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Controversy Behind the European Arrest Warrant

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

Earlier this month, the House of Commons controversially approved the UK government’s bid to readopt 35 European Union (“EU”) justice measures, including the European Arrest Warrant (“EAW”), which it had opted out of in 2013. The EAW has previously raised issues with regards to its potential to infringe upon the human rights of suspects, particularly because of the heavy-handed way in which it is applied by the authorities of various EU member states. Since the coming into force of the Lisbon treaty on 1st December 2009, the influence of the EU Council and the European Court of Justice over the EAW has also become an important factor. It means that at present, the UK’s acceptance to be bound by the rules of the EAW also carries with it an acceptance for the EU to have a greater say in how the warrant is implemented. One of the more problematic aspects of the situation, however, is the manner in which the policy was readopted by the UK through a vote in Parliament on 10th November 2014.

What is the EAW?

The European Arrest Warrant, introduced in January 2004, is a system intended to simplify the extradition process throughout Europe by removing some of the hurdles present when the EU member states each had separate, disparate extradition arrangements. The warrant operates on the basis of a system of mutual recognition, whereby member states of the EU agree to recognise and enforce each other’s judicial decisions with a minimum of formalities. An example of the effect this can have is that an extradition under the EAW takes, on average, three months, whereas an extradition to a non-EU country can take approximately ten months.

In the UK, the EAW is incorporated into domestic law through the Extradition Act 2003, which sets out extradition procedures with a view to respecting the European provisions. However, when the Lisbon Treaty came into force in 2009, a number of police and criminal justice measures, including the EAW, were moved away from the “third pillar” of the EU (Police and Judicial Co-operation in Criminal Matters), which was based around inter-governmental cooperation, with little to no input from the EU authorities. The change placed the measures under the enforcement powers and jurisdiction of the European Commission and the Court of Justice.

Opting out of the EAW and other European measures

According to Article 10 of Protocol 36 of the Treaty on the Functioning of the European Union (“TFEU”), the UK government was obligated to make a decision on whether to adopt the 133 police and criminal justice measures contained therein en bloc, and accept the authority of the EU with regard to them, or to opt out of all of them, and then selectively opt back in to those considered favourable to the UK.  

The opting-out process provided the UK with a way to take control over which areas of law they were willing to give EU bodies greater jurisdiction over, suggesting the decision to readopt the particular 35 measures chosen by the government was, or should have been, the result of extensive and considered debate.

Following an announcement in 2012 in the House of Commons that the UK would in fact be opting-out of all measures and then selectively opting back in based on ‘national interest’ considerations, the Home Secretary, Theresa May, explained in a statement on the 9th July 2013 that:

[T]he UK should opt out of the measures in question for reasons of principle, policy and pragmatism and that we should seek to rejoin only those measures that help us co-operate with our European neighbours to combat cross-border crime and keep our country safe.

Theresa May then went on to assure the Commons that the UK’s international relations in policing and criminal justice remain a matter for Her Majesty’s Government, and as such, that:

It is therefore right that we take the opportunity to consider whether we wish to retain the measures that were joined by the previous Government and to decide on a case-by-case basis whether we are willing to allow the European Court of Justice to exercise jurisdiction over them in future.

One of the key measures that the Home Secretary referred to, of course, was the European Arrest Warrant. The decision to opt back into this measure should, as mentioned above, have weighed up the advantages and disadvantages of the EAW, especially considering the fact that these issues have been present since the initial implementation of the system.

The controversial nature of the EAW

The main argument presented in favour of the EAW centres around its efficacy. Figures usually quoted include the approximately 5,000 people who have been extradited from the UK on the EAW and the 650 people extradited to the UK to be brought to justice under domestic law over the past five years, far more than prior to the implementation of the system. In the latter category, one of the most potent examples is the case of Hussain Osman who was involved in an attempted bombing, then tried to escape by fleeing to Italy, where he was arrested one week later, on 29th July 2005, on the basis of a warrant issued by the UK. He was returned to the UK and charged by 22nd September 2005 with attempted murder, conspiracy to commit murder and explosives offences. While it should be noted that the EAW still requires strong safeguards to ensure minor crimes are not punished beyond what is strictly necessary, the advantages of a system of successful inter-judicial cooperation between EU member states are significant and cannot be overlooked.  

Nevertheless, concerns have been consistently raised about the proportionality of the EAW and its regard for the provisions of the European Convention on Human Rights, a topic recently discussed by Jessica Johnson for Keep Calm Talk Law. There are concerns about suspects being arrested for minor crimes or crimes not recognised by UK law, with the concept of proportionality not being applied effectively. Generally speaking, a proportionality test seeks to determine whether the way in which a statute is implemented meets the original aim of the statute. For the EAW, this would allow UK authorities to determine whether the punishment fits the crime, to the extent that minor infractions of the law by an individual could lead the UK to refuse enforcing an arrest warrant issued by another member state, or to omit issuing an arrest warrant in certain cases.

The present, general safeguard against such concerns is part 12 of the Anti-Social Behaviour, Crime and Policing Act 2014 which seeks to rectify some of these issues by making specific amendments to the 2003 Extradition act, the most important being, as mentioned above, the proportionality test, which prescribes that judges must consider the compatibility with Convention rights of each extradition case they make a decision on, as well as whether the extradition is disproportionate. With regards to the latter consideration, judges must have regard to:

  1. the seriousness of the conduct alleged to constitute the extradition offence;
  2. the likely penalty that would be imposed if D was found guilty of the extradition offence; and
  3. the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

However, there is also the concern that the powers of the arrest warrant are being applied too heavy-handedly, as seen in the highly-publicised case for the parents of Ashya King, who removed their child from Southampton General Hospital and flew to Spain to seek better treatment for his brain tumour. They were apprehended as a result of the UK issuing warrants for their arrest, which were duly discharged a few days later. Although the High Court decision which released the child from legal controls did not make any outright comments on the warrants, it was clear that the general opinion was that their enforcement had not been justified. This situation is a very potent example of the aforementioned need for safeguards that can control the remit of the EAW’s application. The warrant is an excellent tool for allowing member states to bring dangerous criminals to justice by placing an obligation on them to respect each other’s legal systems and judicial decisions. That said, its efficacy is inevitably tarnished, especially in the eyes of the public, if the warrant is used too often, unnecessarily or in a way that encroaches upon human rights and liberties, as it was in the case of Ashya King.

The particulars behind the House of Commons vote on the 10th November

The above-presented controversial nature of EAW is not the only issue surrounding the House of Commons vote. Another important problem with the vote on the 10th November remains, in my view, the process through which the initial vote was cast. The package of 35 measures, which the vote was presumably meant to decide on, in fact only included eleven of the measures that had not yet been transposed into UK law. In other words, Parliament only had a chance to actively vote in favour of those eleven measures, with the EAW not being one of them; yet the Commons’ verdict on the eleven measures was treated as a vote on the whole package.

At one point during the debate, the Labour party attempted to postpone the vote but their motion was defeated by a vote of 272 to 229. Despite the unrest that ensued, the original motion of the government, to readopt the 35 measures, was carried through with 464 votes to 38.

This debacle placed doubt on the extent to which the decision was a reflection of the actual opinions and will of Parliament. Many Labour MPs and some Conservative backbenchers accused the government of breaking its promise to allow Parliament to actually have a say on the EAW (27 October 2014: Column 30), specifically through a vote deciding the UK’s stance on this particular provision alone.

A Labour party motion introduced on the 19th November may have rectified the mistake in part, as it allowed MPs to vote on the re-adoption of all 35 measures, including the EAW. Parliament’s approval was subsequently solidified with 421 votes to 29.    

Nevertheless, an actual discussion about the problems with the arrest warrant was lost amidst the scandal involving the technicality of the vote. While the EAW is, in my opinion, an indispensable part of the justice system it is too important to simply be reintroduced into the UK legal system through what is essentially a back door. Unfortunately, it is questionable whether a considered debate on the system’s issues is ever likely to take place. In addition, it is worth wondering if the government is planning to deal with all upcoming concerns about the UK’s role in the European Union in a similar fashion.

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Tagged: Criminal Law, European Union, Extradition

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