• Home
• UK Politics
• World Politics
• Policy
• Media
• Lifestyle
• Sport
• Contributors
• Topics

What the Lord Justice Scott Baker Review Should Say About The European Arrest Warrant

Nick de Bois outlines what he would like to see in Lord Justice Scott Baker's review of the European Arrest Warrant.

By Nick de Bois

17 Oct 2011, 11:15

The long awaited findings of an independent review, led by Lord Justice Scott Baker, into the United Kingdom’s extradition arrangements, looks set to be made public as early as Tuesday. The review was ordered not long after the formation of the Coalition Government and will partly focus on the operation of the European Arrest Warrant as well as our extradition arrangements with other countries outside the EU.

In the last decade, the entire structure of criminal justice in the European Union has been altered. This change has not only occurred at a supranational level but also at a Member State level. Each year literally thousands of “fugitives” are transferred between Member States under the European Arrest Warrant to face investigations, trials and lengthy stretches of remand prison. European-wide justice cooperation does have many clear and substantial benefits in the fight against cross-border crime, making it easier to ensure that the guilty face the appropriate penalty. However, the ease of cooperation and the expediency of the European must not take precedence over judicial openness, fairness and the protection of fundamental human rights.

Many notable cases, not least that of my constituent Andrew Symeou, have demonstrated how we have sacrificed justice for expediency and I hope the Scott Baker report will both recognise this and seek to redress this shortcoming.

I do accept however that there is a clear need for a European-wide arrest warrant in principle. Before its introduction, the UK relied upon existing agreements which contained many procedural failings including substantial delays and the ability of European Union Member States to refuse to extradite their own citizens in all circumstances. Before the existence of the European Arrest Warrant barriers were in place which allowed fugitives to be protecting from facing justice, secure in the knowledge that there was little to no chance of them being extradited to the country where they had committed their crimes. With the introduction of the European Arrest Warrant, the days of the European safe haven for criminals, like the Costa-del-Crime are now over – but the current legislation is fatally flawed.

For me, it is a question of balance. I do not believe that a system which has the potential to produce miscarriages of justice at one level should be tolerated in the interests of ease and expediency at another level.

There are three fundamental problems with the European Arrest Warrant which I hope the Lord Justice Scott Baker Review will deal with.

Firstly it should deal with the inability of British courts to scrutinise extradition cases; secondly it should deal with the lack of European Union-wide bail and thirdly it should deal with the complete failure that is European Union judicial mutual recognition. In the UK the Crown Prosecution Service makes the decision to charge individuals with criminal offences in complex cases. In order to make these decisions they must follow strict published guidelines and consider each case on its own merits – and in the interests of justice, not just for the purposes of securing a conviction. When taking these difficult decisions, the Crown Prosecution Service will always examine all prima facia evidence – and any decision will be fundamentally dependent on the quality of that evidence.

The EAW simply provides that so long as Member State has correctly filled out a European Arrest Warrant form, which is merely a tick-box exercise, an extradition must take place. While some high profile so-called fugitives are able to delay their extradition, the majority cannot. This means they must be extradited within 30 days if they agree to go and 60 days if they don’t.

Now while I am not expecting Lord Justice Scott Baker to insist that the UK courts examine all of the evidence behind an extradition request from a European Union Member State, I should certainly hope he wishes to see the UK to develop a veto in order to prevent some obvious erroneous extradition requests to be declined.

Second, the question of a Euro Bail must be resolved. Without it a significant number of foreign citizens to be held in European Union countries without bail for significant periods of time merely because they are foreign citizens – and therefore viewed as flight risk. The denial of bail handicaps a potential defendant in the gathering of their own evidence and the preparation of their own defence – this will always put the prosecution at an unfair advantage. I would hope that Lord Justice Scott Baker encourages the UK to seek the introduction of a European Union-wide bail provision which would not only ensure that individuals received bail but also provide that they could serve that bail in their own Member State. After all if they didn’t attend their trial when requested they could simply be re-extradited using another European Arrest Warrant.

Now I come to the most worrying aspect of the European Arrest Warrant and where I hope Lord Justice Scott Baker can make the most improvements and that is the reliance upon European-wide judicial mutual recognition. Mutual recognition makes the assumption that one Member State’s judicial system is identical to that of another. This means we have no choice but to accept that our legal system is identical and operates in the same manner as say Romania or Greece. Now clearly this is not only wrong but as the potential to cause huge problems. It allows for example for the extradition of UK citizens for crimes which are not criminal here in the UK. As abhorrent as holocaust denial and xenophobia are, they are not criminal offences here, yet we have no choice but to extradite our citizens for committing these “crimes” abroad. We must also contend with the existence of investigatory magistrates who have the power to imprison individuals while they are investigated in states like France, Germany and Spain and also the existence of judicial activism which is prevalent throughout many European judicial systems. The concept of mutual recognition is clearly untenable.

In this case I hope that Lord Justice Scott Baker acknowledges that mutual recognition does not allow for the clear judicial differences between states to be discussed and accounted for but simply just ignored. I also hope he calls for the ability to reject extradition for offences which are not considered criminal here in the UK.

If we are to have a European Arrest Warrant it needs one which seeks to protect the rights and freedoms of individuals rather than only seek an expedient process. I sincerely hope the outcome of Lord Justice Scott Baker’s review will be a whole-scale rethinking of the European Arrest Warrant which will allow the UK to protect individual freedoms and help develop a fair  judicial processes  throughout Europe.