Competing surrender instruments
139. The CPS construed Article 15 as giving the
ESO no precedence over European arrest warrants, extradition requests
and ICC (International Criminal Court) surrender requests. Mr Gibbins
believed that because an ESO might be trumped by any one of the
above four types of proceedings that would "clearly be something
that I think the court would want to take into account, particularly
if it looked at a defendant's antecedents and saw that he had
a significant criminal record so that it would not be beyond the
bounds of possibility that some other country might have a European
arrest warrant waiting in the wings for him" (Q 79).
This might affect the courts' willingness to issue an ESO.
140. Mr Csonka, for the Commission, took
the view that an ESO would have to give way to an EAW, though
the EAW could have regard to the ESO and include a provision imposing
a condition of return for the continuation of the supervision
measure pending trial. "So the person is transferred back
to a third State on the condition that he or she will be returned
and the supervision can be suspended during that time" (QQ 210-1).
141. Mr Csonka suggested that Eurojust[31]
could assist Member States in deciding, at a practical level,
which proceedings to prioritise where there is more than one request
and the order which takes precedence relates to a less serious
offence: "Those cases actually do happen and Member States
need to talk to each other. Eurojust is there to sort out those
cases, so we believe that Eurojust could help set the priorities
in such situations. They could determine with the two or three
Member States involved which one should take which procedure first"
(Q 212). Mr Csonka believed that the matter should be
resolved by informal discussion rather than by regulation at European
level (Q 213).
142. Other witnesses did not find that approach
attractive. Jakobi and Debbie Sayers, solicitor, contrasted the
position under the EAW[32]
and argued that the EAW scheme should be followed in the ESO for
consistency and legal certainty (p 24). The Law Society noted
that the UK, in implementing the EAW, had set out a list of criteria
to be considered by, in this case, the Secretary of State, if
there are competing EAWs. Mr Doobay said: "I am not
sure necessarily we would say it was a matter to be dealt with
in the [ESO] Framework Decision but we do feel that there should
be some criteria and/or certainty as to which process is to be
dealt with first" (Q 299). The Law Society was opposed
to "an informal model where it is simply left up to an executing
Member State to take soundings, or not, if they desire" (Q 302).
143. The Government want to have some flexibility
in this matter. Baroness Scotland said: "We really believe
that Article 15 ought to mean that the ESO will not impede other
proceedings which may arise after release. We are inclined towards
allowing judicial flexibility in the consideration of which obligation
should be given priority, depending on the circumstances of the
relative case. We believe that the precedence of the European
arrest warrant, Extradition Orders or domestic proceedings should
be determined by the circumstances and criteria set out in each
of those processes" (Q 451).
144. As Article 15 is framed it appears that
an ESO would not stop the implementation of an EAW or an extradition
request, or attempted prosecution by the International Criminal
Court. An ESO could have the lowest priority of all. The "without
prejudice" formula is potentially confusing and might discourage
use of the ESO. This would be regrettable. While we would not
advocate that an ESO should necessarily take precedence over the
international instruments to which Article 15 refers there is
a need for guidance as to how Member States' obligations under
the relevant competing legal instruments might be prioritised.
Consideration should be given to providing criteria in the
Framework Decision to be taken into account by a national judge
deciding whether to return a suspect under an ESO, an EAW or other
international extradition order or arrest warrant. We also
welcome a role for Eurojust in facilitating coordination between
Member States to decide how best to prioritise proceedings.
Priority of domestic prosecutions
145. Article 15 also confirms that the existence
of an ESO does not prevent the executing authority from initiating
or pursuing its own criminal proceedings. We asked which prosecution
would take priority on return if the subject of the ESO is being
prosecuted in the executing State for another offence. Mr Csonka,
for the Commission, responded: "The Framework Decision does
not particularly cover this situation. It would be a matter for
the national practice of the home State to determine what should
be done in that scenario" (Q 208).
146. Jakobi and Sayers suggested that the ESO
should again follow the precedent in the EAW and provide that
the return of the suspect must be postponed if there are proceedings
in the executing Member State with regard to a "new"
offence (p 24). There is currently no flexibility under the
EAW scheme (as implemented by section 22 of the Extradition Act
2003) and this could have unsatisfactory consequences if an urgent
prosecution elsewhere were to be delayed, or even frustrated,
because of some comparatively minor offence here (QQ 397-399
and 402). For this reason, Judge Workman would prefer the court
in the executing State to have a discretion whether to return
the suspect to the issuing State. Baroness Scotland noted experience
of the EAW (where domestic prosecutions take precedence over EAW
proceedings) and agreed that there should be flexibility in relation
to the ESO (Q 453).
147. The Framework Decision does not prevent
Member States from deciding, when implementing the Framework Decision,
to allow the national judge some flexibility in assessing whether
the domestic proceedings should take precedence over an ESO. We
agree that there needs to be flexibility here and welcome the
Government's support for a more flexible approach in the UK. In
our view the issuing State will clearly be cautious about making
an ESO if that order can be overridden by a prosecution, for a
relatively minor offence, in the executing State. Here
again, consideration should be given to providing criteria in
the Framework Decision to be taken into account by the national
judge in deciding which proceedings should take precedence. Here
again, there may be a useful coordinating role for Eurojust.
30 Article 1(3). Back
31
Eurojust is an EU body established in 2002 to enhance the effectiveness
of Member States' authorities in dealing with the investigation
and prosecution of serious cross-border and organised crime. Back
32
Article 16 of the Framework Decision on the European arrest warrant
expressly provides that, in the event of multiple requests, a
decision on execution is made by the executing State's judicial
authorities taking into account circumstances such as the seriousness
of the offence, date of offence etc. They can seek the advice
of Eurojust. Similarly if there is a conflict between an EAW and
extradition, the same procedure is followed. The EAW functions
only "without prejudice" to a warrant from the ICC.
In the UK, the International Criminal Court Act 2001 provides
the Home Secretary with the power to decide on extradition requests
which compete with ICC warrants in Schedule 2 Part 2. Back
