The Human Rights Implications of UK Extradition Policy

The Human Rights Implications of UK Extradition Policy - Human Rights Joint Committee Contents

4 The European Arrest Warrant

128. In this chapter, we consider the human rights implications of the EAW and the suggestions that have been made to improve the practical protection of rights in the EAW process.

Advantages of the European Arrest Warrant

129. Although much of the evidence we received was critical of the European Arrest Warrant, several witnesses praised some aspects of the system. Commander Gibson, representing the Association of Chief of Police Officers (ACPO) said that "when you need to have someone arrested abroad, it is a simpler, faster and more certain process of getting a person before your courts. The police service benefits from that. It is much easier than what went before."[117] The Director of Public Prosecutions agreed that the advantage of the European Arrest Warrant was that it was much quicker than the previous system and that it removed the executive from the process. It also dealt with the previous problem of several countries not surrendering their own nationals.[118]

130. The Minister noted that "the chances of getting someone back are greatly increased by the existence of the system, for all its imperfections [...] the interests of justice are certainly served by both extraditing and facilitating the process under the rules."[119] The EAW therefore facilitates the process of justice and helps ensure that the victims of crime see justice done on a more regular basis. We recognise the importance of extradition and the benefits the EAW has brought in terms of a quicker, more streamlined process for surrender within the European Union.

The system of mutual recognition

131. The operation of the European Arrest Warrant is based on the principle of mutual recognition of judicial decisions. This principle is based on the mutual trust of one Member State in the criminal justice procedures of another Member State.

132. Some of our witnesses criticised mutual recognition. Fair Trials International argued that "standards of justice vary greatly from one EU country to another and human rights do not receive the same respect in every Member State", concluding that "blind faith in the criminal justice systems of our EU neighbours has led to many cases of injustice."[120] Liberty agreed that there was a "wide disparity in the treatment of criminal suspects, with the prison conditions and criminal justice processes afforded in various Member States repeatedly falling foul of the Convention."[121] The Freedom Association made a similar point: "there are simply too many differences between all the different member states when it comes to justice systems and legal traditions, which are impossible to overcome. Thus there can never be the mutual trust and recognition which is needed for the European Arrest Warrant system to be able to work."[122]

133. The evidence we received from people who had been subject to extradition in the UK appeared to demonstrate the differing levels of respect for basic rights across the EU. For example, Frank Symeou described the poor conditions his son Andrew had encountered while imprisoned in Greece.[123] We note that it is difficult to draw a wide conclusion on the standards of justice in the EU from this very small sample.

134. The recent European Commission report on the operation of the Framework Decision noted that "despite the fact that the law and criminal procedures of all Member States are subject to the standards of the European Court of Human Rights, there are often some doubts about standards being similar across the EU." The report continued that "a number of judgments [...] have highlighted deficiencies in some prisons within the EU."[124]

135. The solutions proposed by witnesses differed. The Freedom Association argued that "the Extradition Review should ask the Government to push for the suspension of the European Arrest Warrant due to a lack of mutual trust."[125] Fair Trials International argued that the lack of equality of legal protections meant that enhanced safeguards in the Extradition Act were "even more important."[126] Witnesses noted the importance of the EU Roadmap on procedural rights, which may help enhance procedural protections across the EU.

136. Baroness Neville-Jones, the then Minister, commented that "it is probably a matter of observation that human rights are not interpreted in all member states in the same way." She noted the criticism that "although in theory you get equal justice, in fact you do not." She told us that the Government were committed to the system and committed to raising standards elsewhere.[127]

137. Liberty commented on the link between the mutual recognition of judicial decisions and the reluctance of judges to refuse extradition on human rights grounds.[128] It is crucial that it is possible to rebut the presumption that rights are respected equally in all EU Member States. We agree with this evidence and recommend that the Government should take the lead in seeking to ensure that there is equal protection of rights, in practice as well as in law, across the EU.

138. In November 2009, the European Council adopted a "Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings."[129] The Minister noted the importance of this Roadmap in ensuring equal protection of rights across the EU. The Roadmap invited the European Commission to bring forward proposals designed to implement a single standard of procedural rights across the EU. The proposals in the Roadmap are set out in Box 3. So far, only a proposal to provide access to a translator had been adopted. A proposal to ensure the right to information on criminal proceedings is currently under negotiation in the EU.[130] The Commission report on the implementation of the EAW notes that "preparatory work is underway by the Commission regarding the remaining measures."[131]

139. We wrote to the Secretary of State for Justice for more information on the Roadmap. The Minister told the Committee that the Roadmap aimed to take EU level action in a "focused, evidence based and targeted way that builds on the foundation of the European Convention on Human Rights." He noted that the Directive on Interpretation and Translation in Criminal Proceedings had been agreed in October 2010 and the draft Directive on the Right to Information in Criminal Proceedings was under negotiation with the European Parliament. A draft Directive on access to legal aid was expected to be tabled by the European Commission in the summer. The Government had opted-in to the first two Directives as they were "necessary and helpful measures [...] to improve procedural rights across the EU and support instruments of mutual recognition." The Government would examine the case to opt-in to each subject proposal on a case-by-case basis, with a view to "maximising our country's security, protecting Britain's civil liberties and preserving the integrity of our criminal justice system."[132]

140. Fair Trials International agreed that the Roadmap would strengthen procedural protections for those subject to extradition.[133] Baroness Neville-Jones told us that the Roadmap "ought to even up the standards that are observed in practice between member states" and that the proposals were "important practical safeguards, which should improve the real-life experience of people who get caught up in the legal systems of other countries."[134] Charlotte Powell broadly agreed.[135] While the Freedom Association noted the aims of the Roadmap, it argued that it did not go far enough.[136]

141. The recent Commission report on the operation of the EAW argued that there "must be adoption of the measures in the roadmap on procedural rights [...] to ensure that fundamental rights and freedoms are protected."[137]

142. The Roadmap is an EU proposal that aims to strengthen protections for people in legal systems across the EU, of which persons subject to extradition are just one category. The EU Committee of the House of Lords and the European Scrutiny Committee in the House of Commons scrutinise all EU proposals, including those set out in the Roadmap, and for this reason we do not comment on the merits or otherwise of the proposal in this Report.

Box 3—the EU Roadmap

The EU Roadmap on procedural rights included six separate measures designed to increase procedural protections in the EU. The Roadmap proposed measures to implement the following rights for defendants in criminal proceedings:

Translation and Interpretation
Information on Rights and Information about the Charges
Legal Aid and Legal Advice
Communication with Relatives, Employers and Consular Authorities
Special Safeguards for Vulnerable Persons
A Green Paper on the Right to Review of the Grounds for Detention

Proportionality and imbalance

Box 4—EAW figures[138]

Year EAW requests received by UK Surrenders from UK EAW requests issued by UK Surrenders to UK

2006-7 3515 178 146 84

2007-8 2483 415 182 107

2008-9 3526 516 257 88

2009-10 4100 699 203 71

143. An EAW may be issued by any EU country for any offence which has a maximum sentence of longer than one year. Although there is no proportionality test in the Framework Decision, some countries, including the United Kingdom, apply such a test before issuing a request. The lack of a proportionality test in the Framework Decision has been criticised by witnesses because of the large number of requests received by the UK in comparison to requests issued and the human rights implications of the large number of requests for extradition for minor offences.

EXISTING PROPORTIONALITY TESTS

144. When an EAW request is received by the UK, it is certified by the Serious Organised Crime Agency (SOCA). The police locate and arrest the subject of the warrant. Detective Superintendent Murray Duffin of the Metropolitan Police Extradition Unit explained that "no proportionality test is written into the framework or the legislation, so if we receive a request and it is certified and meets all the requirements, it is to be executed."[139] The Director of Public Prosecutions explained that the Crown Prosecution Service also has no discretion to choose whether to execute an EAW request.[140]

145. We heard from witnesses that when the UK issues an EAW, proportionality is a relevant consideration. Commander Allan Gibson, representing the Association of Chief of Police Officers, told us that when considering whether to proceed with an investigation "we are quite conscious of cost and have to bear in mind what the likely penalty might be at the end of the process. So cost and end product or outcome are relevant considerations."[141] The Crown Prosecution Service explained that the standard public interest test is applied before issuing a request:

"a prosecution will only follow if the Full Code Test is met: namely that there is sufficient evidence for a realistic prospect of conviction; and it is in the public interest. The CPS applies the Full Code Test when deciding if an extradition request for a person should be prepared and submitted for a person who has yet to be charged with the offence."[142]

146. We asked the non-governmental organisations what assessment they had made of the UK's use of the EAW for requesting extradition. Catherine Heard told us that Fair Trials International was prepared to help any person who wanted to complain of unfair trial or extradition, but it had not received any cases from people facing an EAW request to return them to the UK. She told us that in the UK "there is a process of deciding if it is in the interests of justice to issue an arrest warrant to another country" and concluded that this filter should be imposed on all other countries.[143] Jodie Blackstock of JUSTICE agreed that the UK had issued a much smaller number of requests than many other Member States showing the UK was considering in greater detail whether to issue a European Arrest Warrant.[144]

147. Commander Gibson told us that some other EU countries "appear to" operate a proportionality test.[145] Catherine Heard agreed that "many countries in practice seem to have a public interest test before they go as far as issuing a warrant."[146]

PROBLEMS CAUSED BY THE LACK OF A PROPORTIONALITY PRINCIPLE

148. Several witnesses noted the human rights implications of the lack of a proportionality test in the Framework Decision. Jodie Blackstock of JUSTICE told us that "from a perspective of someone's private and family life and the upheaval it causes in them having to go and face trial in another country, it comes back to the proportionality test as well. There is an element, a question of whether it is necessary to extradite someone to another country."[147] Fair Trials International also noted the disproportionate impact of an EAW request in comparison to the alleged crime.[148]

149. The recent report from the European Commission on the implementation of the EAW, noted that "confidence in the application of the EAW has been undermined by the systematic issue of EAWs for the surrender of persons sought in respect of often very minor offences." The report concluded that "it is essential that all Member States apply a proportionality test, including those jurisdictions where prosecution is mandatory."[149] The Commission report also noted that it would issue a Communication in September 2011 aimed at introducing training for legal practitioners and judicial authorities on the implementation of the EAW and on strengthening procedural rights.

150. One of the issues raised by witnesses was the number of requests received from Poland: surrenders from the UK to Poland accounted for 61% of all surrenders from the UK in 2009-10. The CPS noted that the large number of requests were because "their prosecutors operate under an obligation to prosecute principle."[150] Similarly, John Hardy noted in his submission that "a number of the new Member States' domestic law systems conferred no discretion upon prosecutors and investigating magistrates as to when it might not be in the public interest to pursue an extradition request."[151] Fair Trials International provided an example of extradition for a minor offence: Patrick Connor was extradited to Spain for possession of two forged €50 notes which were found in his hotel room, of which he claimed to have no knowledge. Four years after initially being arrested, he was extradited to Spain, where he pleaded guilty and spent 9 weeks in prison.[152]

151. The Director of Public Prosecutions said that a requested person could argue against extradition on Article 8 grounds under the Section 21 human rights bar to extradition. He explained that "an individual accused of stealing a loaf of bread in another country would be able to argue that to remove him or her would be such a disproportionate interference with their Article 8 right that it should not happen", although he added the caveat "if the regime works properly."[153] The Law Society noted in their submission to the Extradition Review that "the UK courts have suggested that the triviality of an offence can be taken into account in assessing the proportionality of interference with qualified convention rights as a result of extradition [...] the lack of an express proportionality requirement may, therefore, be remedied where extradition is found to be a disproportionate interference with qualified Convention rights."[154]

152. Witnesses also commented on the apparent "imbalance" between the tests the CPS applies before applying for extradition, compared to the tests applied by other countries in the context of the rights of victims. The witnesses referred to in paragraph 84, who preferred to remain anonymous, argued that the "rights for victims are prejudiced unnecessarily by the high evidential standard" applied by the CPS before making an EAW request. The evidence argued that UK law enforcement agencies are reluctant to use the EAW.[155] When we put this question to the Director of Public Prosecutions, he argued that the difference came from the differences in legal systems in the EU. In civil law jurisdictions, the court is involved in proceedings earlier in the criminal justice process, meaning that "some of those countries may make requests for the purpose of prosecution at an earlier stage than we would recognise as being the start point of criminal proceedings."[156]

SOLUTIONS

153. There are several ways of reducing the number of trivial EAW requests. Many witnesses supported the introduction of a proportionality test beyond the current 12 month maximum sentence test. Commander Gibson of ACPO told us that the Police "would like a proportionality test [to be] brought in."[157] He noted, however, that such a test should be operated by the requesting country before a request is made: "it is more difficult if we try to exercise it at the other end and try to second guess what is right in any individual case."[158] The Director of Public Prosecutions told us that "if someone suggests that the prosecutor should be given a role to be able to say early on that this is clearly a case that is disproportionate and should never come into the system, I would not argue against that."[159] He noted that such a test could be applied by either the court in the requested country or the prosecutor, although "the CPS could deal with it earlier." He did not, however, think that such a test should take the form of a public interest test as it would be "quite a headache" to "gauge whether it is in the public interest for an offence to be prosecuted in another country."[160] Several other groups also agreed a proportionality test should be implemented.[161]

154. John Hardy agreed that a proportionality test would reduce the number of requests, the hardship caused to individuals and make judicial authorities consider "whether issuing an EAW is really necessary and proportionate in each case." He argued, however, that it was difficult to envisage "how such a [proportionality] test could be devised which was in keeping with both the absolute spirit of judicial co-operation which underpins the Framework Decision, and the time-limits which are central to its operation." He concluded that "a system which renders extradition less of a bureaucratic exercise and more an exercise in the administration of justice is to be welcomed."[162]

155. The Law Society, in its submission to the Extradition Review, also noted that the suggestion of a proportionality test "raises complex legal and practical issues; not least the impact thereof on the principle of mutual trust." The Law Society felt that practical rather than legislative solutions would be more appropriate to "to address the problems caused by differing Member State practices in relation to de minimis thresholds for prosecutions and requests."[163]

156. The then Minister told us that the Government was working bilaterally with Polish authorities to attempt to reduce the number of requests from that country.[164] The CPS[165] and the Police also noted this work with Poland. Detective Superintendent Murray Duffin noted that "anecdotally, I would say that those types of requests are reducing".[166]

157. We also asked Baroness Neville-Jones whether a stronger principle of proportionality should be incorporated into the Framework Decision. She argued that "if you try to fix a definition of what constitutes proportionality in any given area, that would give rise to its own anomalies [...] I am not sure how much further forward enshrining a proportionality principle in law and then interpreting it would get us than we already are." She advocated further guidelines on the use of the EAW.[167]

158. We note the increasing number of European Arrest Warrant requests received by the UK. We have serious concerns about the disproportionate impact of extradition where it is requested for a relatively minor offence. We urge the Government to work with the European Commission and other Member States to implement a proportionality principle in the Framework Decision, both for operational reasons and to ensure that the human rights implications of extradition are not disproportionate to the alleged crime.

159. Such a proportionality principle should be contained within the Framework Decision of the European Arrest Warrant and operate in a similar way to the tests applied by the Police and the CPS before issuing a request. We are not convinced that informal guidelines, bilateral discussions with the authorities of other Member States or a public interest test operated by the authorities in the requested country would be operationally practical or successful in the long-term. Proportionality is a well-established EU legal principle which the Extradition Review Panel may wish to take into account in considering the safeguards around an EAW request.

160. We were pleased to hear of the proportionality tests applied by the CPS and the Police when the UK makes an extradition request and the positive comments that we heard about the UK's use of the EAW.

Double criminality

161. Most extradition treaties have a double or dual criminality requirement which requires an extradition offence to be a criminal offence in both the requested and requesting territory. The EAW Framework Decision removes this requirement for 32 serious offences, including murder, drugs trafficking and terrorism.[168] The purpose of this change was to simplify the decision on what is an extraditable offence by the judge in an extradition case; for the 32 offences listed, there is no need to consider whether this is an extraditable offence.

162. Some witnesses have raised concerns about the removal of the double criminality requirement. The Freedom Association argued that it had "created a situation where laws voted in by elected officials in the UK Parliament have become null and void, due to the fact that UK citizens can be extradited for something that is not a crime in the UK." It concluded that "the European Arrest Warrant either needs to change so that double criminality requirements and the requirement for prima facie evidence are re-introduced or that the UK needs to remove itself from the European Arrest Warrant system."[169]

163. Liberty and JUSTICE also raised concerns in relation to the definition of the offences, which Liberty described as "extremely broad to the point of being meaningless."[170] This increased the risk of a person being extradited for an act which was not an offence in the UK. Jodie Blackstock noted the case of Toben, where an EAW request had been made for holocaust denial, which is not a crime in the UK. This case was dismissed on procedural grounds, leaving open the question of whether a person could be extradited for holocaust denial.[171]

164. Other EU Member States had addressed this issue. Belgium introduced legislation which excluded abortion and euthanasia from the category of "murder and grievous bodily harm". Consequently, Belgium would not extradite a person for the act of abortion under the definition of the offence of murder. This was, however, criticised by the European Commission in its review of the implementation of the European Arrest Warrant.[172] Liberty commented that the Extradition Act could be amended to ensure that the UK "would reserve the right whether or not to recognise an extradition warrant on the basis that a warrant will only be issued both where there is a clear offence [...] and that this conduct would also constitute an offence under British law."[173]

165. The exclusion of the 32 offences from the double criminality requirement raises some difficult questions. The Government and the Extradition Review may wish to review the list of 32 offences for which double criminality is not considered, with a view to whether certain conduct should be excluded from the definitions of these offences. We recognise, however, that the Framework Decision expressly excludes double criminality as a reason for denying the execution of an EAW. We recommend that this principle be dealt with as part of the renegotiation of the Framework Decision.

Other concerns relating to the European arrest warrant

166. Several other concerns about the operation of the European Arrest Warrant in practice were raised including using the Warrant for the purpose of investigation, the non-removal of EAW requests and cases of mistaken identity.

USE OF THE EUROPEAN ARREST WARRANT FOR PURPOSES OF INVESTIGATION

167. Mr Michael Turner reported that he had been extradited to Hungary and not charged: "after spending some time in prison, I was interviewed once with the police."[174] Mr Turner was later released with no charge being brought.[175] Mr Frank Symeou, father of Mr Andrew Symeou, argued that in many cases "the EAW is used as a summons for questioning."[176] Even where a request is for prosecution and not investigation, those surrendered under the EAW can spend several months in jail before their trial.

168. The then Minister confirmed that an EAW should not be used for the purposes of investigation. She told us that a Member State "cannot just have a fishing expedition."[177] As it does appear that requests are being made merely for the purposes of investigation, we urge the Government to ensure that other Member States do not use the European Arrest Warrant for purposes of investigation, if necessary by amendment to the Framework Decision. We recommend that, where there are doubts as to the stage of proceedings reached in the requesting state, the facility for further information provided by the Framework Decision and the Extradition Act 2003 should be used. The requesting state should be asked to provide information on the indictment process under their national law, the stage of proceedings reached, the date set for the first hearing and an assurance that the individual will not be interrogated on arrival.

169. The Commission report on the operation of the EAW explained that the "Directive on the application of the principle of mutual recognition to the decisions on supervision as an alternative to provisional detention" would make it possible for a suspected person "to be subject to a supervision measure in his or her normal environment pending trial in the foreign Member State."[178] It may be that, if applied, the Directive on the application of the principle of mutual recognition to the decisions on supervision could ensure that a person extradited to another EU state could await trial in the UK, reducing problems in relation to long times spent in prison before trial.

REMOVAL OF EUROPEAN ARREST WARRANT REQUESTS

170. Ms Deborah Dark described to us how she was arrested on several occasions on the basis of an EAW request and, despite courts in Spain and the UK refusing extradition on grounds of passage of time since the alleged offence, the issuing country "refused to remove the warrant."[179]

171. Mr Duffin of the Metropolitan Police explained that the procedure for removing an extradition request was simple and did not pose any difficulties.[180] When we discussed this issue with the Director of Public Prosecutions he told us that "the fact that the person has been arrested and discharged in country A does not stop country B picking them up." He told us that he "completely" understood the difficulties that this poses.[181]

172. Fair Trials International argued that "if a court in one European country decides extradition would be unjust, that decision should be respected across the EU and the EAW should be withdrawn immediately."[182]

173. In their submission to the Home Office Extradition Review, JUSTICE noted that Article 111 of the Schengen Convention would enable a person to apply to a court to review an alert issued on the Schengen Information System. It concluded that "the UK could implement the article by way of domestic legislation which would at least enable the UK to begin to attempt to control alerts in relation to warrants refused here."[183]

174. The system for removal of EAW requests should be improved or formalised to prevent repeat arrests where a court elsewhere in the EU has already refused to execute an extradition request. The Government should examine whether adopting Article 111 of the Schengen Information System would help avoid this problem. The Government should also negotiate membership of the SIRENE system which can be used to enter information on the execution of EAWs. This would allow a decision rejecting an EAW to appear whenever an individual crosses the Schengen borders. The individual would then be able to point towards the judgment denying extradition and would aid him or her to fight the execution of the EAW.

Time limits in the European Arrest Warrant

175. The European Arrest Warrant contains strict deadlines for the execution of a request once it has been certified. Where the requested person consents to their extradition, the final decision on the execution of the warrant must be taken within 10 days. Where the person does not consent, the final decision must be taken within 60 days of the arrest of the person. When it is not possible to meet this deadline, it can be further extended by 30 days. Witnesses argued that the tight time limits make it difficult for the requested person to make an effective argument against extradition on human rights grounds.

176. Catherine Heard of Fair Trials International told us that "insufficient time is built into the system. The deadlines are too tight in many cases for an individual to obtain evidence— often expert—on the situation of human rights protection on the ground in the country concerned."[184] Jodie Blackstock of JUSTICE agreed that even though the time limits are flouted "in many cases", this posed difficulties for getting evidence to support arguments that extradition should be barred on human rights grounds.[185]

177. John Hardy QC also commented on the problems created by time-limits, arguing in his submission that "with the UK court system over-loaded and under increasing strain, devices are routinely employed to circumvent the fixed periods, alternatively they are routinely extended so often as to render them meaningless." He continued that

"time-limits for giving notice of appeal are capable of producing real injustice [...] recent examples of the High Court holding it has no jurisdiction to hear an appeal have concerned persons remanded in custody and representing themselves, or who, if represented, are let down by their representatives in terms of filing and serving notices of appeal in time."[186]

178. We asked the Director of Public Prosecutions whether the existing time-limits posed problems for the Crown Prosecution Service. He told us that they did not generally pose a problem, as although the Framework Decision requires the completion of the process in 90 days, UK domestic law does not: "there is no domestic law consequence of going beyond the 90 days." He told us that the UK had not met the time-limit in 112 cases "which is quite high across Europe" and the average completion time of the process was 93 days. The reason for this was the UK's "elaborate appeal system." When we put to him the arguments of Fair Trials International, the Director of Public Prosecutions told us it was not right for him to comment, but noted that the district judge had the power to adjourn proceedings "in the interests of justice."[187] Detective Superintendent Murray Duffin of the Metropolitan Police Service told us that operationally, the Police were able to meet the time limits set out in the Framework Decision.[188]

179. John Hardy QC agreed that it was the UK appeal system that made the time limits unworkable and argued that "unless the right of appeal is to be fettered, or altogether curtailed, which would be unconscionable, these timetables are unworkable." He proposed that the time limits be replaced with a requirement that the processing of an EAW request be completed "as soon as reasonably practicable."[189]

180. We have heard that the time limits set out in the EAW for the execution of a request are regularly missed and often restrict the ability of the defence to successfully argue against extradition for human rights reasons. However, the DPP explained that there is currently no domestic penalty for exceeding the time limits and that the district judge has the power to adjourn proceedings in the interests of justice. In chapter 3, we concluded that longer time-limits should be allowed when a request for further information has been made. The Extradition Review Panel or the Government should consider whether the current time-limits provide adequate opportunity for the defence to postpone a hearing if necessary as long as the court considers the reasons for the request for adjournment on its merits on a case-by-case basis. The Government should also investigate the possibility of replacing time limits with another, less strict, formulation such as "as soon as reasonably practical", although we note that this would require renegotiation of the Framework Decision.

Other possible safeguards

181. We note that Article 4(6) of the Framework Decision allows the requested state to deny execution of the EAW issued for the purposes of serving a sentence where the requested state undertakes that the sentence will be served in that state. We recommend that this safeguard be transposed into the Extradition Act 2003 as this would significantly reduce the impact of such execution EAWs on Article 8 rights.

182. We also note that Article 5(3) of the Framework Decision creates the same possibility for those requested for prosecution under an EAW, that is, that the requested state may execute the EAW subject to a condition that the individual be returned to the requested member state to serve his or her sentence. This would reduce the impact on Article 8 rights of prosecution EAWs by ensuring that those for whom the UK has responsibility serve their sentences in the UK. This could be subject to the discretion of the judge with UK nationality or length of residence in the UK being a factor which was given much weight in the decision. We recommend that the safeguard in Article 5 (3) of the Framework Decision be transposed into the Extradition Act 2003.

183. We note the entrance into force of the Lisbon Treaty and with it, the enforceability of the Charter on the Fundamental Rights of the European Union.[190] We heard little evidence on the implications of the Charter for the EAW regime although several witnesses did refer to a case pending before the Court of Justice of the European Union which will decide the applicability of the Charter in the UK and the significance of the UK's protocol on the Charter (Protocol No 30). We note that the Charter is intended to provide higher protection than the ECHR.

184. The Charter includes a guarantee that the severity of the penalty is not disproportionate (Article 49(3)). However, the Charter is only applicable where EU is being implemented. In relation to the EAW, it is at least arguable that the whole regime comes within the scope of application of the Charter, even though the Framework Decision has been transposed into UK law by the Extradition Act 2003. This could be used as an argument to bolster any proportionality principle included in the Framework Decision since an extradited person would be able to argue that it was not proportionate for them to be extradited to serve a sentence of, for example, two weeks and that, thus, the severity of the penalty contravenes Article 49(3).

185. However, the EAW applies only to national law offences. Since the offence is one created in national law and the penalty is one set out in national law, there is no implementation or application of EU law. It is therefore not certain that the Charter and Article 49(3) would apply and is not by itself a sufficient safeguard to ensure the proportionate use of the EAW. We recommend that the Extradition Review Panel carefully assess the applicability of the EU Charter on Fundamental Rights to the EAW as applied by the UK.

117 Q 129 Back

118 Q 184 Back

119 Q 216 Back

120 EXT 1 Back

121 EXT 24 Back

122 EXT 2 Back

123 Q 54 Back

124 COM (2011) 175 Back

125 EXT 2 Back

126 EXT 1 Back

127 QQ 214-7 Back

128 EXT 6 Back