May 22 2024
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Let’s stop playing ‘hokey pokey’ around EU criminal justice

Let’s stop playing ‘hokey pokey’ around EU criminal justice

European Commission by Sébastien Bertrand

The European Arrest Warrant Framework Decision (EAW FD) is ‘fundamentally flawed’ and the Government needs to go further with its reforms of the system, the Home Affairs Select Committee has warned, calling for an urgent vote in the House of Commons on the UK’s continued membership of the EAW.

The European Arrest Warrant (EAW) was created in 2004 to ensure direct enforcement by a judge in one Member State of a warrant for arrest issued by the judicial authority of another Member State.

  • The AIRE Centre has produced a case study on the European Arrest Warrant, ‘European Cross Border Justice: A Case Study of the EAW’. Download it here.

Theresa May, who previously said she wants to opt out of cross-European co-operation, would like to change British law to prevent it being used to extradite UK nationals on trivial or dubious charges.

The Background
The EAW was adopted to counter terrorism and organised crime after the 9/11 attacks, a crystallisation of the desire by the EU to create an area of freedom and security and justice further to the Treaty of Amsterdam in 1999.

The EAW had three aims: to simplify and reduce the time taken to extradite a person from one EU Member State to another; to make it more difficult for suspects and convicted persons to evade justice; and finally, to balance the right of free movement within the EU with proper safeguards to reduce abuses of that privilege. Importantly it also removed extradition proceedings from the realm of politics, placing the entire procedure under the control of the judicial authorities.

EAWs can only be issued by judges in the requesting state. They can seek the surrender of an individual, either for the purposes of (i) the prosecution of an offence, or (ii) to enforce a post-conviction custodial sentence or (iii) to enforce a pre-trial detention order that has already been imposed by a court.

The offences for which EAWs can be issued are specified in the Framework decision and are punishable under the law of the requesting EU Member State (thus abolishing the principle of ‘dual criminality’); however in cases where surrender is sought for prosecution the offence must carry a minimum possible sentence of twelve months. Where a final conviction has already occurred, the minimum custodial sentence imposed is four months.

The EAW FD is predicated on the principle of mutual recognition by EU Member States of each other’s judicial decisions (see Recitals, 2 and 6, and Article 1(2), of the EAW FD). Thus EAWs must be issued by a judge. An EU Member State requesting surrender of an individual from another EU Member State is not under any obligation to show, substantively, that there is a prima facie case to answer.

The UK position
In the UK, the EAW FD was implemented by the Extradition Act 2003 (EA).

Extradition is referred to as ‘surrender’ under the Act. The EAW from another Member State is processed in the UK by the Serious Organised Crime Agency (in Scotland, the Crown Office).  If the person is traced and arrested, they are brought before a district judge in a magistrates’ court where a date is fixed for the extradition hearing within 21 days of the arrest.

The arrested person must be informed by the court of the contents of the arrest warrant and of the consent procedure so that they can consent to the extradition request or oppose it.  At the extradition hearing, the judge determines whether the offence is one for which a person can be extradited and if so, he then considers whether there are any statutory bars to extradition.

The 2003 Act provides for several potential bars, including the person’s age in terms of criminal responsibility and the passage of time since the alleged offence or crime.  There are also ‘extraneous considerations’ which would be a bar; so where an arrest warrant has been issued for the purpose of prosecuting, or punishing someone on account of their race, religion, nationality, gender, sexual orientation, or political opinions. In the UK this has been successfully argued in relation to Roma people being returned to Member States with a well recorded record of discrimination against individuals of this group.

If there is no bar to extradition on the above grounds, the judge will then consider other factors, including whether the extradition would be compatible with human rights law, the mental or physical condition of the person and whether the person is already serving a sentence in the UK. There is a limited right of appeal to the High Court and the requesting state also has a right of appeal against any refusal of the warrant.

The potential value of the EAW can be seen in the rapid extradition of a suspect (Hussain Osman) wanted in connection with the attempted 21 July 2005 London bombings from Italy in September 2005; he was subsequently sentenced to a minimum term of imprisonment of 40 years.

However the UK has not helped itself in terms of minimising some of the potential effects of the EAW which it has been critical of.

So, Article 4(6) of the EAW FD, the Transfer Convention and the EU Framework Decision 2008/909/JHA are all measures which have been adopted at European level to provide a legal framework for minimising the seriousness of the interferences with private and family life which would otherwise be the inevitable consequence of incarceration in a State other than the State in which the affected individual is staying or resides.

The United Kingdom however, has to date adopted no legislation to transpose Article 4(6) of the EAW FD into domestic law. The effect of this is that there is no express provision in UK domestic law requiring EAW decision makers to examine the relevance for the execution of the request of the fact that a requested person is resident in the UK. Nor is there any express provision requiring the authorities even to explore the possibility of a requested person who is resident in the UK serving his or her sentence in the UK.   The Joint Committee on Human Rights of the UK House of Lords and House of Commons has expressed concern about this lacuna but their recommendation that the UK remedy this by amending the EA 2003 has yet to be acted upon:

What are the problems with the EAW?
Most of these relate to questions around proportionality and the treatment of those who are the subject of the warrants but there are also issues that result from Member States having implemented the framework decision in different ways which has meant it has not always worked smoothly or beneficently.

A basic problem has been that the European regulations, as interpreted by British courts, do not allow for the merits of an extradition request to be examined in terms of whether the request is supported by reliable evidence. Fair Trials International, a human rights charity that provides assistance to people arrested in a country other than their own, argues that this has led to British citizens being extradited to countries whose legal systems cannot be described as fair or free from corruption – serving long sentences – and in conditions which may be incompatible with Article 3.

The problem stems from the fact that Member States, in implementing the EAW FD, appear to have lost sight of the teleological goals of the Union – which require the adoption and implementation of common standards when looking at EU measures – rather than simply the minimum standards guaranteed by the ECHR.  The difference this makes in practice is that whilst the surrender of an individual under an EAW is now fairly uniform across the EU, the procedural safeguards afforded by the criminal justice systems vary widely in both content and quality. The cart has come before the horse – with the automatic surrender mechanism put in place before the adoption of common standards rather than the other way around.

A second problem is that requests from other EU countries to extradite their own citizens living in Britain have risen fourfold over the past three years. This clogs up the courts, and costs the British state an estimated £27 million. The EWA FD was meant to ensure that persons were not extradited for minor offences – as explained there are minimum prison sentence terms before an EWA can be issued – but the problem has been that the legislation of some issuing countries allows for a punishment that meets the terms of the EAW FD even though the actual offence committed is a minor one. So extradition requests have included persons suspected of minor and single acts of theft or a failure to pay fines, something the European commission acknowledges. This is because the concept of proportionality, which runs like a golden thread through all EU law and is enshrined in Article 5 of the EU Treaty, is missing in the EAW FD. It has  meant that countries such as Poland, Lithuania and the Czech Republic, with no prosecutorial discretion, have to under their own law, pursue every wanted person, no matter how minor the alleged crime. The result – in 2009 Poland issued 4,844 warrants as compared to the UK’s 220.

Finally there is a general lack of consistency with other EU law.  Residence rights are lost under the EAW – even where the person is subsequently acquitted or the offence trivial. The effects on the detainees family can also be devastating, given the detained parent is no longer considered a ‘worker’ (SO (imprisonment breaks continuity of residence) Nigeria [2011] UKUT 00164 (IAC)) – the other parent and children no longer have the ‘right to reside’ and therefore lose their entitlement to social assistance benefits. However the Citizens Directive (Directive 2004/38/EC) expressly provides for the retention of residence rights in the context of other temporary absences – such as compulsory military service, or pregnancy and childbirth.

Where to now for the EAW?
The Lisbon Treaty incorporated the legislation and case law concerning justice and home affairs into the main body of EU law.  This means that the European Commission has the right to propose legislation in this field and the European Court of Justice (ECJ) has jurisdiction over it (something the UK has yet to accept). It also means that the EAW must be in conformity with fundamental-rights principles, including those of the European Convention and those set out in the EU Charter of Fundamental Rights (“CFR”).

The Treaty allows for a transitional period of up to five years, which in short gives the United Kingdom the ability to opt-out of the relevant legislation including that relating to the EAW.  The UK has until 1st June 2014 to make their decision, failing which it will no longer be party to the EAW.

Theresa May says she wants to retain 35 EU criminal justice measures, including the fast track arrest warrant, but to amend the Anti-Social Behaviour Crime and Policing Bill to ensure that an arrest warrant could be refused for minor crimes.  The Home Office Select Committee argues that even if the Government proceeds with the opt-in as proposed, it will not result in any repatriation of powers to the UK – and may even result in a net flow of powers in the opposite direction.

So what are the options for the UK?
They could follow the German Courts who have, for several years, operated a “proportionality test” whereby the extradition request has to be for a serious crime, rather than a trivial one. They instituted their test without opting out of anything: simply noting that the principle of proportionality is part of the EU’s Charter of Fundamental Rights, and using that as the basis for employing the test.

Under Article 4 of the EAW FD, EU Member States also have the express discretion to decide not to surrender certain categories of requested persons. This limited ‘discretion’ has been used by the Dutch, to ensure that none of their citizens cannot be extradited for actions that are not crimes in Holland, and stretched beyond any normal limits by the French, who appear simply never to extradite any French citizen for trial in a foreign country.

What the European Commission and Council would like the UK to do, along with other Member States, is to work together to improve the EAW system. In this regard they have steadily sought to introduce EU-wide basic defence safeguards, better statistical monitoring and more judicial training, to ensure any injustices are militated against and/or alternative measures are considered before reaching for the arrest warrant. The Council have also amended the EAW handbook and agreed that issuing states should apply a proportionality test before issuing an EAW – and agreed to certain common standards in 2009 around the basic rights of accused persons – such as a right to translation and interpretation and consular access

It is debatable whether the current Government are in the mood – ideologically or otherwise – to work with the EU over more joined up thinking around the EAW. However, what is at risk is that the baby will be thrown out with the bathwater – and an important tool in the fight against serious crime will be lost to the UK if it decides to carry on with their game of ‘hokey pokey’ around EU criminal justice.