Home AffairsWritten evidence submitted by Fair Trails International [JHA 02]

The UK’s 2014 opt-out decision (Protocol 36}

I write further to the call for evidence circulated by the House of Commons Home Affairs Committee. Fair Trials International (“FTI”) welcomed the opportunity to participate in the Home Affairs Committee oral evidence session on 10 September 2013, and is pleased to comment further in writing on the United Kingdom’s opt-out decision under Protocol 36 of the Treaty on the Functioning of the European Union.

Please find attached a copy of the written evidence previously submitted to the House of Lords Select Committee on European Union in the context of its initial inquiry into the UK’s 2014 Opt-out Decision.1 This continues to reflect our position. As evidenced by our previous briefing, FTI’s primary focus throughout the debates on the opt-out decision has been on the operation of the European Arrest Warrant (“EAW”). Given our experience of numerous cases of injustice under the EAW, we could not support an opt-in to the EAW without a prior commitment to reform of the EAW at both the domestic and EU levels.

FTI has raised concerns regarding the disproportionate and premature use of the EAW system, which in turn have resulted in people being extradited for minor crimes and being subjected to prolonged periods of pre-trial detention. Further, our casework has demonstrated the failure of the EAW regime to ensure adequate protection of the fundamental rights of those whose swift removal from one Member State to another it effects.

Government has stated in its Command Paper that the EAW Framework Decision- implicitly- allows refusal of EAWs on human rights grounds, as provided for under UK law, suggesting that opting into the EAW raises no concerns from a human rights perspective. However, whilst it may be true that the EAW scheme implicitly allows refusal of an EAW on human rights grounds, this has proved to be of limited practical use: in practice, the courts apply principles elaborated by the European Court of Human Rights which impose virtually unachievable evidential and legal hurdles. FTI believes that the current approach to human rights protection needs redefining at both EU and national level so as to provide more realistic tests. As such, FTI has long called for reform of both the EAW Framework Decision and the UK Extradition Act with the objective of addressing the identified flaws.

We were, of course, encouraged by the Home Secretary’s announcement that the Government would, in line with our recommendations, use the 2014 opt-out decision as an opportunity to raise the need for reform with the EU institutions and other Member States. While this has not yet produced concrete commitments to reform at the EU level, we greatly welcome the steps which the Government has now taken to seek reforms to the Extradition Act 2003, particularly the proportionality assessment, the mechanisms through which premature extradition might be avoided and the amendments to the appeal process. These go a long way towards addressing our concerns and justifying the decision to opt back in to the EAW Framework Decision. Our view is that certain of the proposed amendments to the Extradition Act 2003 could go further, particularly to ensure the adequate protection of fundamental rights, and we hope that the Government will be receptive to the amendments which we hope are tabled in Parliament during the progress of the Ant i-social Behaviour, Crime and Policing (“ASBCP”) Bill. We are producing a briefing on these amendments and will happily provide the Committee with a copy in due course. We also welcome the Home Secretary’s announcement that the Government will opt in to, and seek to implement, the Framework Decision on the European Supervision Order, which FTI has consistently called for as a means of avoiding the pre-trial detention of some of those extradited under the EAW.

However, we also note that improvements to the EAW scheme are, to some extent, dependent on reforms to the EAW Framework Decision. We therefore maintain that the Government should seek a commitment from the EU Institutions and Member States to reform of the EU legislation. In this regard, we have been encouraged to see that the European Parliament has decided to produce a legislative initiative report, and wait to see whether it proposes reforms capable of addressing the major flaws in the EAW’s operation and whether the Member States support its recommendations.

Libby McVeigh, Head of Law Reform, Fair Trials International

September 2013