British Tory MPs are furious that the Home Secretary Theresa May has gone soft on the European Arrest Warrant. Among others also annoyed at the UK Government’s U-turn, backing a new version of the EAW, will be Julian Assange – one of the victims of the measure that makes it easier to extradite alleged criminals without too much legal protection in their host countries. Assange, as explained below, might have benefited from a more nationalistic, less Eurocentric extradition regime.
The EAW is one of the 133 European Union law and order measures in the European Union Lisbon Treaty that May opted out of – and also one of 35 she wants to opt right back into, though in a reformed version. The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned by human rights issues. Enfield North MP Nick de Bois for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. (Nick de Bois MP pdf)
Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.
So what exactly are the perceived problems with the European Arrest Warrant? The issues that come up again and again are:
1) Cost: Should UK courts and police always be put to heavy cost of dealing with often minor foreign offences?
2) Mutual recognition: Should we continue to treat the legal systems of other EU countries as the “same” as Britain’s in terms of standards and human rights?
3) Prima facie evidence: should the foreign authorities issuing a warrant show they have a good case for wanting an individual extradited – as used to be the case?
4) Correspondence/double criminality (another element of the mutual recognition issue): should Britain recognise foreign crimes just because they are criminal offences in those EU countries or should it operate “double criminality” ie only extradite on crimes that correspond to criminal offences in Britain?
5) Fishing expeditions: Are the warrants being used as an aid to investigation rather than prosecution?
6) Bail and other issues after extradition: Shouldn’t there be in place a system of bail so people extradited abroad are not left in prison on remand simply because they are foreign and likely to flee?
7) The “forum bar”: If the alleged offence was largely committed in Britain, should there be a bar to extradition – as argued in the Gary McKinnon Pentagon hacking and Baber Ahmed cases?
The issues examined
Issue (1), the cost of dealing with minor crimes, seems to be May’s particular worry. But this also relates to issue (2): what constitutes a judicial authority competent to issue the warrants – at the heart of the Assange appeal last year against extradition to Sweden to be questioned on alleged rape. If any old police or prosecuting authority or indeed any ministry of justice can issue warrants with little or no judicial oversight, then excessive numbers are likely to be issued for more and more minor offences.
Although the UK Supreme Court considered in Assange’s case that the state practices of other member states within the EAW regime had to be recognised, use of non-judicial authorities to sign the warrants has been controversial within the EU.
The Council of the European Union in 2009 recommended member states “to consider restricting the mandate of non-judicial authorities, or to put equivalent measures in place so as to ensure compliance with the Framework Decision [on EAWs] with regard to the powers of judicial authorities”. (Statewatch pdf)
This also speaks to issue (3): should prima facie evidence be required with a warrant? The argument is that if a prosecutor (as opposed to a court) or police official has issued the warrant, there will have been no judicial test made in the issuing country of the evidence on which it was issued. The prosecutor need not justify it in court. So it arrives in Britain untested and UK authorities are obliged to observe it, also untested – it’s a tick-box system. Before the EAW there would have been a court case in Britain to ensure there was a prima facie case to answer before sending an individual off to face uncertain justice in another jurisdiction.
‘Cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights’ – Nick de Bois
Issue (4): Double criminality/correspondence. For serious crimes the issuing authority is not required to ensure the offence for which it is seeking extradition is also a crime recognised in the nation where the accused is residing. Article 2(2) of the 2002 Framework Decision says:
“The following offences, if they are punishable in the [warrant] issuing state by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years, and as they are defined by the law of the issuing state, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to recognition of the judgment and enforcement of the sentence imposed”.
There is a long list of serious crimes including belonging to criminal gangs, racketeering, arson, rape. In effect if one country calls a particular set of behaviours “racketeering”, for example (and applies a maximum jail sentence of at least three years), that must be recognised as being racketeering in another country. The implication, though, is that “double criminality” can be at issue for offences attracting lesser penalties.
Assange might have an interest in this issue, arguing that the nature of the rape offence he is being accused of in Sweden would not be recognised as rape in Britain – though perhaps the fact that UK prosecutors would assume a British jury, on current records for rape convictions, would probably acquit him is not quite the same thing. Nevertheless the Swedish offence is not necessarily equivalent to that in English law since “consent is not a part of the rape law at all” in Sweden whereas it is crucial in Britain (according to this not pro-Assange Swedish journalist).
Assange would have certainly argued, under issue (5), that the warrant against him was being used simply as “as an aid to investigation rather than prosecution” – a further criticism of the warrants (noted in a 2011 Home Office review of extradition: A Review of the United Kingdom’s extradition arrangements).
He is wanted for questioning and has not been charged in Sweden. Some argue against this view on the basis that the Swedish system works in a different way from England’s and that the Swedish police’s intentions are the equivalent of a charge and require his presence – which raises Issue (2) mutual recognition issues again. Britain might have different processes which it considers more just and rigorous to deal with allegations of criminality. Mutual recognition requires acceptance that someone being sent abroad to face justice might be treated in a way that would be unacceptable in the UK.
Among particular concerns in this regard is that in some jurisdictions government ministers (rather than judges or prosecutors) have a role in issuing the warrants – in other words there is a political dimension that offends against the principle of separation of powers. The Home Office review recommended “any future negotiation of the terms on which the European Arrest Warrant is to operate should bear in mind that the [2002 European Council] Framework Decision was intended to remove the executive from involvement in the surrender process”.
Issue (6) is about what happens to the accused on arrival in the country issuing the warrant, in particular the likelihood that the authorities could keep someone locked up without bail simply because of fear that they will abscond abroad. It is argued too that many European jurisdictions do not operate habeas corpus so an accused person is in danger of remaining in custody for extended periods before trial. This is a fear expressed by Assange – though some might point out he has shown a clear willingness to face any privation rather than turn up for his police interview. He certainly has not shown he wouldn’t abscond.
There are also issues about translation services on offer to the accused, local legal representation, legal aid – all matters to do with a fair trial.
Assange might dream one day of stepping out of his dark Ecuadorean embassy room as a hero of freedom and resistance to oppressive supra-national forces – but he would be wise not to hold his breath.
Note: Changes to UK extradition law, adopted in March 2014, sought to prevent disporportionate use of extradition for minor offences and long periods in foreign jails without trial. See Sections 156 and 157 of the Anti-Social Behaviour Crime and Policing Act. Section 156 is an amendment to the 2003 Extradition Act that says:
“A person’s extradition to a category 1 territory [ie one that has issued an extradition warrant] is barred by reason of absence of prosecution decision if (and only if)—
(a) it appears to the appropriate judge that there are reasonable grounds for believing that—
(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii) the person’s absence from the category 1 territory is not the sole reason for that failure” (Extradition Act new Section 12A).
This, on the face of it, looks helpful to Assange though it would probably be argued that the only bar to the decision to prosecute him is his absence. It depends what the extradition is being sought for: mere questioning or in effect prosecution. One WikiLeaks sceptic, however, notes that any legal changes are not retrospective.
See also: Explanation of Assange’s Supreme Court case against extradition Assange and Mance
Plus: More on Assange extradition case
Also of interest: News International Hacking judgment points to illegality of GCHQ spying
A 2011 journal article for the SSRN (Safeguarding Suspects’ Rights in Europe: A Comparative Perspective, Jackie Hodgson) enumerates some of the problems with the EAW and mutual recognition. It takes an optimistic view of recent developments, saying: “First, the EU has agreed on a program of procedural rights for suspects (the Roadmap), to be implemented incrementally rather than in a single measure. Second, in contrast to the trend at state level, the European Court of Human Rights (ECtHR) has delivered a series of judgments that set out in the strongest terms the importance of prompt and effective custodial legal advice as part of the accused’s right to a fair trial. Providing suspects with access to a lawyer was the stumbling block in earlier EU attempts to establish uniform procedural protections.This strand of ECtHR jurisprudence is more narrowly prescriptive in setting out what is required, leaving no room for arguments based on procedural difference across legal traditions.”
Council Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (2009) is here
On Issue (7): Forum bar
A House of Lords amendment on the issue of extradition for crimes that take place largely in Britain (such as the McKinnon case) to the Police and Justice Bill was never enacted. It stated:
(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory [that issued the warrant].
(2) In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.
COMMONS DISAGREEMENT AND REASON
The Commons disagree to this Amendment for the following Reason –
83A Because the Lords Amendment, taken with Lords Amendments Nos. 81 and 82, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.”
See also: The Human Rights Implications of UK Extradition Policy – Human Rights Joint Committee 2011.
Nevertheless under Article 3 the 2002 Framework Decision does allow “Grounds for mandatory non-execution of the European arrest warrant” inter alia:
“7. where the European arrest warrant relates to offences which:
(a) are regarded by the law of the executing Member State [ie where the accused is at the time] as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or
(b) have been committed outside the territory of the [warrant] issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.”
The Home Office review was particularly worried at the lack of a proportionality test in the Framework Document. It noted:
“Among the factors to be taken into account when assessing the proportionality of a European arrest warrant
(or any equivalent instrument) are:
(i) the seriousness of the offence;
(ii) whether there is a reasonable chance of conviction
(iii) the harm caused to the victim or the community;
(iv) the likely sentence (in an accusation case);
(v) the previous convictions of the requested person;
(vi) the age of the requested person;
(vii) the views of the victim;
(viii) any reasonably alternative options for the issuing Member States such as
proceeding by way of summons.