What future for the European arrest warrant in the UK 20 November 2013 A reform of the system would be best achieved through working with other member states to drive up criminal justice standards across Europe, argues Thomas Garner Under protocol 36 to the EU Treaties the UK has until 31 May 2014 to opt-out from approximately 130 EU policing and criminal justice (PCJ) measures adopted before the Treaty of Lisbon. On 15 October 2012, Teresa May announced that the governments current thinking was to exercise the opt-out (Oral Ministerial Statement regarding European Justice and Home Affairs Powers by the Home Secretary, HC Deb 15 October 2012). This is an all or nothing decision. If the government does not opt-out these measures will become subject to the Court of Justice of the European Union and the enforcement powers of the European Commission on 1 December 2014. However, the government recognises that some of these measures are useful to have and so intends to immediately opt-in to 35 of the current measures (Decision pursuant to Article 10 of Protocol 36 to The Treaty on the Functioning of the European Union Cm 8671). The most controversial of these is the European Arrest Warrant (EAW). Teresa May has outlined a series of proposed reforms to our extradition laws aimed at reforming the operation of the EAW (oral statement by the home secretary, HC Deb, 9 July 2013). Parliament subsequently passed a resolution to exercise the opt-out and on 24 July 2013 David Cameron notified the president of the Council that the UK would be exercising the opt-out. To date there have been four separate parliamentary committee reports (see note 1) into the decision. The House of Commons Home Affairs Select Committee concluded that in its existing form the EAW is fundamentally flawed and proposed that it ought to be separately debated from the other proposed opt-in measures. MARKED IMPROVEMENT Almost universally the experts who gave evidence to the various committees regarded the EAW as an important PCJ measure that was a marked improvement on the previous system of extradition in Europe. The government considers the EAW a vital tool in the fight against international crime. Nevertheless there remains significant criticism of the EAW. The principle criticisms are a lack of proportionality in its use by certain states, excessive periods of pre-trial detention and requests being made before they are prosecution ready and the vastly differing standards of justice across member states. In discussing proportionality and the EAW it never takes long for Poland to be mentioned. In 2005, 97 EAWs were issued from Poland to the UK. In 2008 this had increased to 1,007 and last year there were 775 (see note 2). Concerns are frequently raised about EAWs issued for trivial offences such as piglet rustling and the theft of a wheelbarrow (see, House of Commons Home Affairs Committee: Pre-Lisbon Treaty EU police and criminal justice measures: the UKs opt-in decision, HC 615, 31 October 2013, para 16). The problem is not exclusively Polish and stems from differences between systems, and the lack of prosecutorial discretion in many Member States. In response, the government proposes introducing a proportionality bar into the Extradition Act 2003 requiring a judge here to discharge an EAW where it is decided that extradition was disproportionate. However, as Dr Hart-Hoenig, a German lawyer, told the Home Affairs Committee, this is unlikely to influence the decision by member states to issue EAWs (Evidence of Dr Kai Hart-Hoenig, House of Commons Home Affairs Committee: Pre-Lisbon Treaty EU police and criminal justice measures: the UKs opt-in decision, HC 615, 31 October 2013). Germany already operates a proportionality bar for both incoming and outgoing requests. A proportionality bar would be welcome but effective reform requires the proportionality check to take place in the issuing territory, as proposed in Sir Scott Bakers Extradition Review (Sir Scott Baker, A Review of the UKs Extradition Arrangements, 30 September 2011). There may need to be reform of the underlying framework decision although a similar bar operates in Germany at present. SYSTEM INJUSTICES Some of the clearest examples of injustices in the current system come from excessive periods of pre-trial detention in some countries. Andrew Symeou was extradited to Greece from the UK in 2009 to stand trial and spent 11 months on remand before being released on bail and even then he was prevented from leaving the country. It wasnt until June 2011 that he was acquitted of all charges (Evidence of Andrew Symeou, House of Commons Home Affairs Committee: Pre-Lisbon Treaty EU police and criminal justice measures: the UKs opt-in decision, HC 615, 31 October 2013). One factor leading to excessive pre-trial detention is that a large number of EAWs are issued at a very early stage in foreign proceedings; this contrasts with practice in the UK where the policy is not to issue an EAW until a case is prosecution-ready (see, Evidence of ACPO and DPP, House of Commons Home Affairs Committee: Pre-Lisbon Treaty EU police and criminal justice measures: the UKs opt-in decision, HC 615, 31 October 2013) . The government proposes introducing a bar preventing extradition before a formal decision has been made to arrest and charge. However, this will not apply where a persons presence is required in order for decisions on charge and trial to be made. Also it is of course dependent on principles of mutual trust and recognition of declarations from the requesting state. Andrew Symeou himself indicated this is unlikely to have made a difference in his case, as Greece would likely have claimed to be trial-ready. Many of the delays are not caused by charging decisions they are linked to structural failings in the justice systems of member states and backlogs of cases. In practice then this proposal for reform would appear to be of limited use. SUPERVISION ORDERS A more effective reform would be the implementation of the European Supervision Order (ESO). This was due to be brought into national law by 1 December 2012 but the UK has yet to do so. In practice this European measure would enable bail for those facing trial in any EU state and allow them to return home to await their trial. Currently non-nationals abroad are often denied bail following extradition because of the perceived flight risk. Andrew Symeou put it bluntly, I was extradited because I was European but I was put in prison because I am British. Clearly the ESO has tremendous potential to both lessen the devastating impact extradition places on requested persons and their families but also to ease the strain on the prison systems of member states. Other reforms proposed by the government include amendments to the current rigid time limits that apply in relation to appeals in extradition cases, use of the European Investigation Order to make it easier for police to investigate suspects in other member states and increased use of prisoner transfer arrangements so that UK nationals can serve sentences here and so that those convicted in their absence abroad can simply be transferred between the prison systems as opposed to going through the EAW system. FUNDAMENTAL FLAWS The most difficult problems raised by the EAW though are fundamental to the scheme itself and the framework decision that underpins it. There will still be no requirement for requesting states to present a prima facie case. There will still be often insurmountable difficulties in successfully raising human rights arguments in EAW cases. EAWs will still remain live after discharge in one country making those subject to them liable to arrest in any other country despite defeating the request. Any change to these problems would require reform to the framework decision itself at a European level. Most fundamentally of all though, there is the problem of widely differing standards of justice throughout the member states. An opt-out of the EAW entirely would be a dramatic decision. The government believes that if this were to happen the UK could fall back upon the 1957 Council of Europe Convention on Extradition. Other experts believe this is a dangerous position. Many member states would require additional legislation for the convention to apply and in many member states the old legislative framework has been superseded entirely by the adoption of the EAW. The Director of Public Prosecutions has expressed concern about the potential gaps and risks that the UK may face as a result of this. There could be significant delays in the negotiation of numerous bilateral treaties and this has the potential of hampering the return of suspects to the UK and also potentially creating a haven for foreign fugitives here. The potential political ramifications of an opt-out are substantial. BARGAINING POWER Finally, there is the not-insignificant issue that opting back into the framework decision as it currently stands, would place the UK in the jurisdiction of the European Court of Justice and the infringement powers of the Commission. The proposed reforms and amendments to the Extradition Act 2003 are not currently exceptions to executing an EAW under the framework decision. It remains to be seen legally where that would place the UK were it to amend the Extradition Act as proposed. Teresa May has said she is taking advice. The House of Commons European Scrutiny Committee has asked the government to explain the legal basis on which it considers the proposed amendments to be consistent with the EAW Framework Decision, were the UKs amended implementing legislation to be challenged before the Court of Justice (House of Commons European Scrutiny Committee: The UKs block opt-out of pre-Lisbon criminal law and policing measures, 7 November 2013). Some of the governments proposals for reform would be welcomed by many involved extradition under the EAW scheme. Major reform though requires negotiation at a European level. Talks are expected to start in the coming weeks. The government has already indicated that it will exercise its global opt-out and that it intends on opting-in to the 35 PCJ measures that include the EAW. The question is whether this weakens our bargaining power in negotiating fundamental change to the framework decision. The UK system is widely respected throughout Europe and, despite our differences, our national interests might be best served by working together with Europe to drive standards of justice up across the member states and not in retreating from the system for what might appear to be political reasons. Notes 1. Parliamentary committee reports on the UKs opt-in: House of Lords European Union Committee: EU police and criminal justice measures: The UKs 2014 opt-out decision, HL Paper 159, 23 April 2013; House of Lords European Union Committee: Follow-up report on EU police and criminal justice measures: The UKs 2014 opt-out decision, HL Paper 69, 31 October 2013; House of Commons Home Affairs Committee: Pre-Lisbon Treaty EU police and criminal justice measures: the UKs opt-in decision, HC 615, 31 October 2013 and House of Commons European Scrutiny Committee: The UKs block opt-out of pre-Lisbon criminal law and policing measures, HC 683, 7 November 2013 2. For EAW requests in respect of Poland, see: House of Commons Home Affairs Committee: Pre-Lisbon Treaty EU police and criminal justice measures: the UKs opt-in decision, HC 615, 31 October 2013, ev 69. In 2008 Poland issued 4,829 requests in total across Europe and last year 3,497. Thomas Garner is an extradition solicitor at Gherson ISSUE: Vol 157 no 45 26-11-13 Thomas Garner is an extradition solicitor at Gherson gherson
Posted on: Thu, 21 Nov 2013 09:52:31 +0000
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