European Arrest Warrant: Safe & Practical

Extradition is frequently a political football and last week was no exception. It appeared at one stage as if important decisions could be made about whether we remain a signatory to the Framework Decision on the European arrest warrant (the “EAW”) based on misguided ideas about the scheme. In fact, parliament voted on the EAW as part of a broader decision on whether the UK should adopt 35 EU justice measures. The government won and it looked like that might be an end of the matter. Not so. Labour took possession of the ball and aim to show in a vote today that there is overwhelming support for the EAW. This comes in the wake of the Rochester by-election. This is no coincidence. UKIP’s Treasurer last week lost his case before the High Court where he sought to argue that there should be a referendum before the UK re-joined the EAW scheme.

Underpinning the criticisms is the notion that the EAW has somehow ceded our sovereignty to the signatory states. It overlooks the fact that we have historical extradition relations with those states.  The EAW is merely a vehicle by which extradition may be requested. Prior to the scheme, countries had to prepare an extradition request that went through diplomatic channels. This necessarily meant that extradition was used less with the consequence of a justice gap. It also ignores that system of extradition is quid pro quo. If we want to request extradition of persons suspected or convicted of crimes then we have to allow those states to ask us for the same.

One could be forgiven, from some of the more extreme rhetoric, that you might get a knock on the door in the middle of the night, arrested on an EAW and be whisked to Court Number One in Madrid by breakfast. This is a clear distortion of the truth. A state may ask for someone’s surrender but that does not mean that they will get it.  There are many safeguards in the current extradition procedure and extradition may be fully contested. It is vital therefore that the government continues to ring fence legal aid in this arena because many of the arguments are technical and require significant expertise.

What is lost in this debate is that there is one system to which we are signatory that has far more potential for abuse of civil liberties. That is the Interpol Red Notice system. Any country that is signatory may seek arrest with the promise of an extradition request to follow. This is open to abuse by countries seeking to persecute political dissidents. It also means persons discharged from an extradition request on human rights grounds may be arrested should they travel if the red notice remains on the system.

The genesis of modern extradition law lies in the diplomatic agreements between sovereign states. This legacy lingers in many respects. The Framework decision that underpins the EAW and UK domestic legislation is a product of diplomatic negotiation. Many of the issues with the scheme (requests for trivial offences, delay in issuing the EAW to name but a few) may be solved by more robust discussions between member states and mechanisms put in place to minimise unfairness. In order to do that, the UK needs to be a part of the scheme. If we opt out, the UK will contain more persons who are accused of crimes abroad. We will also have to revert to more cumbersome measures to ensure the return of persons who may have committed crimes within our shores.

Gemma Lindfield is an extradition barrister at 7BR Chambers.

This article has been originally published by The Times.

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