Justice issues in Europe - Justice Committee Contents

2  The opt-in protocol and revisions to existing mutual recognition instruments

39.  The European Council has requested the European Commission to set a timetable for transforming third pillar instruments to a new legal basis following the entry into force of the Treaty of Lisbon.[68] We have considered the challenges that may be encountered during this process, particularly in the light of the "look before you legislate" approach that the Government has adopted to future proposals.

The European arrest warrant

40.  The European arrest warrant aims to facilitate the rapid execution of decisions by judicial authorities of member states to require the arrest and return of a person for trial or to serve a sentence, when they have fled to, or are resident in, other member states. It is the best known instrument which encompasses the principle of mutual recognition of judicial decisions. It has been in operation in the UK since 1 January 2004 and has been used extensively across the EU.

41.  The effects of the European arrest warrant on the UK are well documented. They are illustrated by increases in the volume of extraditions to, and from, the UK and significant reductions in the time taken to effect these transfers.[69] Mr Mike Kennedy of the Crown Prosecution Service, and founding president of Eurojust, told us that the warrant had been the "most effective mutual recognition tool introduced" and its impact was "greatly simplifying and speeding up extradition within the EU since its introduction in January 2004".[70] The Ministry of Justice wrote that the European arrest warrant had:

  • transformed extradition arrangements between EU member states
  • played an important role in the UK's fight against international and trans-national criminality
  • prevented countries from refusing to surrender fugitives
  • reduced the time taken to surrender fugitives from an average of 18 months under previous extradition arrangements to around 50 days, and
  • enabled the UK to extradite over 1000 fugitives to other EU member states (since introduction) and, in 2008, nearly 100 wanted persons were surrendered back to the UK to face criminal proceedings.[71]

42.  Nevertheless, Mr Faull pointed out that developing the mutual trust necessary to enable and allow such trans-national legal instruments to work, and to be improved, is no easy task: "…mutual recognition requires mutual confidence, which is not always a given".[72] Mutual trust may be undermined if, for example, the threshold for the use of an instrument has been set, or interpreted as, too low given its expense and administrative burden. The European arrest warrant has exposed some of the difficulties of adopting common procedures within very different systems and highlighted limitations in taking a mutual recognition approach to legislation in this area. We heard from Fair Trials International in particular, that there are a number of difficulties with the instrument, which were described to us as "significant".[73] Mr Jago Russell, the Director of Fair Trials International, explained: "it seems to me that if you are going to recognise, in a "no questions asked" way, decisions of other courts you also have to have confidence that those courts in those countries are indeed respecting basic rights."[74] Some of the difficulties that have arisen with regards respect for individual rights are illustrated in case studies in box 2.

Box 2—Fair Trials International case studies

Mr Symeou

In 2007, while Mr Symeou, a university student, was on holiday with friends in Zante, Greece, another young Briton was assaulted and fell off an unguarded stage in a night-club, tragically dying two days later from his head injury. Andrew insists he was not even in the club at the time and many witnesses have since confirmed this. He was not sought for questioning, and knew nothing about the incident when he flew home at the end of his holiday. A year later, he was served with a European arrest warrant seeking his extradition to Greece to stand trial for murder. During the course of his legal challenge it emerged that the warrant is based on flawed evidence, much of it extracted through the brutal mistreatment of two witnesses who have since retracted their (word-for-word identical) statements. In addition to being concerned about Mr Symeou's fate FTI considers that if the Greek authorities had acted legally and diligently, the true assailant could be brought to justice.

Mr Mendy

At the age of 18, Mr Mendy went on holiday to Spain with two friends. While there, all three were arrested in connection with counterfeit euros. Mr Mendy himself had no counterfeit currency on him or in his belongings when arrested and has no idea how the notes came to be on his two friends and in their rented apartment—in total, the police found 100 euros in two notes of 50. The boys were held three nights, then appeared in court and had a hearing lasting less than an hour, at the end of which they were told they were free to leave but might receive a letter from the authorities later. They returned to the UK and heard no more about it until 4 years later when, as Mr Mendy was studying in his room at university, officers from the Serious Organised Crime Agency arrested him on a European arrest warrant. He was extradited to Spain and held on remand in a maximum security prison in Madrid. Other inmates told him he might be in prison for up to two years waiting for a trial. Under immense pressure and fearing for his future, he decided to plead guilty, even though several grounds of defence were available and he would have preferred to fight the case on home ground, on bail, and with a good lawyer he could communicate with in English. None of this was possible, and he ended up spending 9 weeks in prison before coming home to commence his university career, his future blighted by a criminal record. This is an example of how warrants can be issued in a disproportionate way, wasteful of costs and having an unduly harsh effect on individuals' personal lives.

Messrs Hill

In 1997 the Human Rights Committee of the United Nations reported that brothers Michael and Brian Hill had been denied a fair trial in Spain, following their arrest in 1985, and were entitled to a remedy "entailing compensation" as a result. Spain failed to comply with this ruling and subsequently issued a European arrest warrant seeking the brothers' extradition to Spain. In October 2005, Michael Hill was arrested in Portugal and extradited to Spain where he served 7 months for breach of parole conditions. The brothers had already served three years in prison in Spain. Fair Trials International considers that this is a clear abuse of process and suggests that courts of executing states should be empowered to refuse extradition in such cases, rather than perpetuating the injustice of the original trial.

Ms X

In 1989, British citizen Ms X (anonymity requested) was arrested in France on suspicion of drug-related offences and held in custody. Her trial took place later in 1989. The court acquitted her of all charges, finding she had been set up by her then partner. She returned to the UK but, unbeknown to her, the case was appealed by the French prosecution. She was not notified and the appeal went ahead without her knowledge in 1990. No lawyer represented her and the Appeal Court overturned the original verdict and sentenced her to 7 years' imprisonment. She was not informed. In April 2005, a European arrest warrant was issued by the French authorities for Ms X to be returned to serve her sentence. Unaware of this, in 2008 she travelled to Spain where she was arrested and taken into custody pending extradition to France. Ms X refused to consent and spent a month in custody waiting for an extradition hearing. Eventually the Spanish court refused to extradite her, given that nineteen years had passed since the alleged offences. Ms X was released and flew home to the UK—only to be re-arrested on the same warrant by the British police at Gatwick airport. The City of Westminster Magistrates' Court refused the extradition in April 2009 given the passage of time. This could happen again and again, until France removes Ms X's warrant from the EU-wide system. Ms X is virtually a prisoner in her own country, as any trip abroad could result in her arrest. She wishes to visit her sick and elderly father in Spain but cannot risk it for the sake of her family.[75]

43.  The use of European arrest warrants for minor offences, which would be seen within the UK legal system as a disproportionate measure, raises the problems Mr Russell described for the UK (and other member states) both on human rights grounds and in terms of the costs to their legal systems.[76] In many member states, including for example Poland, the prosecutor is constitutionally obliged, under the applicable codes of criminal procedure, to take action when there is an allegation that an offence has been committed. There is no equivalent to the prosecutor test which, in the UK, ensures that the case is in the public interest and that there is a realistic prospect of conviction.[77] We heard several examples of cases where inter-country surrender of persons had been requested for offences that would be considered minor in the UK, for example, stealing ten chickens, a mobile phone or even a bowl of cherries.[78] The Ministry of Justice was unable to provide us with an estimate of the cost to the UK of administering European arrest warrants[79] but, according to Mr Russell, an Irish judge has estimated the average cost per case in Ireland to be 25,500 Euro.[80]

44.  The Government acknowledged that there were difficulties with the administration of the European arrest warrant, particularly related to proportionality, and supported the view that the use of the European arrest warrant should be restricted to serious cases.[81] It drew our attention to a report in 2008 on a review of the operation of the instrument which made recommendations to individual member states and to the preparatory bodies of the Council[82] that were adopted by the Council in June 2009 (discussed further below).[83]

45.  We heard that the Government had not conducted a formal review of the Extradition Act 2003 but believed that the provisions work well.[84] Some less formal scrutiny took place during the consideration of the Policing and Crime Act 2009, which made provision for the UK to begin sending and receiving data, including alerts which request the arrest of a person for extradition purposes, via the Schengen Information System II [SIS 2] and to defer extradition in particular instances. The use of the European arrest warrant has increased year on year, [85] but, as we noted above, the Government was unable to provide us with indicative costs for their enforcement, citing the many factors involved in making the decision and the various parts of the criminal justice system engaged in the process.[86] We heard that Government did not foresee any increase in demand for European arrest warrants[87] but we have since been told that there is likely to be a 250% rise in cases as a result of the UK's connection to SIS 2 from April 2011.[88] We understand that the Home Office is responsible for preparations to deal with this rise but there will be undoubtedly considerable implications for the Crown Prosecution Service, which approves applications for warrants; Westminster magistrates court, which administers European arrest warrants; and the National Offender Management Service, which is responsible for detaining suspects prior to their surrender.

46.  We would welcome clarification from the Ministry of Justice on the action it is taking to deal with the predicted 250% rise in arrests pursuant to European arrest warrants in terms of the implications for the Crown Prosecution Service, Her Majesty's Courts Service and the National Offender Management Service and how it plans to meet the costs to the Department as a whole.


47.  The Law Society considered there to be an urgent need for the introduction of a proportionality test for the issuance of European arrest warrants.[89] The Council has agreed that the issue of proportionality should be prioritised and there is general agreement amongst member states on the most appropriate means of doing so. The follow up to the evaluation report, discussed above, stated that "legislative action is undoubtedly the most binding manner to obtain a change in the way the European arrest warrant functions and therefore, at least in some cases, probably also the most effective course of action. There are, however, also potential drawbacks to legislative action […] [and it] should be followed only if it is unavoidable in order to remedy important problems".[90] Mr Faull drew similar conclusions.[91]

48.  The Government shared the view that renegotiation of the Framework decision on the European arrest warrant should not be the default solution to problems with its implementation.[92] It is thus seeking to deal with these issues proactively by developing a shared understanding of best practice through the Justice and Home Affairs Council and with the Commission.[93] While legislation was an option considered with other member states in the June 2009 Justice and Home Affairs Council, most member states accepted that there were other solutions that could be used, such as bilateral discussions, with the aim of developing a shared understanding of when it is appropriate to use the instrument.[94]

49.  Mr Russell explained why there may be resistance to resorting to legislation: "there is major concern in many EU member states, including the UK, and the Commission, on the question of re-opening the framework decision on the European arrest warrant […] [that] the whole thing will unravel […] I can see from a political point of view that there could be problems".[95] For example, if there is a review of the European arrest warrant the new rules on the European Court of Justice's jurisdiction would apply with immediate effect. On the other hand, Mrs Mole pointed out that the issue of proportionality is compounded by the Government's decision not to opt in to the jurisdiction of the Court of Justice because it denies the Westminster magistrates court the ability to raise questions about the execution of warrants in any cases.[96]

50.  It is unfortunate that the successful use of the European arrest warrant, and the reduced time taken to process intra-EU extraditions, has been overshadowed by perceived injustices in individual cases. We welcome the conclusions of the evaluation of the warrant, adopted by the Council in June 2009, and the subsequent progress that has been made. However, we believe that the time it takes to review and reform such instruments undermines the mutual trust approach. Legislation should be used only as a last resort to resolving the issues over proportionality and we hope that the current approach bears fruit before the predicted growth in demand for European arrest warrants takes place.


51.  While the Commission and member states may be reluctant to amend the framework decision as a means of resolving the proportionality issue, it may become necessary if other measures fail. Professor Mitsilegas, of Queen Mary University of London, believed that the UK opt-in would fuel momentum to re-open debates on aspects of law and policy either when framework decisions are be translated into regulations and directives, which may result in amendment to existing agreements, or when new accompanying measures are agreed.[97] He raised questions, for example, about whether the UK could continue to participate in the European arrest warrant if it did not opt-in to a new directive on defence rights which underpins the principles of mutual recognition in the warrant.[98]

52.  As we have noted, the application of the opt-in protocol extends to processes by which amendments to existing measures are negotiated. If the UK decides not to participate in an amending measure and the Council decides that this lack of involvement renders the measure inoperable for other member states it can "eject" the UK from the original measure. Professor Peers illustrated his interpretation of the level of this threshold using the analogy of a car:

would you say your car was inoperable just because there is an odd noise which you cannot explain, there is something awkward about it, or would you say it is only inoperable if it gets to the point where it is judged unroadworthy or, indeed, it just does not function at all because you cannot get it to start and there are no brakes or steering or something really essential that you need for a car to work?[99]

He therefore supported the conclusions of the House of Lords EU Committee in its report, The Treaty of Lisbon: an impact assessment, that this threshold was a high one, related to technical inoperability. The Government also considered that the threshold was high.[100] We heard that this works in its favour as long as it wishes to remain participating in existing measures. However, Professor Peers pointed out that the European Commission, European Parliament, some member states and/or a different UK government may have different views as to the level of the threshold.[101]

53.  If it can be demonstrated that member states suffer financial loss stemming directly from the UK's failure to participate (and the consequent inoperability of the measure), the UK could potentially bear financial consequences, a scenario that Mr Edwin Kilby, head of European policy at the Ministry of Justice, considered highly unlikely.[102] Professor Peers explained that there is already significant divergence in the implementation of aspects of existing measures which has not lead to a breakdown in their operation.[103] However, Mrs Mole believed that it is "not out of the question" that a state may take another state to the Court of Justice, for example, if there was a very serious breakdown of the function of cross-border criminal justice mechanisms.[104]

54.  We are encouraged that neither the Minister, nor any of our witnesses, were able to provide a convincing example of a situation in which an existing measure would be rendered inoperable as a result of the UK's decision not to participate. Nevertheless, we are concerned that the term "inoperable" is not defined in the protocol and that guidance is not available on its interpretation.

The European evidence warrant

55.  The European evidence warrant, adopted as a Council framework decision in December 2008, is intended to replace mutual legal assistance procedures and further improve judicial co-operation by applying the principle of mutual recognition to a judicial decision for the purpose of obtaining objects, documents and data for use in criminal legal proceedings in different member states. Provisions to give effect to the UK's obligations to implement the framework decision are included in the Policing and Crime Act 2009. Until the European evidence warrant is fully implemented—and this process is expected to take up to two years—the new measure will run in parallel with the mutual legal assistance procedures under the 1959 Council of Europe Convention and the 2000 EU Convention on mutual legal assistance.

56.  This instrument took some time to negotiate, being first introduced in November 2003, and the legislation that was finally adopted contained many exceptions to general principles, resulting in concern that it may not operate effectively. Mr Kennedy told us that he did not believe that the arrangements under the framework decision are as powerful as agreements for mutual legal assistance under the Conventions described above, although he also felt that these were too ad hoc.[105] Practitioners have suggested to the European Commission that the system under the framework decision is cumbersome and difficult and not conducive to the best possible administration of justice (i.e. ensuring that it is relatively easy to obtain evidence located in one country where it is needed for a particular case).[106]

57.  Reflecting these concerns, the Stockholm programme provides for the European evidence warrant to be revised and a new measure adopted. Mr Kennedy could see benefits in standardising the process for gathering evidence, but believed that it would be difficult to develop a comprehensive European evidence warrant, citing differences in the rules of admissibility of evidence across member states.[107] Changes to rules on the admissibility of evidence could potentially give rise to more interference with the UK system.

58.  In principle, the Government is supportive of further attempts to improve judicial cooperation amongst member states but thought that this must be done through an instrument that will "demonstrably add real value" to mutual legal assistance.[108] It has suggested to the Commission that a more effective system should: require executing authorities to set out a timeframe within which a request will be executed (but avoid a 'one size fits all' approach being taken to deadlines that could actually hamper wider judicial co-operation); make proper provision for central authorities; include proportionality as a ground of refusal; and make the instrument available to the defence.[109] We discussed the need for proportionality to be considered in adopting such a measure. Mr Faull agreed that it might be necessary to include this on the face of legislation and pointed out that the issue of proportionality arises at two levels: first, legislation must be in proportion to the objective it sets out to achieve and, secondly, there must be proportionality in how it is applied and interpreted.[110]

59.  Nevertheless, there are currently two parallel initiatives which may provide the basis for a new measure.[111] The first, a green paper on the gathering and admission of evidence, was issued by the European Commission in 2009 to enable consultation and detailed investigation before new legislation is proposed.[112] In addition, it is anticipated that a member state initiative, led by Belgium, will propose the introduction of a "European investigation order".[113]

60.  While the Government may wish the EU to adopt a "look before you legislate" approach, the ability of member states to present their own initiatives may pre-empt more considered approaches by the European Commission. We agree with the Government that, if the European evidence warrant is revised or replaced, lessons should be learned from the operation of the European arrest warrant by incorporating safeguards into the legislation to minimise the potential for disproportionate use.

68   Council of the European Union, The Stockholm programme: an open and secure Europe serving and protecting the citizens, December 2009, para 1.2.10 Back

69   HC (Session 2006-07) 76-I; Q 14 [Lord Bach] Back

70   Ev 55 Back

71   Ev 90  Back

72   Q 88 [Mr Faull] Back

73   Ev 59 Back

74   Q 161 Back

75   Ev 60ff Back

76   Q 161 [Mr Russell] Back

77   Qq 163-165 Back

78   Qq 162,165 Back

79   Ev 103 Back

80   Q 161 [Mr Russell] Back

81   Q 16 Back

82   Preparatory work for the Council is carried out by several bodies, each of which holds a specific rank in the order of importance: Coreper is at the top, and at the bottom are the numerous working parties; in the middle are the committees with responsibility for specific areas. Back

83   Qq 16-17 [Lord Bach, Ms Gibbons] Back

84   Q 256 [Lord Bach] Back

85   Q 88 [Mr Faull]; Ev 103 Back

86   Q 258 [Ms Gibbons]; Ev 103 Back

87   Q 265 [Ms Gibbons] Back

88   Ev 106 Back

89   Ev 83  Back

90   Council of the European Union, Follow-up to the final report on the fourth round of mutual evaluations: the practical application of the European arrest warrant and corresponding surrender procedures between member states, 7 December 2009  Back

91   Q 93 Back

92   Q 260 [Ms Gibbons] Back

93   Ibid. Back

94   Qq 259-262 [Ms Gibbons]. For example, see Q 181[Mr Kennedy] Eurojust, despite having no formal role beyond advice in difficult cases, organised a useful bilateral meeting between justice departments in Poland and the UK on these issues. Back

95   Q 162 Back

96   Q 165 Back

97   Ev 107 Back

98   Ibid, para 7. Back

99   Q 62 Back

100   Ev 106; Q 236 [Mr Kilby] Back

101   Q 63 Back

102   Q 234; see also Ev 106 Back

103   Q 63 Back

104   Q 134  Back

105   Q 182 Back

106   Q 94 [Mr Faull] Back

107   Qq 182, 185 Back

108   Ministry of Justice, UK written comments on the European Commission's Communication on the Stockholm programme, September 2009 Back

109   Ibid. Back

110   Q 100 Back

111   Q 65 [Professor Peers] Back

112   Q 97 [Ms Hahn, Mr Faull] Back

113   Q 267 [Ms Gibbons] Once such an initiative is launched UK Parliament has 8 weeks to decide whether the UK Government should opt-in and if the Government decides not to opt-in immediately it has 3 months to do so. Back

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