Written by Torquil Dick-Erikson
This article was first published by the Bruges Group and we republish here with their kind permission.
~~~ *** ~~~
The first mention anywhere of a European Arrest Warrant is in the text of the EU’s Corpus Juris project for an embryo criminal code, where it is called a “European Warrant for Arrest”. Article 24,1,(b), says “A European Warrant for Arrest, issued on the instructions of the European Public Prosecutor by a national judge (…) is valid across the whole territory…”.
Lord Hope of Craighead was Chairman of the House of Lords’ sub-committee E of the EC Committee, charged with examining the Corpus Juris proposal. He asked Professor John Spencer of Cambridge University, the British co-author of Corpus Juris, who was giving oral testimony to the sub-committee,”Under our system we would normally expect the magistrate or whoever it was who issued the warrant to exercise his own judgement as to whether the information which was before him justified the issuing of the warrant. It may just simply be a matter of language, but it rather looks as though, if the European Prosecutor asked for a warrant he would get it, without any exercise of discretion being left to the national judge. Is that a misunderstanding or is it deliberate that there should be no discretion of the national judge at this stage?”
Professor Spencer replied, “It is a misunderstanding and if the English does not convey the meaning that is my fault because I was responsible for verifying the English translation.Certainly we meant coercive acts of all sorts to be subject to the authorisation, after weighing the matter up, of the judge in the national state.“ (House of Lords Report on Corpus Juris, Session 1998-99, 9th Report, HL Paper 62, Minutes of Evidence, Oral Evidence 3rd February 1999, page 8, col. 1, para. 36)
In its conclusion the House Of Lords Report rejected the Corpus Juris proposal. The office of the European Public Prosecutor has still not yet been set up by Brussels. However the proposal of the European Arrest Warrant was accepted by all the participants at the Tampere conference in 1999, including the UK. It was incorporated into our Law in the Extradition Act of 2003. Under its terms, any “European judicial authority” can issue an EAW against any person in any other member state, and the national judge in the receiving state is bound to execute the warrant, not being entitled to exercise his own judgement, as Lord Hope had said he would normally be under our system. So now, what exactly is meant by a “European judicial authority”?
In the Julian Assange case, the EAW against him was issued by Swedish prosecutors, not judges. Assange’s defending counsel, Ms Amal Clooney, raised the point: is a prosecutor a “European judicial authority”, or not rather merely a party to a case, representing only one side? The question was referred to the High Court, which decided that a prosecutor, for this purpose, was a “judicial authority”, and was therefore empowered to issue a valid European Warrant for Arrest.
So we see that the fear expressed by Lord Hope, that a Prosecutor can instruct, ie order, a national judge to have someone arrested, with no questions asked, was dispelled by Prof. Spencer who said it was a misunderstanding based on his own mistranslation. However Lord Hope’s fear is thus confirmed and that is the situation today with the EAW as it stands.
What is more, we now have a situation where foreign Prosecutors can issue orders for the arrest of British citizens in Britain by a British court, and the British court is not allowed even to ask to see the evidence of a prima facie case to answer on which the order is supposedly based, let alone to actually see any evidence, or – Heaven forbid! – to assess it.
Indeed often, under the foreign jurisdictions, there is no evidence, but only clues, and in any case once transported abroad, there is, under their laws, no Habeas Corpus safeguard of a public hearing within hours or at most a few days, during which the matter of the sufficiency or otherwise of any evidence may be sorted out, as would happen in the UK. So, since 2003 numbers of innocent British citizens have been arrested and transported to lengthy months of detention in prisons abroad thanks to legislation based on a misunderstanding based on a mistranslation. One of these was even a British judge (!), Mr Colin Dines, a constituent of Dominic Raab MP, who is now Foreign Secretary, who took up the cudgels on his behalf and asked questions in Parliament about the case.
Now that we are exiting the EU, the time has surely come when we should reform the terms of the EAW, or any extradition warrant, so that the receiving British court may examine the evidence already gathered against the suspect, assess it, and if it thinks it is manifestly insufficient, refuse the extradition request. Otherwise, if a foreign prosecutor, or even judge, is empowered to demand and obtain the extradition of any British citizen with no questions asked, we cannot call ourselves a sovereign independent country. The possibilities of misuse or abuse of this extraordinary tool for political or other illicit purposes are obviously immense.