Select Committee on European Scrutiny Seventeenth Report


Letter from Bob Ainsworth MP, Parliamentary Under-Secretary of State at the Home Office to the

Chairman of the Committee

Framework Decision on The European Arrest Warrant

I thought that it would be helpful to write to the Committee in order to give a fuller response on a particular point that was raised by Michael Connarty. He asked whether military courts would be recognised as judicial authorities under the terms of the Framework Decision and, if so, whether we would execute warrants issued by military courts in EU and prospective Member States.

It is up to each Member State to designate its issuing judicial authorities. It is therefore conceivable, although we believe it to be most unlikely, that a European arrest warrant could be issued by a military court. In practice, we believe that there are sufficient safeguards to protect the individual.

Our extradition law currently provides that we cannot extradite for offences which are purely military offences and have no equivalent under general criminal law. We intend to replicate that provision in the new law. However, in principle, we have always been prepared to extradite in cases where an individual has committed a military offence which has a counterpart under criminal law, It is therefore legally possible under present arrangements, although exceptionally rare, for an extradition partner to seek the return of an individual to appear before a military court.

All countries within the EU have incorporated the ECHR into domestic legislation, which safeguards the right to a fair trial. Article 6 extends to military courts, except where a Member State has derogated from specific convention rights in respect of their military courts. However, in the unlikely scenario where a country had sought surrender for appearance before a military court, the executing judicial authority in the UK would have a duty under the Human Rights Act to consider whether surrender in such circumstances would be lawful. Any surrender would depend upon the circumstances of the individual case.

If a British soldier committed a serious offence, which was also an offence under criminal law, and he then absconded to another EU country, we would want the power to extradite him back to Britain in order to stand trial either before a criminal court or a military court, depending on which has jurisdiction in the UK. A final decision on jurisdiction will depend on the facts of the case. I should add that we are not aware of there having been any such request. We are considering, with Ministry of Defence colleagues, whether our military courts need to be designated as judicial authorities or whether we should limit jurisdiction to the criminal authorities for the purposes of issuing an extradition request.

I am copying this reply to members of the Committee, Lord Brabazon of Tara, Lord Scott of Foscote, Simon Burton, Clerk to the European Union Committee, Dorian Gerhold, Clerk to the European Scrutiny Committee and Les Saunders, Cabinet Office.

23 January 2002

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