and supervision are to be left up to the Member States to set
down during the transposition process. Whilst this appears to
be sensible from a subsidiarity point of view it may lead to complications,
legal uncertainty and wide divergence in the system on a European
scale. We consider that further consultation will be necessary
domestically, during the transposition phase, as to how this will
be implemented in England and Wales and throughout the UK.
LEGAL AND
PRACTICAL IMPLICATIONS
OF THE
PROPOSAL
8. Timing: In general we have concerns
as to the time the European supervision order (ESO) mechanism
will take. Particularly as there appears to be a great deal of
delay inherent in liaising between issuing and executing States
as to the non-mandatory conditions in the ESO and then taking
a decision on recognition and enforcement.
9. Role of the individual: One major
concern is that during the ESO process there is no requirement
for the individual to be allowed to make representations in a
decision as to whether or not to recognise and/or execute the
ESO—article 12(1). In particular, some of the matters which
are set out in Article 10 as grounds for non recognition and non
execution will probably only be known to the defendant (for example
double jeopardy or an immunity or privilege). It is also not clear
from Article 12 when the person will be transferred ie once a
decision has been taken on recognition and enforcement or prior
to this.
10. Legal representation: In the Law Society's
response to the Green Paper it was argued that it is imperative
that any European bail transfer order is issued with the informed
consent of the defendant. This would require the provision of
competent legal advice about the transfer process and its impact
on the individual. The Law Society is concerned that the approach
under the draft Framework Decision is merely to ensure the suspected
person is informed rather than securing his consent.
11. Moreover, it is noted that in the preliminary
draft Framework Decision (presented for discussion at an experts
meeting in 2005) included an article on consent of the suspected
person. An article was included which stated that: "before
issuing a European supervision order, the issuing authority shall
hear the suspected person as to whether he or she consents to
the issuing of a European supervision order and the obligations
imposed on him. The suspected person shall be informed that ...
consent may not be revoked."
12. Similarly the preliminary draft framework
decision included a provision that stated that "each Member
State shall adopt the measures necessary to ensure that consent...
is established in such a way as to show that the person concerned
has expressed it voluntarily and in full awareness of the consequences.
To that end, the suspected person shall have the right to interpretation
and legal counsel." The Law Society would be interested to
know why these provisions were removed.
13. Competing obligations: Article
15 deals with the situation where the execution of an ESO shall
be "without prejudice to the executing Member States obligations
under a European Arrest Warrant, request for extradition presented
from a third country, or in relation to proceedings before the
International Criminal Court." This article is not clear.
There is no guidance given as to how the matters set out in this
Article will interact with any ESO.
14. For example under Article 18(3) it appears
that the only basis for non transfer is if there is a current
prosecution for the same facts as those on which the ESO is based.
What would be the situation if a person is unable to comply with
the terms of their ESO because they are being prosecuted in another
EU Member State for a different offence and are therefore unable
to comply with the ESO? This would seem to leave them in the situation
where they would then be arrested and transferred for breach of
ESO. This will need to be clarified.
15. The Law Society has not prepared any
drafting amendments at this time, but would be happy to supply
to the Select Committee further information as they should require
during the inquiry on this issue.
1 March 2007
1 http://www.lawsociety.org.uk/aboutlawsociety/internationalrole/projectsabroad/view=projectdetails.law?DOCUMENTID=174670 Back
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