The Scott Baker Panel’s findings on Europe’s fast-track extradition system, the European Arrest Warrant, received less media attention, despite affecting thousands in the UK every year. Some practitioners will have missed the fact that Sir Scott has called for several changes to the Arrest Warrant system, including raising the prospect that the EU framework decision itself may need amending, with a proportionality test to weed out trivial cases.
This article examines Sir Scott’s key findings on the Arrest Warrant. It describes the shocking case of Andrew Symeou, a Fair Trials International (FTI) client extradited to Greece in 2009. If implemented, Scott Baker’s recommendation to defer extradition until prosecutors are “trial ready” could have prevented Andrew’s horrendous 11 month remand ordeal in one of Europe’s worst prisons.
While it does not go as far as many would have liked, the Scott Baker report provides the Government with several action points for Arrest Warrant reform. If the Government acts on these it will help prevent further injustice - and wasted resources – due to unfair, premature or trivial extradition requests.
Those hoping for root and branch reform of the US-UK treaty will take more comfort from the June 2011 report of the Parliamentary Joint Committee on Human Rights. It went further than Scott Baker, identifying problems in the US-UK treaty and arguing for the re-introduction of a prima facie case requirement and for a refusal ground based on inappropriate forum.
The European Arrest Warrant is a fast-track system for surrendering people from one EU country to another to face trial or serve a prison sentence. The European framework decision introducing it was incorporated into UK law by Part 1 of the Extradition Act 2003. (Part 2 deals with non-EU extradition requests and gives effect to the US-UK treaty.)
Though we recognise that the Arrest Warrant is an important tool in combating serious cross-border crime, we have consistently called for reforms both to domestic and EU legislation, to remedy flaws in its operation. In the past two years, we have highlighted many cases of injustice caused by a lack of basic safeguards in the system, coupled with unacceptably low fair trial and pre-trial detention standards across the EU.
The Scott Baker report concludes that the Arrest Warrant operates broadly satisfactorily apart from the “serious problem” of its widespread misuse to prosecute relatively trivial offences. FTI takes issue with this conclusion: to operate fairly, an extradition system must safeguard against injustice and, in too many cases, it has not. However, the report’s finding on proportionality is welcome, as are its many other recommendations to improve the system’s operation. There is also a welcome acknowledgment that fundamental rights are sometimes violated by EU countries and that extradition should not take place if incompatible with human rights. Sadly, as the Joint Committee found, this is an area where English courts have shown marked reluctance to refuse extraditions.
Scott Baker’s key recommendations on Arrest Warrant
The report’s key recommendations are:
- the UK must ensure steps are taken at EU level to end extradition requests for minor offences and to encourage the use of less draconian measures such as fines, in less serious cases;
- EU laws are needed to improve fair trial standards and prevent unnecessary pre-trial detention; and
- there must be no extradition where the prosecuting state is not trial-ready.
Other practical recommendations include: more time to appeal extradition decisions; steps to ensure requested persons have effective legal representation, with the right to a lawyer both in the state issuing the extradition request and in the state dealing with it; and stopping the extradition of UK nationals and residents who are wanted to serve short sentences. This would improve rehabilitation prospects and save the expense of extradition and subsequent transfer home.
Finally, the report recommends the better use of alternatives to pre-trial detention to prevent individuals being shipped off to the other side of Europe only to sit in jail for months. This was a fate endured by Andrew Symeou, who suffered a horrendous 11 months in Greece’s worst prison, while prosecutors dragged their feet.
Probable cause, the forum bar and the US-UK treaty
Campaigners for reform of this treaty have called for the return of the prima facie case requirement. The Joint Committee on Human Rights recommended renegotiation of the treaty to increase the level of proof required for the extradition of British citizens to the US, in order to require sufficient evidence to establish “probable cause”. This is the test the UK must meet to secure the extradition of a US citizen.
Campaigners have also called for a commencement order to bring into force the “forum bar” to extradition already contained in the Extradition Act, for both EU and non-EU cases. These provisions would require the judge at the extradition hearing to consider the most appropriate forum for trial and refuse extradition if the UK is the most appropriate forum. The Joint Committee agreed, but the Scott Baker panel did not, finding that a forum bar would create delay and satellite litigation.
Another problematic issue is that the US-UK treaty allows the extradition of individuals based on evidence that the CPS itself has deemed insufficient to prosecute, or in cases where the CPS has decided there is no public interest in prosecuting. The Joint Committee referred to the cases of David Bermingham (extradited to the US despite the CPS having decided not to prosecute him) and of Babar Ahmed, discussed further below, whose extradition to the US is on hold pending a final appeal to the European Court of Human Rights.
Case of Babar Ahmad
Babar Ahmad is a 38 year old British Muslim who was first arrested in 2003. By the time he reached the police station, he had sustained many serious injuries. (He later received £60,000 compensation from the Metropolitan police.) Six days later, he was released without charge. In 2004, Ahmad was rearrested following a US extradition request, on allegations of involvement in websites supporting Chechen and Afghan insurgents. His extradition was ordered by the English court and, in November 2005, confirmed by the Secretary of State. A High Court appeal was later rejected.
Ahmad has now been in custody for over seven years. Having exhausted domestic remedies, he awaits the outcome of his appeal to the European Court of Human Rights. He argues that, if extradited, he will face “special administrative measures” in pre-trial detention in a federal prison, including solitary confinement and restrictions on communication with his lawyers; and if convicted, he risks being detained for life in a “supermax” prison without parole. Extradition is stayed pending Strasbourg’s decision.
Ahmad’s supporters argue that his case should be tried in the UK, given that the activity for which he is charged occurred exclusively here. In a debate at Westminster Hall in November, Caroline Lucas MP revealed that the CPS, when deciding that there was ‘insufficient evidence’ to charge him with a criminal offence under UK law, did not view all the evidence that was sent to the United States, the bulk of which was sent straight there by the police. If this is true, it is hard to see how the CPS reached its decision not to prosecute in the UK.
Cases of injustice seem to be influencing the debate. Many FTI clients gave testimony to the Joint Committee on Human Rights, including Frank Symeou, on behalf of his son, still in Greece at the time. Babar Ahmad’s case was widely discussed during a Westminster Hall debate in November and a full Commons debate in December. These debates revealed a groundswell of cross-party support for extradition reform, particularly for the Joint Committee’s recommendations.
Extradition takes a heavy toll on individuals and their families. It also costs dearly in police and court resources, with every European Arrest Warrant processed by the courts costing about £20,000. Extraditions by the UK to other EU countries number around 1,000 per year, whereas under the UK-US treaty, on average around 10 people have been extradited each year in the past seven years. It is therefore surprising that the necessary safeguards in the Arrest Warrant system have been so long coming and received relatively little public attention. FTI’s focus has been European extradition and we welcome the growing consensus that more must be done to reform the Arrest Warrant, freeing it up to fight serious cross-border crime.
Changing UK law is one part of the answer. The other is for the UK to engage with its EU partners to change the Arrest Warrant framework decision and back laws to safeguard basic defence rights at EU level, for example, to improve access to legal advice and end the excessive pre-trial detention that blights so many European justice systems. (Both Scott Baker and the Joint Committee urge further EU action on defence rights.) It is a pity that the UK did not opt into the latest EU defence measure - a directive guaranteeing the right to legal advice and to notify third parties and consular officials of arrest. This directive would greatly improve the fair trial rights of people arrested in EU countries.
February will see the fruits of another inquiry into UK extradition law, when the Home Affairs Select Committee publishes its own report. The Liberal Democrats will also review the US-UK treaty, under Sir Menzies Campbell. Now that the dust kicked up by Sir Scott’s report has settled, one thing is clear. The European Arrest Warrant has been found wanting by not one but two in-depth enquiries. Action by the government at domestic and EU level can no longer be put off.
Fair Trials International (FTI) is a charity that assists people arrested in a country not their own. Over half of all the requests for help FTI receives come from people arrested in other EU countries, with increasing numbers wanted under extradition requests. Using information obtained from this casework, FTI campaigns for law reform and stronger safeguards for basic fair trial rights
Catherine Heard, Head of Policy at Fair Trials International
Case of Andrew Symeou
Andrew Symeou, then a 20-year-old student from the UK, was extradited to Greece in July 2009 on manslaughter charges following the tragic death of a young man in a nightclub on the island of Zante while Andrew was on holiday there. Andrew consistently denied being in the club at the time.
Following his extradition, Andrew was denied bail by a Greek court on the basis that he had not shown remorse for the crime: so much for the presumption of innocence. Another “reason” Andrew was denied bail was that he was a non-national and was therefore assumed to represent a flight risk. Yet Andrew had met all his supervision conditions in the UK and his father had arranged to rent a flat for him to stay at in Greece with his mother until the trial.
Following the court’s decision to impose pre-trial detention, Andrew spent a harrowing 11 months on remand in Greece. A university student with no previous criminal record who still lived with his parents, he spent his 21st birthday in the notoriously dangerous Korydallos prison. The conditions Andrew has described include: filthy and overcrowded cells shared with prisoners convicted of rape and murder; violence among prisoners (one was beaten to death over a drug debt while Andrew was there); and rioting.
After numerous delays due to prosecution errors, Andrew was finally granted local bail in June 2010 (following a challenge we helped him to bring at the European Court of Human Rights). But Andrew could still not travel, and had to remain with his mother in Greece until the trial, while his father and sister were in the UK. Andrew’s four-year ordeal ended in June 2011, with acquittal. Legal fees were enormous and Andrew’s father lost his business.
Andrew was extradited prematurely: prosecution delays meant that he did not stand trial until almost two years after his extradition. He could have spent that time under supervised release in the UK, continuing with his university studies. After his extradition, he was at no point questioned by investigators. There was no evidence that he was a “flight risk”. It is difficult to see what purpose was served by his time in pre-trial detention.
The Scott Baker report recommends deferred extradition and better use of alternatives to pre-trial detention (including the important European Supervision Order, which will allow defendants from one EU country who are arrested in another to return home pending trial*). These measures would help prevent cases like Andrew’s happening again.
*The Framework Decision on the European Supervision Order must be implemented by all EU countries by December 2012.