Examination of Witnesses (Questions 240-259)
Ms Louise Hodges, Mr Anand Doobay and Ms Julia Bateman
9 MAY 2007
Q240 Chairman: One feature
of the Eurobail scheme, had it gone ahead, as I understand it,
would have been this, that in those cases where actually bail
was to be refused, where there was after all to be pre-trial custody,
it would have the merit that custody would actually be in the
home State, with the advantages that would bring, in terms of
being able to be visited by relatives, and all the rest. Is that
a consideration which you think is worth having in mind?
Ms Bateman: This is something we were discussing
before coming here; that, in a sense, being in custody in your
home Member State has its advantages, of course for the reasons
you outlined. Equally, in discussions on Eurobail, there have
not been discussions on the detail of how you would be transferred,
when you would be transferred, would the Member State actually
consent to you being returned, in a sense, would the second Member
State wish to receive that person back; so again I think it is
not the tried and tested model.
Q241 Chairman: Before we go
any further, can I just be clear about this; do you understand
this proposal to operate in all cases, or will it remain open
to a State to say to a foreign national, "Right; we'll grant
you liberty without going through this whole business, you can
go back to your home State, but we won't do it through them, we'll
simply tell you when to come back"? Will that remain at least
an option?
Ms Hodges: Certainly the way that I have understood
the order is that it captures only those people where it is an
issue whether they are bailed or not, and what is preventing having
bail is not having conditions that the issuing State is able to
make sure are secured. I leave that really to the EU Commissioners
to confirm.
Q242 Lord Mance: Can I just
go back to what Ms Bateman was saying, and I was interested in
your comment about a possible hybrid, but just speaking generally
again because we may come back to this. Is there not merit in
a hybrid which actually separates the original decision stage
and the execution stage; in other words, one which gives the executing
State much greater control than this proposal would over enforcement,
a determination as to whether there has been a breach of alternative
sanctions amendment? In that connection, I do not know whether
you are familiar with it but we happen to have on our agenda today
proposals relating to the treatment of suspended sentences. I
note that at least the UK Government there is arguing strongly
for very substantial powers of supervision enforcement amendment
and handling of alternative sentences, as well as the imposing
of them, in the event of breach of a suspended sentence on the
part of the State of residence to which the person is sent back.
It just seems to me, logically, that there is a case for saying
that is the best State to deal with that area?
Ms Bateman: I think, in a sense, I am being
swayed by the Commission arguments, that the investigating State,
the issuing State, has the evidence, the issuing State will decide
and determine how often the suspect will have to be returned for
pre-trial investigation, particularly in the continental system
of the investigating magistrate procedure. Equally, I think that,
again under the Eurobail procedure, while you do separate the
determination between the issuing and the executing, will the
issuing State have to transfer all the evidence, all the files,
to the second Member State to make that determination?
Q243 Lord Mance: Can I just
interrupt to say that really I was focusing on the situation once
somebody had been transferred, and at that stage all the evidence
relating to matters like breach is going to be in the hands of
the executing State and not the issuing State?
Ms Bateman: I think this is why, although accepting
the mutual recognition model, we would like to involve the executing
State in more detail at that stage, but rather than it just being
once a decision had been taken, so the issuing State takes the
decision that somebody is bailable and then transfers them, we
would prefer to have the executing State, for the very reasons
you outlined, involved in the decision with the issuing State.
Q244 Lord Mance: Both in the
decision and, you would agree, would you, in the enforcement?
Ms Bateman: Yes; exactly.
Q245 Lord Lester of Herne Hill:
JUSTICE, in their evidence to us, have suggested that there is
quite a serious issue under the European Human Rights Convention,
because Article 13 of the Convention says that everyone has a
right to an effective remedy before a national authority for breaches
of his, or her, Convention rights. Here, obviously, the Convention
right is the right to liberty under Article 5 of the Convention.
JUSTICE suggests that the Commission's scheme would breach Article
13 because it would mean that the obligations, or requirements,
under the supervision order, which are being enforced in the executing
Member State, will not provide an effective remedy in that State
when the review of the conditions is being undertaken, if you
follow. Therefore that there must be an effective remedy in the
executing State and, in looking at the Framework Decision and
amplifying what they say, one must be sure that the Commission
are not proposing something which is not compatible with the European
Human Rights Convention. I do not know if you have seen JUSTICE's
evidence on that; you have? I wonder if you could respond to those
points?
Ms Hodges: I think one of the fundamental flaws
that we have identified with the order is that it is silent in
terms of the role of the suspect until quite late on in the process.
I hope that could be remedied by the initial hearing being, as
Ms Bateman pointed out, a three-way hearing which has informed
involvement of the executing State, the issuing State and the
suspect. By doing that, the decision will be a tripartite, for
want of a better word, decision and that can be challenged or
agreed at that stage, so the remedy would be potentially in the
issuing State. Once the person is transferred, and then we are
getting into the review regime, then again any hearings of substance
would again, in our view, require those three parties to be involved
in those decisions.
Q246 Lord Lester of Herne Hill:
For my benefit, because, on the face of it, it seems to me unworkable,
can you explain, with a hypothetical case, how you think it would
work under your tripartite scheme? If someone is in State X and
is taken to State Y and then there is an issue of liberty that
arises in State Y, the executing State, what do you see happening,
step by step? There will still be a need for speed because this
is like habeas corpus, it is the right to liberty.
Ms Hodges: Yes. We are looking at a situation
where the initial State has decided that it is a situation which
is appropriate for bail in normal conditions, as long as sufficient
obligations with which they are satisfied can be guaranteed. We
would see that the video link, which is envisaged in terms of
the review stage, could be used at that early stage in order to
get an agreement both from the issuing State and the executing
State, so we have both the legal decision but also the practical
decision about how those obligations are going to be dealt with.
The danger, if that was not done, is that obligations could be
imposed which just cannot be complied with by the suspect. It
is almost like you are encouraging a breach because you are putting
in place obligations that either the executing State will not
be able to supervise or monitor or that the individual themselves,
if they are not involved in that process, will not be able to
identify if there is something that they just are not able to
comply with.
Q247 Lord Lester of Herne Hill:
At that stage, you are saying, it is vital that there be full,
speedy co-operation, I think you are saying, between the courts
of both countries to decide the initial question of bail or no
bail, and you are saying it is fundamental that should happen.
Then what happens when the individual goes to State Y and an issue
arises about variation of conditions in State Y; under your idea,
what would then happen?
Ms Hodges: In terms of variation, the mechanism
that they currently have is, in terms of the review, that is the
only identifiable section where they are talking about there may
be any change in those conditions, which can be requested either
by the suspect or the executing State, this actual document is
silent on whether the issuing State can actually review the obligations,
which seems slightly perverse to me. Again, in order to have legal
certainty and make sure that all the parties agree to that variation
and that there is no risk that there could be an inadvertent breach,
it seems to me that those parties, the issuing, executing State
and the suspect have to be involved in that decision, and I do
not think it is necessarily as alien as it may seem. We are talking
cross-border here, but it would be the same if you had a suspect
who lived in the north of England and they were being bailed from
a court that was in the south of England. Those issues are dealt
with over the telephone. I know that there are not the language
problems but those are still issues that are dealt with over a
telephone to make sure that whoever is supervising it in that
locality agrees that they will conduct the supervision, or whatever
the conditions are which are being requested. The suspect will
be presumably at the court and the court will make the final decision.
There is generally that sort of matrix where more than one person
is being involved in bail decisions where there are conditions
or obligations which are being required.
Q248 Chairman: Really, as
I understand it, is this a fair summary; you are saying, at the
initial stage, when the question arises in the issuing State "Shall
we or shall we not grant bail subject to conditions, we're certainly
not going to do it without it being subject to conditions, shall
we do it, however subject to conditions?" That is the initial
stage. At any subsequent stage, once the Order has been accepted
by the executing State, when a question of the revision of the
conditions falls for consideration there has got to be a tripartite
hearing, in some shape or another, first to set the conditions
initially and thereafter to set any revisions to them. Is this
right?
Ms Hodges: Yes.
Q249 Chairman: In the issuing
State then somehow the executing State, at that initial hearing,
first has to agree to the conditions, that is specified under
Article 6.2, in any event, but also, I think the Law Society would
say, should at that stage be considering the Article 10 grounds
for non-recognition, whether there is anything in those, and all
those same matters should also be engaging the attention of the
suspect, he should have an input in all that Then, at the subsequent
stage, if the Order has been made, he is in his own home State,
the questions of revising the conditions of bail arise, similarly.
What I would like to know is, take stage A, assume an Englishman
in France is accused of rape, the French court then have a hearing,
the Englishman is there, and somehow you have got to bring the
English authorities in on this to discuss whether they accept
the proposed conditions, whether they should recognise the proposed
Order yet to be made; how does it work? Video is all very well
but who do you talk to, who precisely, in England, is the person
to consult in that situation?
Mr Doobay: I think that is one of the questions
we have, in that the Framework Decision leaves it to each Member
State to appoint their own executing authority, and obviously
it would be desirable to have a central executing authority in
the UK so that there was a nominated agency which was a point
of contact. To take a domestic example, this can be practically
a great difficulty, because if you need to consider domestic conditions
of reporting to a police station, the court will have to call
police stations to work out which ones are suitable, which ones
have the right opening hours, if there are residence conditions
or sureties, each of these things has to be done individually
by the court. Obviously, it would not be desirable to have that
same process occur in France, to deal with a number of different
agencies. You might, in fact, be practically responsible for the
various conditions. We think it is an important issue as to whom
the UK would put forward as the co-ordinating executing authority,
but assuming that one was appointed we would see that authority
as being the participant from the UK which would be able to say
"These are conditions which we can practically deal with."
Q250 Chairman: I see; so the
French court would get hold of whoever under Article 4 we have
told the Council is our competent authority and that competent
authority, whoever it may be, it may be SOCA, or somebody like
that, who are now doing, I think, the European Arrest Warrants,
SOCA would then—assume that the English rape suspect in
Paris comes from Croydon—SOCA presumably would, what, liaise
with somebody in Croydon, in order to discover what would be an
appropriate police station? How would it actually work?
Mr Doobay: In practical terms, My Lord Chairman,
I can see it working in this way, that the French court would
say "We would be willing to grant bail only with a European
supervision order; these are the conditions which we would wish
to impose, as part of the European supervision order." SOCA
would say "These are conditions which generally we are able
to impose;" then we would have to consider exactly how they
were practically applied, but SOCA would act as the co-ordinating
agency in the UK. One of the difficulties we have seen, in terms
of the study the Law Society did about bail across the EU, is
that there is no standardisation in terms of conditions which
courts impose for bail, and therefore the French court may have
in mind conditions of which SOCA are able instantly to say "These
are not conditions which the UK could ever impose or supervise."
Obviously, if they are then, to take that example, SOCA would
have to liaise practically to work out the detail of how they
would be imposed.
Q251 Chairman: During these
discussions, the suspect himself has an input somehow?
Mr Doobay: We would suggest that it is important
the suspect does have an input, because, to take a very mundane
example, if one of the conditions is a residence condition in
a specific locality and the suspect does not have a house there
then that condition is not one which should be made. We are not
saying the suspect would necessarily dictate conditions but, in
the same way as in the UK, bail conditions are proposed by the
court, the suspect, through his lawyer, is able to point out practical
difficulties with conditions the court has in mind, we would suggest
it would be sensible to have that same input.
Q252 Chairman: As a matter
of interest, are you able to give us a typical condition that
some particular Member State imposes as a condition of pre-trial
release which we do not accommodate, so to speak?
Ms Hodges: I think it is more the other way
round actually. In terms of restriction of movement or residence,
there are some Member States who see that as a restriction of
freedom of movement.
Q253 Chairman: Do you mean,
if we say "You can't go to Newcastle," or whatever it
may be, as a condition of bail, they would not be in a position
to reciprocate that, or they would not be in a position to apply
that locally?
Ms Hodges: That is my understanding.
Q254 Chairman: Obviously,
it is a restriction of movement but the question is surely whether
it is justified?
Mr Doobay: Certainly my understanding is, My
Lord Chairman, to take a different example, passports, it is a
very common condition of bail in the UK that you surrender your
passport. In some countries, I understand, it is a constitutional
right to have your passport, and it is just not permissible—
Chairman: I thought you were going to say, in some
countries, because of Schengen, you do not need it anyway?
Mr Doobay: My Lord Chairman, that may well be
right but I think in some countries there is constitutional protection,
so there are practical difficulties, in terms of common conditions
and how they can be applied throughout the EU.
Q255 Lord Lester of Herne Hill:
My Lord Chairman gave the example of France. I suppose I could
just about imagine the translating problems being tackled in this
country, which is so insular about languages. Let us suppose it
was Hungary, or Poland, or the Czech Republic, or Greece, where
are the resources going to come from that will enable translating
facilities to be speedily available, given that this is about
liberty, I wonder? Secondly, has anyone done a study of the actual
position in all the Member States of the EU as regards the kinds
of conditions they do impose, or do not impose, as regards what
we would call bail?
Ms Bateman: I do not think anybody actually
has done a study. The Commission conducted, I would say, quite
a vague impact assessment in terms of collating statistics, but
one of the problems with this proposal is it is good in principle
but, as you suggested, there is not really a study of what are
the conditions, are there standard conditions. As Mr Doobay has
referred to, at the Law Society we did an EU-funded study, with
the Czech Bar, the Law Society of England and Wales, the Spanish
Bar; essentially, it was practitioners who were doing their own
impact assessment of what was happening in those jurisdictions
and where the problems lay. I do not think there has been an official
study or an impact assessment on the different conditions. In
terms of translation and interpreting, if you do use our, I would
say, optimistic model of the tripartite negotiations, if you like,
there is obviously a cost issue, a resource issue. Also there
will have to be resources made available for the transmission
of the European supervision order, so the authorities, be it SOCA,
be it the French Ministry of Justice, are going to have to find
translating budget for transferring these suspects and for transferring
the proceedings from one to another, so we would argue that budget
needs to be bigger to incorporate discussions at the early stage.
Q256 Lord Lester of Herne Hill:
For 23 languages? I am familiar with only one Member State in
this area, which is not within the EU but the Council of Europe,
it is called Azerbaijan. I have read the whole of their Criminal
Code, sad life that I lead, and I can tell you, as an expert in
Azeri law, that in that Council of Europe country, which subscribes
to the European Convention, you cannot, in fact, apply for bail
in our sense and the conditions on releasing someone under house
arrest, or anything else, are onerous and the courts do not exercise
effective judicial control. That is a Council of Europe country.
My question really is whether we can be satisfied, under this
system, that all the Member States of the EU will have functioning
systems that will be able to respect the right to liberty in a
proper way under the scheme, because that seems to me to be a
proper consideration for everyone in considering the scheme as
a whole?
Mr Doobay: Perhaps I can just make a comment
here, because I was one of the Task Force members for the study
which was undertaken by the Law Society, and I must say that even
though this was a partial study of a limited number of jurisdictions
the differences between them were very stark. The Law Society,
throughout this process, has been advocating a study, pan-EU,
to at least try to identify the basic common conditions which
no EU Member State would find alien to its system and therefore
all Member States would find easy to implement. The Commission
has not chosen to follow that route, but certainly we see the
force in having such a study, because it is very difficult to
argue that each Member State has trust in the other Member State's
legal system when we cannot even have a common definition of the
basic conditions which are applied throughout the EU for bail.
I wonder if I can just comment in terms of the interpreting, in
the sense that although there are a large number of EU languages
we would not anticipate, from the statistics which are available,
that this would be a fantastically large number of cases which
would require this type of interpreting. Therefore, to have on
call an interpreter for each of the languages for a finite number
of cases would not seem, to me, to be a great practical difficulty,
given that we have to have that at the moment for foreign defendants
in the UK who are subject to domestic criminal proceedings, who
may need interpreting to have their own Article 6 rights safeguarded.
Lord Mance: We are in a context, are we not, in Europe,
where, for various purposes, all members of the Community, or
Union, are expected to develop central bodies, and the European
Arrest Warrant is one, but mutual assistance in criminal matters
is another, I think. It may be a fact of life that not all of
them have achieved the same standard but that is a question of
more resources, is it not?
Chairman: Whatever imperfections there may be and
remain, the fact is that you will have achieved, hopefully, something;
at least there will be some EU nationals who will be granted bail
who under the present scheme are not?
Lord Mance: If I can pursue that, in relation to
Lord Lester's problem, I think you gave an answer which related
to the earlier stages again. The tripartite system such as you
were suggesting does not seem to work at the last stage, that
is, enforcement in the case of some alleged breach. I think you
need to have one court or another, do you not, and at the moment
the proposal is the issuing court? I asked you that previously
and suggested it might not be the better court. I think Lord Lester's
point was that maybe it had to be the executing court and that
there was a flaw, in principle, because of the Human Rights Convention.
I am not sure any of us has really researched that, but I wonder
whether the Human Rights Convention really insists that your effective
remedy before a national authority has to be before the national
authority where you happen to be resident, if, by international
treaty, another authority is given competence and the place where
you are resident has to recognise its decision. That may not be
a question on which any of us can comment.
Lord Lester of Herne Hill: Can I perhaps
explain what I was posing, because my question may not have been
understood, because of the way I expressed it. My question really
is the same as the JUSTICE question, which is, you are being deprived
of your liberty in State X, that is the State which has responsibility
for ensuring that you have an effective remedy and a fair hearing
in testing whether your liberty is or is not being curtailed properly
and proportionately; State X cannot delegate that decision to
the courts of State Y if it is in State X that they are exercising
a detaining or custodial function over you.
Chairman: This is recalling to custody for breach
of bail conditions.
Lord Lester of Herne Hill: Or whatever; it does not
matter—
Chairman: Yes, but that is the particular scenario
which I think you are envisaging.
Lord Lester of Herne Hill: Yes, and that seems to
me it would be very odd if the State which has control of the
individual is not obliged to give an effective remedy and a fair
hearing in determining that question. It can say it is for another
State, its courts, to do so. I am not sure I know of any case
law which says that.
Lord Mance: Without entering into a debate too much
among ourselves, the difficulty about that is that the same principle
might apply to the original decision, in other words, you would
have to have more than just a decision made by the issuing State
after consultation about practicalities with the executing State,
you would have to have, effectively, two decisions, a joint decision
by both courts, of both States. It would not be just a question
of contacting a central authority in the UK, it would be a question
of actually getting a UK court to rule before the—
Chairman: I am not sure; these are deep and difficult
jurisprudential questions and they lie outside the scope of these
witnesses' assistance.
Lord Lester of Herne Hill: They do at least arise
out of the JUSTICE submissions, rather than their own heads.
Chairman: Lord Jay, I think you have a question.
Lord Jay of Ewelme: It was a comment, going back
a little bit, on a language problem; in fact, it is exactly the
same point that Mr Doobay made. I can see there is an issue of
resources in the sense of money, but unless there is a sudden
influx of Estonian criminals I cannot see that there is going
to be a problem in terms of getting the interpreters or the translators
to do the work, because they are around, in this particular field.
Q257 Chairman: Can we turn
to one or two questions under the head of `recognition and enforcement'.
We know that under the present proposal there is a discretion
in the executing State to decline to recognise an order on the
grounds that the accused has not attained the age of criminal
responsibility in its State. As I think will be clear, if it does
exercise its discretion in that way, that is not actually going
to be of much help to the under-age suspect, because, by definition,
it will follow that he will be kept in custody in the trial State;
so the question arises, should there be that discretion? It is
a different situation, obviously, from that arising under the
European Arrest Warrant, because there it would be to the advantage
of the under-age child not to be returned, but here it would be
to the disadvantage for the State not to receive that child, in
order that the under-age person may enjoy liberty pending trial?
Mr Doobay: My Lord Chairman, we entirely agree
that should not be in there as a discretionary ground for non-recognition;
but we understand, certainly I understand, from the meetings I
have attended, that this is a matter of great political sensitivity
in some EU Member States and it is at their insistence that they
do not wish to be seen to be supervising a measure to allow the
under-age person to be released, because they are assisting in
the prosecution process of the person who is under the age of
criminal responsibility in that State.
Q258 Chairman: I see. They
see it as, so to speak, in some way condoning a system whereby
this person is actually being prosecuted when they say he should
not be?
Mr Doobay: That is my understanding. Certainly
what I can argue is that there is no principle reason why that
should be in there.
Q259 Chairman: Does exactly
the same approach follow in respect of dual criminality—should
there be some provision as to dual criminality, in other words,
should you have a discretion to refuse to recognise an Order,
if the prosecution is for an offence not recognised by the executing
State?
Mr Doobay: Again, My Lord Chairman, in terms
of our view, we would not welcome such a ground for non-recognition,
simply because it would operate, as you have suggested, against
the defendant's interest. Whereas in the European Arrest Warrant
it is a safeguard, here it would actually hinder the defendant
being released prior to their trial.
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