The European Arrest Warrant is unconstitutional. It must – and can – be struck down.
Not just EAW arrests, but all arrests made on no evidence, such as those suffered by Lauren Southern, and others.
Most think the EAW is just about catching criminals. It is not. It is a tool for tyranny. It is a threat to the freedom of the innocent. It can be wielded by the British authorities, but also by any judiciary – however dodgy – anywhere in Europe, against any of us.
Theresa May and Amber Rudd want it to continue indefinitely, in a Security Treaty to be signed between the UK and the EU, even after Brexit.
Here is the shocking interview of Lauren Southern by Tommy Robinson.
Ms Southern, a Canadian citizen aged 22, was subjected to a banning order by the British authorities, preventing her from entering the UK, on grounds that she intended to interview Tommy Robinson, who they said was a ‘right-wing, racist leader’. On a previous visit she had distributed leaflets saying that ‘Allah was a Gay God’ – as an experiment to test the reaction of the public and the authorities, and to verify the extent to which freedom of speech is curtailed now in the UK.
Not only was she banned from entering, she was also detained by Kent police for three days. During this time they telephoned her father in Canada to tell him that they were holding her under the Prevention of Terrorism Act, although they had no reason to suspect her of being a terrorist. Her father recorded the conversation.
It is indeed shocking, that people are now being detained, as Ms Southern was, on no evidence of wrong-doing. And as indeed happens regularly with the EAW, although there is in that case the (fake) excuse that the foreign authority issuing an EAW ‘must’ already have evidence, although in fact the foreign authorities don’t have to have any evidence under their own Napoleonic laws as I explained during the CIB conference that Lord Pearson and Baroness Cox kindly hosted in March last year.
What happened to Ms Southern is a clear breach of Magna Carta, section 38. This (usually unnoticed) section is the basis of Habeas Corpus, which prevents people from being arrested and imprisoned on no evidence.
In their incredible wisdom, 800 years ago, our forefathers laid down, in Latin – and the Latin is important – in just 15 words, the basis of our freedom from arbitrary arrest and prosecution or persecution and harassment by officers of the state. It says:
Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis.
In English:
No legal officer (balivus, originally ‘bailiff’) shall put anyone to the law ie. shall start legal proceedings against anyone (NB ‘anyone’ ‘aliquem’ – this is a universal human right, not limited to ‘free men’), on his own mere say-so, without reliable witnesses who have been brought for the purpose.
Note the use of the past participle ‘aductis’: the witnesses, the evidence, must have been already collected BEFORE legal proceedings, such as an arrest, are started. In Continental jurisdictions they often order suspects to be arrested first, and then, AFTERWARDS, they seek evidence. They are allowed to do this under the provisions of their own Napoleonic-inquisitorial systems, which are alien to our own Magna Carta heritage. This procedure, also called ‘fishing expeditions’, is NOT ALLOWED under Magna Carta and Habeas Corpus laws.
This means that nobody can be subjected to any legal act, like arrest or detention, without previously collected evidence.
Ms Southern and Tommy Robinson talk about legal redress for her dreadful experience at the hands of the British state. Might I suggest that what she suffered was an abuse of due process, indeed a perversion of justice, at the hands of the Kent police officers who detained her thus, on NO EVIDENCE. Her Habeas Corpus rights were VIOLATED.
Now if Ms Southern brings a case against the Kent police for unlawful detention (or some such offence, maybe false imprisonment…?), the Kent police might put forward the counter-argument that the PTA provisions gave them that power, and, since it comes after Magna Carta and indeed after the Habeas Corpus Act of 1679 (and any subsequent modifications), it over-rides those guarantees under the doctrine of implied repeal.
This counter-argument can be invalidated as follows:
There was a famous case some years ago, when some market traders in Sunderland were convicted and given a criminal record for having sold bananas by the pound weight instead of by the kilogram as had become compulsory under an order complying with an EU directive, issued under the legal force of the European Communities Act 1972. The defendants of this absurdly unfair conviction became known as ‘The Metric Martyrs’. They appealed against their conviction, but their appeal failed.
We must look at the reasons given, why their appeal was turned down.
When the Appeal Court Lords Laws and Crane confirmed the conviction of the Metric Martyrs, they gave a novel answer to their defence’s arguments: their defence had argued that the 1985 Weights and Measures Act, which allowed market produce to be sold in lb and/or kg, was subsequent to the 1972 ECA (under whose provisions the order criminalising the sale of fruit by the pound weight instead of by the kilogram had been issued). Therefore, argued the defence, the WMA1985 over-rode that part or that effect of the ECA1972 under the doctrine of implied repeal, whereby if there be a conflict between laws then the subsequent law is deemed to have over-ridden the provisions of the earlier law.
Not so, said their Lordships. They said that the ECA72 had the status of a ‘constitutional act’, and so could not be over-ridden by subsequent legislation under implied repeal, but only if the repeal was explicitly spelt out in the text of the subsequent Act.
Part 2 of this argument will be published here tomorrow.
A good example of the misuse of the EAW is the arrest of the former Catalan president by German police, on behalf of Madrid. This will cause huge problems in another member state. Just imagine what would have been said if we had did the same when the SNP started to call for referendum !
Most people don’t understand just how dangerous the system is to Brits anywhere abroad. It’s so contrary to UK law, I simply don’t understand how our government ever agreed to allow this.
An even better example, as far as we are concerned, is the arrest of Catalan Prof Clara Ponsati in Scotland, on an EAW issued by Spain. The trouble is, it is not a “misuse” – the EAW was designed that way.
It gives any European Prosecutor the power to have anyone in Europe arrested and imprisoned for lengthy months with NO PUBLIC HEARING and on NO EVIDENCE. This is the first step towards the imposition of Corpus Juris on all Europe. Corpus Juris is a single criminal code, on Napoleonic-inquisitorial lines, which will trash our Magna Carta-derived heritage of safeguards of individual freedom from arbitrary – and politically motivated – prosecutions/persecutions.
The EAW is therefore a tool for tyranny.
The EAW is repugnant specifically to Magna Carta’s section 38, which – 800 years ago! – laid down that nobody can be subjected to legal process without evidence ALREADY collected.
In flagrant violation of this safeguard, the EAW FORBIDS a British court form asking to see any evidence, and the foreign judiciaries in Europe, under their laws, do not need any evidence in order to arrest and to put suspects in prison while they seek evidence against them. To qualify a person as an “imprisonable suspect” a few clues are enough, or even just a hunch on the part of the investigating judge – there is no public debate for verification.
As such the EAW is UNCONSTITUTIONAL and inapplicable in Britain, and we must hope that Prof Ponsati’s lawyer will be able to get the sheriff’s court to declare it so at the hearing on April 12th.
He can use the precedent set in the Metric Martyrs’ case to back this up, as I explain in my article here.
The time and place are highly favourable – this is a unique opportunity. Public opinion in Scotland is hugely sympathetic to Prof Ponsati, both amongst those who see parallels between Catalonia’s and Scotland’s situations in their respective countries, and those who are simply outraged by the monstrous unfairness and obvious falsehood of accusing her of “violent rebellions”.
Mrs May and Amber Rudd want to keep us IN and UNDER the EAW indefinitely, even after Brexit. This is passing under the radar of public attention; a declaration by a Scottish sheriff will bring it out into the limelight.
As far as I am aware, Tommy Robinson has never been convicted of or even charged with racism offences. The use of the label word “racist” to stop discussion has reached epidemic proportions and we know that this is mainly due to the fact that there is often no credible counter-argument in discussions. But for the police to use this to prevent legitimate association is absolutely scandalous and I hope that Tommy and Ms Southern do seek substantial redress. I have no idea why the authorities and elites have lost pride in their country and it’s indigenous people but my guess would be fear. I myself have just joined UKIP in order to effect change and I ain’t going back.
I cannot emphasise enough my suport for your stance. In britain we seem to be paralysedbyunable tounderstand how lucky we are with our old laws.. On the continent someone can denounce you, you can go to prison, and there you can rot. It doesn’t often happen but it does happen.So don’t laugh.
Is there anywhere a legal definition of a “constitutional Act”, or is it just something a Law Lord has made up to suit the situation? I am a law graduate and this sort of thing interests me.
The narrative has always been that Britain does not have a “written constitution”. Or that we do not have a constitution at all. Or, more accurately, that we do have a written constitution, but it is not all written down in one place.
Now, nearly all other modern countries have a document which is actually called a “Constitution” and which lists the basic laws of the State. These laws are considered “constitutional” because ordinary laws are not allowed to contradict its provisions. They can include laws laying down how the bodies of the State are to be organised.
If it so happens that if the Parliament or Congress of such a State does pass a law and somebody, involved in a court case on that law, thinks that the law in question is “unconstitutional”, then the matter can be referred to that country’s Constitutional Court or Supreme Court, which has the task of deciding whether a particular ordinary law is or is not unconstitutional. If they decide that the law in question is unconstitutional, then that law, or part of it, is struck off the statute book, ie it ceases to be valid and enforceable.
Most such constitutions contain provisions for their own alteration by the elected assembly of the people (if it is a democracy). The laws or rules of a constitution are called “entrenched legislation”, because they cannot be repealed or amended by a simple majority vote of the Parliament. The rule for changing the constitution itself vary from one country to another – they can require, say, a two thirds majority, or a vote by their Parliament which is then repeated some months later.
It has long been recognised that Britain’s constitution is at least in part written down in famous documents such as Magna Carta, and the Bill of Rights, and in parts that are not written down, such as the principle that No Parliament Can Bind Its Successors, or that every five years Parliament must be dissolved and a new one elected. We have never had a specialised Constitutional Court to tell Parliament what laws it could and could not pass. This is because the basic (constitutional) principle is that the people are sovereign: the MPs are elected and can be refused re-election by the people, while judges are not elected, so it would not be right for unelected judges to tell an elected Parliament what it can and cannot do.
The principle that No Parliament Can Bind Its Successors underlies the rule that if there is a conflict between two laws, then the later law is deemed to be the valid one, and it annuls the provisions of the earlier law. The later law can say explicitly that it repeals the earlier law. In this case the earlier law is taken off the Statute Book. However the later law may not make any mention of the earlier law, yet it may be found later to be in conflict with it. In this case the earlier law is annulled anyway, and the procedure is called “implied repeal”.
The novelty introduced by the Appeal Court judges Lords Laws and Crane in the Metric Martyrs case was twofold: they were faced with a big problem, if they overturned the conviction of the Metric Martyrs they would have put the United Kingdom in breach of its obligations toward the EU. The prosecutor in the trial at the lower court had stressed the enormity and unacceptability of acquitting them. So how could they uphold that conviction, in the face of the argument by Michael Shrimpton, the defending barrister, that the Weights and Measures Act of 1985, coming after the ECA72, did allow traders to sell fruit and veg by the lb weight as well as by the kilo? And therefore the order criminalising the sale of fruit and veg in imperial measures which derived its force from the ECA72, was annulled by “implied repeal”.
Laws and Crane upheld the conviction using the argument I describe in part 2 of my article, which will be published today.
An awful lot of “obiter” before reaching the “ratio”. The way I understand it now is that an Act can be declared constitutional by an appellate court, which then becomes binding precedent. Am I correct?
Well, in practice, yes. The decision by Laws and Crane to give the European Communities Act 1972 “constitutional status” appears to be quite arbitrary, especially if we think that when that Act was passed, its promoters, in government and elsewhere, hastened to assure all and sundry that it would have “no effect on our essential sovereignty”, in fact we were all persuaded at the time that it was an ordinary Act only to do with trade, our joining a “Common Market”, when in fact it has had, and was designed to have, precisely that. Heath and others lied to Parliament and the public at the time, as he admitted much later.
However it is now a judicial precedent, with binding effect on subsequent judgements. I am hoping t can now be used to cut the other way! Laws also said that Magna Carta, the Bill of Rights, and other Acts were commonly regarded as “constitutional” and so enjoyed the same immunity from implied repeal by subsequent Acts which conflict with their provisions.
Since the EAW, passed with the Extradition Act of 2003, rides a coach and horses through Magna Carta’s section 38, let us hope that this argument will be used to have the EAW declared invalid.
It could be used by Lauren Southern’s counsel in the case she may bring against the Kent police – or whoever ordered them – for false imprisonment. Their justification that they were empowered to do this by the Prevention of Terrorism Act could thus be demolished.
Likewise it could be used by the Catalan professor’s solicitor in Scotland – Professor Clara Ponsati, who has been hit by an EAW issued by Spain, for taking part in Puigdemont’s independent Catalan cabinet. She has never raised a finger in violence against anyone, but she risks 30 years!
Do Messrs Salmond and Sturgeon realise how lucky they are, that Scotland is not a part of Spain, but a part of the United Kingdom, which allowed a fair and undisturbed referendum…?
We must realise that once the United State of Europe is up and running, any attempt by an erstwhile member state to break away will be dealt with in the Spanish manner, not the British way.
I recall some one saying that no gov’t will ever repeal aprevious bill even by the opposition. Or some such.. What is your take on this