31ST REPORT: EUROPEAN SUPERVISION ORDER
Letter from Rt Hon Baroness Scotland of
Asthal, Attorney General, The Attorney General's Office, to the
Chairman
I am writing in response to the European Union
Committee's report on the proposed European Supervision Order.
We look forward to debating these matters in due
course.
10 October 2007
GOVERNMENT RESPONSE
183. To date EU action in criminal law has
focussed primarily on enforcement measures at the expense of human
rights and civil liberties—a fact which is entirely understandable
given the pressing need for States to cooperate in attacking terrorism
and organised crime. Progress on measures, such as the Framework
Decision on procedural rights, addressed at safeguarding and strengthening
the rights of the individual, has in contrast been slow and disappointing
(para 18).
184. It concerns us acutely that people
are not being given bail in the trial State at the moment on the
basis that, as non-residents, they are likely to abscond and go
back to their State of residence, or for more technical reasons,
such as a lack of fixed address in the trial State. The numbers
are not huge but they are substantial (para 7).
185. The ESO, whose aim is to enhance the
right to liberty and the presumption of innocence, is a welcome
measure. The Commission's proposal addresses a serious issue affecting
the liberty of the individual. It has the potential to reduce
hardship for some thousands of EU citizens and is a proposal which,
we believe, deserves prompt attention by Member States. However,
there are a number of places where the ESO needs to be improved
if it is to be workable (para 19).
The Government's objections to the proposed
Framework Decision concerned the relationship with and the issue
of EU jurisdiction in relation to rights in . . . .domestic criminal
proceedings. We believe that such problems should be avoided for
the proposed European Supervision Order.
The Government recognises that the proposal
may help to promote fair treatment of residents of other EU Member
States facing criminal proceedings within the UK as well as the
fair treatment of UK residents in a similar position in other
EU Member States. However, this is a delicate area of national
law and we shall not be able to agree to anything that risks crime
or obstructs our own laws or policies.
The Government agrees that the draft Framework
Decision needs further work to ensure that a satisfactory process
can be put in place.
186. The ESO is the way forward though the
mutual recognition principle upon which the ESO is based might
be usefully supplemented by allowing a greater role for the executing
State than is currently envisaged in the ESO proposal (paras 48,
51).
We agree.
187. We do not consider that the proposal
will lead to a significant increase in the number of interpreters
required. Existing resources should suffice (para 61).
188. We are pleased to see that the Government
intend to carry out a full impact assessment including an examination
of the likely costs of the ESO (para 63).
It appears likely, under the current draft,
that there will be more hearings and this is bound to entail additional
costs, including interpreting and translation costs.
There will be an impact assessment of this
proposal once we have a more established model, further into the
working group process.
189. It would be helpful for Article 5 of
the Framework Decision to provide that the suspect has a right
to be heard before an ESO is made and in particular on what obligations,
if any, should be attached to the order. While the precise details
of the manner and means by which the suspect is to be heard should
be left to Member States the basic right should be expressly set
out in the Framework Decision (para 70).
190. There is a need for flexibility in
relation to the granting of bail. The court is best placed to
determine what conditions are required to meet its concerns about
releasing an individual. There is no need for more mandatory conditions
(para 76).
191. The ESO is a complicated scheme, whose
effectiveness in a particular case will be dependent upon setting
conditions which will satisfy the issuing court and can be operated
by the executing authority. It seems implicit in the fact that
any Article 6(2) conditions are "subject to agreement"
that there should be some machinery for discussion between the
two States in advance of a decision to grant an ESO. There needs
to be a close liaison between the issuing and executing States
on the conditions to be imposed. Both authorities should be involved
early in the decision-making process, and an ESO should not be
issued without such consultation (paras 84, 95).
192. The consultation should focus on the
conditions in the ESO but should also cover other matters. The
executing State should be under an obligation to provide the issuing
State with such information as it needs to decide whether to make
an ESO and if so on what terms (para 98).
193. There might be practical benefits if
the ESO proposal included provision for recourse to a central
authority, in particular to deal with incoming ESOs. Experience
in relation to the EAW would suggest that informal consultations
can usefully take place between administrative authorities in
the respective Member States, thus reducing the need for judge
to judge contact. We urge the Government to examine this suggestion
which has across-the-board support from practitioners. The extent
of involvement of a judicial body in the final agreement of any
Article 6(2) conditions will need careful consideration in implementing
legislation (paras 56, 97).
194. We note the reliance placed by the
Framework Decision on video links but are sceptical as to whether
they will work in practice. We therefore recommend that ways should
be sought, wherever possible, to facilitate consultations between
Member States' authorities and reduce the range of the discussions
to ensure that they can be conducted quickly and effectively.
A list of common ESO conditions is one way in which this might
be done (para 96).
195. The Framework Decision should be more
specific about the practical aspects of the grant and issue of
an ESO (para 105).
196. The suspect should be released as soon
as the issuing State has been notified that the ESO has been recognised
by the executing State (para 105).
197. Further consideration should be given
to the inclusion of more time limits in the Framework Decision
(para 111).
As the Report states, the UK bail process
means that an ESO would not be issued without the involvement
of the defendant. The Government believes that in securing its
aim of equal treatment the European Supervision Order should not
confer additional rights or benefits.
The Government agrees that the scheme needs
to be kept as simple if it is to be a practicable measure but
this cannot mean disregarding the need for proper consultation
between Member States. We need to explore with other Member States
how best to strike the right balance in this regard. Central authorities,
video links and other procedures will need to be considered in
the effort to streamline the process. Time limits would need to
be reasonable and have a certain amount of flexibility built in.
198. Member States are bound by the ECHR
and any implementing legislation would have to ensure compliance
with the guarantees set out in that instrument. For the sake of
clarity, it may be helpful to include an article in the body of
the ESO proposal which provides that in implementing the Framework
Decision Member States must ensure respect for fundamental rights
(para 115).
199. It is to be hoped that when national
parliaments come to consider their implementation of the Framework
Decision they will have full regard to the welfare of the child
whose liberty would be restricted if the executing State refuses,
under Article 10(2)(a), to recognise an ESO because the suspect
is under the age of criminal responsibility in that State (para
122).
200. The absence of dual criminality should
not be a ground for refusing to recognise an ESO (para 125).
201. The ESO could usefully clarify whether
the issuing State of its own motion can review the obligations
in an ESO (para 129).
202. We urge the Government to arrange for
the Council of Europe to be consulted on whether Article 13 of
the Framework Decision as currently drafted complies with the
provisions of the ECHR. We note that an opinion from the Council
of Europe was obtained in relation to the Framework Decision on
procedural rights; there may be a case for a general opinion on
the ESO to be requested (para 131).
203. The drafting of Article 13 is defective.
The Framework Decision should make clear that an ESO can be reviewed
from time to time and Member States should not be able to delay
it (by imposing a waiting period) for more than 60 days (para
133).
204. The Framework Decision should distinguish
clearly between the issuing State's power to amend and the executing
State's power to modify. Modification should be limited to changes
of the minor nature suggested by the Commission and we emphasise
the need for the issuing State to remain in control of the ESO
and the conditions of bail. The power to modify should be a continuing
one, to allow the executing State to deal with administrative
and technical issues throughout the life of the ESO (para 136).
205. The "without prejudice" formula
in Article 5 is potentially confusing and might discourage use
of the ESO. This would be regrettable. While we would not advocate
that an ESO should necessarily take precedence over the international
instruments to which Article 15 refers there is a need for guidance
as to how Member States' obligations under the relevant competing
legal instruments might be prioritised. Consideration should be
given to providing criteria in the Framework Decision to be taken
into account by a national judge deciding whether to return a
suspect under an ESO, an EAW or other international extradition
order or arrest warrant. We also welcome a role for Eurojust in
facilitating coordination between Member States to decide how
best to prioritise proceedings (para 144).
206. We agree that there needs to be flexibility
for the national judge in assessing whether the domestic proceedings
should take precedence over an ESO. We welcome the Government's
support for a more flexible approach in the UK. In our view the
issuing State will clearly be cautious about making an ESO if
that order can be overridden by a prosecution, for a relatively
minor offence, in the executing State. Here again, consideration
should be given to providing criteria in the Framework Decision
to be taken into account by the national judge in deciding which
proceedings should take precedence. Here again, there may be a
useful coordinating role for Eurojust (para 147).
The Government is of the view that respect
for fundamental rights and compliance with the ECHR are obligations
which are already explicit and that it should not be necessary
to include specific provision. However, we will pursue this and
the proposal to consult the Council of Europe in the light of
other Member States views.
The Government agrees with the statement
that the welfare of the child should be fully considered in those
cases where a difference in the age of criminal responsibility
is an issue between the issuing and executing States.
The issue of dual criminality is not currently
included as a ground for refusing to recognise an ESO and the
Government will keep this under consideration during the course
of the discussions on the scheme.
We will keep this under review, but it
appears to us that Article 13 provides that the ESO can be reviewed
periodically in accordance with the procedures in the issuing
State and provides additionally for a limit of 60 days between
requests for a review. This accords with our position that the
scheme should not confer separate rights for different groups
of defendants or otherwise impinge on national bail laws.
The involvement of the executing State
in setting and modifying conditions needs to be made clearer.
This topic would form part of the discussions as to the role of
the executing State in this scheme as a whole.
Member States should have confidence that
a defendant will return or be returned to face proceeding if released
under an ESO but there should be flexibility for deciding on priorities
when conflicting requests or new circumstances arise, such as
in cases of further offending.
207. The Commission's text does not grapple
with the question of how to decide, in a contested case, whether
or not there has been a breach of an ESO condition. It is clear
that this is a matter which requires some consideration. Cases
in which the existence of a breach is disputed are likely to be
quite common. The Framework Decision needs to address expressly
whether establishment of the existence of a breach is the responsibility
of the executing State or whether it is a matter to be decided
by the issuing State (para 151).
208. While we have doubts about the practicability
of tripartite hearings (not least because of the difficulties
with video links and interpretation) further consideration should
be given to the suggestion that the executing State should, having
heard the suspect, establish whether there has been a breach in
the particular circumstances (para 158).
209. It is a matter of some considerable
concern that the Framework Decision appears not to allow the executing
State any power to arrest or take other action preparatory to
gaining the instruction of the issuing State. Articles 16 and
17 should ensure that there are the necessary powers to take action
in the event of a breach of conditions (para 167).
210. The Framework Decision must also make
clear that the authorities in the executing State must be able
to deal with apprehended or anticipatory breaches without the
need for prior report to and authorisation from the issuing State.
This is a serious omission from the present text (para 168).
211. There is a need for clarity and certainty
in the provisions of the Framework Decision relating to breach
of an ESO. It is unsatisfactory to leave matters such as the power
of the executing State to arrest following a breach or in anticipation
ofa breach to Member States' implementing legislation (para 166).
212. We believe that the judge in the executing
State should also be trusted to deal with minor or technical breaches,
subject to a requirement to report the decision to the issuing
State (para 170).
213. There may also be a case for enabling
the authorities in the executing State to go further and deal,
if only provisionally, with breaches of an ESO where immediate
action is necessary in order to ensure public safety or the protection
of individuals or evidence. Subject always to the issuing State
remaining in overall control and decisions having to be reported
back, the judge in the executing State should be able to vary
the ESO temporarily given that there may be a delay before the
issuing court can be fully seized of the matter. The suspect would
be heard before any such variation is made (para 172).
214. Article 20(2) of the ESO proposal enables
transfer of a suspect to be temporarily postponed for "serious
humanitarian reasons". A similar provision exists in the
EAW Framework Decision (Article 23(4)). In its implementation
of the EAW in the UK the judge must order a person's discharge
or adjourn the extradition hearing where the physical or mental
condition of the subject of the warrant is "such that it
would be unjust or oppressive to extradite him". We recommend
that consideration be given to the inclusion of a provision to
similar effect when implementing the ESO (para 176).
215. There is a question whether the arrest
and transfer hearings envisaged under the ESO proposal would be
ECHR-compliant. We do not consider that it is satisfactory to
leave the question of the hearings for Member States' implementing
legislation (para 179).
216. There is a need for certainty and clarity
in the Framework Decision concerning the power to arrest a suspect
in a third State as well as for consistency on the part of Member
States in giving effect to its provisions. Articles 17 and 18
therefore need to be specific as to the responsibility and obligations
of Member States other than the executing State where the arrest
and transfer of the suspect has been ordered by the issuing State
(para 182).
These issues concern the level of involvement
of the executing State. The Government agrees these are not adequately
addressed in the current draft of the Framework Decision. The
court of the issuing State needs confidence that its requirements
are being met; the executing State will want its concerns regarding
burdens on resources and potential offending to be taken into
account. Both sides will want to keep the process proportionate
and cost effective.
The Government agrees that there should
be procedures which would allow the executing State to deal promptly
with "minor" breaches of ESO conditions. The executing
State should have a power of arrest for a breach of a condition
without the need to refer to the issuing State first. This will
form part of the debate on the role of the executing State.
The time limits and the exceptions for
transferring a defendant set out in Article 20 are, in our opinion,
limited to consideration of whether the defendant is physically
or mentally capable of travelling between Member States. It would
be likely to be counter productive to extend consideration of
transferring a defendant to the issuing State into whether the
physical or mental health of the person precludes further prosecution;
a decision which the court in the issuing State may well regard
as being in its prerogative. The consideration of whether the
executing State should action a request for arrest and transfer
from the issuing State and the rights of a defendant to be heard
in the process are contained in Articles 17 and 18. We agree that
these Articles, and the role and responsibilities of a third Member
State to which a defendant may abscond, could benefit from clarification.
That discussion highlights the difficulties posed in this proposal;
how to produce a practical and proportionate scheme which is not
overly bureaucratic but fully complies with ECHR requirements
and gives Member States the necessary confidence in its effectiveness
to use it.
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