Professor Valsamis Mitsilegas argues that we need clarity on the European Arrest Warrant so that this logical and useful legal instrument does not fall victim to an emotive political bun fight.
12 November 2014
The political storm surrounding the "on again off again" parliamentary vote on the European Arrest Warrant (EAW) underlines the complexity of an issue which is not easily defined in right versus left terms.
It is surprising that politicians for whom law and order is high on the agenda would object to a measure that has been used to extradite nearly 250 suspected rapists, murderers and child sex offenders. Such red meat for the red tops should, one would expect, be enough to bring even the most troublesome members along.
The reality is more complex. The European Arrest Warrant goes to the heart of two separate but interrelated questions. Firstly, to what extent does the EAW degrade or diminish civil liberties for UK citizens? Secondly, is it a worth further drain of sovereignty from Westminster to Brussels?
These are legitimate questions, and it is important that we provide clarity so that a logical and useful legal instrument does not fall victim to an emotive political bun fight.
Legislation governing the European Arrest Warrant was adopted in the aftermath of the 9/11 terrorist attacks. The context of the time demanded that governments should be able to move much more swiftly to combat the risk of criminality generally and terrorism particularly. The aim of the EAW was to greatly speed up extradition proceedings between EU Member states, and to remove legal and practical obstacles to judicial cooperation.
In EU terms, the legislation itself was enacted with remarkable speed. Proposed in 2001, it was adopted the following year under the European Arrest Warrant Framework Decision.
The result was a greatly simplified system of extradition, governed by mutual recognition of judicial decisions. The system operates on the basis of maximum trust, minimum formality, and utmost speed.
The European Arrest Warrant has been effective in many of its aims, and has had some notable and high-profile successes. The impact of the legislation has been seen most clearly in the area of streamlined and speedy judicial cooperation between Member States. In 2012, Jeremy Forrest, who was arrested in France on suspicion of having an affair with a 15-year-old Sussex school girl, faced swift and successful extradition proceedings under the European Arrest Warrant System. He was extradited to the UK, where he was convicted the following year.
In 2005, Osman Hussain – a suspect in the failed London Bombings – was arrested in Rome eight days after the botched attack. He faced immediate extradition proceedings in Italy and was transferred to the UK in September.
That said, high-profile successes do not necessarily equate to good law. The speed with which the European Arrest Warrant can be enacted is undoubtedly a double-edged sword.
Human rights groups expressed concerns about the operation of the system, particularly regarding the protection of the rights of persons whose extradition has been sought. Many criticised the length of detention in EU prisons for suspects awaiting trial, problems with securing a fair trial, and the conditions to which suspects were subjected.
In response to these concerns, the EU introduced a series of measures to strengthen the rights of citizens who are subject to a European Arrest Warrant. The European Supervision Order – to which the UK sensibly subscribes - now provides mutual recognition of bail decisions, while suspects are guaranteed access to lawyers, translators, and interpreters.
Regrettably though, the United Kingdom does not participate in the European directive on access to a lawyer in criminal proceedings. This rather unedifying situation undermines the human rights infrastructure which is so crucial to the maintenance of credibility for the European Arrest Warrant. While the system has, on the one hand, provided Member State governments with a sharp judicial instrument, it should – on the other – be accompanied by ethical and rights based checks and balances.
What of concerns about handing over more sovereignty to Brussels?
It seems as if much of the rhetoric around this point addresses politics more than it does the legal system. The decision in 2013 to opt-out of all 133 EU police and criminal justice measures was – from the perspective of Eurosceptic MPs, something of a victory. The decision, one year later, to opt back in to 35 of those measures may then, seem a bit meek.
It is, however, entirely sensible. Yes, EU institutions, including the Court of Justice and the Commission, will have a greater role in UK criminal justice after December 2014. Does this weaken our hand? The evidence suggests not. The average length of time that it takes to extradite a non-consensual suspect has been cut from more than a year to fewer than 50 days. The idea that lawmakers would prefer to revert to individual extradition agreements is a strange one indeed.
Concerns around sovereignty are misplaced and over-politicisation is dangerous. Human rights concerns should be addressed on an ongoing basis, with full engagement and participation by the UK in the existing protections for suspects.
Professor Valsamis Mitsilegas is head of the Department of Law, Professor of European Criminal Law and Director of the Criminal Justice Centre at Queen Mary University of London. From 2001 to 2005 he was legal adviser to the House of Lords European Union Committee
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