SUSPENDED SENTENCES AND ALTERNATIVE SANCTIONS
(5325/07)
Letter from the Chairman to Rt Hon Baroness
Scotland of Asthal, Minister of State, Home Office
This proposal was considered by Sub-Committee
E at is meeting of 21 March 2007.
We consider that the proposed Framework Decision
is to be welcomed. However, we agree that a number of issues will
have to be resolved.
SCOPE
We note that the Government are concerned that
the current scope of the proposal is too wide. You say that in
your view "the main benefits would flow from transfer of
supervision of more serious offenders following their release
from custody". We find this surprising and would be interested
to hear why you consider this to be the case. What benefits would
flow here which would not apply equally to less serious offenders
with non-custodial sentences?
Is the question of scope something which has
been discussed in the Working Group? If so, what was the reaction
of other Member States?
DISPARITY OF
ALTERNATIVE SANCTIONS
You suggest that there will be "considerable
devil in the detail" given the disparities in legal and practical
provision for alternative sanctions across Member States. Since
this is an initiative of France and Germany, there appears to
have been no impact assessment on the extent and nature of the
problem. It seems, however, that such an analysis could prove
useful here. Has any statistical and/or comparative work been
carried out and if not, do you agree that it may be helpful to
undertake further research before agreeing the Framework Decision?
TRANSFER OF
JUDGMENT
Article 5 provides that a judgment may be transferred
to the State of legal and ordinary residence of the accused if
it includes specified or agreed measures. It would appear that
the drafting needs some attention because the Article does not
seem to cover the case of a suspended sentence where no conditions
are attached. Second, the Framework Decision does not set out
a mechanism for the sentencing State to follow when taking a decision
to transfer. Should the Framework Decision list relevant criteria
to be taken into account? Should it specify that the sentenced
person has the right to be heard before any decision is taken?
GROUNDS FOR
REFUSAL TO
RECOGNISE JUDGMENT
Article 9 allows the executing State to refuse
to execute a judgment where, under its law, the sentenced person
cannot be held criminally responsible for the relevant act because
of his age. While the general effect of a higher age of criminal
responsibility is to protect young people, in cases such as this
one and the related European Supervision Order proposal, it leads
to young people being put in a less advantageous position than
adults: where an adult can return to his home State, a young person
may be forced to remain in a foreign country for the duration
of the sentence. Thus while the intention is laudable, the effect
of the provision is most unfortunate. What are the Government's
views?
We note that, unlike in the case of the European
Arrest Warrant, all the grounds for non-recognition are discretionary
and not mandatory. Is this an intentional departure from the previously
agreed instrument?
COMPETENCE FOR
SUBSEQUENT DECISIONS
We agree that the practicality and desirability
of allowing Member States to reserve competence for subsequent
decisions regarding conditional sentences requires further consideration.
What discussion has there been in the Working Group? If the provision
on reserving competence is retained, do you consider that the
Article 7 obligation on the executing State to recognise the judgment
and arrange the necessary supervision should apply?
REVOCATION OF
SUSPENSION
It is not clear what happens should the competent
State decide to revoke the suspension of a sentence. If the sentencing
State remains competent to take subsequent decisions, it seems
that it may request the return of the individual to its territory,
but is not obliged to do so. Are the Government content that another
Member State could order, without recourse to relevant UK authorities,
the revocation of a suspension or imposition of a sentence and
thereby oblige the UK to arrest and imprison an individual?
Where the sentencing State remains competent
for subsequent decisions, the Framework Decision envisages a hearing
prior to any revocation of a suspension or imposition of a sentence.
Should there be a similar requirement where the executing State
is competent for subsequent decisions?
The Committee has decided to retain the proposal
under scrutiny.
26 March 2007
Letter from Rt Hon Baroness Scotland of
Asthal to the Chairman
Thank you for your letter of 26 March 2007.
The Committee asked for further information following its further
consideration of this draft Framework Decision (report number
28287). I will deal with each of the points in turn.
SCOPE OF
THE INSTRUMENT
You asked why we consider that the main benefits
would flow from the transfer of supervision of more serious offenders
following their release from custody. We believe that the real
value will be the opportunity to rehabilitate and resettle offenders
released on licence from custody, who have perhaps been imprisoned
for some time. Offenders who commit less serious offences and
who receive short community sentences should not raise such substantial
potential public protection and resettlement issues. As I commented
in my previous letter, there are also issues of practicality and
the effort required to transfer sentences. The continuing discussions
are exposing the difficulties and the likelihood that the least
serious sentences will require the most bureaucracy, which would
outweigh any potential benefits of transferring such sentences.
There have been some discussions on the scope
of the instrument and there are, broadly speaking, currently two
schools of thought: those who want the Framework Decision to be
as wide as possible because it is thought in principle to be a
good thing; and those who, like us, want it narrowed down to those
areas where it can do most good. It has been noted that that the
purpose of the Framework Direction is not only to reap the benefits
of mutual recognition but also to introduce simplicity given that
it is generally accepted that the 1964 Council of Europe Convention
on the supervisions of conditionally sentenced or conditionally
released offenders has proved to be unworkable.
DISPARITY OF
ALTERNATIVE SANCTIONS
The Committee suggests that an impact analysis
would be of benefit on the extent and nature of the problem in
relation to the disparities and practical provision for alternative
sanctions across Member States. The Presidency has already done
some work around this by issuing a questionnaire to Member States,
which provided greater clarity on the definitions used and asked
for comments, and also asked for confirmation or otherwise of
the availability of various sanctions currently listed in Article
5 that implementing States may be asked to supervise. This is
a starting point and the responses are likely to be discussed
at the next meeting on 3 May.
TRANSFER OF
JUDGMENT
The Committee raised a number of points in relation
to Article 5. The issue of suspended sentences without conditions
has not yet been raised and it is not clear whether any Member
States impose such sentences. In England and Wales, suspended
sentence orders imposed under the Criminal Justice Act 2003 should
have at least one requirement set by the court. In Scotland there
is no legislative provision for suspended sentences.
Transfer of a judgment would only take place
if the offender voluntarily decided to go to the Member State
in which he is ordinarily resident, and where the sentencing and
implementing States agreed the transfer. Paragraph 10 of the recitals,
for example, makes the position clear about the voluntary nature
of the initiative.
GROUNDS FOR
REFUSAL TO
RECOGNISE JUDGMENT
The Committee raises the issue of young offenders
being in a less advantageous position than adults given that an
implementing State could refuse to recognise and execute a judgment
if the offender could not be held criminally responsible for the
offence because of his age under its law. This is correct but
the instrument would otherwise be unworkable. Such cases are likely
to be very rare given that this would only be likely to affect
the very youngest offenders. There may also be cases where implementing
States refuse to recognise judgments if the sanctions cannot be
adapted to meet its own law or where the sentencing State refuses
to accept possible adaptations. This may also give rise to some
offenders being disadvantaged but I think we have to accept that
there will be differences in the domestic law of 27 Member States
that makes it inevitable that some transfers cannot take place.
The grounds for non-recognition are discretionary
and not mandatory under the draft Framework Decision as the whole
process is voluntary for the person affected (and the two Member
States), unlike the position where someone is the subject of a
European Arrest Warrant. Article 3 of the EAW contains three mandatory
grounds for non-recognition, but Articles 3(1) and (2) would not
be relevant in the context of this Framework Decision. Article
3(3), which relates to the age of criminal liability, is an optional,
not mandatory ground in this Framework Decision, to minimise the
risk of disadvantaging young offenders identified by the Committee.
The Government does not consider that any of the grounds for refusal
should be mandatory.
COMPETENCE FOR
SUBSEQUENT DECISIONS
There has been some discussion about the sentencing
State reserving competence for subsequent decisions relating to
the transferred judgments. We are strongly of the view that this
is wrong in principle and unworkable in practice.
It seems likely that from the last meeting that
suspended sentences would in all cases be fully transferred to
the implementing state given that subsequent decisions would be
straightforward, for example, breach would trigger the custodial
sentence imposed by the sentencing State. But some Member States
have conditional sentences where the sentencing decision is suspended
but requirements are imposed on the offender. If the requirements
are completed satisfactorily then the matter is discharged, but
if not the case must go back to court for sentencing and a custodial
sentence is not necessarily the only option. It is difficult to
see how the transfer of such sanctions could be dealt with, given
that the sentencing decision itself is suspended, other than by
the sentencing State reserving its powers to deal with subsequent
decisions. But we consider that these sanctions should not be
within the scope of the instrument, not least because of the practical
difficulties of the case going back and forth between States for
decisions to be made and possible adaptations to the sanction
to be agreed. Our concern is that the greatest level of bureaucracy
would be created for the least serious sanctions, which, in our
view, would outweigh any benefits of transfer.
We consider that if the sentencing State does
have the power to reserve competence for subsequent decisions
then Article 7 would still be required as supervision, subject
to any adaptations, would transfer to the implementing State.
REVOCATION OF
SUSPENSION
As noted above, we believe that it is wrong
in principle for the sentencing State to reserve competence for
subsequent decisions. In our view, this instrument is designed
to promote mutual recognition and that means that judgments should
be transferred wholly to the implementing State, where this is
agreed. We do not consider it right that the UK courts should
be bound by decisions made in another jurisdiction.
On the detail of Article 15, the Committee has
asked whether the implementing State, where appropriate, should
be required to hold judicial hearing prior to any revocation of
the suspension of a sentence or re-sentencing. There has been
some discussion of the drafting and a number of Member States
are concerned that there should be no additional obligations imposed
by the instrument. In some jurisdictions there is not always a
requirement for a judicial hearing prior to making certain decisions
and the general view was that States should use their usual processes
when making decisions. It is likely that the first sentence of
Article 15, paragraph three will be deleted.
19 April 2007
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