Appendix 2: Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730)
Letter from Nick Hurd MP, Minister of State for Policing and the Fire Service at the Home Office, to Lord Trefgarne, Chairman of the Secondary Legislation Scrutiny Committee
Thank you for your letter of 19 July in respect of the above Regulations. Please accept my sincere apologies for the length of time it has taken to respond. I assure you that I, and my officials, take the business of Parliamentary scrutiny very seriously and it is not my intention for replies to be sent to you as late as on this occasion.
In your first question, you ask about the conditions necessary for the temporary transfer of prisoners under regulation 54(5)(c). Under regulation 54(2), the Secretary of State has a discretion to authorise transfer where the prisoner has consented to it (see paragraph (4) of that regulation). This discretion becomes an obligation only where the additional conditions in paragraphs 5(b) and (c) are met. Under Article 22 of Directive 2014/41 (‘the Directive’), a European Investigation Order (EIO) for the temporary transfer of a prisoner can only be issued where the presence of the prisoner is required on the territory of the issuing state, for example in order to give live oral evidence as a witness in criminal proceedings. The necessary conditions in paragraphs 5(b) and (c) are there to ensure that the obligation to comply with such an EIO only arises where the Secretary of State is satisfied that the individual’s participation cannot be achieved by other means. If the evidence can be provided in the form of a witness statement supplied voluntarily by the prisoner concerned, then the mechanism under regulation 35, where evidence is received before a court in the UK and transmitted in written format to the issuing state, will be the appropriate response. In such a case the condition in paragraph 5(c) would not be satisfied and so no duty on the part of the Secretary of State to authorise a temporary transfer of a prisoner would arise.
Regulation 56 is intended to transpose Article 22(8) of the Directive, which provides:
Without prejudice to paragraph 6, a transferred person shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the issuing State for acts committed or convictions handed down before his departure from the territory of the executing State and which are not specified in the EIO.
The equivalent restriction, applicable where a prisoner from the UK is temporarily transferred to the territory of another Member State, will be found in the domestic transposing legislation of that Member State. The equivalent restriction found in regulation 56 for a limitation on specialty for a UK prisoner being transferred to another member state can be found in article 22(8) of the Directive. Under article 22(1) a prisoner has to be sent back to the executing State within the period stipulated by the executing State. Regulation 54 provides for the issue of a domestic warrant which is used to secure the release of the prisoner from custody in the UK. The practical arrangements, including the date on which the individual is to be returned, would be a matter for separate agreement between the Secretary of State and the issuing authority.
In relation to your last point, under the agreement a country receiving a prisoner under an EIO must return the prisoner back to the executing state. To use your example a prisoner transferred from the UK must be returned to the UK by a member state. Therefore any country not party to the EIO, i.e. any other member state or third country, must apply to the executing state (the UK in this example).
I trust this response adequately addresses your questions and clarifies the Committee’s concerns.
7 September 2017