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).

Event review, featured

REVIEW: EU Law Panels at the International Graduate Legal Research Conference (IGLRC) 2013 at King’s College London, 8-9 April 2013

Christy Burzio and Adrienne Yong
PhD Candidates at King’s College London

 

It was a great privilege for the authors of this post to have been present for the seventh annual IGLRC held at King’s College London on the 8-9 April 2013. Indeed, the panels were sure to provoke a lot of great discussion chaired by Professor Alex Türk, both in the realm of the tense political, social side of the Union and in the midst of the tough economic times Europe faced and still faces. As greatly varied subjects within EU Law itself, there were two panels split accordingly, the first discussing the EU’s modern social side including issues on identity, fundamental rights and political undertones of judicial review and revocation and the second primarily focused on the financial side of the EU in austerity, agencies and supervisory authorities in banking.

 

The first panel consisted of Eleni Frantziou (University College London), Ana Júlia Maurício (Cambridge) and Erin O’Leary (Liverpool John Moores). It was interesting that whilst the topics of each presenter did vary greatly on the face of it, it would ultimately emerge that they all voiced a commonality. Some presented it as a concern, others as an issue to be acknowledged. They all came back to the same point regarding the un-reconciled status of the EU as lacking coherence in terms of its policy and direction. However, whilst pessimistic in nature on the outset, the three presenters each demonstrated a keen desire for there to perhaps be more room for constitutionalism within the EU legal order and structure. The presence of this trend was an interesting one to note and one certainly considered as being characteristic of the EU generally. The themes were presented from the point of view of fundamental rights and horizontal effect, from national final administrative acts and revocation and from a more socio-legal linguistic identity point of view.

 

The first panel began with a refreshing reference to artistic culture, entitled ‘The constitutional value of the Charter of Fundamental Rights after Lisbon: The importance of being earnest’, analogising Oscar Wilde with the constitutional value of the Charter of Fundamental Rights. After an update on the status of fundamental rights under Lisbon, the sensitive issues were tackled. The fact that there was an undermining of the Charter’s constitutional impact was lamented, which hindered the consolidation of a European identity. This was due to excessive reliance on general principles of EU Law as opposed to the Charter in governing how citizens enjoy rights. It was argued that the Court of Justice of the European Union (CJEU) had to be earnest about their direction for the Charter before it could be clearly stated exactly what their intentions were. The perspective advanced was that there needed to be a new methodology for the application of human rights following the Lisbon Treaty, placing the Charter first, then the ECHR, and following that, general principles to aid in correct interpretation. This interesting methodology instigated a lively debate considering its merits and demerits leaving great food for thought as we then delved into a more technical topic.

 

The provisions and conditions regarding revoking national final administrative acts could be described as a niche area, certainly the thoughts of this author when reading the title of the second presentation, ‘National final administrative acts contrary to EU Law: A critical analysis of the Court of Justice’s case law’. The speaker considered the political relationship between remedies and behaviour of MS in complying with EU law. Though a topic clearly outside many of the attendees’ remit of knowledge, clarity in both delivery and content aided the audience in comprehending the specific topic separated into two parts, firstly aid (state and national aid) and then in regards to the free movement of persons. The presentation and discussion both centred round the stark difference in treatment concerning the treatment of both by the CJEU. Highlighted were the exceptional cases,[1] which seemed to be at odds with the prior line of reasoning. It was commendable to the speaker that though her topic was not widely understood before the day began, she certainly shed some light on the matter by the end of it. Ultimately again, the theme emerged of the divergence rife within the Union’s constitutional decisions. Her focus on this idea contextualised her area of expertise with that of the previous in term of the delicate balance required in both because of the EU’s constitutional nature.

 

The panel rounded off with a non-lawyer’s perspective on the hypocrisy in the EU’s motto in her take that it was more akin to being ‘United in diversity: the lesser of two evils’. As highlighted, to hear a fresh non-legal perspective of an idea of predominantly considered in the legal sphere was a welcome and indeed interesting debate. From a largely linguistic point of view, the notion of the diversity of languages and its consequences for the united Union was considered. The large number of both languages and cultures in the EU contribute to the difficulty in becoming such. This was due to the inherent connection between the two and the undesirability to have a lingua franca for the Union. It perpetuated the idea that there has been a failure to achieve equality, which means there is also legal certainty compromised. It seemed that there was an inevitable sphere of linguistic uncertainty. Again, identity was a key issue given that without an agreement as to one, there would constantly be a tension in the supranational order. Whilst there was significant criticism advanced as to the lack of a clear answer for why there is such hypocrisy and tension within the Union, it only served to emphasise again that this characteristic of the EU would be here to stay, and likely the source and subject of many a debate to come.

 

The second panel was an opportunity for one of the authors to dig deeper into a relevant debate, of which topics and presentations on offer didn’t disappoint. The EU has been epitomised in recent months as an unpredictable political playground. Solidarity and austerity are seen as two conflicting schools of thought, with a line being firmly drawn between the two. The solidarity of many countries has faltered under immense economic pressure. Germany’s resistance to guarantee funds to enable further bailouts and the UK’s proposed attempts at future renegotiations and referendums have spurred a culture of countries looking from the outside at the problems facing the EU from within. The term ‘austerity’ has become taboo to many EU citizens and only the most daring of us would ever utter these words in order to raise a debate. Luckily for us, the speakers were not worried by such a fear.

 

The first speaker was Luca Lionello, (Catholic University of Milan) with a presentation entitled ‘Austerity Measures, Shift of Sovereignty and Democratisation of European Institutions’. The title was intriguing given its boldness in tackling austerity and sovereignty in the same sentence. Aren’t these terms a modern day juxtaposition? The presentation dug deeper into the reality of austerity measures and the impact they have on country independence. He tackled the recent adoption of the Euro plus pact, the Six Pack and the Treaty on Fiscal Stability, as several EU members have adopted austerity measures to respect the new rules on fiscal integration. However, the question on everyone’s lips was; are these measures legitimate and can they solve anything? Luca raised three main points to question the legitimacy of the measures (1) as fiscal policy is a core competent of national sovereignty, the development of a strong European supervision on national budgets will probably oblige members states to reform their own constitution, (2) the new economic governance is managed by intergovernmental bodies that dont directly respond to the citizens in contradiction with the EU’s democratic principle and (3) the adoption of austerity measures under the new rules on fiscal integration has caused the violation in many member states of social and labour rights. The tone of the talk was hopeful that the way to remedy these illegitimacy’s was providing European institutions with the competence and the appropriate means to guarantee social protection of the EU according to the principle of subsidiary. However, with recent economic catastrophes, like that seen in Cyprus, it seems principle of subsidiarity may take a backseat on the EU agenda while we ride through the storm.

 

With subsidiarity at the forefront of the audiences mind, we were greeted by Pieter Van Cleynenbreugel, (University of Leuven) with a presentation entitled ‘Between Delegation and Attribution: Article 114 TFEU, Integrated Administration and the Constitutional Circumvention of the Meroni-judgement on the Establishment of new EU Regulatory Agencies’. The cynical tone of the speakers’ thoughts was presented by the notion that the Meroni judgment [2] is still repeatedly invoked to curb the regulatory powers of independent EU agencies. This powerful debate has been made even more relevant by the introduction of the institutional set up and decision-making powers of the new European Supervisory Authorities (ESA’s) in financial markets regulation. A decisional tug of war is ongoing at EU level between the Meroni delegation limits with the EU treaties’ competence attribution framework. It seems the EU has been rather inventive in delegating power as the incorporation allows it to partially circumvent traditional Meroni delegation limits and to re-qualify them as novel, thus enabling and restraining instruments governing the process of agency establishment in general rather than agency delegation in particular. After a discussion on the relevant case law and highlighting Articles 114 and 291 TFEU, the line of reasoning given by the EU was adamantly and persuasively criticised by the speaker, leaving many thinking, where do we go from here?

 

It was with bated breath that the audience waited for the last speaker on the Panel. Gianni Lo Schiavo (King’s College London) presented on ‘The European Financial Supervisors: A true constitutional challenge in the aftermath of the European Crisis’. This was clearly the hot topic of the panel with many audience members having prepared questions in advance for the speaker to answer. The speaker took a novel approach to his presentation and made a clear case for the introduction of the macroeconomic layer into the European economic constitution established by the Maastricht Treaty. The issues raised by the speaker covered not only the economic crisis but the underlying constitutional crisis as well.  Whilst the new European Financial Supervisors were shown to be important improvements, Gianni spent no time getting to the harsh questions of these entities. The first problem was the shaky ground that these entities seem to have been built upon. The new European delegated governance is being shaped, but it is unclear whether their role will be enhanced as standalone bodies. Secondly, and importantly, the discussion turned to sovereignty; how do these bodies relate to national authorities and their powers, could this indicate a real ‘top down’ process of market regulation and control? The presentation ended stressing the urgency of the need for clear answers of effectiveness and shared responsibilities.

 

Both panels presented papers that prove themselves in both relevance and content. They raised significant issues, but more importantly current issues, and like with any conference by the end both authors found themselves with more questions than they started with as to the future of the EU’s plans in many aspects, on their direction in future development on fundamental rights, identity and that ever tricky balance between sovereignty and supranationality, and on economic recovery and the agencies that could aid in its implementation.


[1] C-119/05 Lucchini [2007] ECR I-6199; C-249/11 Byankov [2012] judg of 4 Dec 2012, nyr.

[2] Case C-9/56 and 10/56, Meroni v High Authority [1958] ECR I-0133