4 The European Arrest Warrant |
128. In this chapter, we consider the human rights
implications of the EAW and the suggestions that have been made
to improve the practical protection of rights in the EAW process.
Advantages of the European Arrest
129. Although much of the evidence we received was
critical of the European Arrest Warrant, several witnesses praised
some aspects of the system. Commander Gibson, representing the
Association of Chief of Police Officers (ACPO) said that "when
you need to have someone arrested abroad, it is a simpler, faster
and more certain process of getting a person before your courts.
The police service benefits from that. It is much easier than
what went before."
The Director of Public Prosecutions agreed that the advantage
of the European Arrest Warrant was that it was much quicker than
the previous system and that it removed the executive from the
process. It also dealt with the previous problem of several countries
not surrendering their own nationals.
130. The Minister noted that "the chances of
getting someone back are greatly increased by the existence of
the system, for all its imperfections [...] the interests of justice
are certainly served by both extraditing and facilitating the
process under the rules."
The EAW therefore facilitates the process of justice and helps
ensure that the victims of crime see justice done on a more regular
basis. We recognise the importance
of extradition and the benefits the EAW has brought in terms of
a quicker, more streamlined process for surrender within the European
The system of mutual recognition
131. The operation of the European Arrest Warrant
is based on the principle of mutual recognition of judicial decisions.
This principle is based on the mutual trust of one Member State
in the criminal justice procedures of another Member State.
132. Some of our witnesses criticised mutual recognition.
Fair Trials International argued that "standards of justice
vary greatly from one EU country to another and human rights do
not receive the same respect in every Member State", concluding
that "blind faith in the criminal justice systems of our
EU neighbours has led to many cases of injustice."
Liberty agreed that there was a "wide disparity in the treatment
of criminal suspects, with the prison conditions and criminal
justice processes afforded in various Member States repeatedly
falling foul of the Convention."
The Freedom Association made a similar point: "there
are simply too many differences between all the different member
states when it comes to justice systems and legal traditions,
which are impossible to overcome. Thus there can never be the
mutual trust and recognition which is needed for the European
Arrest Warrant system to be able to work."
133. The evidence we received from people who had
been subject to extradition in the UK appeared to demonstrate
the differing levels of respect for basic rights across the EU.
For example, Frank Symeou described the poor conditions his son
Andrew had encountered while imprisoned in Greece.
We note that it is difficult to draw a wide conclusion on the
standards of justice in the EU from this very small sample.
134. The recent European Commission report on the
operation of the Framework Decision noted that "despite the
fact that the law and criminal procedures of all Member States
are subject to the standards of the European Court of Human Rights,
there are often some doubts about standards being similar across
the EU." The report continued that "a number of judgments
[...] have highlighted deficiencies in some prisons within the
135. The solutions proposed by witnesses differed.
The Freedom Association argued that "the Extradition Review
should ask the Government to push for the suspension of the European
Arrest Warrant due to a lack of mutual trust."
Fair Trials International argued that the lack of equality of
legal protections meant that enhanced safeguards in the Extradition
Act were "even more important." 
Witnesses noted the importance of the EU Roadmap on procedural
rights, which may help enhance procedural protections across the
136. Baroness Neville-Jones, the then Minister, commented
that "it is probably a matter of observation that human rights
are not interpreted in all member states in the same way."
She noted the criticism that "although in theory you get
equal justice, in fact you do not." She told us that the
Government were committed to the system and committed to raising
137. Liberty commented on the link between the mutual
recognition of judicial decisions and the reluctance of judges
to refuse extradition on human rights grounds.
It is crucial that it is possible to rebut the presumption that
rights are respected equally in all EU Member States. We
agree with this evidence and recommend that the Government should
take the lead in seeking to ensure that there is equal protection
of rights, in practice as well as in law, across the EU.
138. In November 2009, the European Council adopted
a "Roadmap for strengthening procedural rights of suspected
or accused persons in criminal proceedings."
The Minister noted the importance of this Roadmap in ensuring
equal protection of rights across the EU. The Roadmap invited
the European Commission to bring forward proposals designed to
implement a single standard of procedural rights across the EU.
The proposals in the Roadmap are set out in Box 3. So far, only
a proposal to provide access to a translator had been adopted.
A proposal to ensure the right to information on criminal proceedings
is currently under negotiation in the EU.
The Commission report on the implementation of the EAW notes that
"preparatory work is underway by the Commission regarding
the remaining measures."
139. We wrote to the Secretary of State for Justice
for more information on the Roadmap. The Minister told the Committee
that the Roadmap aimed to take EU level action in a "focused,
evidence based and targeted way that builds on the foundation
of the European Convention on Human Rights." He noted that
the Directive on Interpretation and Translation in Criminal Proceedings
had been agreed in October 2010 and the draft Directive on the
Right to Information in Criminal Proceedings was under negotiation
with the European Parliament. A draft Directive on access to legal
aid was expected to be tabled by the European Commission in the
summer. The Government had opted-in to the first two Directives
as they were "necessary and helpful measures [...] to improve
procedural rights across the EU and support instruments of mutual
recognition." The Government would examine the case to opt-in
to each subject proposal on a case-by-case basis, with a view
to "maximising our country's security, protecting Britain's
civil liberties and preserving the integrity of our criminal justice
140. Fair Trials International agreed that the Roadmap
would strengthen procedural protections for those subject to extradition.
Baroness Neville-Jones told us that the Roadmap "ought to
even up the standards that are observed in practice between member
states" and that the proposals were "important practical
safeguards, which should improve the real-life experience of people
who get caught up in the legal systems of other countries."
Charlotte Powell broadly agreed.
While the Freedom Association noted the aims of the Roadmap, it
argued that it did not go far enough.
141. The recent Commission report on the operation
of the EAW argued that there "must be adoption of the measures
in the roadmap on procedural rights [...] to ensure that fundamental
rights and freedoms are protected."
142. The Roadmap is an EU proposal that aims to strengthen
protections for people in legal systems across the EU, of which
persons subject to extradition are just one category. The EU Committee
of the House of Lords and the European Scrutiny Committee in the
House of Commons scrutinise all EU proposals, including those
set out in the Roadmap, and for this reason we do not comment
on the merits or otherwise of the proposal in this Report.
Box 3the EU Roadmap
|The EU Roadmap on procedural rights included six separate measures designed to increase procedural protections in the EU. The Roadmap proposed measures to implement the following rights for defendants in criminal proceedings:
- Translation and Interpretation
- Information on Rights and Information about the Charges
- Legal Aid and Legal Advice
- Communication with Relatives, Employers and Consular Authorities
- Special Safeguards for Vulnerable Persons
- A Green Paper on the Right to Review of the Grounds for Detention
Proportionality and imbalance
Box 4EAW figures
||EAW requests received by UK
||Surrenders from UK
||EAW requests issued by UK
||Surrenders to UK
143. An EAW may be issued by any EU country for any offence which
has a maximum sentence of longer than one year. Although there
is no proportionality test in the Framework Decision, some countries,
including the United Kingdom, apply such a test before issuing
a request. The lack of a proportionality test in the Framework
Decision has been criticised by witnesses because of the large
number of requests received by the UK in comparison to requests
issued and the human rights implications of the large number of
requests for extradition for minor offences.
EXISTING PROPORTIONALITY TESTS
144. When an EAW request is received by the UK, it is certified
by the Serious Organised Crime Agency (SOCA). The police locate
and arrest the subject of the warrant. Detective Superintendent
Murray Duffin of the Metropolitan Police Extradition Unit explained
that "no proportionality test is written into the framework
or the legislation, so if we receive a request and it is certified
and meets all the requirements, it is to be executed."
The Director of Public Prosecutions explained that the Crown Prosecution
Service also has no discretion to choose whether to execute an
145. We heard from witnesses that when the UK issues
an EAW, proportionality is a relevant consideration. Commander
Allan Gibson, representing the Association of Chief of Police
Officers, told us that when considering whether to proceed with
an investigation "we are quite conscious of cost and have
to bear in mind what the likely penalty might be at the end of
the process. So cost and end product or outcome are relevant considerations."
The Crown Prosecution Service explained that the standard public
interest test is applied before issuing a request:
"a prosecution will only follow if the Full
Code Test is met: namely that there is sufficient evidence for
a realistic prospect of conviction; and it is in the public interest.
The CPS applies the Full Code Test when deciding if an extradition
request for a person should be prepared and submitted for a person
who has yet to be charged with the offence."
146. We asked the non-governmental organisations
what assessment they had made of the UK's use of the EAW for requesting
extradition. Catherine Heard told us that Fair Trials International
was prepared to help any person who wanted to complain of unfair
trial or extradition, but it had not received any cases from people
facing an EAW request to return them to the UK. She told us that
in the UK "there is a process of deciding if it is in the
interests of justice to issue an arrest warrant to another country"
and concluded that this filter should be imposed on all other
Blackstock of JUSTICE agreed that the UK had issued a much smaller
number of requests than many other Member States showing the UK
was considering in greater detail whether to issue a European
147. Commander Gibson told us that some other EU
countries "appear to" operate a proportionality test.
Catherine Heard agreed that "many countries in practice seem
to have a public interest test before they go as far as issuing
PROBLEMS CAUSED BY THE LACK OF A
148. Several witnesses noted the human rights implications
of the lack of a proportionality test in the Framework Decision.
Jodie Blackstock of JUSTICE told us that "from a perspective
of someone's private and family life and the upheaval it causes
in them having to go and face trial in another country, it comes
back to the proportionality test as well. There is an element,
a question of whether it is necessary to extradite someone to
Fair Trials International also noted the disproportionate impact
of an EAW request in comparison to the alleged crime.
149. The recent report from the European Commission
on the implementation of the EAW, noted that "confidence
in the application of the EAW has been undermined by the systematic
issue of EAWs for the surrender of persons sought in respect of
often very minor offences." The report concluded that "it
is essential that all Member States apply a proportionality test,
including those jurisdictions where prosecution is mandatory."
The Commission report also noted that it would issue a Communication
in September 2011 aimed at introducing training for legal practitioners
and judicial authorities on the implementation of the EAW and
on strengthening procedural rights.
150. One of the issues raised by witnesses was the
number of requests received from Poland: surrenders from the UK
to Poland accounted for 61% of all surrenders from the UK in 2009-10.
The CPS noted that the large number of requests were because "their
prosecutors operate under an obligation to prosecute principle."
Similarly, John Hardy noted in his submission that "a number
of the new Member States' domestic law systems conferred no discretion
upon prosecutors and investigating magistrates as to when it might
not be in the public interest to pursue an extradition request."
Fair Trials International provided an example of extradition for
a minor offence: Patrick Connor was extradited to Spain for possession
of two forged 50 notes which were found in his hotel room,
of which he claimed to have no knowledge. Four years after initially
being arrested, he was extradited to Spain, where he pleaded guilty
and spent 9 weeks in prison.
151. The Director of Public Prosecutions said that
a requested person could argue against extradition on Article
8 grounds under the Section 21 human rights bar to extradition.
He explained that "an individual accused of stealing a loaf
of bread in another country would be able to argue that to remove
him or her would be such a disproportionate interference with
their Article 8 right that it should not happen", although
he added the caveat "if the regime works properly."
The Law Society noted in their submission to the Extradition Review
that "the UK courts have suggested that the triviality of
an offence can be taken into account in assessing the proportionality
of interference with qualified convention rights as a result of
extradition [...] the lack of an express proportionality requirement
may, therefore, be remedied where extradition is found to be a
disproportionate interference with qualified Convention rights."
152. Witnesses also commented on the apparent "imbalance"
between the tests the CPS applies before applying for extradition,
compared to the tests applied by other countries in the context
of the rights of victims. The witnesses referred to in paragraph
84, who preferred to remain anonymous, argued that the "rights
for victims are prejudiced unnecessarily by the high evidential
standard" applied by the CPS before making an EAW request.
The evidence argued that UK law enforcement agencies are reluctant
to use the EAW.
When we put this question to the Director of Public Prosecutions,
he argued that the difference came from the differences in legal
systems in the EU. In civil law jurisdictions, the court is involved
in proceedings earlier in the criminal justice process, meaning
that "some of those countries may make requests for the purpose
of prosecution at an earlier stage than we would recognise as
being the start point of criminal proceedings."
153. There are several ways of reducing the number
of trivial EAW requests. Many witnesses supported the introduction
of a proportionality test beyond the current 12 month maximum
sentence test. Commander Gibson of ACPO told us that the Police
"would like a proportionality test [to be] brought in."
He noted, however, that such a test should be operated by the
requesting country before a request is made: "it is more
difficult if we try to exercise it at the other end and try to
second guess what is right in any individual case."
The Director of Public Prosecutions told us that "if someone
suggests that the prosecutor should be given a role to be able
to say early on that this is clearly a case that is disproportionate
and should never come into the system, I would not argue against
noted that such a test could be applied by either the court in
the requested country or the prosecutor, although "the CPS
could deal with it earlier." He did not, however, think that
such a test should take the form of a public interest test as
it would be "quite a headache" to "gauge whether
it is in the public interest for an offence to be prosecuted in
Several other groups also agreed a proportionality test should
154. John Hardy agreed that a proportionality test
would reduce the number of requests, the hardship caused to individuals
and make judicial authorities consider "whether issuing an
EAW is really necessary and proportionate in each case."
He argued, however, that it was difficult to envisage "how
such a [proportionality] test could be devised which was in keeping
with both the absolute spirit of judicial co-operation which underpins
the Framework Decision, and the time-limits which are central
to its operation." He concluded that "a system which
renders extradition less of a bureaucratic exercise and more an
exercise in the administration of justice is to be welcomed."
155. The Law Society, in its submission to the Extradition
Review, also noted that the suggestion of a proportionality test
"raises complex legal and practical issues; not least the
impact thereof on the principle of mutual trust." The Law
Society felt that practical rather than legislative solutions
would be more appropriate to "to address the problems caused
by differing Member State practices in relation to de minimis
thresholds for prosecutions and requests."
156. The then Minister told us that the Government
was working bilaterally with Polish authorities to attempt to
reduce the number of requests from that country.
The CPS and the
Police also noted this work with Poland. Detective Superintendent
Murray Duffin noted that "anecdotally, I would say that those
types of requests are reducing".
157. We also asked Baroness Neville-Jones whether
a stronger principle of proportionality should be incorporated
into the Framework Decision. She argued that "if you try
to fix a definition of what constitutes proportionality in any
given area, that would give rise to its own anomalies [...] I
am not sure how much further forward enshrining a proportionality
principle in law and then interpreting it would get us than we
already are." She advocated further guidelines on the use
of the EAW.
158. We note
the increasing number of European Arrest Warrant requests received
by the UK. We have serious concerns about the disproportionate
impact of extradition where it is requested for a relatively minor
offence. We urge the Government to work with the European Commission
and other Member States to implement a proportionality principle
in the Framework Decision, both for operational reasons and to
ensure that the human rights implications of extradition are not
disproportionate to the alleged crime.
159. Such a
proportionality principle should be contained within the Framework
Decision of the European Arrest Warrant and operate in a similar
way to the tests applied by the Police and the CPS before issuing
a request. We are not convinced that informal guidelines, bilateral
discussions with the authorities of other Member States or a public
interest test operated by the authorities in the requested country
would be operationally practical or successful in the long-term.
Proportionality is a well-established EU legal
principle which the Extradition Review Panel may wish to take
into account in considering the safeguards around an EAW request.
160. We were pleased to hear of the proportionality
tests applied by the CPS and the Police when the UK makes an extradition
request and the positive comments that we heard about the UK's
use of the EAW.
161. Most extradition treaties have a double or dual
criminality requirement which requires an extradition offence
to be a criminal offence in both the requested and requesting
territory. The EAW Framework Decision removes this requirement
for 32 serious offences, including murder, drugs trafficking and
purpose of this change was to simplify the decision on what is
an extraditable offence by the judge in an extradition case; for
the 32 offences listed, there is no need to consider whether this
is an extraditable offence.
162. Some witnesses have raised concerns about the
removal of the double criminality requirement. The Freedom Association
argued that it had "created a situation where laws voted
in by elected officials in the UK Parliament have become null
and void, due to the fact that UK citizens can be extradited for
something that is not a crime in the UK." It concluded that
"the European Arrest Warrant either needs to change so that
double criminality requirements and the requirement for prima
facie evidence are re-introduced or that the UK needs to remove
itself from the European Arrest Warrant system."
163. Liberty and JUSTICE also raised concerns in
relation to the definition of the offences, which Liberty described
as "extremely broad to the point of being meaningless."
This increased the risk of a person being extradited for an act
which was not an offence in the UK. Jodie Blackstock noted the
case of Toben, where an EAW request had been made for holocaust
denial, which is not a crime in the UK. This case was dismissed
on procedural grounds, leaving open the question of whether a
person could be extradited for holocaust denial.
164. Other EU Member States had addressed this issue.
Belgium introduced legislation which excluded abortion and euthanasia
from the category of "murder and grievous bodily harm".
Consequently, Belgium would not extradite a person for the act
of abortion under the definition of the offence of murder. This
was, however, criticised by the European Commission in its review
of the implementation of the European Arrest Warrant.
Liberty commented that the Extradition Act could be amended to
ensure that the UK "would reserve the right whether or not
to recognise an extradition warrant on the basis that a warrant
will only be issued both where there is a clear offence [...]
and that this conduct would also constitute an offence under British
165. The exclusion of the 32 offences from the double
criminality requirement raises some difficult questions. The
Government and the Extradition Review may wish to review the list
of 32 offences for which double criminality is not considered,
with a view to whether certain conduct should be excluded from
the definitions of these offences. We recognise, however, that
the Framework Decision expressly excludes double criminality as
a reason for denying the execution of an EAW. We recommend that
this principle be dealt with as part of the renegotiation of the
Other concerns relating to the
European arrest warrant
166. Several other concerns about the operation of
the European Arrest Warrant in practice were raised including
using the Warrant for the purpose of investigation, the non-removal
of EAW requests and cases of mistaken identity.
USE OF THE EUROPEAN ARREST WARRANT
FOR PURPOSES OF INVESTIGATION
167. Mr Michael Turner reported that he had been
extradited to Hungary and not charged: "after spending some
time in prison, I was interviewed once with the police."
Mr Turner was later released with no charge being brought.
Mr Frank Symeou, father of Mr Andrew Symeou, argued that in many
cases "the EAW is used as a summons for questioning."
Even where a request is for prosecution and not investigation,
those surrendered under the EAW can spend several months in jail
before their trial.
168. The then Minister confirmed that an EAW should
not be used for the purposes of investigation. She told us that
a Member State "cannot just have a fishing expedition."
As it does appear that requests are being made merely for the
purposes of investigation, we
urge the Government to ensure that other Member States do not
use the European Arrest Warrant for purposes of investigation,
if necessary by amendment to the Framework Decision. We recommend
that, where there are doubts as to the stage of proceedings reached
in the requesting state, the facility for further information
provided by the Framework Decision and the Extradition Act 2003
should be used. The requesting state should be asked to provide
information on the indictment process under their national law,
the stage of proceedings reached, the date set for the first hearing
and an assurance that the individual will not be interrogated
169. The Commission report on the operation of the
EAW explained that the "Directive on the application of the
principle of mutual recognition to the decisions on supervision
as an alternative to provisional detention" would make it
possible for a suspected person "to be subject to a supervision
measure in his or her normal environment pending trial in the
foreign Member State."
It may be that, if applied,
the Directive on the application of the principle of mutual recognition
to the decisions on supervision could ensure that a person extradited
to another EU state could await trial in the UK, reducing problems
in relation to long times spent in prison before trial.
REMOVAL OF EUROPEAN ARREST WARRANT
170. Ms Deborah Dark described to us how she was
arrested on several occasions on the basis of an EAW request and,
despite courts in Spain and the UK refusing extradition on grounds
of passage of time since the alleged offence, the issuing country
"refused to remove the warrant."
171. Mr Duffin of the Metropolitan Police explained
that the procedure for removing an extradition request was simple
and did not pose any difficulties.
When we discussed this issue with the Director of Public Prosecutions
he told us that "the fact that the person has been arrested
and discharged in country A does not stop country B picking them
up." He told us that he "completely" understood
the difficulties that this poses.
172. Fair Trials International argued that "if
a court in one European country decides extradition would be unjust,
that decision should be respected across the EU and the EAW should
be withdrawn immediately."
173. In their submission to the Home Office Extradition
Review, JUSTICE noted that Article 111 of the Schengen Convention
would enable a person to apply to a court to review an alert issued
on the Schengen Information System. It concluded that "the
UK could implement the article by way of domestic legislation
which would at least enable the UK to begin to attempt to control
alerts in relation to warrants refused here."
174. The system
for removal of EAW requests should be improved or formalised to
prevent repeat arrests where a court elsewhere in the EU has already
refused to execute an extradition request. The Government should
examine whether adopting Article 111 of the Schengen Information
System would help avoid this problem. The Government should also
negotiate membership of the SIRENE system which can be used to
enter information on the execution of EAWs.
This would allow a decision rejecting an EAW to appear whenever
an individual crosses the Schengen borders. The individual would
then be able to point towards the judgment denying extradition
and would aid him or her to fight the execution of the EAW.
Time limits in the European Arrest
175. The European Arrest Warrant contains strict
deadlines for the execution of a request once it has been certified.
Where the requested person consents to their extradition, the
final decision on the execution of the warrant must be taken within
10 days. Where the person does not consent, the final decision
must be taken within 60 days of the arrest of the person. When
it is not possible to meet this deadline, it can be further extended
by 30 days. Witnesses argued that the tight time limits make it
difficult for the requested person to make an effective argument
against extradition on human rights grounds.
176. Catherine Heard of Fair Trials International
told us that "insufficient time is built into the system.
The deadlines are too tight in many cases for an individual to
obtain evidence often experton the situation of
human rights protection on the ground in the country concerned."
Jodie Blackstock of JUSTICE agreed that even though the time limits
are flouted "in many cases", this posed difficulties
for getting evidence to support arguments that extradition should
be barred on human rights grounds.
177. John Hardy QC also commented on the problems
created by time-limits, arguing in his submission that "with
the UK court system over-loaded and under increasing strain, devices
are routinely employed to circumvent the fixed periods, alternatively
they are routinely extended so often as to render them meaningless."
He continued that
"time-limits for giving notice of appeal are
capable of producing real injustice [...] recent examples of the
High Court holding it has no jurisdiction to hear an appeal have
concerned persons remanded in custody and representing themselves,
or who, if represented, are let down by their representatives
in terms of filing and serving notices of appeal in time."
178. We asked the Director of Public Prosecutions
whether the existing time-limits posed problems for the Crown
Prosecution Service. He told us that they did not generally pose
a problem, as although the Framework Decision requires the completion
of the process in 90 days, UK domestic law does not: "there
is no domestic law consequence of going beyond the 90 days."
He told us that the UK had not met the time-limit in 112 cases
"which is quite high across Europe" and the average
completion time of the process was 93 days. The reason for this
was the UK's "elaborate appeal system." When we put
to him the arguments of Fair Trials International, the Director
of Public Prosecutions told us it was not right for him to comment,
but noted that the district judge had the power to adjourn proceedings
"in the interests of justice."
Detective Superintendent Murray Duffin of the Metropolitan Police
Service told us that operationally, the Police were able to meet
the time limits set out in the Framework Decision.
179. John Hardy QC agreed that it was the UK appeal
system that made the time limits unworkable and argued that "unless
the right of appeal is to be fettered, or altogether curtailed,
which would be unconscionable, these timetables are unworkable."
He proposed that the time limits be replaced with a requirement
that the processing of an EAW request be completed "as soon
as reasonably practicable."
180. We have heard that the time limits set out in
the EAW for the execution of a request are regularly missed and
often restrict the ability of the defence to successfully argue
against extradition for human rights reasons. However, the DPP
explained that there is currently no domestic penalty for exceeding
the time limits and that the district judge has the power to adjourn
proceedings in the interests of justice. In chapter 3, we concluded
that longer time-limits should be allowed when a request for further
information has been made. The
Extradition Review Panel or the Government should consider whether
the current time-limits provide adequate opportunity for the defence
to postpone a hearing if necessary as long as the court considers
the reasons for the request for adjournment on its merits on a
case-by-case basis. The Government should also investigate the
possibility of replacing time limits with another, less strict,
formulation such as "as soon as reasonably practical",
although we note that this would require renegotiation of the
Other possible safeguards
note that Article 4(6) of the Framework Decision allows the requested
state to deny execution of the EAW issued for the purposes of
serving a sentence where the requested state undertakes that the
sentence will be served in that state. We recommend that this
safeguard be transposed into the Extradition Act 2003 as this
would significantly reduce the impact of such execution EAWs on
Article 8 rights.
182. We also note that Article 5(3) of the Framework
Decision creates the same possibility for those requested for
prosecution under an EAW, that is, that the requested state may
execute the EAW subject to a condition that the individual be
returned to the requested member state to serve his or her sentence.
This would reduce the impact on Article 8 rights of prosecution
EAWs by ensuring that those for whom the UK has responsibility
serve their sentences in the UK. This could be subject to the
discretion of the judge with UK nationality or length of residence
in the UK being a factor which was given much weight in the decision.
We recommend that the safeguard
in Article 5 (3) of the Framework Decision be transposed into
the Extradition Act 2003.
183. We note the entrance into force of the Lisbon
Treaty and with it, the enforceability of the Charter on the Fundamental
Rights of the European Union.
We heard little evidence on the implications of the Charter for
the EAW regime although several witnesses did refer to a case
pending before the Court of Justice of the European Union which
will decide the applicability of the Charter in the UK and the
significance of the UK's protocol on the Charter (Protocol No
30). We note that the Charter is intended to provide higher protection
than the ECHR.
184. The Charter includes a guarantee that the severity
of the penalty is not disproportionate (Article 49(3)). However,
the Charter is only applicable where EU is being implemented.
In relation to the EAW, it is at least arguable that the whole
regime comes within the scope of application of the Charter, even
though the Framework Decision has been transposed into UK law
by the Extradition Act 2003. This could be used as an argument
to bolster any proportionality principle included in the Framework
Decision since an extradited person would be able to argue that
it was not proportionate for them to be extradited to serve a
sentence of, for example, two weeks and that, thus, the severity
of the penalty contravenes Article 49(3).
185. However, the EAW applies only to national law
offences. Since the offence is one created in national law and
the penalty is one set out in national law, there is no implementation
or application of EU law. It is therefore not certain that the
Charter and Article 49(3) would apply and is not by itself a sufficient
safeguard to ensure the proportionate use of the EAW. We
recommend that the Extradition Review Panel carefully assess the
applicability of the EU Charter on Fundamental Rights to the EAW
as applied by the UK.
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EXT 6 Back
OJ C295 (30 November 2009) Back
COM (2010) 392 Back
COM (2011) 175 Back
EXT 26 Back
EXT 1 Back
Qq 213, 237 Back
Q 162 Back
EXT 3 Back
COM (2011) 175 Back
See EXT 032 for a full breakdown of figures Back
Q 105 Back
Qq 167-70 Back
Q 99 Back
EXT 12 Back
Q 18 Back
Q 102 Back
Q 25 Back
Q 10 Back
EXT 1 Back
COM (2011) 175 Back
EXT 17 Back
EXT 28 Back
EXT 1 Back
Q 177 Back
Law Society response to the Home Office Extradition Review, p
EXT 3, 3A Back
Q 206 Back
Q 101 Back
Q 114 Back
Q 178 Back
Q 204 Back
Fair Trials International, EXT 1, Freedom Association, EXT 2,
Liberty, EXT 6 Back
EXT 28 Back
Law Society response to the Home Office Extradition Review, pp
Q 219 Back
Q 178 Back
Q 104 Back
Qq 220-23 Back
Participation in a criminal organisation; Terrorism; Trafficking
in human beings; Sexual exploitation of children and child pornography;
Illicit trafficking in narcotic drugs and psychotropic substances;
Illicit trafficking in weapons, munitions and explosives; Corruption;
Fraud; Laundering of the proceeds of crime; Counterfeiting currency;
Computer-related crime; Environmental crime; Facilitation of unauthorised
entry and residence; Murder; Grievous bodily injury; Illicit trade
in human organs and tissue; Kidnapping, illegal restraint and
hostage-taking; Racism and xenophobia; Organised or armed robbery;
Illicit trafficking in cultural goods; Swindling; Racketeering
and extortion; Counterfeiting and piracy of products; Forgery
of administrative documents; Forgery of means of payment; Illicit
trafficking in hormonal substances and other growth promoters;
Illicit trafficking in nuclear or radioactive materials; Trafficking
in stolen vehicles; Rape; Arson; Crimes within the jurisdiction
of the International Criminal Court; Unlawful seizure of aircraft/ships;
EXT 2 Back
EXT 6 Back
Q 11 Back
COM (2011) 175 Back
EXT 6 Back
Q 33 Back
EXT 1 Back
Q 57 Back
Qq 230-1 Back
COM (2011) 175 Back
Q 45, EXT 1 Back
Q 134 Back
Q 188 Back
EXT 1 Back
JUSTICE Response to the Home Office Extradition Review, p 15 Back
Q 23 Back
Q 24 Back
EXT 28 Back
Qq 189-92 Back
Qq 106-11 Back
EXT 28 Back
The House of Lords Select Committee on the European Union considered
the application of the Charter to EU law in 2000: Select Committee
on the European Union, 8th Report (Session 1999-2000):
EU Charter on Fundamental Rights (HL Paper 67) Back