Examination of Witnesses (Questions 260-279)
Ms Louise Hodges, Mr Anand Doobay and Ms Julia Bateman
9 MAY 2007
Q260 Chairman: On that one,
there does not seem to have been, so to speak, the political resistance
that the under-age ground has? I absolutely follow all that. Should
there be, however, more mandatory conditions, notably a reporting
obligation so that you do have, at least, periodically, a scheme
for recognising that the suspect has not absconded, I think that
is the wrong word, has not been lost of track of, gone to ground,
and indeed an obligation to return to the State of residence,
the executing State, when there has actually been an ESO made
in his case?
Mr Doobay: My Lord Chairman, we would not support
more mandatory conditions, for some principle reasons, which are
that, as in every case, bail is very particular to the individual's
circumstances. One thing which we feel may be missing from the
Framework Decision is a requirement that only those conditions
which are both proportionate and necessary are imposed, and therefore
to have mandatory conditions may impose conditions which a court
does not, in fact, feel are required to meet their concerns about
releasing the defendant pursuant to a European supervision order.
Q261 Chairman: It is quite
difficult to suppose that you do not actually need an order that
he does come to the executing State?
Mr Doobay: My Lord Chairman, I entirely agree
that, as I understand it, that is a part of the Framework Decision
as it stands.
Q262 Chairman: Is it? It is
not made a condition, it is not an Article 6 condition, at least
I did not understand it was: have I missed something?
Ms Hodges: Article 6.1 refers to: "The
issuing authority shall impose an obligation on the suspect to
make himself available for the purpose of receiving summons for
his trial and to attend the trial when summoned to do so."
Q263 Chairman: With respect,
I am not talking about when he is ready for trial, I am talking
about in the illustration we have been using, when France have
said, "Okay, you can have an ESO so that you can go back
to England to await trial;" but then you need to get him
back to England. There may be such an Order made, he is released
from the Paris court, but he thinks instead, "Oh, well, I'll
go and have a holiday in Thailand." What is to stop him doing
that?
Mr Doobay: My Lord Chairman, I think that there
would be nothing to stop him doing that, unless the court imposed
a condition which stopped him from doing that, in the sense that
6.1(a) allows the issuing authority to impose an obligation to
attend preliminary hearings for the offences for which they have
been charged.
Q264 Lord Mance: What about
6.2(a); that is the obligation, where you can impose an obligation
to travel at a particular time and on a particular date; but how
you are going to enforce this is the difficulty?
Mr Doobay: It simply seems to us that the flexibility
which should be inherent within the granting of bail would not
be assisted by having mandatory conditions, because the court
ultimately is the best place to judge which conditions are required
to meet its concerns about releasing an individual.
Q265 Chairman: I follow that.
If I may say so, I think it is a perfectly sound answer.
Ms Bateman: My Lord Chairman, if I may add,
I think the whole question of the issuing State and the return
of the individual, if you like, to his home State, this is one
of the major, practical details that have not been thought out.
At a number of experts' meetings in Brussels this was discussed
and, without being too flippant about it, I think it was one of
the issues that, "Oh, we'll deal with that later," or
"We'll deal with that on implementation." This is one
of our major concerns with the instrument as drafted, that it
does not think through these key issues. It makes some reference
that the individual may bear the costs of their return, but it
does not actually impose obligations, it does not actually impose
practical details, and that is one of the key examples.
Q266 Chairman: That return
though is return from the executing State back to the trial State;
it is not the return to his home State in order to enjoy bail.
Who is to fund that; say, quite likely, he has got no money at
all in the foreign State?
Ms Bateman: It is a very good question.
Q267 Chairman: To which as
yet there is no answer? This is for the implementing provisions,
is it?
Mr Doobay: My Lord Chairman, one would think
that, looking at this in purely economic terms, individuals otherwise
would have to be detained at the State's expense, that they would
prefer to pay the transportation costs of sending him back to
his Member State of residence, rather than have the substantial
costs of keeping him in detention.
Chairman: Absolutely.
Q268 Lord Mance: That would
depend on how many people they were receiving in the opposite
direction?
Ms Bateman: Indeed.
Q269 Lord Jay of Ewelme: What
happens now, if somebody commits a crime in Scotland but lives
in Cornwall; who pays for him to get back?
Ms Hodges: It is the suspect's responsibility.
Chairman: Really? Is there no scheme
whereby, take Lord Jay's illustration, plainly he should be given
bail but he does not actually have the wherewithal to return from
Scotland?
Lord Jay of Ewelme: It would be a lot
more expensive than getting back from Paris!
Q270 Chairman: Absolutely.
Well, so be it. What about the timetable? All we have is, of course,
the five-day provision, to some degree a moveable feast, in respect
of a decision on whether to recognise, but certainly we have been
envisaging a process of co-operation, particularly if it is tripartite,
which must inevitably take some time. Should the Framework Decision
itself condescend to any detail as to this?
Mr Doobay: My Lord Chairman, certainly we think
it should. It is very noticeable, if you compare this with the
Framework Decision on the European Arrest Warrant, which has absolutely
concrete timetables for all stages, that there is an urgency which
comes across with the Framework Decision of a need to deal with
it speedily, whereas certainly it appears to us there is less
of an urgency made clear in this Framework Decision. Obviously
it is operating to the suspect's disadvantage to have this process
take a lengthy period of time, when it is not clear what will
happen to the suspect, will they be kept in detention until and
unless you can have the tripartite hearing and a European supervision
order can be agreed? We would certainly welcome at least aspirational
timings for the initial hearing to decide on the European supervision
order and timescales for the periods thereafter, because, as you
have rightly commented, there are only two finite timescales set
out, one is the five days for enforcement and the other is three
days for transfer after arrest. Apart from those two, our Framework
Decision is utterly silent.
Q271 Chairman: In a sense,
it is a more difficult problem then with the European Arrest Warrant,
is it not, because there you do not actually at that point need
any input, or probably you do not need any input, from the issuing
State of a European Arrest Warrant; there it is, they have sent
the Arrest Warrant, it is up to the executing State to get on
and return the person back to the requesting State? Here you have
got the whole process, as we have discussed, of agreeing conditions
and indeed having the input from the suspect on that issue?
Mr Doobay: My Lord Chairman, I do agree that
if you look at that in terms of the European Arrest Warrant you
have an input from the suspect who is able to resist the European
Arrest Warrant, and there are stages within the process, because
it is not simply an automatic recognition, and then a physical
return. In the same way, we cannot see why there could not be
the same attempt to define periods.
Q272 Chairman: The other complication,
I have to say, which strikes me is, it is all very well, but,
again, if you take the case of the rape suspect in Paris, you
have got to give the French court some time to look into the case,
to decide whether actually it needs to go down the ESO route at
all. When is this timetable going to start: arrest? In a sense,
that is advancing it well before the period at which the proposal
currently is dealing with it.
Mr Doobay: I think, My Lord Chairman, we have
in mind not from that earlier stage because, obviously, the obligations
at that early stage, in effect, are dealt with by Article 5, the
ECHR. It is, in fact, from the stage when, and this is a relatively
arbitrary decision but when the French court says "We would
be minded to grant you provisional liberty but we are only prepared
to do so if we impose a European supervision order." It is
at that stage that the court has taken the decision that they
would be willing, in principle, to release you, subject to a European
supervision order, and it is then, it seems to us, that the Framework
Decision would kick in.
Q273 Chairman: That itself
might be a considerable length of time after initial arrest?
Mr Doobay: My Lord Chairman, I entirely agree
that it seems to us that is perhaps going outside of the scope
of what is envisaged by this measure and that will be dealt with
instead under the general rights available to a suspect under
Article 5.
Q274 Chairman: Turning to
breach of bail conditions, we have already, not least with Lord
Lester's question, touched on this, how will a breach be established,
should there be a hearing and, if so, where. Do you feel that,
consistently with the mutual recognition principle, it is still
the issuing State who have got to take the final decisions on
these things; is this right?
Mr Doobay: My Lord Chairman, there are a couple
of comments, and, in fact, I would like to perhaps go back to
one of the questions asked earlier, in terms of this, because
we see this not just in legal terms but in terms of the workability
of the proposal. It seems to us that if the issuing State is not
involved, in terms of a decision on breach, then the confidence
of the issuing State in being willing to use European supervision
orders may well be undermined and they may simply not grant them
in the first instance. It does seem to us essential, and something
which is not dealt with at all within the draft Framework Decision,
that there is a determination as to whether there has been a breach
and that the suspect has a right to be heard in the determination
of whether there has been a breach, and that the executing State
itself is part of this decision-making process because the executing
State is obviously the State which has the primary information
from the other side. We do feel that the issuing State must be
involved as well, simply because if they are kept out of that
process then it may undermine their confidence in allowing an
ESO to be granted in the first place.
Q275 Chairman: If we look
at Article 16.1 and Article 17.1, the first saying: "The
executing authority shall, without delay" report anything,
the second saying: "In the event of a breach," these
Articles are drafted really on the supposition that whether or
not there has been a breach is going to be self evident, that
there is not going to be an issue as to whether there has been
a breach, either there is a breach which has to be reported, and
in the event of which there are certain rights then in the issuing
State, or there is not. It really does not grapple with, it seems
to me, the question as to how you decide, in a contested case,
whether or not there has been a breach?
Mr Doobay: My Lord Chairman, it seems to us,
that is entirely right and also it avoids, to take one example,
that there may have been a breach of a condition of the ESO through
no fault of the suspect. To take an example, assuming the police
station is closed, because there has been a fire on the day when
they are due to report, there will have been a breach of the European
supervision order, and the mechanism in the Framework Decision
does not allow for any flexibility or materiality or any discussion.
Q276 Chairman: Unless retrospectively
you could modify under Article 6.4?
Mr Doobay: It does seem to us that the process
for assessing whether there has been a breach and what the consequences
of such a breach should be have not been thought through at all,
and the process certainly is not a fair one as set out there.
Q277 Chairman: Really does
it come to this; there is a lacuna in the proposal as it stands,
one could fill it by provision for the establishment of any breach,
and indeed for the blameworthiness involved in any breach, and
logically that should be a decision within and for the executing
State?
Mr Doobay: My Lord Chairman, I am not sure that
personally I would go that far, because I do think there is an
important point about the confidence of the issuing State. I do
think that it is not an issue which should exclude the executing
State but, as the issuing State is the one which has decided to
grant bail in the first place, on the conditions within the European
supervision order, I think perhaps it would be difficult then
to exclude them from the process of determining what happens after
the breach and whether there has been a breach.
Q278 Chairman: After the breach,
of course you are right, but as to whether there has been a breach
it is less obvious?
Ms Bateman: I think, My Lord Chairman, it is,
dare I use the word, commonsense, but I think the executing Member
State will make the preliminary determination `has there been
a breach'. They will then have to take the decision whether to
report the breach and then it is the responsibility of the issuing
Member State to deal with the consequences of the breach; so,
again, this is our co-operation model, if you like. There is the
example that Mr Doobay used, was the police station shut, was
there some legitimate mistake, did people get the day wrong; in
a sense, there needs to be a bit of flexibility, a bit of leeway,
a bit of commonsense. If we could work it in, as I say, our co-operation
model that the executing Member State makes a preliminary decision
as to the breach, whether it is a material breach, but the decision
on the consequences still rests with the issuing Member State
as to whether they want the suspect to be returned or whether
they will modify the bail order, the European supervision order.
Q279 Chairman: Under the proposal
as presently drafted, do you understand that the executing State
does have, or does it not have, a power to arrest, without, so
to speak, instruction from the issuing State to do so for breach
of condition?
Mr Doobay: My Lord Chairman, I think we understand
that it does not, without the issuing State having given it the
instruction to do so.
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