EFFECT OF THE EUROPEAN ARREST WARRANT
20. Before proceeding to discuss those provisions
of the Bill about which we have particular concerns, we wish to
make some general comments about the European Arrest Warrant framework
decision and the Government's decision to agree to it.
21. As discussed in paragraph 16 above, article 2.2
of the framework decision provides that surrender of a suspect
under a European Arrest Warrant will not be subject to
the dual criminality requirement where the offence for which extradition
- falls into the list of 32 offences, and
- carries a maximum penalty of at least three years'
imprisonment in the issuing state.
Dual criminality is the principle that the offence
for which extradition is sought must also constitute an offence
under the law of the state from which extradition is sought. Currently,
the dual criminality principle applies to all extradition requests
made to the UK. Article 2.2 would limit the principle's application.
It would mean that any extradition offence that falls under it
need not constitute an offence under UK law; it would be sufficient
that it constitutes an offence as defined by the law of the issuing
category 1 territory.
22. Speaking in December 2001, the Parliamentary
Under-Secretary at the Home Office, Mr Bob Ainsworth MP, said
"It is right that we should approach our European
neighbours, all of which have incorporated the European Convention
on Human Rights, on the basis of mutual trust. We should not assume
that our criminal justice system is infinitely superior to that
of other countries...We are accepting for the first time that
our European partners should be able to frame their charges according
to their national law...and we would not try to double-guess each
detail of such issues. Extradition proceedings are not a mini-trial,
and when the trial is to be held in Europe, we should not be looking
under every stone to find out how it may allegedly be inaccurate".
23. We have grave concerns about the abolition of
the dual criminality safeguard. The variety of criminal justice
systems and of legislative provisions within the member states
of the EU makes it difficult for us to be as blithely confident
as the Parliamentary Under-Secretary that it will be acceptable
in all circumstances for a person to be extradited from the UK
to face proceedings for conduct that does not constitute a criminal
offence in the UK.
24. Our sense of unease is heightened when we look
at the list of 32 offences specified by article 2.2 of the framework
decision. The text of article 2.2 is set out in Appendix 69. It
is apparent that these offences are defined in generic terms and
are probably better described as "categories of offence".
As noted above, the UK Parliament has no power to amend them.
25. We asked the Home Office what information it
has about how these offences are defined in other countries. The
Home Office responded that it "does not have detailed definitions
of offences in the criminal justice systems of other EU member
states". As a result of our query, however, the Home Office
did make inquiries about what offences in other EU member states
might fall within the offences of "racism and xenophobia"
and "swindling"; the results of that inquiry are printed
in an appendix to the Minutes of Evidence.
26. Not only does it appear to be largely unknown
how the categories of offence will be defined by the current
law of other EU member states, there is no way of knowing how
those offences may be defined by the future law of member
states. The types of offence that could be classified as falling
within such categories as "participation in a criminal organisation",
"terrorism", "corruption", "fraud",
"computer-related crime", "environmental crime",
"racism and xenophobia", "swindling" or "sabotage"
appear to us to be extremely broad.
27. The European Scrutiny Committee has commented
that many of these offences are not defined at EU level.
Where this is the case, the Committee considers that the precise
scope of the offence will vary from member state to member state,
and that the legal classification of the offence will be a matter
for each individual state. If the UK is asked to execute a European
Arrest Warrant, it will not be able to refuse to execute the warrant
on the grounds that it disagrees with the issuing state's legal
classification of the offence. The UK will, in effect, be bound
by the classification made by the issuing authority.
28. We are concerned about the generic nature of
some of the 32 offences in relation to which dual criminality
will be excluded. We consider that the effect of the framework
decision is such that there is nothing to prevent another member
state from classifying an offence as falling into, say, "participation
in a criminal organisation", "racism and xenophobia"
or "sabotage" where the UK would consider such a classification
inappropriate. To use the example of the recent case of the British
"plane-spotters" charged with spying in Greece, under
the new arrangements there would be nothing to prevent the Greek
authorities from determining that such conduct amounted to "sabotage"
or, if the plane-spotters had recorded their observations on a
laptop computer, "computer-related crime". If the Greek
authorities were to classify the offences with which the plane-spotters
were charged as falling into one of the 32 offences listed in
article 2.2, then the UK would not be able to refuse to extradite
them on the grounds that their conduct would not constitute an
offence in the UK.
29. Notwithstanding these concerns, in June 2002
the British Government agreed to the framework decision and the
UK is thus irrevocably committed to its provisions, including
the abolition of the dual criminality safeguard in relation to
extradition requests from fellow members of the EU and the list
of 32 offences, or categories of offences, in respect of which
dual criminality will no longer apply.
30. This being so, it is worth reviewing the extent
of parliamentary scrutiny of the framework decision. The draft
decision was proposed by the EU Justice and Home Affairs Council
in September 2001. It was considered by the House of Commons European
Scrutiny Committee which made several reports on the subject in
October and November 2001.
These expressed concern over aspects of the decision, and recommended
that a debate be held on the floor of the House.
In fact the matter was debated not on the floor but in European
Standing Committee B, which held two meetings on this subject
in December 2001. The Committee agreed, on division, to a Government
motion "support[ing] the Government's active participation
in the debate on the draft Framework Decision and the Government's
intention to ensure that extradition within the European Union
takes place on the basis of the principles of mutual recognition".
This resolution was subsequently approved by the House, on division,
on 12 December 2001. The European Scrutiny Committee returned
to the subject and took oral evidence in January 2002, producing
a further report the following month.
In this they stated that "the safeguard of dual criminality
has been too lightly discarded", and made further criticisms
of the draft framework decision.
The human rights implications of the draft decision were considered
by Sub-Committee E of the House of Lords Select Committee on the
European Union in February 2002.
The framework decision was finally approved by the Justice and
Home Affairs Council, with the assent of the UK Government, on
13 June 2002.
31. We note that, notwithstanding the recommendation
of the European Scrutiny Committee, this very important issue
has not been debated on the floor of the House of Commons. However,
we recognise that the House gave formal assent in December 2001
to the proposition that extradition within the EU should take
place "on the basis of the principles of mutual recognition",
and that the Government has taken this as conferring authority
for it to give binding UK assent to the framework decision. The
relaxation of dual criminality represents a significant reduction
in the rights of UK citizens. Individuals could be extradited
for alleged offences that are not crimes in the UK. We recommend
that, in order to provide some safeguard against clear abuses
of this new procedure, the Home Secretary give consideration to
the following proposal: that in each case the district judge should
look at the terms of the offence specified in the European Arrest
Warrant and make a statement as to whether dual criminality applies.
In cases where the alleged offence is not a crime in the UK a
separate decision about whether to extradite should then be made
by the Home Secretary, who is responsible to Parliament.
32. In the remainder of this report we concentrate
on the details of implementation of the framework decision as
embodied in the Extradition Bill.
12 Stg Co Deb, European Standing Committee B, European
Arrest Warrant and Surrender Procedures between Member States,
3 December 2001, col 1. Back
Appendix 1, Ev 15, 19-23. Back
The Committee states that offences such as terrorism, money-laundering
and trafficking in drugs or human beings are defined at EU level
or are the subject of proposals for framework decisions. Other
offences, such as murder or grievous bodily injury, are referred
to in the Europol Convention. See HC (2001-02) 152-xvii, para
Ibid, para 19. Back
See note 2 above. Back
HC (2001-02) 152-viii, para 1.15. Back
Stg Co Deb, European Standing Committee B, European Arrest
Warrant and Surrender Procedures between Member States, 10
December 2001, col 54. Back
HC (2001-02) 152-viii. Back
Ibid, para 20. Back
House of Lords, Sixteenth Report of the Select Committee on the
European Union, Session 2001-02, The European Arrest Warrant,
HL Paper 89. Back