Select Committee on European Scrutiny Eighth Report


The European Scrutiny Committee has made further progress in the matter referred to it and has agreed to the following Report:—




Draft Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States.
Legal base: Articles 31(a) and (b), 34(2)(b); consultation; unanimity
Department: Home Office
Basis of consideration: Minister's letter of 27 November 2001
Previous Committee Report: HC 152-vii (2001-02), paragraph 5 (21 November 2001); and see (22625) 12102/01: HC 152-ii (2001-02), paragraph 7 (17 October 2001); (22593) 10912/01: HC 152-vi (2001-02), paragraph 2 (14 November 2001)
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: For debate on the Floor of the House


  1.1  We considered a first draft of a proposal for the European arrest warrant (which would supplant the current system of extradition between Member States) on 17 October. We noted that the proposal would lead to a major change in extradition arrangements with other EU Member States and would lead to the abandonment of traditional safeguards such as the requirement for dual criminality[1] and the speciality rule.[2]

  1.2  We raised a number of points on that first draft. These concerned the effect of the proposal on the operation of the Human Rights Act 1998, the definition of 'judicial authority' as an authority entitled to issue and execute a warrant, the entitlement to bail of a person subject to provisional release, the conduct in respect of which a person would not be extradited from this country, the extradition of persons who have been tried in absentia, the operation of measures of clemency and whether the proposal should contain an explicit reference to Article 6 of the European Convention on Human Rights (ECHR) as a ground for refusing to surrender an arrested person.

  1.3  The Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) replied to our questions in his letter of 6 November. We raised a number of questions which appeared to us to arise from the Minister's letter and which had not been resolved by the latest text. We reiterated our concern over the absence of any definition of 'judicial authority', and asked whether a principle of mutual recognition ought to apply to decisions taken by prosecution authorities without any judicial involvement in the issuing State, whether the proposal would have any effect on the operation of the Bail Act 1976 and whether there was any sufficient guarantee of a retrial in the issuing State in cases where a person was surrendered following a trial held in absentia.

  1.4  As promised in his letter of 6 November, the Minister deposited the latest English version of the proposal[3] and submitted an Explanatory Memorandum on 16 November. We considered the latest proposal on 21 November and repeated our concerns on a number of major issues of principle. These concerned the absence of any definition of the term 'judicial authority', or of any provision which excluded the recognition and enforcement of an order made only by a police force, and the absence of any provision guaranteeing a retrial where a person is surrendered following a conviction in absentia.

  1.5  We also raised a number of technical problems with the proposal relating to the definition of offences, the operation of the provisions of Article 2(4) relating to the application of dual criminality to certain offences and the meaning of in absentia judgment in Article 5(1).

The Minister's reply

  1.6  In his letter of 27 November 2001, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) addresses the major issues of principle we have identified, as well as the technical problems we raised on 21 November.

  1.7  On the question of the absence of any definition of the term 'judicial authority' or of any means of supervision or control of designations made by Member States, the Minister comments as follows:

"The Government firmly believes that under the principle of mutual recognition, the designation of judicial authorities is a decision for each individual Member State under their national law. There is no explicit definition of 'judicial authority' in the text. We would not expect other Member States to be able to object to our nomination of judicial authorities within the UK. There are no grounds to believe that the Framework Decision means that requests will be made by police forces."

  1.8  On the question of guarantees of retrial in cases where a person is to be surrendered following a conviction in absentia, a concern which we had raised on a number of previous occasions, the Minister comments as follows:

"The revised version of the Framework Decision (13425/01) provides that, where a conviction has been handed down in absentia, the execution of the European Arrest Warrant will be conditional on the receipt of sufficient assurance from the issuing judicial authority guaranteeing the right to new proceedings which safeguard the defendant's rights. In addition, recent negotiations have argued for wording that is closer to the Second Additional Protocol to the European Extradition Convention."

  1.9  We also raised the question of whether implementation of the provisions of the Framework Decision on provisional release would require any change to the presumption of release under the Bail Act 1976. The Minister replies as follows:

"Bail decisions will be taken in accordance with the law of the executing state as set out in draft Article 12. Currently there is no presumption in favour of bail (unlike the position in the Bail Act 1976). Section 9(3) of the Extradition Act 1989 contains the power to remand on bail. When exercising this power, the magistrate will give considerations to the principles in the Bail Act and Article 5 of the ECHR, but implementation of the Framework Decision will not require any change to the presumption of release in the Bail Act."

  1.10  We were concerned that the list of offences in Article 2(2) of the Framework Decision (in respect of which the obligation to surrender would arise with no requirement of dual criminality)[4] contained many offences which were not defined. We asked, in particular, how the domestic courts would recognise whether an offence of 'racism and xenophobia' has been committed. The Minister replies to this point as follows:

"For all offences appearing on the list under Article 2(2), it is for the issuing state to determine that the listed offence has been committed under its national law. In the case of racism and xenophobia, dual criminality would not be required, which means that our courts would not be required to find a corresponding offence."

  1.11  We raised the issue of which system of law is to be used to determine whether, for the purposes of applying Article 2(4), a matter related to abortion, euthanasia, morality, sexuality or freedom of expression and association and therefore may be made subject to dual criminality. The Minister replies as follows:

"Dual criminality would apply, and we expect consideration to be similar to that at present under section 2(2) of the Extradition Act 1989."[5]

  1.12  On the question of the age limit of criminal responsibility under Article 3(3) the Minister tells us that the translation of this Article was ambiguous and that clarification had been sought. The Minister confirms that the Article refers to lower age limits for criminal responsibility only. The Minister also states that the meaning of 'in absentia judgment' in Article 5(1) is a judgment arrived at in the absence of a defendant.


  1.13  We are grateful to the Minister for his replies on the questions of provisional release and the effect of the Framework Decision on the Bail Act 1976, and on the age limits for criminal responsibility. We regard these as helpful clarifications.

  1.14  We are also grateful for the Minister's explanation of the operation of Article 2(4). We infer from this that the question of whether a matter fell within the fields mentioned in that provision would be determined by the courts of the executing State, applying its own law. It would, therefore, be for the courts of the United Kingdom, applying the law of the relevant part of the United Kingdom, to determine whether 'the acts relate to' abortion, euthanasia or the other matters mentioned in Article 2(4) for the purpose of requiring dual criminality as a condition of surrender of the person requested.

  1.15  Nevertheless, we remain concerned on the issues of the definition of 'judicial authority', the absence of a guarantee of a retrial where a person has been convicted in absentia, and the lack of definition of the offences in respect of which the safeguard of dual criminality is to be abandoned. We consider these issues to be of sufficient gravity to be debated on the Floor of the House and so recommend. We consider that the debate might appropriately address the following points in particular:

(1)  the absence of any definition of the term 'judicial authority' or of any means of ensuring that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, are excluded from the scope of the proposal,

(2)  the absence of a provision to ensure that the return of a person convicted in absentia may be made subject to a guarantee of a retrial in the issuing State,

(3)  the vagueness, or in some cases complete absence, of definition of offences under Article 2(2) in respect of which the safeguard of dual criminality is to be abandoned.

1  The requirement that the conduct which is the subject of the extradition request should be regarded as criminal in both the requesting and the extraditing State. Back

2  The principle in extradition law under which a person may not be prosecuted in the receiving State for any offence other than the one for which he was extradited. Back

3  This is an English translation of the French text we took into account on 14 November. Back

4  i.e. a requirement that the conduct should be an offence in both the issuing and the executing State. Back

5  Section 2(1) Extradition Act 1989 defines an 'extradition crime' as 'conduct in the territory of the foreign State....which if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months.' Back

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