UK Membership of the European Arrest Warrant

After much controversy and the conclusion by a Parliamentary Home Affairs Committee that the EAW process is “fundamentally flawed”, the UK Parliament has nevertheless voted to remain in the scheme.

On 19 November 2014, Members of the UK Parliament tabled a motion to enable a vote to take place on whether the UK should opt out of the European Arrest Warrant (EAW) scheme. The vote came out in resounding favour of the UK’s continued participation in the scheme, despite the conclusion of the UK Parliament’s Home Affairs Committee in November 2013 that the EAW process was “fundamentally flawed”.

Concerns with the EAW

Some MPs had expressed concern that British nationals were being extradited to other European jurisdictions to face prosecution for minor offences. The European Commission shares this concern and has said that the use of EAWs for minor crimes undermines the system. A number of recent cases involving extradition from the UK have, perhaps, demonstrated the lack of rigour attached to the EAW. For example, in 2009, following the extradition from the UK to Greece of a British student (Andrew Symeou), concerns arose about the reliability of the evidence against him. He was prosecuted in Greece for manslaughter and was ultimately acquitted but had to spend ten months in prison, in very difficult conditions, prior to the trial taking place. In 2010, Garry Mann was extradited to Portugal to serve two months in prison for a football hooliganism related offence committed during the Euro 2004 tournament. The English judiciary considered the conduct of his hearing to be a violation of his right to a fair trial.

However, many argue that there is no credible alternative to the EAW. Prior to the introduction of the EAW, the extradition process was subject to individual arrangements put in place between individual jurisdictions. The EAW, which was introduced in January 2004, following the EU Council Framework Decision of 13 June 2002, has certainly streamlined the process. An EAW is a common form of arrest warrant which, after issue in one member state, can be executed in any other member state in order to secure a person’s rapid extradition to the requesting state. It replaced the separate extradition arrangements in place between each EU member state.

An EAW may be issued by a national judicial authority in relation to a person who is suspected of committing an offence which incurs a maximum penalty of at least one year’s imprisonment or in relation to someone who has been convicted of an offence and sentenced to serve at least four months in prison. Perhaps the most controversial element of the EAW scheme is that, on considering whether to order extradition following an EAW being issued, a court needs only to consider whether the offence listed in the warrant is an extradition offence (in the UK, as set out in the Extradition Act 2003), and not whether there is prima facie evidence to show that the offence has been committed. Once documentation has been received by a member state, the decision on whether to extradite must be made within 60 days (although this may be extended by a further 30 days in certain circumstances). Grounds for fighting extradition following an arrest made under an EAW do exist but these are limited and include the doctrine of double jeopardy i.e. not being tried twice for the same offence.

Benefits and controversy

The use of the EAW means that the extradition process is faster and simpler. The European Commission has reported that prior to the introduction of the EAW, the extradition process took a year on average to complete and now it takes an average of 48 days.

There have also been a number of high profile cases in the UK which highlight the value of the EAW. In 2012, the school teacher, Jeremy Forrest, who fled to France with one of his pupils was extradited to England speedily under an EAW.

Many senior members of the UK legal profession support the UK’s continued participation in the EAW scheme.  In November 2014, 40 senior legal professionals in the UK signed a letter to a national newspaper setting out their support for the use of the EAW. The letter argues that the UK would become a safe haven for foreign criminals if it opted out the EAW and that the UK would not be able to speedily extradite suspects from other Member States to the UK. In addition they argue that the UK needs to continue to be a part of the process in order to lead reform of the EU’s criminal justice system.  Andrew Caplen, the Law Society President, commented that: “There is a significant danger that the UK would become a haven for criminals and would be unable to get extradition for those people it wanted to bring to justice”.

For now then, the UK remains part of the EAW system. Inevitably there will be further controversial cases and the debate over the EAW will continue. The focus now shifts to the European Commission and whether, having recognised the issues of misuse of the EAW, it can make reforms as to its use that will end, or at least further dampen, the controversies that have surrounded it.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.