As part of their “six key facts you need to know”, Britain Stronger in Europe claims that:
“We are safer thanks to the European Arrest Warrant, which means we can arrest criminals across the EU – we would lose this if we left.”
This article will examine the European Arrest Warrant (EAW) and ask: is the EAW really a big reason to stay in the EU?
The EAW was introduced in 2004 in order to make it easier and quicker to extradite those wanted for serious crimes. The EAW means mutual recognition of the criminal justice systems throughout the EU. The relevant national authority (usually a court) can issue an EAW to any other EU member state. They can only be issued for offences that carry a minimum penalty of at least one years’ imprisonment. Subjects must be handed over within a maximum of ninety days after arrest. Member states are no longer able to refuse to extradite their own citizens simply on the grounds of their nationality.
The EAW process typically involves the following stages:-
- UK police forces and other law enforcement agencies make the initial requests for EAWs for subjects in other EU member states. UK police will also arrest subjects in the UK who are wanted by other EU authorities.
- Westminster Magistrates Court (England and Wales), Edinburgh Sheriff Court (Scotland) and Belfast Magistrates Court (Northern Ireland) hold the initial EAW hearings. The judge or sheriff decides if an extradition should be ordered. The Appeal Court and the Supreme Court may also become involved if appeals are made.
- The Crown Prosecution Service (England and Wales), the Crown Office and Procurator Fiscal Service (Scotland) and the Crown Solicitors Office (Northern Ireland) issue EAWs on behalf of UK police forces when a subject is in another EU member state. They also represent the prosecuting authorities of the other member states when they seek extradition from the UK.
- SIRENE (Supplementary Information Request at the National Entry) Bureaux exchange EAWs via the Schengen Information System (SIS II). The UK’s SIRENE is the NCA.
- Subjects being extradited from the UK will be handed over to the requesting EU police force.
Can an EU member state refuse to execute an EAW? Yes, under certain conditions:
- Under the double jeopardy principle, a suspect will not be returned to the state that issued the EAW if he or she has already been tried for the same offence abroad. (There are some exceptions to the double jeopardy principle.)
- Refusal is also justified if an EU member state’s amnesty covers the offence in question.
- An EAW can be refused if, under a statute of limitations, a time limit has passed for prosecution.
- EAWs can also be rejected if under a state’s laws, the suspect is below the age of criminal responsibility (a minor).
- If the legal authorities consider that an extradition would violate a subject’s rights under ECHR, an EAW can be rejected.
- If there is concern that an EAW is motivated by prejudice on grounds of race, religion, politics or another such factor, it can be grounds for blocking extradition.
The following tables set out some of the latest EAW statistics that have been released by the NCA. When looking at the EAW statistics, it is necessary to distinguish between requests, arrests and surrenders:-
Requests: the number of requests received by the UK does not represent the number of wanted people in the UK. Some EU member states issue requests to a number of states if they don’t know where a subject is.
Arrests: the number of people who have been arrested.
Surrenders: the number of people who have actually been extradited.
Wanted FROM the UK
Wanted BY the UK
The obvious benefit of the EAW is that the extradition process has become quicker. Under the EAW, EU extradition takes three months on average, compared to an average of ten months for non-EU extradition. For example, the failed 21/7 London bomber Hussain Osman was extradited from Italy to the UK in eight weeks. Crime is becoming increasingly internationalised. Europol warns of a ‘travelling criminal gang phenomenon’ that originates in Eastern Europe. Europol claims that the EAW ‘has transformed the nature of international police co-operation’. The UK’s Association of Chief Police Officers (ACPOs) feels that the EAW is ‘an essential weapon’.
However there have been some horror stories. For example, British teenager Andrew Symeou was extradited to Greece in 2009 under the charge of killing a man in a Zakynthos nightclub. Symeou spent nearly a year in pre-trial detention before his case was thrown out due to flawed evidence.
There has also been heavy criticism of the high number of EAWs issued for trivial offences and the resultant cost to UK courts of processing these cases. The ‘obligation to prosecute’ that prevails in some EU countries means that EAWs are often issued for minor offences, like exceeding a credit card limit, piglet rustling, and wheelbarrow theft. Cases such as these got past the one year sentence criteria because this criterion is based upon whether the crime ‘could’ result in such a sentence. This may stop, as Theresa May amended the UK’s Extradition Act in 2015; by adding a proportionality test, under which the NCA cannot certify an EAW if it is deemed disproportionate.
In conclusion, there are some pros to the EAW. It has certainly speeded up the extradition process between EU member states. However, these pros are more than matched by the cons. The mutual recognition of the legal systems of all EU members states, has led to a number of horror stories for innocent UK citizens who have been extradited on unreliable evidence.
Indeed, it seems clear that a number of other EU member states’ legal systems quite frankly do not deserve to be recognised as equal to the UK’s legal system. For example, look at the Belgian’s lacklustre response to terrorism, or how the Portuguese miss-handled the investigation into the tragic disappearance of Madeleine McCann. The number of EAWs issued for trivial offences, like wheelbarrow theft, would be quite funny if it was not so expensive to the UK taxpayer. Things may improve under Theresa May’s proportionality test. But, they may not. How many times over the past forty years have we been told that the EU will improve, only to find that nothing ever changes for the better? Indeed, the EU’s complete resistance to common sense and total inability to change is one of the many reasons why so many people across Europe wish to leave the EU. The NCA’s own statistics tell the real story here. In 2014, 143 subjects wanted by the UK were surrendered under the EAW. In the wider scheme of things, this seems to be very small beer indeed.
On balance, taking into account both of the pros and cons for the EAW, it seems quite clear that BREXIT is far better for the UK than the EAW. BREXIT will allow us to replace the ECHR with UK legislation, which would make it much easier to deport foreign criminals and terrorists, and we could introduce proper border controls, that would make it much harder for foreign criminals to get into the UK in the first place. Above all, if the EAW is such a good thing for the UK and the rest of Europe, similar arrangements can be put into place post-BREXIT.