House of Lords - EU police and criminal justice measures: The UK's 2014 opt-out decision

EU police and criminal justice measures: The UK's 2014 opt-out decision - European Union Committee Contents

CHAPTER 6: THE EUROPEAN ARREST WARRANT

145. The European Arrest Warrant (EAW) is undoubtedly the most prominent and controversial of the PCJ measures subject to the opt-out. This Committee has produced a number of reports on the EAW in the past.[245]

The benefits of the European Arrest Warrant

146. The majority of our witnesses considered the EAW to be an important PCJ measure that brought benefits to the UK. They said that it had led to the creation of a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition, which allowed for the return of those wanted for trial in the UK as well as allowing dangerous criminals to be extradited to other Member States. It had also increased mutual trust between Member States and was a marked improvement on the system of extradition that had existed previously within Europe.[246]

147. Some of our witnesses cited the prompt return of Hussain Osman from Italy as a good example of the EAW[247] in contrast to the slower procedures involved in extraditing Abu Hamza to the US or the pre-EAW extradition of Rachid Ramda to France.[248] Others pointed to the EAW's success in facilitating the return of large numbers of fugitives from Spain to the UK to face trial and the normalisation of previously poor bilateral extradition arrangements between the UK and other Member States such as Ireland and Spain.[249] The DPP provided some examples of where the EAW had been of practical benefit to the CPS.[250]

148. Statistics regarding the number of EAWs requested and received by the UK are provided in Appendix 6. They confirm that the number of extraditions increased significantly after the introduction of the EAW and have been increasing, year-on-year, ever since.

Criticisms of the European Arrest Warrant

149. While the Government considered the EAW to be a "vital tool" in the fight against international crime, which had had some success in streamlining the extradition process, they also had a number of concerns about its operation, including its disproportionate use for trivial offences and for actions that were not considered to be crimes in the UK; and the lengthy pre-trial detention of individuals abroad.[251] Open Europe shared these concerns and has stated that the benefits of swift extraditions need to be balanced against the potential infringement of British nationals' civil liberties, as well as pointing to what they perceive to be the lack of procedural safeguards in the EAW.[252]

150. UKIP was highly critical of the EAW. They considered its benefits to be "illusory", and that it had not speeded up, simplified or made extradition proceedings any cheaper.[253] Dominic Raab MP raised similar concerns and remarked that the high number of EAW requests received by the UK placed operational strains on UK policing.[254] However, Commander Gibson, from ACPO, considered this analysis to be flawed and stated that the EAW provided a much cheaper system.[255]

151. There have been allegations of injustice arising from the operation of the EAW. The Government cited the case of Andrew Symeou, as did other witnesses.[256] Commander Gibson emphasised that the EAW had provided a better deal for victims, as more people had been brought to justice. He also stated that the perceived injustices in the Symeou case had not been caused by the EAW instrument itself but resulted from the poor prison conditions in Greece.[257] The Bar Council emphasised that only a relatively small number of those extradited from the UK have been British nationals, with the Police Foundation stating that in 2011, 93% of the individuals surrendered by UK under the EAW were foreign nationals.[258]

Should the UK continue to participate in the European Arrest Warrant?

152. Many of our witnesses were of the view that the Government should seek to rejoin the EAW, were the opt-out to be exercised.[259] Stephen Booth said that the police's concerns about losing the EAW should be listened to.[260] Dominic Raab MP said the EAW needed to be reformed but did not advocate "throwing the baby out with the bathwater". He, alongside Timothy Kirkhope MEP and Anthea McIntyre MEP, suggested that the Government should use the opt-out as an opportunity to press for modest reform of the EAW as a condition of opting back in.[261] FTI also considered that reform of the EAW was essential but, as they did not expect the reforms to be put in place before the decision on the opt-out must be made, would be content provided a commitment to reform it was secured.[262] The CER and Jodie Blackstock agreed but did not make rejoining the EAW contingent upon securing reforms, which FTI did.[263] UKIP and the Fresh Start Project did not want the UK to rejoin the EAW under any circumstances.[264] The possibility of implementing other "flanking" measures to improve the operation of the EAW is considered at the end of this Chapter.

Reversion to the 1957 Council of Europe Convention on Extradition

153. The Government and Martin Howe QC considered that the UK's extradition relations with Europe would be governed by the 1957 Council of Europe Convention on Extradition[265] (the 1957 Convention) if it did not rejoin the EAW.[266] UKIP agreed, but wanted it to require a prima facie case against the accused and Dominic Raab MP wanted the Convention to contain stronger safeguards. He also acknowledged that extradition under the Convention would be slower than under the EAW.[267] Others also acknowledged that the Convention could be relied upon if the UK stopped participating in the EAW.[268]

154. However, many witnesses also criticised the Convention system as being inefficient, cumbersome, slow (which resulted in long periods of pre-trial detention for suspects), expensive, technical, political, restrictive, containing a series of loopholes and subject to less judicial oversight.[269] The Bar Council considered that reverting to such a system would be a "retrograde" step.[270] Others suggested that relying upon the Convention, or other bilateral agreements, in place of the EAW would also suffer from the faults identified in the EAW, and only result in fewer and slower extraditions, which would be a worse deal for suspects and victims.[271] The legal differences between the Convention and the EAW are explored in Box 7.

155. On 25 October 2012, Kenny MacAskill MSP told the Scottish Parliament that "The Home Office might believe that [we] could revert to the Council of Europe Convention on Extradition of 1957. Irrespective of whether that is possible, however, those arrangements would not be as satisfactory. The actions and attitude of the UK Government towards Europe are jeopardising the administration of justice in Scotland".[272]

BOX 7

Differences between the Convention and the Framework Decision

The Convention was adopted in 1957 but was not ratified by the UK until 1991. It contains an obligation on the contracting parties to extradite but this is subject to a double criminality requirement—that is, the offence in question is against the law in both States—and a number of exceptions for political, fiscal or military offences. The extraditable offences are offences punishable in both the requesting and requested States by a custodial sentence for a maximum period of at least one year, and, in conviction cases, custodial sentences of at least four months. It allows the contracting parties the right to refuse the extradition of their own nationals.[273] It does not require requesting States to submit prima facie evidence but permits States to adopt this requirement if they chose to do so (the UK chose not to do so).

The Framework Decision was adopted in 2002. It removed executive decision-making from the surrender process and changed it into an exclusively judicial procedure. It simplifies the procedure for extradition and makes it quicker by imposing a scheme of time limits on the executing State. It removes the double criminality requirement with respect to 32 types of offences so long as these are punishable in the issuing Member State with at least three years' imprisonment. It also removed the exceptions for political, fiscal and military offences. Like the Convention it does not require the requesting State to submit prima facie evidence but, unlike the Convention, removes the option for Member States to require this.

156. The Bar Council suggested that, in order for the Convention to apply in some Member States, legislative changes may be required, while in others it may have been superseded following the adoption of the EAW.[274] The DPP raised concerns about the gaps and risks that may arise as a result of this situation, including the difficulties that the UK may experience in securing the return of suspects to stand trial for serious cases.[275] Helen Malcolm QC and Franoise Le Bail, the Director-General of DG JUSTICE at the Commission, referred to Article 31 of the Framework Decision, which explicitly states that it will replace all earlier treaties between Member States including the Convention. Director-General Le Bail told us that the Commission Legal Service was investigating the legal situation.[276]

The consequences for the UK of opting out of the European Arrest Warrant

157. The Lord Advocate told us that he would have "real concerns" if the UK were to opt out of the EAW[277] and the DPP told us that to do so would result in a poorer deal for victims of crime.[278] ACPO and Mike Kennedy emphasised the significant percentage of EU nationals from other Member States that were arrested in London each year and suggested that it would be more difficult to return them to their Member State of origin.[279] ACPO stated that withdrawing from the EAW would be a mistake and could jeopardise justice and public safety,[280] while the President of Eurojust told us that it would make it harder for the UK to tackle cross-border crime.[281]

158. The same problems arising from having to negotiate and rely upon alternative arrangements, which have already been discussed in Chapter 5, were also raised in relation to replacing the EAW.[282] JUSTICE, Justice Across Borders and Dr Maria O'Neill stated that criminals would exploit any differences that arose between any different extradition arrangements that were put in place[283] and others suggested that it could result in the UK becoming a "bolt-hole" or "safe haven" for criminals engaged in organised crime or terrorism, because they were subject to more cumbersome extradition procedures than elsewhere.[284] Regarding this possibility the Home Secretary said "I will not be doing anything that I believe would put the safety and security of UK citizens in jeopardy and that has to be the first and foremost consideration".[285]

159. The potential consequences for Ireland if the UK were to leave the EAW are considered in Chapter 9.

160. We consider the European Arrest Warrant to be the single most important pre-Lisbon police and criminal justice measure. If the United Kingdom were to leave the EAW and rely upon alternative extradition arrangements, it is highly unlikely that these alternative arrangements would address all the criticisms directed at the EAW. Furthermore, it is inevitable that the extradition process would become more protracted and cumbersome, potentially undermining public safety. If the opt-out is exercised then the Government should apply to the Commission to rejoin the European Arrest Warrant so as to avoid any gap in its application.

161. We acknowledge that in some cases the operation of the EAW has resulted in serious injustices for UK and other EU nationals. We do not belittle the seriousness of these cases. However, those injustices resulted not directly from the operation of the EAW but from the consequences of extradition, including long periods of pre-trial detention in poor prison conditions, which could also occur under any alternative system of extradition.

Possible improvements to the operation of the European Arrest Warrant

162. The operation of the EAW was considered by Sir Scott Baker's review of the UK's extradition procedures in 2011.[286] His report concluded that the EAW had improved the scheme of surrender between Member States and that broadly speaking it had operated reasonably well. The report's recommendations for how the EAW could be improved are set out in Box 8.

BOX 8

Sir Scott Baker's Extradition Review: the European Arrest Warrant recommendations

The Government should work with the EU and other Member States through the Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings and other measures to urgently improve standards.
Any future amendment to the Framework Decision, or any future related legislative instrument, should include a proportionality test, to be applied in the issuing Member State.
In the meantime, consideration should be given to encouraging Member States to consider using other measures of cooperation where appropriate, including: recognising and enforcing fines imposed by Member States; the European Supervision Order, in part, to address the problem of lengthy periods of pre-trial detention; transferring probation or non-custodial measures to the UK for execution rather than issuing an EAW for a sentence imposed in default; transferring sentences to the UK where appropriate; serving a summons pursuant to Part 1 of the Crime (International Cooperation) Act 2003; and using a European Investigation Order (once this is in force) to allow for an efficient and effective investigation to take place before a decision is taken about whether to issue an EAW.
The accused and convicted persons should be legally represented in both the issuing and executing Member States. Any move toward "dual representation" would have to proceed on the basis of an EU-wide initiative.

163. In their response to Sir Scott Baker's Review the Government stated that they intended to "work with the European Commission, and with other Member States, to consider what changes can be made to improve the EAW's operation".[287] The Home Secretary told us that the opt-out provided them with an opportunity to look at the EAW, and that they were now consulting other Member States about possible reforms, but that that these discussions were at an early stage. She also stated that the Government had not made any suggestion that they intended to leave the EAW.[288] FTI and the LSEW welcomed the Government's intention to work with their European partners to reform the EAW.[289]

164. While many of our witnesses supported the UK's continued participation in the EAW, they were not blind to its failings and were unanimous that its implementation needed to be improved.[290] Others stressed that the problems with the EAW's operation needed to be resolved within the existing framework rather than outside, which would be easier for the UK to achieve as its negotiating hand would be stronger.[291] JUSTICE considered that all of the problems identified with the EAW could be resolved through existing or forthcoming proposals, including implementation of the European Supervision Order and procedural rights measures.[292] The improvements that were suggested are considered below.

The prospects of amending the Framework Decision

165. Hugo Brady noted that there was reluctance to reopen the original measure because it had been very difficult to agree in Council and, now that the European Parliament had to agree such measures under the OLP, the task of agreeing an amendment to it may be even more difficult to achieve.[293] We understand that the Commission is reluctant to reopen the EAW[294] and Director-General Le Bail appeared to confirm this when she told us that the Commission detected no appetite among Member States to amend the EAW and that it could be improved by other means.[295] However, we note that a minimum of seven Member States have the option of initiating legislation in this respect, as the CER, FTI and the Home Secretary acknowledged.[296]

Proportionality

166. In 2011 the Joint Committee on Human Rights produced a report on the UK's extradition policy and, among other things, urged the Government to work with the Commission and other Member States to amend the Framework Decision to include provision for a proportionality principle.[297] A number of our witnesses suggested that the Framework Decision may need to be amended to include, among other things, a proportionality test.[298]

167. Although the use of EAWs for trivial offences has occurred in different parts of the EU, the problem is commonly associated with Poland, as it makes the largest number of requests to other Member States, particularly the UK. One of the reasons for this is said to be that Polish prosecutors do not have the discretion not to prosecute. The Police Service of Northern Ireland (PSNI) and the DPP agreed that proportionality was an issue but that the number of EAWs issued for trivial offences had reduced in recent years.[299] The Police Foundation attributed this reduction to the work carried out by the Metropolitan Police Service, the Home Office and the CPS with the Polish prosecution authorities.[300] Director-General Le Bail also emphasised that the Commission's work with the Polish authorities was yielding results, including a 20 per cent reduction in the number of EAW requests made by that Member State.[301] The DPP provided figures to the Committee which show that the number of EAW requests that Poland has made to the UK has reduced by approximately 40 per cent in the period from 2009/10 to 2011/12.[302]

168. During our inquiry, the CJEU issued its judgment on the Radu case (on 29 January 2013).[303] Some of our witnesses had hoped that, in line with the Advocate General's Opinion, this judgment would expressly permit proportionality considerations, as well as stronger human rights considerations, to be taken into account during the future consideration of EAW requests.[304] However, the CJEU did not follow the Advocate General's Opinion and instead adopted a narrow approach to the case. Despite this, FTI thought that the CJEU could still play a role in improving the operation of the EAW in due course but Martin Howe QC considered this to be the proper role of the legislature, as did Dominic Raab MP, who was also critical of the CJEU for having taken so long to consider such matters.[305] Jodie Blackstock, James Wolffe QC and the Lord Advocate also referred to the recent consideration of proportionality matters in cases concerning the EAW before UK courts.[306]

169. Some of our witnesses emphasised the role of existing guidance on use of the EAW[307] but the DPP considered the non-legally binding status of the guidance to be problematic,[308] while the Home Secretary stated that the use of guidance and non-legislative routes to improve the operation of the EAW had not so far produced the desired results.[309]

170. The COPFS and Justice Across Borders emphasised the role played by the European Judicial Network in facilitating contact between judges and prosecutors.[310] However, UKIP considered that "secretive institutions" such as this posed "at least a potential threat to the independence of judiciary".[311] In this respect, we note that the Judicial Office, which supports the judiciary in England and Wales, has announced a project to establish a European Arrest Warrant Judicial Network which will create a permanent support structure for judges in all Member States who regularly deal with the EAW. The Network will develop and expand the existing EAW Network of Judges, set up in 2010, assist in the delivery of training in the operation of the EAW across all Member States and provide opportunities for judicial office holders from all Member States to contribute their views on how the EAW is working in practice.[312]

Human rights

171. The LSEW and Baroness Ludford MEP drew attention to section 21 of the Extradition Act 2003, which allows a judge to discharge someone subject to an extradition request if they decide that the person's extradition would be incompatible with their Convention rights as set out in the Human Rights Act 1998.[313] The Lord Advocate stressed that the compatibility of an EAW request with Article 8, ECHR was regularly taken into account under this provision.[314] UKIP suggested to us that one of the results of the CJEU Radu judgment had been to "overrule" the UK Parliament and hold that section 21 was "illegal and void", which in any event they already deemed to be "illusory and of no practical effect".[315]

172. In our view UKIP's interpretation of the Radu judgment is mistaken. It is clear to us that courts in the United Kingdom continue to have the option to decline an EAW request on human rights grounds.

Minimum procedural rights for defendants

173. UKIP and Dominic Raab MP cited Lord Justice Thomas's evidence to the Scott Baker review, when he said "One of the problems with the way in which a lot of European criminal justice legislation has emerged is that it presupposes a kind of mutual confidence and common standards that actually don't exist".[316] FTI made a similar point, saying that the underlying assumption of mutual recognition PCJ measures—that trial standards and compliance with human rights are at the same level across the EU—was a flawed one.[317] The Centre for European Policy Studies has also published a report which considers this issue, among other things.[318]

174. In 2009 the Council adopted a "Roadmap" of five legislative measures and a Green Paper concerning criminal procedural rights. The Commission has brought forward three measures in the Roadmap, which concern the right to interpretation and translation; the right to information; and the right to legal advice. We have already noted that the UK decided to participate in the first two proposals, which have been adopted, but not the third, which they have reserved the right to opt in to after it has been adopted.[319] The Lord Chancellor told us that he did not object to this measure in principle.[320]

175. Many of our witnesses considered that the UK should opt in to all of the Roadmap measures.[321] We also note that, in the same evidence session referred to above, Lord Justice Thomas went on to emphasise that he thought that many of the problems related to the EAW could be solved by adherence to the Roadmap measures.[322]

European Supervision Order

176. The European Supervision Order (ESO) was adopted in 2009 and the deadline for Member States to implement its provisions into national law was 1 December 2012.[323] We have already noted that it has not yet been implemented in UK law. It provides a mechanism under which a judicial authority in Member State A could impose a non-custodial supervision measure (grant conditional bail, in English law terms) on the foreign suspect which would be recognised and enforced in Member State B where he is normally resident. The authorities in Member State B would supervise compliance with the order and would also be responsible for returning him for trial if he did not return on his own when summoned to do so by the trial State. When this Committee examined the Commission's proposal for an ESO it concluded that it was "a meritorious and welcome proposal. It addresses a serious issue affecting the liberty of the individual and has the potential to reduce hardship for some thousands of EU citizens".[324]

177. Many of our witnesses emphasised that the implementation of the ESO could help to mitigate some of the EAW's problems by allowing British citizens to be supervised in the UK until the trial in the requesting Member State was ready to begin, thereby helping to avoid a repeat of the Symeou case.[325] However, the Lord Chancellor told us that while the ESO could bring benefits, he also expressed doubts about how easy it would be to ensure that someone on bail in another Member State could be returned to the UK to stand trial. He said "I am not saying that we oppose the European Supervision Order; I am not saying that we support the European Supervision Order; I am saying that it is not as clear cut as you might think".[326] During a Lords debate on 4 March 2013, Lord McNally, the Minister for Justice, echoed the Lord Chancellor's point when he said

"In practice, the European Supervision Order is unlikely to help to avoid lengthy pre-trial custody in cases where an EAW has been used to secure the return of the suspect. That is for the simple reason that, the EAW having been needed to secure the return, the suspect has shown himself to be a flight risk, having already resisted voluntary return. In those circumstances, it is difficult to see the same suspect persuading the court to allow him to return home again".[327]

Following this debate we note that FTI wrote to Lord McNally to contest this statement, as well as making it clear that in their view the Government's failure to implement the ESO into UK law meant that "some British citizens may needlessly spend months or years awaiting trial away from home".[328]

178. At present, there is no EU-wide summons procedure available. Two of our witnesses mentioned the potential utility of such a procedure in passing and we also note that one of Sir Scott Baker's suggested improvements to the EAW involves relying upon an existing non-EU measure in this area.[329]

179. We very much regret that the Government have chosen not to implement the European Supervision Order, pending their decision on the opt-out being made, and urge them to implement this measure without further delay. There is no justification for British citizens to be deprived of the benefits of this measure, especially as it could help prevent a repeat of the Symeou case.

180. We consider that the best way to achieve improvements in the operation of the EAW is through a process of negotiations with the other Member States; the use of existing provisions in national law; informal judicial cooperation; the development of jurisprudence at the Member State and EU level, including on matters of proportionality, as well as the immediate implementation of flanking EU measures such as the European Supervision Order and the Roadmap procedural rights measures, to which the Government should opt in where they have not already done so.