Maria Fletcher, Senior Lecturer in Law, University of Glasgow, and Steve Peers, Professor of Law, University of Essex
The UK government is currently making its final decision on which EU laws on criminal law and policing adopted before December 2009 that it wishes to opt back in to, as from 1 December 2014. The most controversial decision it has to make is whether to opt back in to the European Arrest Warrant (EAW). In this blog post, we set out the case for opting back in to this law.
As part of the Treaty of Lisbon, the Labour Government of the day secured a rather unique legal opt-out for the UK in relation to EU crime and policing matters, which takes effect on 1 December 2014 and which is known as the ‘Protocol 36 opt-out’. This was to be on top of the already secured position whereby the UK (and Ireland), by default, does not participate in the EU police and criminal justice (or asylum and immigration) agenda unless it chooses to opt in to individual measures on a case by case basis, either during the proposal stage or after their adoption.
The Protocol 36 opt-out, completely unprecedented in terms of scope and only available to the UK, entitles the UK to withdraw en masse from EU measures concerning police and criminal justice adopted prior to the Lisbon Treaty (1 December 2009 to be precise). In principle it is an all or nothing opt out in the sense that the UK must opt out of all of these pre-Lisbon measures, or none at all. But, in the event of its exercise, the UK also has the right, within limits, to opt back in to individual measures selectively.
The UK Government officially invoked the opt-out (of 130 measures) in July 2013 and simultaneously produced a list of 35 Pre-Lisbon measures it considered to be in the ‘national interest’ to rejoin. The Government then began negotiations with the European Commission and the Council to seek to rejoin that list of 35 measures – the terms of the Protocol requiring approval from one or other of those institutions depending on the precise nature of the measures. For measures linked to the EU’s ‘Schengen’ rules, such as the Schengen Information System database, the UK needs the consent of all Schengen States to opt back in. For other measures (the majority, including the EAW), the UK needs only the consent of the Commission.
According to the Protocol, the UK and the EU institutions must ‘seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.’ The UK is therefore likely to be able to insist on opting back in to its chosen measures unless it is opting back in to only part of a package of measures that are deemed to be inextricably linked (the coherence requirement) or it would be impossible or very difficult in practice for technical reasons to opt back in to one measure but not another (the operability requirement).
At the domestic level, scrutiny procedures by Parliament have been thorough, if fraught, due to the Government’s lack of timely information. The relevant committees of both the House of Lords and the House of Commons have conducted inquiries and produced numerous reports on this matter and both Houses have been promised votes on the overall package of measures to rejoin following the conclusion of negotiations with the Commission and the Council and on the basis of Impact Assessments. But time is running out, especially if the Houses are to be given enough time to reflect upon this important matter.
Although the timetable relating to the Protocol 36 opt-out is entirely out of the hands of the current government, the plain reality is that the timing could not have been worse. With Ukip on the rise and ostensibly gaining ground amongst the traditional Tory vote and now just months away from a general election, the government and in particular, the Conservative party, is seemingly running scared on the topic of Europe.
And one criminal justice measure in particular seems to be fuelling particular panic.
The European Arrest Warrant
The EAW has operated in the UK for a decade, and has made it onto the list of 35 that the Government wishes to rejoin as of 1 December 2014. It is without doubt the most high-profile and controversial of the EU’s criminal justice measures. In essence it provides a simple and speedy procedure designed to surrender people between EU states for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention. It works on the basis of mutual recognition, such that the authorities in the Member State in receipt of a warrant execute it (arrest and surrender the wanted individual) more or less automatically.
This way of cooperating amongst states – which is based on trusting the integrity of another state’s criminal justice system – was chosen, and indeed advocated, by the UK government of the time, precisely because it entailed the least intrusion by EU law into domestic systems. Rather, decisions or rulings by a criminal court in the UK must be accepted and enforced in any another Member State and vice versa.
It is widely recognised that the EAW has created a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition in Europe compared to its predecessor 1957 European Convention on Extradition (see the House of Lords committee analysis). Since 1 January 2004, when the EAW scheme came into force, the average time taken to extradite a suspect in cases with consent is just 17 days and in non-consensual cases it is has fallen from around a year to 48 days. The number of wanted persons surrendered to the UK in 2013 was 127, compared to 19 in 2004; and surrendered from the UK upon the request of all other EU Member States was 1126 in 2013 compared to 24 in 2004. Speaking on 9 July 2013 the Home Secretary said ‘[s]ince 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspects for child sex offences, 27 for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant.
The success of the EAW might be illustrated by the extradition from Italy, in less than eight weeks, of Hussain Osman, who was wanted in connection with the attempted July 2005 London bombings; he was subsequently sentenced to a minimum term of imprisonment of 40 years. More recently, Jeremy Forrest, the teacher who was sentenced in June 2013 for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest.
Notwithstanding these positives, the EAW is not beyond criticism and the most serious two concerns are considered here. It is worth noting however that other criticisms of the EAW appearing in the public debate are, frankly, contrived to fuel anti-EU sentiment and fear. For instance, outrage that the EAW can be used by foreign courts to extradite Britons and in unacceptably large numbers is misplaced on two counts. First, the EAW does indeed require all Member States to surrender nationals, but unlike some other Member States, the UK had never treated nationality as a bar to extradition anyway. The UK had also removed the obligation of the requested State to show a prima facie case in respect of extradition requests coming from Europe, far in advance of the EAW abolishing the same.
And second, the UK may be being required to surrender increasing numbers of individuals to face prosecution under the EAW, but the overwhelming majority (96%) of those are not British nationals – and presumably, on that basis alone, there would not be much appetite to keep them here!
Turning then to the two particularly serious criticisms of the EAW. First, it has resulted in a number of British suspects being surrendered to countries where they then face excessive periods in prison before trial – bail being notoriously difficult to attain as a foreign suspect. Any such instance is unhappy and unacceptable and it certainly fuels the critics who push for the UK’s withdrawal. But alternative options to improve the situation do exist and we would submit that they are preferable to opting-out. For one, the EAW legal instrument could be amended to permit the requested state to postpone the execution of the warrant until the issuing state is ready to proceed with trial, and the UK could push for this. Along these lines, recent amendments to UK law (see further below) mean that a suspect will not be handed over on the basis of an EAW unless he or she has been charged by another Member State.
Another route is to implement an EU measure which specifically tackles this problem - the so called ‘European Supervision Order’. Adopted in 2009, the ESO enables a suspect or defendant who has been granted a pre-trial non custodial supervision order (bail) in another Member State to be supervised in their home MS until such time as their trial takes place. This instrument would allow foreign suspects to be transferred home while awaiting trial and equally, UK nationals to return home while they are on bail. For sensible reasons therefore, this measure is among the 35 instruments which the current government is seeking to opt-back in to.
Finally, a longer term way of addressing the EAW problem is to address its root causes – namely to force those Member States whose criminal justice systems are deficient in these respects to improve the way they treat suspects and defendants. The UK government appears willing to participate partly in this agenda to ensure minimum standards of procedural safeguards to those who find themselves caught up in the criminal justice system (including victims) across the whole EU. To be sure, agreement on these issues across Europe is not easy, but it is a measure of the level of commitment to ensuring fairness and justice that efforts are made to secure appropriate safeguards and standards of protection in addition to securing speedy and effective prosecutions.
In any event, anyone who objects to the EAW on the grounds that it sometimes results in miscarriages of justice should hardly be among those calling for repeal of the Human Rights Act and the UK’s withdrawal from the ECHR, given that one of the main aims of both these measures is precisely to avoid miscarriages of justice. But in fact, the critics of the EAW are often also critics of the ECHR.
The second serious criticism of the EAW is its excessive scope, which enables it to be used in some cases that are trivial, or stale, or both. This causes a headache for UK law enforcement authorities, who must expend significant resource following up all warrants, including those for minor offences. This instrument was designed with serious crimes and organized criminality in mind and the absence of a proportionality requirement undermines this – although in practice a permissible ‘human rights’ requirement, which has been enshrined in UK legislation implementing the EAW, does mitigate the disproportionate impact. It also worries those who speak for the interests of suspects and defendants.
This problem could be solved at EU level by amending the EAW legislation to include a proportionality requirement (which could be similar to the rules in the recently-adopted European Investigation Order). The European Parliament has also suggested that the EAW rules should incorporate such a rule (along with many other reforms). This issue could also be addressed by creating a workable system specifically for dealing with minor or so-called ‘disorganised’ criminality committed across borders.
Acknowledging that reform is needed, the Home Secretary has already acted upon her promise to pursue changes at the national level by amending the UK legislation implementing the EAW, the Extradition Act 2003, in order (among other things) to introduce rules on proportionality, to provide that a person will not be surrendered if he or she has not been charged, and to refuse to surrender persons if there are charges pending against them in the UK.
So, why then has the UK Government chosen to opt-back in to this measure? To put it simply, as a tool for law enforcement, the relevant UK authorities are convinced that it is, on balance, a good thing. The Association of Police Chief Officers has said that the EAW ‘gives us a stronger, more effective means of arresting dangerous criminals across borders and thus keeping our communities safe at home – it is not an instrument we can afford to lose.’ In fact the evidence amassed during the Protocol 36 parliamentary enquiries overwhelmingly supports retaining the EAW.
It is unlikely that the UK could continue to extradite suspects and criminals in the same way even if it opts-out of the EAW. Certainly it cannot be taken for granted that other Member States would be able to continue to send EAWs to the UK, or execute EAWs coming from the UK, as a matter of law – indeed their implementing legislation would preclude this if it refers only to the EU ‘mother’ legislation, and this would arguably be illegal as a matter of EU law. And any political will to change their arrangements might be stretched by the UK’s unilateral rejection of a previously unanimously agreed instrument, which, after all is supposed to be based on mutual trust.
In this event, extradition between the UK and other EU Member States would essentially fall back on traditional procedures agreed in 1957 under the auspices of the Council of Europe (a non-EU international organization that is most well known for the European Convention on Human Rights). Such procedures are discretion-based, follow a ‘request model’ and are subject to the ultimate control of the executive (making it a political rather than a legal matter). As compared to the EAW (as summarized above), these features combine to make it slow, costly and uncertain, potentially undermining public safety – an almost unthinkable backward step in the cross border pursuit of criminal justice.
It has sometimes been suggested that the UK could replace the EAW with an extradition deal with the entire EU, or with bilateral deals with individual Member States (see the suggestions on the Conservative Home website). While the EU has negotiated an extradition treaty with Norway and Iceland, this took years to negotiate and has not yet entered into force eight years after its signature. Furthermore, this treaty is nearly identical to the European Arrest Warrant. So this process is not efficient and would not free the UK from compliance with most of the EAW’s rules (which the critics of the EAW system dislike so much).
In any event, there is no time before the absolute deadline of 1 December for the UK to opt back in to the EAW to develop an alternative system. There is now little time even to draw up transitional rules which would govern the situation if the UK failed to opt back in on that date. In the absence of such transitional rules, there will be a doubtful legal basis for continuing to arrest, detain or surrender people who are sought by the UK in other Member States or vice versa as of that date.
More generally, having less stringent extradition laws in the UK than the rest of the EU would risk turning the UK into a sort of ‘Costa del Crime’, since criminals might be attracted to come here in light of the relative ease of not being extradited. Conversely, the rest of the EU would become a more attractive bolt-hole for anyone committing crimes in the UK, in particular those who flee to the state of their nationality and argue that they should no longer be extradited from that State (this was the common practice of continental Member States before the EAW was adopted).
It is certainly true that alarmist press coverage has fuelled a widely held belief that ‘Brussels’ is planning to impose on Europe a single, common uniform system of criminal justice. This quite simply is not the case in and furthermore, it cannot be the case under the existing legal framework – there is simply not the political appetite for this amongst the other 27 member state governments, who collectively and for the most part constitute ‘Brussels.’ Even the most potentially ‘intrusive’ EU criminal law measure – the creation of a European Public Prosecutor - which is still at proposal stage, would only be able to investigate, prosecute and bring to justice those involved in offences against the Union’s own financial interests. The UK has opted out of this proposal, and any extension of its scope would be limited to ‘serious crime having a cross-border dimension’ and require the unanimous approval of all participating Member States and the European Parliament.
The ‘in/out’ option that has emerged in domestic politics is crude and dangerous. The promise of a referendum along those lines by 2017 has seemingly set in train a period of frenzied, mis-leading and alarmist commentary. This intervention seeks to explain some of the basic legal facts and fiction around the UK’s position in relation to EU criminal law.
The Article 36 opt-out does not and cannot rid the UK of the entire EU criminal law agenda, even in the event that the UK Government chose not to exercise its right to seek to rejoin certain measures. It cannot simply ‘walk away’ from EU criminal law. Any pre-Lisbon measures amended since 1 December 2009 and any new measures adopted since that date are not subject to the Protocol 36 opt-out. And the UK has already committed itself to many of these. This legal reality appears to have been misunderstood or ignored in much of the debate amongst those pushing for the exercise of the opt-out. The fact is that the Protocol 36 opt-out is less about repatriating powers from Brussels than about degrees of future participation in a system already in place. The UK is in a very privileged position in this sense and its ongoing willingness to engage in this agenda is to be welcomed in the interests of safety, security and justice for UK nationals, if nothing else.
The EAW is by no means perfect and reflection, review and reform should never be off the agenda. On balance we believe it to be a positive force and as such it is preferable to be ‘in’ it – with a chance to shape it – than ‘out’ of it. Much the same goes for the European Union itself.
Europe's leaders have recently reiterated their general commitment to accommodating different national positions on integration in the EU: ‘Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist.’ It would seem that there is a real future for even a typically skeptical United Kingdom in this very modern club of nations whose aims are to promote peace, the well-being of its peoples and its values of respect for human dignity, freedom, democracy, equality, respect for human rights and the rule of law.
Barnard & Peers: chapter 2, chapter 25