Examination of Witnesses (Questions 229-239)
Ms Louise Hodges, Mr Anand Doobay and Ms Julia Bateman
9 MAY 2007
Q229 Chairman: Good afternoon and
welcome. Ms Hodges, I know that you have given evidence to the
Committee before and I am glad you have not been deterred from
returning on this further occasion. I know that all of you have
received copies of the oral and written evidence that we have
already received in the course of this inquiry. As I think you
know, you are on air, public, you will get a copy of the transcript
and an opportunity to make minor corrections and perhaps supplement
it; in the meantime, it will be on the web. Of course, we have
already a brief statement from the Law Society in our bundle,
indicating, so to speak, your preliminary views about this proposal,
and from that it appears that you do think there is a need for
some EU measure to deal with trying to procure pre-trial liberty
for those members of Member States who are suspected and face
trial in a different Member State. That is right, is it; that
remains your view, that there should be a measure? Have any of
you much experience of the sorts of problems that we would run
into without such a measure?
Ms Hodges: I am Louise Hodges and I am a criminal
practitioner, dealing with mainly fraud and white-collar crime
cases but general crime as well. I think maybe just to set out
that we have very much discussed this and looked at this in terms
of very practical help, how practitioners deal with this on a
day-to-day basis. Of course, bail is an issue which encompasses
all suspects, whether they are UK residents or non-UK residents,
in the UK courts, bail is an issue which is dealt with every day,
in every court in this country. Bail is available for almost all
offences, and the restrictions or the risks that are perceived
for us not to have bail are re-offending, interference with evidence
or witnesses, or the risk of flight. Obviously, when we are looking
at non-UK citizens it is the risk of flight that is in excess,
because there is not seen to be the community ties in the UK;
not necessarily, because sometimes it may be that somebody is
naturally a resident in another Member State but maybe they are
a student here, or they have a job here, so that actually there
are community ties. It is not automatic if you are not a UK resident
then you are not going to be able to—
Q230 Chairman: You are less
likely to have close ties and are less guaranteed, therefore,
to be available for trial?
Ms Hodges: That is correct. I think there are
two issues, or two areas of evil, that this instrument is trying
to overcome. Firstly, whether you get bail at all, or if you do
get bail but you have bail only in the UK and it is somebody for
whom it is not their natural home and so there could be complications
if they cannot go back to work, or they have not got anywhere
to live here, although they have actually been granted bail in
this country. We have discussed earlier some examples, and I think
Mr Doobay had some very interesting examples of experiences where
that has happened.
Q231 Chairman: These are paradigm
examples, are they; they are the sorts of things that recur?
Mr Doobay: I am not so sure that they are paradigm.
I would put them all in the category of anecdotal examples, but
certainly they show, in practical terms, how it can be a difficulty.
In one particular case—I am also a defence practitioner—we
were dealing with a defendant who was ordinarily resident in Belgium
and the UK court indicated that they would be willing to grant
conditional bail but only if they could impose a residence condition,
which is a very ordinary condition of bail here, that "You
live and sleep at a defined address." We encountered a very
mundane problem, in that he did not have an address here, he did
not have the means to be able to rent a hotel room for an extended
period of time to use that as an address, and there was just no
practical way to secure an address to allow him to have that as
a condition of his bail. Therefore, the court said, "We're
not willing to release you on bail without having that basic condition
in place," and it took us a lot of time. In fact what really
did change the picture, in terms of the court, was that he was
held in detention for nine months, and at that point they began
to realise that, it was a Serious Fraud Office investigation,
it was going to be a long-running investigation and trial process
and so in fact they did allow him to have bail without the residence
condition and allowed him to return to Belgium and he was able
just to come back to the UK as and when required for the trial
process. Certainly, at the initial stage, we had difficulty in
fulfilling what is an ordinary, practical, simple condition, which
is one, in the vast majority of conditional bail cases, that the
court will insist on.
Q232 Chairman: In one sense,
that might be said to be an illustration of why there is no need
for a new scheme at all, because they released him on bail and
he went to Belgium anyway?
Mr Doobay: I think that could be said, but it
is a peculiar case in the sense that not every case will allow
you to have nine months and he did spend nine months in prison.
Q233 Chairman: Absolutely,
and they might in fact have refused him, in the event, completely.
Mr Doobay: The other examples are more in terms
of the European Arrest Warrant and how I do not think that has
helped, necessarily, in addressing the issue. There was a suggestion
that with the introduction of the European Arrest Warrant UK courts
would be more willing to grant bail, even if the person was normally
resident in another EU Member State, because the court would feel
that if they did abscond there was a simple mechanism, the European
Arrest Warrant, to ensure their return. Certainly, in practice,
we have not seen that acting as a benefit for defendants; again,
these are purely pragmatic reasons why it is not working. Extradition
is an area which is dealt with by a specialist division within
the Crown Prosecution Service, it is dealt with by a limited number
of judges at designated courts and it is dealt with by a relatively
limited number of defence practitioners. At a bail hearing, as
a defence practitioner, if you suggest to the court that their
concerns can be met because we have this new European Arrest Warrant
scheme, firstly the court will not be familiar with it, the prosecutor
will not be familiar with it, and even if you can familiarise
them with the scheme they will still be concerned that there are
grounds for non-execution of a European Arrest Warrant. It is
not automatic that you will be returned under a European Arrest
Warrant, so they will still have a residual concern that, in reality,
they may not be able to secure the return of somebody who does
abscond. I was just going to add that as a separate class of cases
where the EAW has not really helped in assisting non-UK resident
defendants to obtain bail.
Q234 Chairman: Personally,
I found that extremely helpful. Just give me an illustration of
a situation in which the European Arrest Warrant would fail to
secure the person's return because of some discretion or provision
under that scheme, because I am not really aware of any?
Mr Doobay: There are various grounds which can
be raised, for example, an argument that the prosecution is on
the basis of political opinion, or gender, or race; there are
various threshold criteria, in terms of the minimum penalty which
has to attract to the sentence, if it is not one of the 30 categories
of offences set out in the Framework Decision and this issue of
double criminality as a general concept. It is very difficult
to argue to a court and a prosecutor that it is clear-cut in a
particular case.
Q235 Chairman: It is not clear
enough the other way actually to secure you bail when strictly
you should be getting it?
Mr Doobay: Absolutely.
Q236 Lord Jay of Ewelme: I
entirely understand that last point. I must say, I was surprised
by the first point you made, as I understand it, perhaps I did
not, that the European Arrest Warrant was not sufficiently understood
by practitioners. I would have thought it had been around long
enough now for people to know what it is about and to be able
to understand it and make use of it?
Mr Doobay: My Lord Chairman, perhaps I did not
make it clear enough. My main point was that, although people
have a general understanding of what it is, in order for a court
and a prosecutor to feel secure in allowing a defendant to be
released on bail, knowing that they bear the risk that if the
defendant does not return for trial they will be criticised themselves,
they are not familiar enough with it and how it operates in practice,
because generally they will not ever have dealt with a European
Arrest Warrant case to have the comfort to allow them to take
what they may see as a bold step of granting bail where there
is a risk of absconding.
Q237 Chairman: It just has
not really caught on around the country, the European Arrest Warrant,
to an extent that courts are now sufficiently sure of its working
to grant bail, when otherwise, beforehand, before it came into
being, they would not have done?
Mr Doobay: My Lord Chairman, I think that is
entirely right, because all of the EAW cases are dealt with at
the City of Westminster Magistrates' Court, so any judge outside
of that court will never have seen a European Arrest Warrant in
its operation.
Q238 Lord Jay of Ewelme: Would
you say that the same difficulties on that point arise in other
Member States, or are other Member States and their judicial processes
better able to make use of it, as it were, because they are more
familiar with it, there is a clear relevance here as to the suitability
of the Commission's scheme?
Mr Doobay: To be perfectly frank, I am not sure
how beneficial it has been in other EU Member States in allowing
secure bail. I take from the Commission's proposal and the research
which it has done that obviously it has not cured the problem
as a whole, otherwise I would assume that in the statistical analysis
the Commission has done they would not have found the figures
that they have, in terms of EU nationals which are still being
detained. I really do not know, in a scientific way.
Q239 Chairman: As you will
have noticed, most of our witnesses in fact seem to have preferred
the original Eurobail concept of actually returning the decision
whether to grant bail to the home State rather than the trial
State, but that is not, I think, your view; the Law Society I
think find this a better scheme. Can you indicate, just very briefly,
why?
Ms Bateman: The position of the Law Society
was, in a sense, to take the difficult choice, to say that the
European supervision order was the most appropriate instrument.
It has a number of flaws, principally on the practical details,
which we will elaborate on over our discussion. I think one of
the reasons that we preferred the European supervision order is
that, like it or not, mutual recognition is the basis upon which
the area of freedom, security and justice, judicial co-operation,
whatever you want to call it, is being built. The European Arrest
Warrant is obviously the key instrument, but the forthcoming Evidence
Warrant and other instruments, so, in the interests of coherence
and establishing a model, we prefer the mutual recognition side.
It was very helpful to read the previous evidence because it has
become clear that Eurobail versus, if you like, the European supervision
order was one of the things that you discussed in detail. I think
one of the problems is that the Eurobail concept is not actually
a proposal, it has not really been tried and tested or put through
the scrutiny procedures that the European supervision order has,
be it at pre-draft stage, with Commission consultations, or indeed
the inquiry that you are holding as well. I think Eurobail itself
works, as far as we understand it, a lot on the theoretical nature
of bail, so does a particular offence attract bail in law and
therefore is it bailable and will send the person to the second
Member State, the executing Member State. Whereas again the individual's
community ties, his circumstances, are not really addressed when
that decision is taken, and to me that seems to be the core of
what the decision is based on, the facts of the case, the individual,
his community ties, so we felt that the Eurobail procedure was
too theoretical, in a sense. We do see the merits of the executing
State, the second Member State, having more input, in a sense
dealing with a lot of the detail. Rather than choosing the Supervision
Order or the Eurobail, we think there should be a hybrid, if you
like, between the two and that you use the recognition model but
the issuing State and the executing State communicate a lot better
at the time the decision is made, and you have almost a three-way
hearing between the issuing State, the executing State and the
suspect. We did take the position that the Supervision Order was
preferable, but we can see that there are lots of improvements
which need to be made.
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