Select Committee on European Scrutiny Seventeenth Report


The European Scrutiny Committee has agreed to the following Report:



1. The proposal for a European Arrest Warrant marks a substantial change in the extradition law and practice both of the United Kingdom and of other EU Member States. It rests on a particularly high level of expectation of trust and confidence between the judicial and other authorities of the Member States in relation to matters bearing directly on the liberty of the individual. The proposal has been considered closely by us on a number of occasions since it was first presented by the Commission to the Council in September 2001, and has been debated in European Standing Committee[1]. We have also been assisted by hearing directly from the responsible Minister, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth), whose evidence is printed with this Report.

2. We consider it appropriate to report on the proposal in its near-final form, drawing together the various themes of our concerns of the past few months,[2] and taking account of the evidence given to us by the Minister on 9 January 2002. We have been concerned about the lack of definition of the term 'judicial authority' as the authority competent to issue and execute the European arrest warrant, with the absence of any explicit reference to the European Convention on Human Rights, with the abandonment of dual criminality[3] and the lack of definition of the offences for which this safeguard is being abandoned, with the absence of any clear guarantee of retrial as a condition for surrendering a person who has been convicted in absentia, and generally with the way in which substantial issues of principle appear to have been the subject of an opaque process of last-minute bargaining within the Council.

Definition of 'judicial authority'

3. We drew attention, at an early stage, to the lack of any definition of the term 'judicial authority' in the Framework Decision. We were concerned that, without an agreed definition, it was not possible to ensure that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, were excluded from recognition and enforcement under the Framework Decision. In his letter to us of 6 November 2001, the Minister had explained to us that the reference to 'judicial authority' was "deliberately generic, so as to allow each Member State to designate an authority within their system", and that he did not believe it necessary to provide for any supervision or control over designations made by Member States. We noted that existing extradition agreements (notably the 1957 European Extradition Convention) provided means whereby a reservation[4] or objection could be made in relation to a designation made by another State. By contrast, the Framework Decision had no provision for reservations or objections, so that a designation by another Member State would have to be accepted.

4. The text which emerged from the Justice and Home Affairs Council on 6 and 7 December 2001 referred, for the first time, to a European arrest warrant being a 'court decision issued by a Member State' (Article 1). Although it remained the case that a Member State was free (under Article 6) to designate a 'judicial authority', with no supervision or control by other Member States, we inferred from the reference to the European arrest warrant being a 'court decision' that it was established that the 'judicial authority' would have to exercise recognisably judicial functions in an independent manner.

5. The Minister was asked on 9 January if it followed from Article 1 that the courts of this country would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. In reply, the Minister said that:

"The judicial authority will be designated by the issuing State, but it will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European State, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised."[5]

6. When asked if this matter would be made clear in the Extradition Bill, the Minister replied that it would 'need to be spelt out in the Bill'[6], but that he was not certain that any further clarification was needed, since Article 1 stated that the European arrest warrant was to be a court decision[7]. The Minister later confirmed that judicial authorities in the United Kingdom:

"will not only have the ability but will certainly not execute a European arrest warrant that comes from anything other than a judicial authority in another European State."[8]

7. We think it regrettable that the term 'judicial authority' is not defined, given its central importance to the scheme of mutual recognition and enforcement established by the Framework Decision. However, we welcome the Minister's acceptance of the principle that a warrant which is not a 'court decision' within the meaning of Article 1 will not be recognised in this country.

European Convention on Human Rights

8. The text resulting from the Justice and Home Affairs Council in December refers to human rights in only an oblique manner. It states, in paragraph 12 of the preamble:

"That this Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on the European Union and reflected by the Charter of Fundamental Rights of the European Union."

9. Paragraph 12 of the preamble further provides that nothing in the Framework Decision prohibits a refusal to surrender when 'objective elements exist for believing' that a European arrest warrant is being issued 'for the purpose of prosecuting a person on account of his or her sex, race, religion, ethnic origin, nationality, political opinion or sexual orientation, or that a person's position may be prejudiced for any of these reasons'. The paragraph also provides that the Framework Decision 'shall not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media'. It is not clear why prosecutions based on discriminatory grounds have been singled out for special treatment or why some principles relating to human rights (such as freedom of association and expression) may justify a refusal to surrender, but not others (such as the right to liberty and security).

10. At an earlier stage[9], we asked the Minister if, instead of making reference to the Charter of Fundamental Rights, it would be preferable for the text to refer to Article 6 of the European Convention on Human Rights (ECHR), so that a Member State could refuse to surrender a person to a country where the Article 6 ECHR guarantees of the fairness of trials were not being sufficiently observed. In his letter of 6 November 2001, the Minister stated that the Government did not believe that there was a need for explicit references to individual articles of the ECHR in the instrument. He agreed that there was no explicit bar to surrender based on human rights considerations on the face of the draft proposal.

11. The text resulting from the Justice and Home Affairs Council in December also contains (in Article 1(3)) a provision that the Framework Decision "shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union". As a Framework Decision could not, in any event, have the effect of amending Article 6 EU, this provision - inserted at a very late stage - is no substitute for a clear provision allowing a Member State to refuse to surrender a person on ECHR grounds.

12. We consider that the text in paragraph 12 of the preamble and the provisions of Article 1(3) are unsatisfactory alternatives to a clear reference in the body of the Framework Decision to the requirements of the European Convention on Human Rights. We agree with the House of Lords Select Committee on the European Union that the right of the executing authority to refuse to surrender a person on ECHR grounds should be expressly stated in the body of the Decision[10]. We note that recent draft proposals for Framework Decisions[11] have contained an express provision to the effect that they are without prejudice to the ECHR and we recommend that the UK press for the inclusion of such provisions as a matter of course.

Dual criminality and the absence of definition of offences

13. A significant feature of the European arrest warrant is the abandonment, in many cases, of the traditional safeguard of dual criminality. Article 2(1) of the draft Framework Decision provides a general rule that a European arrest warrant may be issued for offences carrying a penalty of 12 months' imprisonment, or four months in the case of a conviction. Article 2(2) provides that where the offence carries a penalty of three years' imprisonment, and is an offence listed in Article 2(2), dual criminality may not be imposed as a condition of surrender. In all cases other than the listed offences, dual criminality may still be required as a condition of surrender.

14. The principle of dual criminality serves to ensure that a State is not required to extradite a person in respect of conduct abroad which is not criminal in the national territory. Where dual criminality may be imposed as a condition of surrender, it is for the executing State to establish if the offence for which extradition is sought has an equivalent in that State's national law. There is therefore no need for the offences to be uniformly defined across the EU.

15. Article 2(2) sets out a list of offences which are not defined, but which are described in generic terms as acts which are criminal under the law of the issuing State. Some of these offences, such as terrorism, money-laundering, or trafficking in drugs or human beings are already defined at EU level, or are the subject of proposals for Framework Decisions. Others, such as murder or 'grievous bodily injury' are referred to in the Europol Convention[12]. Where the offence is not defined at EU level, the precise scope of the offence will vary from Member State to Member State. If, for example, a judicial authority issues a warrant in respect of an offence which, in its view, falls within the generic description of arson, then the executing judicial authority may not refuse to execute the warrant on the grounds that it would classify the act under its own law as arson.

16. This would suggest that the list in Article 2(2) ought to be limited to a range of acts which have traditionally been criminal in Member States and where, in consequence, dual criminality is not likely to be an issue. However, the list contains a wide range of offences such as 'computer-related crime', 'racism and xenophobia', 'swindling', 'motor vehicle crime'[13] and 'sabotage' which are likely to be quite uncertain in their scope and interpretation across the EU. In these cases, abandoning the traditional safeguard of dual criminality poses a dilemma : either it is accepted that there will be variations between Member States (with the result that some persons will be surrendered to face criminal charges which they would not have faced in the surrendering country), or one concedes a need to harmonise the scope of the offences across the EU.

17. We put this dilemma to the Minister when he gave evidence on 9 January. We understood from him that he would not welcome any general harmonisation of criminal law at EU level. He indicated that there was a choice between maintaining what he described as the present 'cumbersome' and 'antiquated' system, or a system of mutual recognition, or the establishment of "some body of European law". He commented that:

"I would have thought it far more acceptable to our citizens that we go down the road of mutual recognition in order to provide adequate justice in that modern situation, in that modern setting, rather than attempting to invent some kind of European law that applies to all the countries."[14]

18. The Minister further explained that the arrest warrants will not be framed in terms of the offences named in the list, but rather in terms of a specific offence in the issuing country. For example, a warrant would not be issued accusing a person of 'swindling' but for a specific offence under the national law which fell within the scope of that term. The Minister stated:

"It will have to be framed in terms of a specific offence that falls within those terms, and the warrant will only be accepted if it is framed in such a way."[15]

19. We remain of the view that the operation of Article 2(2) will be more uncertain than the Minister suggests. The legal classification of the offence will be a matter for the issuing judicial authority[16] and the grounds for refusing to execute a warrant in Articles 3 and 4 do not include the case where the executing judicial authority disagrees with the classification which has been made. The executing authority will, in effect, be bound by the classification made by the issuing authority.

20. We consider that the safeguard of dual criminality has been too lightly discarded, and that the listing of offences by description in Article 2(2) will give rise to practical difficulties which have not been fully thought through. On the other hand, we do not consider that these difficulties are such as to make it necessary to embark on a harmonisation at EU level of all the offences listed in Article 2(2).

Absence of any guarantee of retrial for a person convicted in absentia

21. Each time we have considered this proposal we have expressed our concern that it does not adequately protect a person who had been tried in absentia. On 12 December we noted that Article 5(1) of the draft Framework Decision provided that where a person is convicted without having been summoned in person or otherwise informed of the date and place of the hearing, the surrender may be made subject to the condition that the issuing judicial authority gives assurances deemed adequate to guarantee the person who is the subject of the warrant "that he or she will have an opportunity to lodge an appeal or opposition in the issuing State and be present at the judgment".

22. We also noted that the Second Additional Protocol to the 1957 European Extradition Convention makes the return of a person in such circumstances subject to an assurance of a retrial. Unlike the position under the Second Additional Protocol (to which all Member States are party) it is by no means clear under the Framework Decision that the executing judicial authority may insist on a retrial as a condition of returning the arrested person. We did not consider that being given "an opportunity to lodge and appeal or an opposition" provided protection equivalent to the right to demand a retrial (which, unlike an appeal or 'opposition' would involve a re-hearing with the right to call witnesses). We saw no justification for the regression from the standards set by the European Extradition Convention.

23. In the European Standing Committee B debate on 10 December 2001 the Minister stated that:

"It has been agreed that future texts will guarantee a retrial if a person is absent from an original trial and contain safeguards for the rights of the defence."[17]

24. However, the text of the Framework Decision which was produced that day did not contain the guarantee to which the Minister referred. The Minister wrote on 13 December to members of the European Standing Committee and to those who attended the debate to explain as follows:

"When I gave this answer on Monday, it was indeed true. Our understanding was that the text would include a direct reference to a retrial. However, following the JHA Council on 6-7 December a further redraft was produced, which is the version we deposited for scrutiny yesterday (COPEN 79 14867/1/01 REV1) and the wording to Article 5 has now changed and no longer contains an explicit reference to a retrial.

"While we would have preferred to maintain a direct reference in the Framework Decision, this in no way changes our position on dealing with convictions in absentia. When we draft the Extradition Bill next year, we intend to make it explicit in our domestic law that we would not surrender an individual under the European Arrest Warrant in a conviction in absentia case without a guarantee of a retrial with the defendant having full rights of defence. The exception to this will be in cases where the individual has deliberately absented himself from a trial."

25. On 9 January, we asked the Minister to explain why the UK did not insist on a text of Article 5 corresponding to the agreement mentioned by the Minister in European Standing Committee. The Minister replied:

"I attempted to bring the Committee right up-to-date with what the current situation was, and the text going into those meetings required a retrial in those terms. You will see and you will be aware that the wording changed. It would be helpful if I were to be able to explain to you exactly why that changed but it was a negotiation and I am not able to do so."[18]

26. We also asked the Minister if the Government had made or would make an interpretative statement in the Council that it would not surrender persons convicted in absentia without the guarantee of a retrial. The Minister replied that the Government had not done so and did not believe this was necessary[19].

27. The Minister was not able to explain further how it was that the text of the proposal came to be changed, but he did acknowledge that, in relation to this issue:

"Effectively we gave a reassurance that was not worth anything at the end of the day in that arena."

28. We consider it very unsatisfactory that such a significant change in the proposal should be made at such a late stage within the Council and with the Minister being unable to explain how it came about. This is a further example of the lack of transparency in the way in which the Council deals with instruments affecting individual liberties and is a major cause for concern.

29. Whilst we welcome the Minister's assurance that the Extradition Bill will make it clear that a person tried in absentia will not be surrendered unless he is guaranteed a retrial, we have some doubts as to whether this would be consistent with the Framework Decision as adopted. As is apparent from the Minister's description of the negotiating history, the Council had before it this option, but chose to reject it in favour of the lesser guarantee of a right of appeal or to lodge an opposition.

The processes of the Council

30. As has already been noted, a large number of significant changes were made to the proposal around the time of the Justice and Home Affairs Council on 6-7 December. These included a change in the definition of the arrest warrant, changes to the material scope of the Framework Decision, inclusion of further undefined offences in Article 2(2), changes to Article 5 on convictions in absentia, changes to the provisions on speciality[20] and the introduction of a new provision on freezing of assets or evidence, which seemed to have been added as an afterthought, taking no account of work already under way in the Council on a specific proposal on that subject.

31. These were presented with a view to their immediate adoption at that Council, or in the following week at the European Council at Laeken, leaving virtually no time for their effect to be considered as part of the national scrutiny process. In the event, the proposal has still not been formally adopted, since the European Parliament has yet to express its opinion.

32. The presentation of radically changed texts in the last days of a Presidency, with calls for their immediate adoption, does not appear to us to be an appropriate way of determining changes at EU level to the criminal law. This is compounded by rules which prevent public and open discussion of what takes place in the Council, so that it becomes impossible for responsible Ministers to explain why particular changes were made. The legislative process should be open and transparent and not one of secret bargaining. We intend to return to this subject as part of our inquiry into democracy and accountability in the EU and the role of national parliaments.

1   See Official Report, European Standing Committee B, 3 and 10 December 2001. Back

2   See (22675) HC 152 -ii (2001-02), paragraph 7 (17 October 2001), (22593) and (22771) HC 152-vi (2001-02), paragraph 2 (14 November 2001), (22876) HC 152 -viii (2001-02), paragraph 1 (28 November 2001) and (22622) HC 152-x (2001-02), paragraph 5 (12 December 2001). Back

3   The principle in extradition law under which the offence for which extradition is sought must also be criminal in the extraditing country. Back

4   For the current reservations made by States, see Schedule 3 to the European Convention on Extradition Order 1990 (SI 1990/1507). Back

5   Q.2. Back

6   Q.3. Back

7   In a written reply of 23 January 2002 (see Appendix) to a question as to whether military courts would be recognised under the Framework Decision, the Minister stated that it was 'conceivable, although we believe it most unlikely' that a European arrest warrant could be issued by a military court. However, the Minister also stated that no change would be made to UK extradition law under which extradition cannot be ordered for offences which are purely military and have no equivalent under general criminal law. In cases where extradition was sought for a military offence which has a counterpart in criminal law, the UK court would have to consider whether surrender in such circumstances would be lawful under the Human Rights Act 1998 having regard to the principle that Article 6 ECHR applies to military courts.  Back

8   Q.6. Back

9   See (22625) HC 152-ii (2001-02), paragraph 7 (17 October 2001). Back

10   See Sixth Report HL Paper 34, p.8, 12.11.2001. Back

11   We note (14407/01) the draft Framework Decision on the execution of orders freezing assets or evidence, (22771) and (22932) HC152-xi (2001-02), paragraph 2 (9 January 2002), and (22622) 10710/01 draft Framework Decision on mutual recognition of financial penalties, HC 152-xii (2001-02), paragraph 5 (16 January 2002).  Back

12   OJ No C316, 27.11.95, p.2. Back

13   'Motor vehicle crime' together with rape, arson, crimes within the jurisdiction of the International Criminal Tribunal, 'unlawful seizure of aircraft/ships' and 'sabotage' were all additions made following the JHA Council on 6/7 December 2001. Back

14   Q.11. Back

15   Q.11. Back

16   Article 9(1)(d) requires the issuing judicial authority to set out on the warrant the 'nature and legal classification of the offence, particularly in respect of Article2'.  Back

17   European Standing Committee B, 10 December 2001 Col.28. Back

18   Q.24. Back

19   Q.28. Back

20   The principle whereby a person may not be prosecuted for an offence other than the one for which he was extradited. The principle is restricted by the Framework Decision. Back

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