A New EU Frontier In The Criminal Law – The European Supervision Order

The recent debate on Britains exit from the EU – see post – has brought to our attention a little-known but important new measure that came into force in December 2014 when the UK "opted in" to 35 criminal justice and policing measures which are part of EU law.

Much has already been written about the European Arrest Warrant (EAW) arrangements which are part of these measures. Here we focus on another important initiative – the European Supervision Order (ESO).

The ESO framework creates a system where people lawfully remanded on bail in one EU member state (State A) during criminal proceedings can reside in another member state (State B) while they await trial providing they are lawfully and ordinarily resident in State B.

Suspects in this situation can therefore continue leading their normal lives and following their domestic employment, housing and personal and family arrangements.

So far the framework decision has been implemented in France and Spain as well as the UK. The ESO framework may soon therefore be applied in these jurisdictions.

The framework rules also mean that where a person who is released on bail to another country does not voluntarily return for their trial, the European Arrest Warrant process will be triggered to secure their return.

We anticipate some interesting litigation concerning ESOs, which are of particular interest to this practice due to the international nature of our clientele.

Many interesting legal questions may arise from the operation of the ESO framework including the issue of whether suspects on pre-charge bail during a police investigation will be able to rely on the ESO to live abroad.

For lawyers in the UK the ESO framework breaks new ground for another reason. Any dispute concerning the validity and interpretation of the ESO framework may be referred by the UK courts to the Court of Justice of the EU (CJEU – distinct from the European Court of Human Rights, the CJEU rules on matters of EU law). A fast track procedure will apply if a case is referred to the CJEU – known as the PPS – so that a "Preliminary Reference" can be made and dealt with by quickly, often within three months.

However, any decision made by the CJEU will only provide guidance on the disputed issue as the ultimate decision as to how to proceed will remain with national courts.