Article

Impediments Under European Law To The Prevention And Prosecution Of Foreign Fighter Crimes

Fahrid Chishty
Second year undergraduate student and Dickson Poon Scholar of the LLB in Politics, Philosophy & Law (PPL) at King’s College, London

The European legal order is beset by an unprecedented challenge today. Domestic nationals, prevailingly of Western European origin, are engaged at the centre of ideological conflicts in Iraq and Syria in increasing numbers. Against the backdrop of sectarian conflict and the proliferation of terrorist networks, European ‘foreign fighters’ pose a significant threat, upon return, to the security and prosperity of their Member States (MS) of origin. National governments have enacted legislation in recent months in order to stem the tide of European fighters leaving and re-entering Union or State territory, accentuating the need for a collaborative and synergetic regional strategy. This article assesses the impediments, actual and potential, to the prevention and prosecution of foreign fighter criminality in the Middle East region (ME) under European Union law. It identifies potential lacunae in the law, concluding with the case for EU-wide legislation facilitating the arraignment of foreign fighters consistently across MS, as proposed by Gilles De Kerchove, Brussels’ Counter-Terrorism Coordinator (CTC), at the Commission in December 2014.[1]

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Event review

Event Coverage: Whatever Happened to the European Arrest Warrant?

Niall Coghlan

 

Introduction

Under the Anti-Social Behaviour, Crime and Policing (ABCP) Bill, substantial reform of the European Arrest Warrant (EAW)’s implementation in the UK is promised.[1] Simultaneously, the European Parliament is pressuring for EAW reform at the European level.[2] To analyse these reforms, a seminar chaired by John Spencer (University of Cambridge), with Anand Doobay (Peter and Peters), Libby McVeigh (Fair Trials International) and Helen Malcolm QC (3 Raymond Buildings) on the panel, took place in London on 9 December 2013.[3]

The Framework Decision on the EAW (FDEAW) attempts to simplify and streamline extradition proceedings between Member States (MS) through the principle of mutual recognition.[4] This means that an EAW must be executed within strict time limits, subject only to limited exceptions; most notably, states cannot refuse to extradite their nationals, and for 32 core offences, there is no requirement of dual criminality.[5]

Although a success on its own terms, with average extradition time falling from nine months to 43 days, the FDEAW’s mutual trust is premised on states having faith in their neighbours’ justice systems.[6]   This faith is not always justified, and judicial dialogue has become increasingly strained over two problems: first, fair trial standards in issuing states[7]; second, EAWs issued for trivial or old crimes.[8] How, though, can rights be protected without undermining the EAW’s efficiency gains and integrative aims?

The seminar began by analysing Theresa May’s reforms, contained in the ABCP and the recent Crime and Courts Act, which purport to answer this question.[9]

The Forum bar

This is the first headline reform. Under the forum principle, a state may refuse to extradite where it considers itself to be the most appropriate forum for a trial. In response to the (American) McKinnon case, the Crime and Courts Act 2013 introduced a forum bar for all extraditions, including EAW ones.[10] This does not breach the FDEAW.[11]

‘Much ado about nothing’, however, is how Spencercharacterised it. Its background arouses suspicion. In introducing this reform, the government ignored the simple forum bar enacted (but never brought into force) by Labour in 2006.[12] It further ignored the conclusions of the Scott Baker report, which it commissioned: this concluded that a forum bar would constitute a ‘backward step’, both slower and more litigious than the current prosecutorial negotiations that decide forum; nor would it have helped McKinnon.[13]

This suspicion is confirmed by the provision, which is as complex as it is weak. Both the EU and continental courts are frequently lampooned as slaves to inflexible codes of labyrinth complexity. Yet, Spencer continued, the EAW’s forum bar provision is 57 words long; the French, a mere 32; the UK’s, by contrast, contains a monstrous 1,496 words.[14] The reason for this length is its highly prescriptive and restrictive nature: it has a narrow, exhaustive list of ‘interests of justice’, requires a ‘substantial part’ of the crime to have occurred in the UK, and can be removed from the Court’s hands altogether by a non-judicially reviewable CPS certificate. It is the UK, then, whose judiciary is constrained by a code which is much weaker than it appears, where the French enjoy simplicity and significant judicial discretion.

Whilst this criticism is mostly persuasive, Doobay added one interesting caveat. The perpetual problem with a forum bar was that whilst the extraditing court may rule that the UK is the most appropriate forum, it cannot order a prosecution. If none resulted, the accused would gain de facto immunity. The CPS certificate, then, could be used to ensure extradition is not forum-barred where no UK prosecution is likely.[15]

The Proportionality bar

The EAW is not intended for trivial offences; consequently, the offence must be punishable by at least 12 months’ custody (four months for a conviction warrant).[16] Doobaypointed out, however, that this threshold can prove ineffective: theft of a pencil is theft, and so exceeds the threshold, even though extradition would be manifestly disproportionate. Similarly, whilst the Commission hopes that discretion by the issuing state can solve the problem, the reality is that prosecutors are highly uneven in their use of this discretion.[17] Executing states are growing restless at their inability to refuse plainly disproportionate warrants.[18]

Moreover, as a matter of principle some proportionality review must occur in the executing state. The public interest in extradition must be balanced against the accused’s human rights, particularly under ECHR[19] Article 8. In HH, Malcolm noted, the Supreme Court had set out how this balance should be struck.[20] Yet, Doobayargued, only the executing court can judge this: the issuing court has no knowledge of the accused’s situation. Even where the issuing state has acted properly, then, an executing proportionality bar should exist.

The UK already has a limited form of proportionality review: where the ‘passage of time’ makes extradition unjust or oppressive, it is barred.[21] May’s second headline reform would add an explicit, general proportionality bar for all accusation warrants.[22]

Whilst all agreed that a proportionality bar was necessary, the panel criticised the proposed bar. First, it is highly restrictive: only the offence’s ‘seriousness’, its ‘likely penalty’, and the availability of ‘less coercive measures’ may be considered.[23] Malcolm noted that human rights must be implied as a further consideration, else there would be nothing to weigh these factors against. For McVeigh, the list should be expanded to include the expense and human impact of an extradition. Second, it does not apply to extradition for an existing conviction: this is both unprincipled and ignores the injustice of cases like Natalia Gorczowska, a mother-of-one sought over an old suspended sentence for a minor drug offence.[24]

At the other end, it was criticised from the EAW’s perspective. First, Malcolm argued that it breached the FDEAW, except to the extent that it followed the balance struck in HH. It plainly contradicted mutual trust, with opt-in consequences that are outlined below. Second, both Doobay and Malcolm asked how proportionality could be judged without undertaking precisely the arduous analysis that the EAW aims to avoid. For instance, a crime might be more serious in a particular state, or for a particular victim. Estimating the likely sentence would presumably require expert evidence. Worst of all, only in relatively minor cases could extradition possibly be disproportionate; consequently, the new bar will make these most minor cases the most expensive, litigated and lengthy ones.

The unreformed: fundamental rights

Whilst seeking to introduce a proportionality bar, the government is not legislating on an equally controversial issue: fundamental rights in issuing states. Under the ECHR, evidence of a ‘flagrant denial of justice’ in the accused’s trial is required to show this.[25] Yet, McVeighargued, this faith in Member States’ conditions was as much a myth as mutual trust: between 2007-2012, a breach of ECHR Articles 5 or 6 was found in over 500 criminal cases by the ECtHR. Again, a tension exists between mutual trust and defendants’ rights.

Overall, the UK’s reforms in these three key areas did not impress the panel. May’s more modest reforms, which follow, were more warmly received.

Other reforms: trial readiness, leave to appeal, and specialty

First, ‘trial readiness’: under UK law, a prosecution EAW must be issued for ‘the purpose of’ prosecution’.[26] This is potentially extremely wide. The Symeou case showed the dangers of this approach, said McVeigh. Symeou spent two years confined to Greece (eleven months in jail) having been extradited from Britain, before being acquitted at trial. The proposed reforms, which Doobay noted was borrowed from Irish law, allow extradition only where a decision to charge or try had been made.[27] Unlike the Irish Act, it has an exception where the accused’s absence is the sole reason they have not been charged: this author adds that this closes a loophole that would otherwise open via the Assange case.[28]

Presently, an EAW extradition order may be appealed to the High Court by right. This is subject to a strict seven-day time limit. Under the proposed reforms, leave to appeal would become required; balancing this, appeals out of time would be possible where the accused had done ‘everything reasonably possible’ to appeal in time.[29] This relaxation was necessary, said Doobay; indeed, it codified the Supreme Court’s ruling in Lukaszewski that Article 6§1 ECHR required out-of-time appeals in exceptional circumstances, whilst removing that judgment’s potentially-discriminatory suggestion that this applied only to British citizens.[30] For McVeigh, the new leave requirement was very disappointing, and the relaxation, whilst welcome, did not go far enough: the Scott-Baker report’s more flexible test should be adopted.[31]

Under the specialty doctrine, an extradited person may only be tried for the offence for which he was extradited, subject to limited exceptions. Doobay noted that under the current law, consenting to extradition constitutes a waiver of specialty.[32] This discourages accused persons from consenting where they otherwise would, causing costly delay. May’s reforms would remove this rule.[33] This author notes that this abolition is likely to breach the FDEAW, although the relevant articles are unclearly drafted.[34]

Opt-outs

Whilst the panel found parts to praise in these reforms, then, the prevailing image was negative: the forum bar was broadly bluster, the absence of a stronger fundamental rights bar was disappointing, and the proportionality bar potentially breached the FDEAW.

Malcolm argued that this last point was particularly problematic: not only might infringement proceedings against the UK be brought once the CJEU gains jurisdiction in December 2014, but more urgently the Commission might reject Britain’s application to opt back in to the EAW after exercising its mass opt-out of pre-Lisbon criminal measures in 2014.[35]

Upon leaving the EAW, the UK’s extradition framework would be entirely unclear, Malcolm continued. It might revert to the pre-EAW system, as one Parliamentary committee expected; or it might need to move straight to a successor system, as another did.[36] Spencer agreed with the latter; renegotiation with all 27 Member States would likely be necessary, and in the chaos, the UK would become a ‘new Costa Del Crime with poor weather’.

EU-level reform

Moving away from the UK’s unilateral reforms, there are two sides to the European answer to the EAW’s deficiencies. The first, McVeigh said, was harmonisation. In addition to 2013’s directive on the right of access to a lawyer, three directives on suspects’ rights were recently proposed.[37] By raising guaranteeing minimum procedural rights across Europe, these may provide one answer to the question of human rights.

The second is, like the UK’s reforms, a loosening of mutual trust. The European Parliament primarily justifies this as a question of implementation, Doobay said.[38] The UK is not the only state to deviate from the FDEAW because of proportionality and human rights concerns. Come December 2014, when the Commission can bring FDEAW-related enforcement proceedings, these contradictions will come to a head.[39] By relaxing the FDEAW’s strictures before then, these clashes might be avoided. McVeigh noted that this move away from mutual trust could be seen in the agreed text of the European Investigation Order, which includes a standalone provision on fundamental rights.[40]

For two reasons, this loosening of mutual trust might not undermine the EAW, as the Commission feared. First, asDoobay noted, some proportionality bar must exist.[41] Mutual trust, therefore, simply must yield; the only question is how far. Second, McVeigh argued that by refusing to execute a warrant for failure to reach basic fair trial standards, the executing state encourages the issuing state to reach those standards. A rights review could, then, complement mutual trust: it constituted an investment in, not a rejection of, integration.

Conclusion

In his final remarks, Spencer returned to the question of harmonisation. Britain should recognise that the EAW has revealed rather than caused these European problems. As the Confait case showed, the UK was not born free of original sin in pre-trial procedure, but has successfully improved over the years. Far from opting out of the EAW system, she ought to leadEurope in reaching the same standard.[42]


[1] Anti-social Behaviour, Crime and Policing Bill (ABCP) (HL Bill 66, 2013-14): 12/12/2013 edition, as amended in Committee, Part 12. (‘ABCP’); on promises, see HC Deb, 10 June 2013, c74-5.

[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-522.805+02+DOC+PDF+V0//EN&language=EN

[3] http://www.events.sas.ac.uk/events/view/14705

[4] 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States; Ibid., Recitals 5 and 6; See generally S Peers, EU Justice and Home Affairs Law  3rd edn (Oxford, OUP, 2011), pp693-710.

[5] FDEAW, Articles 1(2), 2, 3 and 4; see Peers, EU Justice (n 4), 703 for further restrictions.

[6] FDEAW, Recital 10; Peers, EU Justice (n 4), 705f, 708 and 752-753.

[7] C-396/11 Radu; C-399/11 Melloni; http://ukconstitutionallaw.org/2013/05/22/dorota-leczykiewicz-melloni-and-the-future-of-constitutional-conflict-in-the-eu/

[8] Minister for Justice and Equality v Ostrowski [2013] IESC 24 (Ire), espJudgment of MacMenamin J. See generally Peers, EU Justice (n 4), 705-9.

[9] ABCP (n 1); Crime and Courts Act 2013,.

[10] Crime and Courts Act 2013, s50.

[11] FWD Art 4, Art 4(7)(a)

[12] Police and Justice Act 2006, Sch 13.

[13] 6.28-6.30, 6.68 on prosecution (but cf 6.43), and 6.77-80 conclusions; in a striking parallel, s43 of the same Act alters self-defence law in a way that would not have affected the Martin and Hussain cases underlying calls for reform.

[14] FWD Art 4, Art 4(7)(a); Code de procédure pénale Art 695-24 alinéa 3o, 4o; Crime and Courts Act, Sch 20; NB the 2006 bar was just 138 words.

[15] Mr Doobay’s interpretation is reinforced by the specified considerations under s19D.

[16] FDEAW, Article 2(1).

[18] See Minister for Justice and Equality (cited above, n 8).

[19] European Convention on Human Rights

[20] [2012] UKSC 25, esp paras 27-34, 44-48 and 79, cited by Helen Malcolm QC.

[21] Extradition Act (EA) 2003, s11(1)(c), s14; EA 2003, s11(1)(b), s13;

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:0430:FIN:EN:PDF, p182.

[22] ABCP, Clause 145.

[23] ABCP, Clause 145, inserting s21A(3).

[25] ECtHR, Othman v UK (2012) 55 EHRR 1, §§259-261; Janovich v Prosecutor General’s Office Lithuania [2011] EWHC 710 (Admin); cf AG Sharpston’s rejection of this standard in C-396/11 Radu, at 82-5.

[26] FWD A1(1); Extradition Act 2003, s2(3).

[27] ABCP, Clause 144; s11(3) European Arrest Warrant Act 2003 (Ire).

[28] Julian Assange v Swedish Prosecution Authority, [2011] EWHC 2849 (Admin), paras 148-154.

[29] ABCP, Clause 148

[30] [2011] UKSC 177, paras 32-40; see criticism of this approach in the (concurring) judgment of Hale LJ, paras 51-54

[31] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf 11.75-11.84: presumably, in particular, the 14-day limit, the lack of a court fee requirement, and the extension where the appellant has provided inadequate grounds.

[32] EA 2003, s45(3) for EAW; s128(5) for non-EAW.

[33] ABCP, Clause 151

[34] FDEAW, A13 and A27(3)(e); see S Peers, EU Justice and Home Affairs Law  3rd edn (Oxford, OUP, 2011), p704.

[35] https://www.gov.uk/government/publications/the-2014-decision

[39] Protocol 36 of the Lisbon Treaty, Article 10.

[41] Above, ‘Proportionality bar’.

[42] R v Lattimore, Salih and Leighton (1975) 62 Cr App R 53; Report of an Inquiry by the Hon. Sir Henry Fisher into the circumstances leading to the trial of three persons on charges rising out of the death of Maxwell Confait and the fire at 27 Doggett Road, London SE 6 (H.C.P. 90 of 1977-78).