Examination of Witnesses (Questions 380-399)
Senior District Judge Timothy Workman
23 MAY 2007
Q380 Chairman: Quite, because we
have to give flesh to it.
District Judge Workman: Yes.
Q381 Lord Lester of Herne Hill: I
might be being extraordinarily stupid, but if someone is on bail
here subject to conditions which have been agreed, or whatever,
and then the police tell the judge that the person is about to
go to Latin America, do you not have the power here to revoke
bail and either just to lock him up or to impose fresh conditions,
or whatever?
District Judge Workman: Yes, we do, but the
important aspect is to make sure they are arrested before the
length of time elapses that it takes to get to a court and make
that decision. In my rather silly example, if someone is actually
on the plane to South America you want to be able to get a policeman
to say, "Excuse me, you've got to come off the plane while
I take you to court to have your bail reviewed."
Q382 Lord Lester of Herne Hill: There
is no power under English law to do that?
District Judge Workman: There is under English
law.
Q383 Chairman: But not in respect
of our responsibilities under the European supervision order?
District Judge Workman: No.
Q384 Lord Mance: How often does it
arise actually, if ever, that you hear of an apprehended breach,
for example someone has bought an air ticket, but you did not
get an actual breach and steps are taken, because that does not
seem to be covered either?
District Judge Workman: No. It is more common
now because the police now have the power to deal with a belief
that there is going to be a breach of condition. That is a fairly
recent change in our law, but it is quite common now and a useful
provision.
Q385 Chairman: But as Article 16(1)
presently reads, if there is a dispute as to whether there has
been a breach, as I understand what you have told us you would
perhaps not immediately report back to the issuing state, you
would first make a decision for yourself, yes or no, has there
actually been a breach which must then be reported? Is that how
you would approach it?
District Judge Workman: Yes, I think so. I would
quite like to see the court having the power to have before them
the alleged offender and then having the power either to transfer
immediately or to grant bail again on the same terms or more onerous
terms, or to remand in custody pending notification to the issuing
state, or possibly even discharging if it came within the provisions
of—it is Article 18, is it not?
Q386 Chairman: Discharging what?
District Judge Workman: I think it envisages
discharging—it is Article 18(3), "may refuse to the
arrest and transfer only," and then there are the four points.
If that arises, presumably effectively you are discharging the
defendant. I cannot imagine that is going to happen.
Q387 Chairman: Yes, but as I understand
it, at the end of the day there might be some last ditch reason
not to go through with the whole process of returning him for
trial depending on one or other of these four circumstances?
District Judge Workman: Yes.
Q388 Lord Mance: I am not sure it
is discharging in every case. It might be in case one, but in
cases two and four you would certainly just continue with the
existing regime?
District Judge Workman: Yes.
Q389 Chairman: There are simply circumstances
in which you would not just automatically go through with the
arrest and transfer back to the issuing state?
District Judge Workman: Yes.
Q390 Lord Mance: Under the existing
provisions, as my Lord Chairman has said, the contemplation is
that the issuing authority will take any substantive decision
about whether there is a breach and about what to do, and that
involves the scenario where the defendant is in one country but
a report has been made to another country and that other country's
judicial authorities are taking the decision about matters in
the first country. How do you view that as a scenario?
District Judge Workman: Provided there is a
power to detain the defendant in custody pending that decision,
then the decision effectively is one for the issuing State, because
it is its case.
Q391 Lord Mance: That is the argument,
but how practical is that when you are considering the question
whether there is a breach in the executing state and when you
are considering how serious that breach is and what action should
pragmatically be taken in respect of it? How sensible is it to
hear the evidence remotely and to take a decision in a remote
way?
District Judge Workman: What I would have liked
to have seen is a power to the court to be able to move in both
directions, so that if we had something such as a defendant brought
before the court for breach of his reporting conditions to the
police station and he had arrived at the police station an hour
late because the train broke down, I would want to be able to
see that the court would be able to re-bail him, either on the
same or more onerous terms, without actually having to go through
reporting it all to the issuing State. There may be occasions
where there is a sufficiently serious breach of the conditions
of bail to warrant a remand in custody, but because we do not
know the state of the case in the issuing State a remand in custody
in this country pending the information which is required after
reporting the breach to the issuing State may well be the way
to move forward. Thus, the court has a discretion to deal with
the minor breaches but a power to transfer him back immediately
or to seek advice from the issuing State if it is more serious.
Q392 Lord Lester of Herne Hill: In
my naughty way I keep thinking about the television soap which
would describe the conversation between London and Budapest or
a more remote area of Hungary on this question, the language differences
and the cultural differences, and having this discussion about
whether it is a serious breach or less serious breach through
a video-link in a court in Birmingham, which happens to be the
nearest one to a rural court, and the same the other end. It seems
to me comical.
District Judge Workman: I agree, it is.
Q393 Lord Mance: But I think you
are suggesting, are you not, that actually the executing authority
should take the decision and should be trusted to take a sensible
decision as to whether the matter could be dealt with in the executing
state or whether it should be, to some degree at least, remitted?
District Judge Workman: Yes.
Q394 Lord Borrie: But that is not
the scheme?
District Judge Workman: No, it is not, I am
afraid.
Q395 Lord Borrie: Is not the scheme,
as I understand it, one which requires the issuing state to be
in charge, as it were, throughout, whatever happens, and if something
happens which is an alleged breach it is supposed to be reported
to the issuing state? But, of course, we have all rightly been
concerned, including yourself, Judge, with the reality of practical
situations where unless something is done rapidly in terms of
apprehending the person concerned then whoever is in charge has
no powers in practice because the bird has flown literally in
the case you gave. Is there not some way which is fully in accordance
with the spirit of what we are dealing with whereby the issuing
state remains in charge and things have to be reported back there,
but the temporary arrangements, including apprehension, are delegated
to the executing state and its authority?
District Judge Workman: I am sure with careful
drafting that ought to be possible.
Q396 Chairman: Can I then come to
the questions arising under Article 15 about competing obligations
to surrender or extradite? As the Article is framed, as I understand
it, one of these European supervision orders does not stop a European
Arrest Warrant being implemented or an extradition request, let
alone an attempted prosecution by the international criminal court,
or indeed under the final sentence of that Article a domestic
prosecution here, so it is absolutely the lowest priority of all?
District Judge Workman: Yes.
Q397 Chairman: Is that a good idea?
District Judge Workman: Could I just take the
last one, which is domestic prosecution? I think it would be better
if there was some discretion in the executing court, because we
get a situation under the European Arrest Warrant where we are
unable to return somebody for a very serious crime, sometimes
involving child witnesses, and so on, where it is clear that the
matter should proceed urgently, and they are facing a court here
for no insurance or something like that, and we are barred. We
have to stop it.
Q398 Chairman: You have to, under
the European Arrest Warrant?
District Judge Workman: We have to, yes. If
there are any proceedings pending, domestically, they have to
be cleared up first. That is an extreme example.
Q399 Chairman: Under what provision
is that? That is most bizarre. Anyhow, let us take that as correct.
District Judge Workman: I would like to see
a discretion.
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