Written by Torquil Dick-Erikson
This article was first published by the Bruges Group and we republish here with their kind permission.
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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.
I,m not against the principle of being able to get back malefactors from any country in the world including that “supposed” land called EU, but only on the assumption that a court from the exportee country has fully tested the evidence of culpability presented by the judicial authority of the country originating the charge.
Further I would suggest, in order to evade expense, unnecessary prolongation of a victim’s incarceration prior to trial and often harsher prison conditions in his own country that the trial be held at a venue fair to the accused.
Perhaps my last comment is also slanted at the present extradition treaty between us and the USA, which I hope will be renegotiated at the time of tha “first in line” trade deal.
……………and while I’m on the subject of “legals” I wouldn’t like to see some of the corporate proposals to ignore country’s “local” laws proposed in the TTIP
How clear does it need to be?
This is an imposition on the British allowed by our incompetent politicians. I see our politicians as being so incompetent that the focus is now shifting to others. Is the civil service such a blob that it is screwing the public or is it the vested interests of corporations or other unknown powers behind the scenes?
This article is also yet another example of the untrustworthy intelligentsia.
Californians are too building a High Speed Railway that will cost $100b and rising. The question was asked ‘should that money be spent on prevention of the terrible scrub fires experienced in that State of the USA? Likewise we are building HS2 yet the misery of the Somerset flats and rivers that break their banks, the list goes on, is not be dealt with. Is that because a shortage of money? Our money!
Things are going wrong in this country and it isn’t just the EU. The issue of Smart motorways, Smart domestic hubs, Smart meters, Bank branches closing, Post Offices closing, censorship, again the list goes on and points to major changes ahead, in the wrong direction!
Sorry got on one again, but this article is a good reminder of the abuses of the EAW. Then of course there is the Defense entanglement.
It perhaps can be compared to a fungal attack the hyphae have got into everything.
Kim. Last sentence hits nail on head. Security, military and criminal justice all are linked. “Security” components doubtless will be tied to a “trade and security treaty: ” no satisfactory trade deal unless we agree to security-criminal justice outrages, subjugation not cooperation. Plus the Defence Section in the Political Declaration remains a serious threat .
“… 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 … “
Where is the list of names? Is anybody taking this up? When I wrote on this some years ago I discovered that in some EU hell-holes large numbers of prisoners were being held on remand, some for years.
I’ve long held that the difference between a civilised country and a corrupt banana republic rested on the ability of the police to arbitrarily arrest anyone on a trumped-up-charge.
I did a Freedom of Information request a year or two back; in that year there were from EU states aprox 65,000 EAW extradition requests of which 15,000 were successful. Nature of “offences” unknown. The ones that failed presumably because they couldn’t trace the victims or establish their identity. No figures available for number of EAW requests by UK to EU, successful or otherwise. Gerard Batten was for years campaigning and in Westminster Mags Court, witnessing white- faced shocked victims handed over; but nobody much listened to him.
PS Fair Trials International have detailed and fought for some individual victims.
Yikes, when I last looked I got the idea that there were only and handful of brits affected. Nary a mention in the mainstream. What I did learn is that someone could be arrested, held for a year or more and then be told their charges had been dropped and they were free to go. So if the local mafia boss wants a rival out the way and he has the cash required, he doesn’t even need to kill him!
Or, (so obvious it shouldn’t need saying but here goes), , if the EU want “populist” leaders and campaigners or journalists silenced , job done. It gives them the whole field to themselves to do as they damn well please, tax and confiscate as they please etc etc, no opposition at all . Terrifying.
Indeed.
Here is an example, not involving an EAW, but giving a glimpse into the workings of the continental inquisitorial system, and how judicial powers can be used, misused and abused, to interfere in the political processs.
Matteo Salvini, Italy’s last Minister of the Interrior (comparable to our office of Home Secretary), ordered an NGO vessel not to land a shipload of migrants they had picked up in the Mediterranean in an Italian port. In the event, they had to stand off for a few days, until an agreement was reached to distribute the migrants amongst various other EU member states, lightening the burden on Italy. This caused the migrants on board some discomfort. For this act, the Italian judiciary accused Salvini of “kidnapping” (sequestro di persona), a very serious crime indeed, carrying a lengthy prison sentence. He has not (yet) been handcuffed and put in prison (“pending further investigation”) only by virtue of the immunity he enjoys as a Minister, as he was at the time, and a Senator. The Senate is debating whether to remove this immunity.
With the EAW these powers can be used against us in Britain.
In the case of Italy, the omnipotent judiciary is independent from all other powers of the State, so is under no institutional obligation to carry out political orders, although its components may have their personal political preferences, which can influence their judicial actions. Berlusconi was politically destroyed by judicial action and he accused the “red togas” of doing just that.
The EU has now nominated a European Public Prosecutor (in the person of a lady member of the Rumanian judiciary). According to the learned counsel’s opinion of Jonathan Fisher QC
https://campaignforanindependentbritain.org.uk/wp-content/uploads/2018/01/OpinionJonathanFisherQC7.10-O14-1.pdf
the EPP will be empowered to issue EAWs against British people in Britain, notwithstanding our Parliament decided to opt out of his/her jurisdiction, as long as we remain bound by the EAW.
Being a nominee of the EU institutions, she will doubtless be inclined, even informally, to do their bidding. Since EAWs do not require any supporting evidence of guilt to be shown for a very long time, she would enjoy immense opportunity to wreak havoc in our political process by having selected British politicians picked off on trumped-up charges and taken away for lengthy imprisonment “pending investigation” in some European dungeon.
She is due to come into her full powers this autumn. At that time we shall still be under the EU rules of the Transition Period. Parliament may be wise to repeal the Extradtion Act 2003, which incorporates the EAW into UK law before then.
It has to be admitted that Polish citizens living in UK accounted for many of these. Poland apparently was one of the worst offenders due to reasons peculiar to their own statute books. I heard that at one time, a weekly planeload of Poles flew home, arrested usually over trivial offences . But regardless of who, how many or why : fact is, EAW is a grappling iron to pull us into the developing EU totitalitarian state. So we must dissociate entirely from it and from all associated EU systems like Europol, Public Prosecutor etc . Trade does not need customs union, free movement or linkage with military -security and criminal law: but the EU has cunningly linked up these things to suck us in.
The removal of any recognition of the EAW is an essential test of our having left the EU.
Yes. As Torquil has said, we must repeal the 2003 Extradition Act ASAP.