Maria Fletcher, Senior Lecturer in Law at the University of Glasgow, and Steve Peers, Professor of Law at the University of Essex, collaborated on this piece.
As of December 1, 2014, the UK government will have to decide which pre-December 2009 EU laws on criminal law and policing to potentially rejoin. One of the most contentious issues is whether to opt back into the European Arrest Warrant (EAW) framework. This article presents the argument for rejoining this legal framework.
Background
Under the Lisbon Treaty, the then-Labour government negotiated a special opt-out for the UK concerning EU crime and policing matters. Effective December 1, 2014, this “Protocol 36 opt-out” is unique to the UK. This opt-out is in addition to the UK’s (and Ireland’s) existing right to choose not to participate in EU police and criminal justice (or asylum and immigration) initiatives unless they decide to opt into specific measures individually, either during the proposal phase or after they are adopted.
The Protocol 36 opt-out, unparalleled in scope and available only to the UK, allows the UK to withdraw from all EU police and criminal justice measures adopted before the Lisbon Treaty (specifically, before December 1, 2009). It’s essentially an all-or-nothing opt-out; the UK must either withdraw from all pre-Lisbon measures or none. However, if exercised, the UK can selectively opt back into individual measures within certain limits.
In July 2013, the UK government formally invoked the opt-out (covering 130 measures) and simultaneously provided a list of 35 pre-Lisbon measures deemed to be in the “national interest” to rejoin. The government then entered into negotiations with the European Commission and the Council to rejoin these 35 measures, as the Protocol requires approval from one or both institutions depending on the measures in question. For measures tied to the EU’s “Schengen” rules, like the Schengen Information System database, the UK needs consent from all Schengen states to opt back in. For other measures (the majority, including the EAW), only the Commission’s consent is required.
The Protocol mandates that the UK and EU institutions “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.” Therefore, the UK can likely insist on rejoining its chosen measures unless it attempts to rejoin only part of a package of measures considered inseparably linked (the coherence requirement) or if it would be practically impossible or very difficult due to technical reasons to rejoin one measure but not another (the operability requirement).
Domestically, parliamentary scrutiny has been comprehensive but strained due to the government’s lack of timely information. Both the House of Lords and House of Commons relevant committees have conducted inquiries and issued multiple reports on this matter. Both Houses have been promised votes on the entire package of measures to rejoin following negotiations with the Commission and the Council, based on Impact Assessments. However, time is running out, particularly if the Houses are to have sufficient time to deliberate on this critical issue.
While the Protocol 36 opt-out’s timeline is beyond the current government’s control, its timing couldn’t be worse. With UKIP’s rise and perceived gains among traditional Tory voters just months before a general election, the government, particularly the Conservative Party, appears apprehensive about European matters.
One particular criminal justice measure seems to be fueling this anxiety.
The European Arrest Warrant
Implemented in the UK for a decade, the EAW is on the list of 35 measures the government aims to rejoin by December 1, 2014. It is undoubtedly the most prominent and debated EU criminal justice measure. In essence, it provides a streamlined and expedited procedure for transferring individuals between EU states for criminal prosecution, custodial sentence enforcement, or detention. Operating on the principle of mutual recognition, authorities in the Member State receiving a warrant execute it (arrest and surrender the wanted individual) almost automatically.
This method of inter-state cooperation, based on trust in the integrity of each other’s criminal justice systems, was chosen and even championed by the then-UK government because it ensured minimal intrusion of EU law into domestic systems. Essentially, rulings by a UK criminal court must be upheld and enforced in any other Member State, and vice versa.
The EAW is acknowledged to have created a more effective, straightforward, faster, less expensive, more reliable, and less political system for extradition in Europe compared to its predecessor, the 1957 European Convention on Extradition (see the House of Lords committee analysis). Since the EAW’s implementation on January 1, 2004, the average extradition time for a suspect in consensual cases is only 17 days, and in non-consensual cases, it has decreased from about a year to 48 days. In 2013, 127 wanted individuals were surrendered to the UK, compared to 19 in 2004; conversely, 1,126 individuals were extradited from the UK at the request of other EU Member States in 2013, compared to 24 in 2004. On July 9, 2013, the Home Secretary stated, “[s]ince 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offenses, 86 for rape, and 105 for murder. In the same period, 63 suspects for child sex offenses, 27 for rape, and 44 for murder were extradited back to Britain to face charges. Many of these suspects would likely not have been extradited back to Britain without the arrest warrant.”
The EAW’s efficacy can be illustrated by the extradition from Italy of Hussain Osman, wanted in connection with the attempted July 2005 London bombings, in less than eight weeks; he was subsequently sentenced to a minimum of 40 years in prison. More recently, Jeremy Forrest, a teacher sentenced in June 2013 for fleeing to France with one of his students, was extradited back to the UK within three weeks of his arrest.
Despite these successes, the EAW is not without its critics. The two most serious concerns are addressed here. It’s worth noting that other public criticisms of the EAW are, frankly, designed to fuel anti-EU sentiments and fear. For example, outrage that the EAW allows foreign courts to extradite Britons in unacceptably high numbers is unfounded for two reasons. Firstly, while the EAW does require Member States to surrender their nationals, unlike some other Member States, the UK has never considered nationality a barrier to extradition. Long before the EAW abolished the requirement, the UK had already removed the obligation for the requested state to demonstrate a prima facie case for extradition requests from Europe.
Secondly, while the UK might be surrendering more individuals to face prosecution under the EAW, the vast majority (96%) are not British nationals – and presumably, based solely on that fact, there wouldn’t be much desire to keep them in the UK.
Let’s address the two primary criticisms of the EAW. First, it has led to the extradition of some British suspects to countries where they face excessively long pre-trial detention periods, as obtaining bail as a foreign suspect is notoriously difficult. Any such occurrence is regrettable and unacceptable and certainly fuels those who advocate for the UK’s withdrawal from the EAW. However, alternative solutions exist to improve the situation, and we argue these are preferable to opting out. One option is amending the EAW legal instrument to allow the requested state to postpone the warrant’s execution until the issuing state is prepared for trial, a measure the UK could push for. Recent UK law amendments (detailed below) now stipulate that a suspect cannot be extradited under the EAW unless formally charged by another Member State.
Another approach is implementing an EU measure specifically designed to tackle this problem: the “European Supervision Order” (ESO). Adopted in 2009, the ESO allows for a suspect or defendant granted pre-trial non-custodial supervision (bail) in one Member State to be supervised in their home Member State until their trial. This would allow foreign suspects to return home while awaiting trial and UK nationals to return home on bail. For these practical reasons, the current government seeks to opt back into this measure as part of the 35 instruments.
Finally, a longer-term solution to the EAW issue involves addressing the root cause: compelling Member States with inadequate criminal justice systems to improve their treatment of suspects and defendants. The UK government appears willing to participate in this effort to establish minimum procedural safeguards for those (including victims) involved in the criminal justice system across the EU. Admittedly, reaching an agreement on these matters across Europe is challenging, but striving to secure appropriate safeguards and standards of protection in addition to ensuring swift and effective prosecutions demonstrates a commitment to fairness and justice.
In any case, those opposing the EAW based on potential miscarriages of justice should reconsider advocating for the repeal of the Human Rights Act and the UK’s withdrawal from the European Convention on Human Rights (ECHR). After all, a primary objective of both measures is to prevent such miscarriages of justice. Interestingly, critics of the EAW often also criticize the ECHR.
The second major criticism of the EAW concerns its broad scope, enabling its use in trivial, outdated, or both types of cases. This burdens UK law enforcement, who must dedicate significant resources to pursuing all warrants, including those for minor offenses. Although intended for serious crimes and organized crime, the EAW lacks a proportionality requirement, undermining this objective. However, a permissible “human rights” requirement, enshrined in UK legislation implementing the EAW, mitigates the disproportionate impact. This also concerns those advocating for the rights of suspects and defendants.
This problem could be addressed at the EU level by amending the EAW legislation to incorporate a proportionality requirement (potentially mirroring the rules in the recently adopted European Investigation Order). The European Parliament has also recommended including such a rule in the EAW (along with many other reforms). This issue could also be addressed by establishing an effective system for handling minor or “disorganized” cross-border crime.
Recognizing the need for reform, the Home Secretary has followed through on her promise to pursue changes domestically. The UK legislation implementing the EAW, the Extradition Act of 2003, has been amended to introduce rules on proportionality, stipulate that individuals cannot be extradited without being formally charged, and allow for refusal to surrender individuals facing charges in the UK.
Why, then, has the UK government opted to rejoin this measure? Simply put, relevant UK authorities believe it’s a net positive for law enforcement. The Association of Police Chief Officers has stated 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.” Evidence gathered during the Protocol 36 parliamentary inquiries overwhelmingly supports retaining the EAW.
Even if the UK opts out of the EAW, it’s improbable that the UK could maintain its current extradition practices. It’s uncertain whether other Member States could legally continue issuing EAWs to the UK or executing EAWs from the UK, as their implementing legislation, which only refers to the EU’s primary legislation, would likely preclude this. Such action could even be deemed illegal under EU law. Furthermore, the UK’s unilateral rejection of a previously unanimous agreement based on mutual trust could strain political willingness to adjust these arrangements.
In this scenario, extradition between the UK and other EU Member States would likely revert to traditional procedures agreed upon in 1957 under the Council of Europe (a non-EU international organization known for the European Convention on Human Rights). These procedures, based on discretion, follow a “request model” and are ultimately controlled by the executive branch, making extradition a political rather than a legal matter. Compared to the EAW, these characteristics make the process slower, more expensive, and less certain, potentially compromising public safety and representing a significant setback in cross-border criminal justice efforts.
Some suggest replacing the EAW with an extradition treaty encompassing the entire EU or bilateral agreements with individual Member States (see suggestions on the Conservative Home website). While the EU negotiated an extradition treaty with Norway and Iceland, it took years to negotiate and still hasn’t taken effect eight years after signing. Moreover, this treaty closely resembles the European Arrest Warrant. This demonstrates the inefficiency of such a process and would not exempt the UK from adhering to most of the EAW’s rules, which critics of the EAW system oppose.
Furthermore, there isn’t enough time before the December 1 deadline for the UK to develop an alternative system if it chooses not to rejoin the EAW. There’s barely enough time to establish transitional rules to govern the situation if the UK doesn’t opt back in by that date. Without such rules, the legal basis for arresting, detaining, or surrendering individuals sought by the UK in other Member States, or vice versa, would be dubious.
More broadly, having less stringent extradition laws than the rest of the EU could transform the UK into a haven for criminals seeking refuge from extradition. Conversely, the rest of the EU could become a more appealing hideout for those committing crimes in the UK, especially if they escape to their home country and argue against extradition (a common practice in continental Member States before the EAW).
Sensationalist media coverage has fueled the widespread misconception that “Brussels” intends to impose a single, standardized criminal justice system across Europe. This is simply untrue and impossible under the existing legal framework. There is no political will for such a measure among the other 27 member state governments that collectively comprise “Brussels.” Even the most potentially “intrusive” EU criminal law measure – the creation of a European Public Prosecutor, which is still under discussion – would only be empowered to investigate, prosecute, and try offenses against the EU’s financial interests. The UK has opted out of this proposal, and any expansion of its scope would be limited to “serious crime having a cross-border dimension” and require unanimous approval from all participating Member States and the European Parliament.
Concluding Remarks
The “in/out” dichotomy that has permeated domestic politics is simplistic and potentially detrimental. The promise of a referendum on the UK’s EU membership by 2017 seems to have triggered a wave of frenzied, misleading, and alarmist commentary. This intervention aims to clarify some of the fundamental legal realities surrounding the UK’s position on EU criminal law.
The Article 36 opt-out does not and cannot completely eliminate the EU’s criminal law agenda, even if the UK government chooses not to exercise its right to rejoin certain measures. The UK cannot simply “walk away” from EU criminal law. The Protocol 36 opt-out does not apply to pre-Lisbon measures amended since December 1, 2009, or any new measures adopted since then. Moreover, the UK has already committed to many of these measures. This legal reality seems to have been overlooked or disregarded in much of the debate among those advocating for exercising the opt-out. In reality, the Protocol 36 opt-out is less about reclaiming powers from Brussels and more about the extent of future participation in an already existing system. In this respect, the UK enjoys a privileged position, and its continued willingness to engage in this agenda is welcomed in the interest of safety, security, and justice for UK citizens, if nothing else.
While the EAW is not flawless, continuous reflection, review, and reform are crucial. On balance, we believe it is a force for good. Therefore, it’s preferable to be “in” and influence its development than be “out.” The same principle applies to the European Union itself.
European leaders have recently reaffirmed their commitment to accommodate different national viewpoints on EU integration: “Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist.” It appears that even a traditionally skeptical United Kingdom has a place in this modern alliance of nations dedicated to promoting peace, the well-being of its people, and its values of respect for human dignity, freedom, democracy, equality, human rights, and the rule of law.
Barnard & Peers: chapter 2, chapter 25