Post Brexit : Extradition and the EAW

During the EU referendum campaign, the issue of Extradition and more specifically the European Arrest Warrant was raised as a reason that we should leave the EU, and as to why we needed to remain. However, the historical background to the EAW is not quite as it was painted during the referendum campaign (especially by the Faragist leave campaign), and its deficiencies do not necessarily or primarily stem from a lack of the evidence hurdle in the extradition process itself.

Extradition in the UK in recent history is currently under the auspice of the 2003 Extradition Act. This piece of legislation was drafted to bring into force the EAW, but it was not the point at which the issue of ‘Prima Facie Evidence’ was addressed. For this we need to go back another 14 years, to the 1989 Extradition Act. This sought to utilise the European Convention on Extradition 1957, to which end we then became a signatory to in 1991.

The 1991 act incorporates the ‘Obligation to Extradite’ into UK law, meaning that for the nations which had ratified the 1957 treaty there was an effective presumption that the necessary safeguards as to the production of evidence were in place in the requesting authority. When looking at the nations which were then signatories to the treaty, it might be held that this was not a totally unreasonable assumption.

At the same time, most of those countries held laws which protected their own nationals from extradition to other treaty participants, a fact quite in line with the provisions of the treaty itself. The clear intention of the convention was not to secure the extradition of the executing country’s nationals to the requesting state, but to return nationals who had committed a crime in their home state and had fled to avoid justice.

Despite this, the UK had no such outright law of protection – but the courts and the home secretary had the right to intervene and refuse extradition on a number of eminently sensible grounds such as a belief that the prosecution was politically motivated or that the issue would not have been a criminal matter in the UK being just two examples.

 

So why, if we were already signed up to the general principle of swift extradition without testing of evidence, is the EAW such a problem?

Firstly, despite the fact that the UK did not have a law on the statute book which expressly forbade the removal of UK citizens to foreign jurisdictions, that does not mean that there was no protection in law (as we have seen above). This wider protection is now removed with the EAW, and reduced to a tick box list of a very few exemptions which might be utilised to halt extradition under the 2003 Act. Also, it is now entirely a judicial process, the political element is now removed.

But it is in the very nature of the assumptions that the European Union makes about its member states that makes the EAW so dangerous to liberty.

The aim of the European Union is to create one nation, with one effective nationality – the total equality of treatment of citizens in that Union across all member nation states is fundamental to its existence. For this purpose, in the field of justice and home affairs too, then the EU must remove discrimination between the judicial systems of member states. However, with the EAW they have put the cart somewhat before the horse. Nations have lost the right to protect their own citizens.

Membership of the EU includes the obligation to uphold the Charter of Fundamental Rights. While at its inception it was a series of ideals, it is now an obligation in the Lisbon Treaty which is the most recent iteration of the EU’s binding agreement on its operation. But as with all ideals, ratification of a treaty does not automatically change fundamental features of how a nation, or it’s justice systems, operate in practice. Law cannot be harmonised, so it is held as a principle belief, to be equivalent – because the treaty provides that it should be.

A False Assumption

So this is the false assumption, that all the justice systems of the European Union are somehow equal, or uphold similar levels of equity between the citizen and the state. This assumption for example, that the separation of powers that we hold to be fundamental to good justice are equally held in nations that have had no recent history of this, suggests the potential for serious miscarriages of justice to occur.

When the 2003 Act was put to Parliament, Lord Lester of Herne Hill drew attention to this point:

Not to put too fine a point on the matter, and being as tactful and as diplomatic as I can, the independence of the court systems from the executives in some existing member states and some future member states of the European Union is not wholly free from doubt.   Hansard

In accepting that the ECHR is fully legislated into the domestic statute of the ‘Requesting Nation’, we make the dangerous assumption that it is properly adhered to, as it is in the UK. Not only that, but that once the citizen has been transferred to the requesting nation, then he is in a very weak position, with only the potential of consular support and no right of appeal to the European Courts until he exhausts the legal process in that nation – a process which could take several years, in which time he might be incarcerated.

Pre trial detention in some nations will also be at issue, as this submission to the Home Office by ‘Liberty’ in 2001 makes clear (page 2, section 8) as shown in concern for the specific case of one Mrs Gale and a request for extradition to Portugal. Pre trial detention, the conditions of that detention and the access to proper defence in many of the nations of the EU is not equivalent to that which we uphold in the UK.

The Baker Review

Sir Scott Baker was asked by government to review the practice of Extradition in October 2010. Amongst his findings is one that strikes me as being an issue in terms of protecting the rightful liberty of the individual from unfair extradition.

The first is that in finding that there is no evidence to suggest that suspects are being extradited without the proper production of Prima Facie evidence in the receiving nation, there seems to be no recognition that other states judicial or prosecution and evidence systems might be less than adequate:

It is important to bear in mind that extradition proceeds on the fundamental assumption (which of course may be displaced by evidence) that the requesting State is acting in good faith. (pp124)

But without the ability to challenge the evidence, and without the right to request that evidence be displayed in a UK court, how is it possible to displace this assumption?

EU Enlargement

It is really in the Eastward sweep of the EU to extend western influence into the old Soviet bloc that we see the largest issues arising from the assumption of legal equality between the states.

What might have been a reasonable agreement between the UK and Germany, the Netherlands, Austria, France, Denmark and other states with long enshrined and enforced democratic and judicial principles such as a full separation of powers, might not be reasonable as a basis for our judicial relations with other states.

The primary legal principal is that it is better for ten guilty men to go free than for one to be unfairly imprisoned. At this point, with the enlargement of the EU, and the political challenges that are being felt in other member states caused by recent events, I no longer believe that it is in any way safe to operate the EAW across the entire EU.

Conclusions

At the point of negotiating our relationship with the EU post Brexit, I believe that we should return to a bilateral level agreement on Extradition with EU states which meet our own standards of justice, detention and sentencing. Included in this should be some protection on pre trial detention, and possibly that detention for British nationals be served at Her Majesty’s Pleasure as a matter of principle when requested, with this being a reciprocal arrangement with our partners.

 

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