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.
Background
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.
Concluding remarks
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
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