The European arrest warrant: A British affair

On Monday November 10th, the British Parliament will vote on Britain’s participation in the European arrest warrant (EAW) and other important European measures to fight trans-national crime. This vote will determine the future of Britain’s role in the area of EU policy known as Justice and Home Affairs (JHA).

Member-states used to agree JHA policies on an inter-governmental basis. The Treaty of Lisbon introduced a revolutionary change to the system, by placing JHA matters under the competence of the EU institutions and the supervision of the Court of Justice of the European Union (CJEU). Acts adopted before the entry into force of the treaty in December 2009, however, were not subject to CJEU authority during a transitional period of five years. This period ends on December 1st 2014.

Britain feared the increasing “Europeanisation” of JHA, and during the negotiations on the Lisbon Treaty it persuaded its partners to give it a block opt-out from measures adopted before the enactment of the treaty. For measures adopted after December 2009, the UK continues to enjoy its right to opt-in on a case by case basis; that is, only to measures it chooses to. The block opt-out from all pre-Lisbon measures was to be exercised before the end of the transitional period. In July 2013, the British government declared its intention of opting out of 130 JHA measures. Simultaneously, it announced that, for reasons of national security, it would opt back in to 35 of these measures, including Europol, Eurojust and the European arrest warrant. After some opposition (mostly from Spain) both the EU institutions and the member-states agreed that Britain could re-join the proposed 35 measures by the December 1st deadline.

The problem is that having convinced its partners that it should be allowed to opt back in, the British government may now fail to convince its own parliament. The timing of the vote could hardly be worse: with the rise of UKIP making many Conservative backbenchers nervous about retaining their seats in next year’s general election, the Conservative-led government is struggling to contain a parliamentary revolt by its own party.

Britain’s eurosceptics seem blind to the benefits of cross-border police co-operation. The 35 measures in question will help national police and intelligence forces to fight trans-national crime. Most of them do not imply any further transfer of competences to European institutions; instead, they are based on operational co-operation and mutual acceptance of member-states' judicial systems as equally valid. The majority of these measures, like Europol and Eurojust, have contributed greatly to Britain’s security.

Despite the long list of measures that the UK plans to opt into, criticism has centred on one particular instrument: the European arrest warrant. The EAW has, however, made extradition procedures smoother, faster, and cheaper.

Ironically, the EAW is based on a British initiative. In 1998, the then British home secretary, Jack Straw, suggested that the principle of ‘mutual recognition’ could be translated from the internal market to the criminal domain. In the single market, the principle of mutual recognition means that member-states recognise and accept each other’s lawfully marketed products. In the criminal domain, it implies that national authorities recognise and execute each other’s judicial decisions. The British proposal was based on the assumption that, by promoting mutual recognition of judicial decisions, further intervention from EU institutions in the area of criminal procedures could be avoided.

The events of September 11th, 2001 hastened the adoption of the EAW. The warrant was a necessary tool to fight terrorist networks which were spreading across borders. Member-states acknowledged the need to replace the 1957 European Convention on Extradition, which had become obsolete. The procedures of the non-EU Convention, to which all member-states were parties, were lengthy, expensive and allowed for a great level of political discretion, which complicated extradition procedures for offences such as terrorism.

The EAW was adopted in 2002 and came into force in 2004. Under the system, a warrant is issued by the judiciary of one member-state requesting that another surrenders someone. The warrant can be issued in order to carry out a criminal prosecution or enforce a custodial or detention order. The average time for surrendering individuals in contested cases is around 48 days, and in uncontested cases, a maximum of 15 days. This contrasts with the 18 months required on average to extradite a suspected criminal under the 1957 convention.

Warrants cannot be issued merely for investigative purposes. Member-states mostly apply the principle of double criminality, that is, a warrant can only be issued when the offence exists in both member-states. That means that, for example, a British national cannot be extradited to Greece for blasphemy if the action does not qualify as an offence under British law.

Under the EAW system, the principle of double criminality does not apply to 32 serious offences, such as terrorism or human trafficking. In such cases, if the law of the member-state applying for extradition provides for a sentence of more than three years for the alleged offense, a suspect can be extradited without verifying that their action would have been criminal in the member-state where they were detained. One of the objectives of establishing a list of serious offences subjected to expedited procedures is to avoid political interference in an otherwise purely judicial issue.

In 2013, EU member-states surrendered 127 suspects to the UK under the EAW regime, in contrast with the 19 surrendered in 2004 when the EAW came into effect. Likewise, the number of people handed over by the UK to other member-states increased from 24 in 2004 to 1,126 in 2013. The overwhelming majority – 96 per cent – of suspects extradited by the UK were not British nationals.

The EAW has contributed to the smooth handling of high-profile cases, such as that of Hussain Osman. Osman, a British national, was a suspect in the 2005 London bombings. He was swiftly extradited from Italy after the British authorities issued a European arrest warrant, and subsequently prosecuted in the UK. The EAW has also contributed to reducing the number of British fugitives absconding to Spain’s ‘Costa del Crime’.

Like any other ground-breaking legal instrument, the EAW has flaws which have become more evident with time. Some member-states issue too many warrants for minor offences. Poland is the main culprit: its prosecutors are required to issue warrants for all offences, regardless of their importance. Reform is underway to tackle the issue of proportionality in a way that still acknowledges Europe’s legal diversity. In 2014, the European Parliament proposed the introduction of a proportionality test to reduce the number of warrants. Poland and other countries are also introducing reforms to address the problem.

The EAW’s critics also argue that the current rules do not ensure that the basic rights of suspects facing extradition are equally respected in all member-states. This argument is often used to underline the risk that UK citizens suspected of crime may be prosecuted in countries which have fewer procedural rights than the UK.

This is a question of mutual trust. An efficient extradition system cannot work if member-states do not rely on each other’s legal order. But trust can be improved through knowledge. Further efforts should be made at the European level to increase the understanding of other national systems among national authorities. The EU should have more ‘exchanges programmes’ of legal practitioners, so that they can learn about each other’s systems, and it should strengthen existing forums of judicial co-operation such as Eurojust (the EU agency dealing with judicial co-operation in criminal matters) or the European Judicial Network (a network of European national authorities for the facilitation of co-operation in criminal matters).

Member-states would trust each other more if fewer extradited people faced unfair or lengthy pre-trial procedures. There are currently a number of European and national instruments that can be used to that effect. As the CER has previously argued, the European Supervisory Order (ESO) could be used more efficiently. Under the ESO, the authorities of a member-state can ‘outsource’ the supervision of a suspect to their home member-state until the trial is opened. This would allow, for example, British suspects sought by other member-states to remain under the supervision of British police while awaiting their trial. The ESO has not yet been transposed into UK law, since it is one of the 35 measures subject to the December vote. The British Parliament has, however, already agreed on an amendment to the Extradition Act with the aim of delaying the extradition of suspects until trials are ready to start.

Finally, the functioning of the EAW also depends on the member-states’ willingness to move forward with the Commission’s 2009 ‘roadmap on procedural rights’. The roadmap foresees a number of legislative measures aimed at granting equal and uniform protection to suspects and defendants across Europe. Some of the measures envisaged by the roadmap (such as the directive on interpretation and translation) have been already adopted. Others, like the directive on the presumption of innocence, are currently being discussed. The UK has been very keen on the adoption of these measures.

If the UK opts out of the EAW, it could revert to the inefficient 1957 Convention system. Alternatively, the British government could seek to conclude bilateral extradition agreements with each of the other 27 member-states. But this would be very complicated. Other member-states are increasingly fed up with the UK trying to pick and choose between measures it likes and dislikes; Spain tried to block the UK’s opt-in to the 35 JHA measures because it argued that some of those the UK wanted to opt into were intrinsically linked to others it wanted to stay out of. Some member-states would have to amend domestic legislation to enable continued cooperation with a UK which was no longer in the EAW system. This may make bilateral agreements very difficult to conclude.

Another option for the UK, if it opts out of the EAW, would be to negotiate an extradition agreement with the whole EU, mirroring the one concluded between the European Union on the one side and Norway and Iceland on the other. But there are, at the very least, two problems with this idea. First, it is not clear that the EU can conclude such an agreement with one of its own member-states (the EU treaties currently only allow for agreements with non-EU countries). Second, the agreement foresees a system almost identical to that of the EAW (same surrender procedures, same list of 32 offences, same deadlines and so on). Therefore, if such an agreement was to be concluded between Britain and the EU, many UK concerns about the operation of the system would remain.

Opting out of the European arrest warrant would also be expensive. With longer procedures, and large numbers of foreigners waiting in detention facilities to be extradited, the UK would have to spend more money on extradition cases.

Finally, opting out of the EAW may also have a negative impact on the relationship between the UK and some of its key partners, not least the Republic of Ireland: under the 1957 Convention, politicians had more power over extradition cases and it was often very hard, for example, for the UK to extradite suspected terrorists from Ireland. Terrorist cases were regularly contested between member-states, mainly for political reasons, hindering effective co-operation.

Staying in the European arrest warrant should not be turned into a political argument for more or less Europe. The EAW should be seen for what it is: an operational measure designed to support regional co-operation against cross-border crime, in an age when global criminal networks do not respect borders or national powers. Opting back into the European arrest warrant would ensure national security while promoting fair and speedy procedures for British nationals abroad. It would also ensure that the UK does not become a safe haven for criminals. MPs, however eurosceptic they may be, should listen to the law enforcement experts and vote to opt back in.

Camino Mortera-Martinez is a research fellow at the Centre for European Reform.