Examination of Witnesses (Questions 280-299)
Ms Louise Hodges, Mr Anand Doobay and Ms Julia Bateman
9 MAY 2007
Q280 Chairman: What about
if they anticipate a breach, if they get information that X has
packed his bags and he is looking as if he is off to China, or
whatever?
Mr Doobay: Again, My Lord Chairman, we do not
see anything within the current draft which would allow for pre-emptive
action to be taken.
Q281 Chairman: It could not
fall under the obligation to execute? I think the Commission suggested
there might be rights under Article 1. There are various possibilities.
Article 1, the second paragraph: "under the condition that
he complies . . . in order to ensure the due course of justice
and, in particular, to ensure that the person will be available
to stand trial . . . ". Then there is `3': "Member States
shall execute . . . on the basis of the principle of mutual recognition
and in accordance with the provisions of this Framework Decision."
Then there is Article 9: "forthwith take the necessary measures
for its execution." None of those would you regard as a foundation
for a power to arrest in order to ensure that he cannot thwart
the intendment of the order?
Mr Doobay: My Lord Chairman, I can certainly
see how an argument might be made, but I think perhaps that simply
exemplifies the problem; that would be quite a significant power,
and if one were envisaged then it would seem preferable, to us,
that it be explicitly set out within the text of the draft Framework
Decision.
Q282 Chairman: Would you think
it ought to be there?
Mr Doobay: My Lord Chairman, I can certainly
see good, sensible, logical reasons why it would be there, otherwise
it would undermine the efficacy of the European supervision order.
We would obviously have the same reservations about having a speedy
hearing actually to determine whether such pre-emptory action
was justified or not.
Q283 Lord Mance: I was going
to pick up the suggestion you made, Ms Bateman, about breach,
that the executing State determine whether there is a breach then
report the breach, leaving the issuing State to deal with the
consequences. May I suggest that normally guilt and sentencing
go together and it is wrong, in principle, to have them dealt
with by different people? On your theory, in fact, there would
be a ping-pong, there would be a determination of breach in an
executing State, report to issuing State to deal with the consequences,
but the issuing State would then have to consult with the executing
State before imposing any consequences. The better thing would
be to have it the other way round, the executing State determines
breach and consequences after some form perhaps of consultation
at most with the issuing State?
Ms Bateman: I think my process was dealt on
the premise that if it is the issuing State who, as we understand
it, is the State who has the power to determine whether there
should be an arrest, that was why I thought that the decision
as to the consequences of the breach should be made in the issuing
Member State as to whether they would instruct the executing Member
State to arrest and transfer the suspect back.
Q284 Lord Mance: If you are
talking about something like varying the conditions, imposing
an additional condition, par excellence, surely that is
something that the executing States should assess and decide?
Mr Doobay: My Lord Chairman, I will perhaps
look at this in a slightly different way, in terms of, determining
whether there has been a breach would seem, to me, to be an issue
of fact, and, in the same way as in the UK the jury determines
issues of fact and the judge determines issues of law, it would
seem, to me, that it would be right perhaps that the executing
State determines an issue of fact, whether there has been a material
breach, also any breach at all, not least because they are closest
to the application of the ESO in their State. In terms of the
consequences, to take a specific example, if the executing State
decided to simply impose another condition within the ESO, the
issuing Member State might well say, "In fact, this doesn't
meet our concern. Now that you have established there has been
a breach, we are not satisfied with the additional condition you
feel would meet the risk of absconding," or whatever the
risk might be, and that could lead to the issuing State saying,
"In fact, no; we no longer believe that the ESO is appropriate
for this case." It just seems to us that perhaps it would
become more complicated.
Q285 Lord Mance: That seems
to postulate a lack of trust between States, which we are not
allowed to assume?
Mr Doobay: My Lord Chairman, I am not so sure
it is a lack of trust, as opposed to which State believes it has
the ability to set the conditions, in the sense that the issuing
Member State is protecting its position to prosecute the person
it wants to be returned, whereas the executing Member State is
simply fulfilling a function given to it under a mutual recognition
instrument.
Q286 Lord Mance: If someone
determines a breach, it is extremely unhelpful to receive in the
foreign country a bald statement "There's been a breach;
he failed to report." In reality, for the issuing State to
be able to deal with this fairly, that is its task, you would
have to send a substantial judgment, or possibly the whole transcript
of the evidence, and that is going to be very cumbersome, is it
not?
Mr Doobay: I think, My Lord Chairman, that is
why we are suggesting the tripartite hearing. If, in order to
determine the breach, you have—let us take a practical example—a
video link, there is a physical hearing in the executing State,
which the suspect attends, is represented, there is a video link
to the issuing State, there is evidence given as to whether a
breach has or has not occurred, a finding is made as to whether
there has been a breach, there is then consideration as to the
consequences of the breach.
Q287 Chairman: Who makes the
finding?
Ms Bateman: The findings of fact would be the
executing Member State; the findings of law would be the issuing
Member State.
Q288 Lord Mance: You are actually
contemplating two concurrent sets of legal proceedings in different
countries, which I think would be a unique and interesting idea
that we might consider?
Mr Doobay: My Lord Chairman, I am not so sure.
I think we are entering complicated areas of jurisdiction here,
because the physical hearing would not necessarily have to be
proceedings in the executing Member State, in the same way that
you can have evidence given via video link in the UK from another
jurisdiction. I am not sure that it is helpful perhaps to go into
the jurisdictional; it is more a question of principle. Without
the three parties being involved in the determination of this
issue, it seems to us to be unfair and potentially unworkable.
Chairman: It is all very well saying
that we must assume mutual trust and recognition but, the fact
is, unless there is built into this proposal sufficient to inspire
confidence in enough Member States it is not going to get off
the ground anyway.
Q289 Lord Lester of Herne Hill:
I cannot really improve on the questions that Lord Mance has put.
I just want to supplement that because of my own puzzlement. I
think it is your evidence that under Article 16 there has to be
a hearing before the breach of the Order is determined factually;
there must be a hearing, even though Article 17 is only contemplating
a hearing in relation to an Article 17, `consequences of breach'
stage. I think you are agreeing, are you not, that, initially
deciding whether there has been a breach, the executing stage
must have some kind of hearing for the person to be able to make
representations before that decision is taken; is that right?
Mr Doobay: Yes.
Q290 Lord Lester of Herne Hill:
You agree that is not what it says?
Mr Doobay: Absolutely.
Q291 Lord Lester of Herne Hill:
And tends to be contradicted by the way in which it is drafted
in relation to Article 17, which gives the impression that the
only hearing is with regard to consequences of breach?
Mr Doobay: Absolutely. What we described is
what we would like to see for the Framework Decision rather than
what is actually in there.
Q292 Lord Lester of Herne Hill:
We are told by the Commission that this cannot be amended by them,
because this is their final word; that is why I am keen to look
at it as it is now. It is meant to be an instrument to enhance
mutual recognition, comity and trust across Member States in this
area, as well as facilitating transfer and the enjoyment of the
right to liberty, where possible. Let us assume it is Hungary
or Poland, just to make it slightly more exotic than France. How
can it encourage comity and mutual recognition and trust if you
have two courts, one Hungarian and the other English, that are
meant to reach some kind of mutual decision, with the ultimate
decision taken in Hungary, that being the issuing State, and arguments
going on, once the breach has been determined, as to what should
happen in what you call a tripartite hearing? Is it not going
to be extremely difficult to avoid conflict between the two courts
when they are both expected to take a joint decision, with one
court being able to trump a decision in relation to the other?
That is what I find very puzzling. It does not seem to me that
this is a practical way of enhancing trust. I know that you have
said you place great store on the need for the issuing State to
trust what is happening in the executing State, but what I do
not understand is how that can be done under this scheme without
actually causing more mistrust in the conflicts that will inevitably
arise between the courts of both States with shared responsibility.
That is a very clumsy way of expressing what Lord Mance was saying
in his own questions to you before, I think. Is not that a very
serious problem about the scheme as it stands at the moment?
Mr Doobay: My Lord Chairman, I think the way
we would see it is that, the conflicts which may arise between
the two courts, if we step back slightly, the issuing court's
aim is to secure the attendance of the suspect, as and when required,
for the trial process; the aim of any court in the executing State
is simply to comply with the terms of the European supervision
order. In the sense of looking again at the breach situation,
our suggestion that the executing State be involved within that
process is, firstly, as I think we would all agree, factually
they will be in a better position to provide evidence as to what
has happened. Also, so that if there is to be any amendment to
the European supervision order they are in a position again to
give their agreement to any amendment to the European supervision
order, because any revision to the conditions will necessarily
involve them having to say, "Yes, this is a workable addition,"
or condition, or "This is a workable revised condition within
the ESO as it is." I am not so sure that there would be a
conflict, because the executing State is simply looking to see
that it can comply, in practical terms, with what is proposed
under an ESO, and the issuing State is looking to see that it
is satisfied that the ESO, on an ongoing basis, will allow it
to bring back the suspect for trial and engagement within the
trial process.
Q293 Lord Lester of Herne Hill:
Are not both States concerned to ensure that the right to liberty
is not unnecessarily infringed, in breach of the European Convention
on Human Rights, and that there are fair hearings? Both States
are concerned with that, they are both bound by the Convention,
they have shared responsibility and they both have that wider
consideration, do they not?
Mr Doobay: My Lord Chairman, I agree, but that
seems to me to be not a reason for causing conflict but a shared
concern which will inform the hearing process.
Chairman: I wonder if we have really
understood this correctly. Sometimes, of course, it will be obvious
if there is a breach or not, there will not need to be any hearing
about it. We have been discussing the lacuna, namely the assumption
that that will always be so, but, in fact, of course, it will
not, sometimes it will be contested. The way, simplistically,
the proposal is drafted is, there may well have been a breach,
you report it, it is then for the issuing State to decide whether
to arrest and transfer. When under Article 18.1, if that decision
is taken, it seems to me that at that stage there is indeed a
hearing before an English court and the English court must themselves
decide whether that is an appropriate response to the breach.
Lord Lester of Herne Hill: That is so,
but that arises after the cumbersome procedure in Article 17 has
been gone through.
Chairman: Certainly. Certainly, ex
hypothesi, there will have been a decision to arrest and transfer,
but at that juncture he is entitled to a hearing before, on the
hypothesis we have been discussing, an English court, and the
English court will be able to say, "Well, this is a venial
breach and frankly, Strasbourg would not regard arrest and transfer
as justified."
Lord Mance: May I suggest that Article
18.1, certainly as I have read it, is really only a prelude to
Article 18.2 and 18.3 and is subject to that. In other words,
the purpose of the hearing is a very limited one, to find out
whether there is consent and if there is not consent to find out
whether one of the grounds in Article 18.3 is an excuse for not
transferring, otherwise you would have to transfer.
Q294 Chairman: Do you read
18.1 as giving any discretion in the Member State, the executing
State, to decline to treat the breach as sufficient to justify
an arrest and return, or not?
Mr Doobay: My Lord Chairman, I do not read it
in that way, as it is drafted.
Q295 Chairman: No; you may
well be right. It was a thought that occurred to me and I think
that probably that hare has been chased far enough.
Mr Doobay: Perhaps I can make a supplementary
comment, which may assist. In terms of the implementation of the
European Arrest Warrant Framework Decision, there is no specific
obligation that when deciding whether to execute a European Arrest
Warrant a judge considers whether the execution would risk a violation
of the defendant's rights under the ECHR. I can certainly see
before an English court the suspect making an argument that, regardless
of what it says in Article 18, if he can show that his detention
is arbitrary or in some way disproportionate, you cannot oust
the ability of the English court to take into account those arguments,
but I am not sure that is in any way a sufficient protection,
given the issues which we are talking about.
Q296 Chairman: It ought to
be put there explicitly?
Mr Doobay: That is exactly what the Government
has done with the European Arrest Warrant's implementation and
the Extradition Acts.
Q297 Chairman: Can we move
then to Article 15; this is the one which, on its face, would
seem to give priority to the other forms of process there specified
under a, b and c. Is that your reading, too?
Mr Doobay: My Lord Chairman, I am not sure that
is our reading. Part of the reason why we have raised this, along
the whole of this process, is that, it appears to us, "without
prejudice" simply allows the option of a Member State choosing
to which out of their number of competing obligations it wishes
to give effect. It seemed to me that, in the Commission's evidence
to your Lordships, that was entirely what they were saying, that
this could be the subject of informal discussions, or your Lordships
could be involved.
Q298 Chairman: The executing
State is responsible for somebody under an ESO and then in comes
a European Arrest Warrant from another Member State; it is up
to the executing State as to which to give effect to?
Mr Doobay: My Lord Chairman, that is how we
read it.
Q299 Chairman: That, I suspect
you would agree, would be a more sensible approach?
Mr Doobay: My Lord Chairman, the only comment
which I think we would wish to make is that this is not a dissimilar
situation from a European Arrest Warrant, and there again the
Framework Decision is silent as to what would be done with competing
European Arrest Warrants, or a request outside the EU under an
EAW. The UK, in implementing it, has set out, in fact, a list
of criteria to be considered by, in this case, the Secretary of
State, if there are competing requests, and has also decided that
domestic prosecutions will take precedence over European Arrest
Warrant proceedings. I am not sure necessarily we would say it
was a matter to be dealt with in the Framework Decision but we
do feel that there should be some criteria and/or certainty as
to which process is to be dealt with first.
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