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In the wake of Julian Assange’s ongoing struggle against extradition, Sarah Lewis questions the UK’s willingness to accept European arrest warrant procedures at face value
The case of Julian Assange has put the European Arrest Warrant (EAW) under the spotlight. As a mechanism by which wanted individuals can be extradited from one EU member state to another, the EAW has been hailed as a valuable and successful instrument, cutting the delays and red tape associated with traditional extradition methods that have, in certain circumstances, enabled criminals and those suspected of committing crimes to remain beyond the reach of the law.
The history of its genesis is set out by Lord Bingham of Cornhill in the Armas case: “It is not unusual for those facing prosecution or imprisonment in one country to take refuge in another in the hope of evading trial or punishment as the case may be. Procedures have long existed enabling the first country to seek the surrender of the fugitive by the second. But the procedures established by bilateral treaty have in the past been characterised by technicality and delay so great as to impede or even frustrate the efficacy of the process. There has accordingly been a movement among the Member States of the European Union … to establish, as between themselves, a simpler, quicker, more effective procedure, founded on Member States’ confidence in the integrity of each other’s legal and judicial systems.” (See Office of the King’s Prosecutor, Brussels v Armas and others [2005] UKHL 67).
The Council Framework Decision of 13 June 2002 on the European Arrest Warrant and Surrender Procedures set the objective for the European Union “to become an area of freedom, security and justice”, abolishing extradition between Member States and replacing it by a “system of surrender between judicial authorities…based on a high level of confidence between member states”.
While no one would dispute that greater efficiency and streamlining is always desirable; this cannot be at the expense of justice. The Framework Decision was transposed into UK law by the Extradition Act 2003 which came into force on 1 January 2004. There were concerns then that by removing many of the previous extradition safeguards, EAWs would fail to provide suspects with the most fundamental legal rights and that the system would lead to serious injustice.
(i) the principle of dual criminality, now abolished in relation to 32 categories of offence (including being a member of a criminal organisation, terrorism; trafficking in human beings, and corruption) which required both the country requesting extradition and the country responsible for arresting and returning the alleged criminal to recognise and accept that what the suspect was alleged to have done was a crime;
(ii) the option of political intervention by the Secretary of State (who could previously veto extradition on political or other grounds); and arguably
(iii) the “hallmark safeguard”– the requirement on the part of the requesting country to put forward a prima facie case.
The absence of these safeguards means that there is little room for judicial discretion to deny surrender. While a number of legal bars to surrender still remain (see box) in practice it is only in very limited circumstances that any of these bars will apply. Essentially what the EAW scheme has created is a “no questions asked” procedure. While the premise of mutual trust between member states in each other’s justice systems is laudable, in reality the procedure is open to abuse and the disparities in the criminal justice systems of countries operating the EAW are a real cause for concern.
The London based charity Fair Trials International has reported what it describes as ”routine misuse” of the system. It cites examples of warrants being issued many years after an alleged offence was committed; warrants being used to send people to another EU member state to serve a prison sentence resulting from an unfair trial; warrants being used to force a person to face trial when the charges are based on evidence obtained by police brutality; people being prosecuted for very minor offences such as theft of two car tyres and possession of 0.45 grams of cannabis (a particular problem with countries such as Poland where compulsory prosecution exists); and surrendered persons spending months or even years in detention before they have appeared in court (see www.fairtrials.net)
The issue that has most struck a chord about Mr Assange’s case, however, is the fact that the warrant for his arrest was issued by the Swedish authorities despite the fact that proceedings appear to remain at the investigation stage and Assange is yet to be charged. He is wanted for further questioning in connection with allegations of sexual assault made by two women.
Article 1 of the Framework states that the EAW is “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”. Warrants for the purpose of conducting a criminal trial are commonly known as ”accusation warrants”, those for the purpose of executing a custodial sentence or detention order, ”conviction warrants”.
If an EAW has been issued by a requesting state as an accusation warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of s 2(2) and (3) of the Framework. Accordingly, Pt 1 of the Act will not apply to it (see the Armas case, para 28 per Lord Hope, and para 54 per Lord Scott).
As to how the court should decide whether a EAW is a warrant that requests the surrender of an ”accused” person for the ”purposes of being prosecuted” (in the language of s 2(3)(a) and (b)), case law has established that this requires an intense focus on the facts in each case (see Re Ismail [1999] 1 AC 320; Armas and BalzasAsztaslos v The Szekszard City Court, Hungary [2010] EWCH 237 (Admin)).
This is usually limited, however, to analysis of the wording of the particular warrant.
Furthermore, it has been stressed by the courts that the terms themselves should not be treated as terms of art, given that warrants are often directed to more than one member state and it may not be easy to provide a form of words that meets the requirements of each recipient state’s national legislation.
Confining consideration to the face of the warrant reinforces the “no questions asked” principle of mutual trust and provides little in the way of protection for the accused. This is illustrated in Harvey v Judicial Authority of Portugal-Tribunal Judicial de Albufeira [2007] EWHC 3282 (Admin) which concerned a warrant requesting that Mr Harvey be detained and committed “to the judicial authorities for purposes of legal proceedings” in relation to an issue of a cheque without funds. Despite the lack of specificity in the terminology used, Maurice Kay LJ concluded that the Polish authorities clearly sought his return for the purpose of prosecuting him rather than further investigation, a decision based solely on the aforementioned wording.
Subsequently in Paul Johnson v State Prosecutor at the Tribunal de Grande Instance de Lille and Martin Christopher Joseph Stevens v Judicial Authority of the Government of France [2009] EWHC 2830 (Admin) Scott Baker LJ stated that ”where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning”.
Where the wording of the warrant is ambiguous it is possible to call extraneous evidence, as was done in the case of Vey v The Office of the Public Prosecutor of the County Court of Montluçon [2006] EWHC 760 (Admin). Nonetheless, as confirmed in Robert Thompson v Public Prosecutor of Buulognesurmer [2008] EWHC 2787, this should only be done as a “last resort” and in general should be discouraged. Lord Justice Aikens spelled out the position : “[The court] must not be put in the position where the court may have to consider detailed evidence about criminal procedures in other European countries for the purpose of the deciding whether or not the statutory requirements in section 2(3)(b) of the Act are fulfilled.”
It seems that the UK courts are less willing to scrutinise too closely the actions of the requesting state and more willing to accept at face value that what is being requested is both legitimate and human rights compliant. This is particularly concerning given the increased rate at which EAWs are being sought. The number of EAWs issued has increased from approximately 3,000 in 2004 to 15,000 in 2009. EAW detentions in Britain have risen 43-fold since 2004, with 699 people being extradited from the UK in 2009, according Serious Organised Crime Agency figures.
The Government is aware that the system has attracted controversy, however, and in September 2010 the Home Secretary announced a review of five key areas of extradition including the operation of the EAW. An independent panel is expected to report in late summer 2011. We shall see what comes of it. Where it leaves Julian Assange is a different matter. He appears to have a long battle ahead.
Sarah Lewis is a practising barrister at 18 Red Lion Court. An edited version of this article has appeared in Solicitors Journal.
Extradition Act 2003
The legal bars to surrender are set out in the Extradition Act 2003 and are based on the grounds for refusal contained in Arts 3 and 4 of the Framework Directive, and include:
(I) the arrested person has already been convicted or acquitted of the same offence or an offence relating to the same facts as those described in the eaw; (II) (extraneous considerations (eg a risk that the person will be prosecuted or prejudiced at trial due to race, religion or political opinions);
(III) passage of time (extradition would be unjust or oppressive given the time elapsed);
(IV) the person’s age is below the legal age of criminal responsibility; or
(V) the physical or mental condition of the person makes it unjust or oppressive to extradite.
If one of these legal bars applies, the judge must discharge the arrested person. if none of these legal bars apply, the judge must order the extradition of the arrested person.
The history of its genesis is set out by Lord Bingham of Cornhill in the Armas case: “It is not unusual for those facing prosecution or imprisonment in one country to take refuge in another in the hope of evading trial or punishment as the case may be. Procedures have long existed enabling the first country to seek the surrender of the fugitive by the second. But the procedures established by bilateral treaty have in the past been characterised by technicality and delay so great as to impede or even frustrate the efficacy of the process. There has accordingly been a movement among the Member States of the European Union … to establish, as between themselves, a simpler, quicker, more effective procedure, founded on Member States’ confidence in the integrity of each other’s legal and judicial systems.” (See Office of the King’s Prosecutor, Brussels v Armas and others [2005] UKHL 67).
The Council Framework Decision of 13 June 2002 on the European Arrest Warrant and Surrender Procedures set the objective for the European Union “to become an area of freedom, security and justice”, abolishing extradition between Member States and replacing it by a “system of surrender between judicial authorities…based on a high level of confidence between member states”.
While no one would dispute that greater efficiency and streamlining is always desirable; this cannot be at the expense of justice. The Framework Decision was transposed into UK law by the Extradition Act 2003 which came into force on 1 January 2004. There were concerns then that by removing many of the previous extradition safeguards, EAWs would fail to provide suspects with the most fundamental legal rights and that the system would lead to serious injustice.
(i) the principle of dual criminality, now abolished in relation to 32 categories of offence (including being a member of a criminal organisation, terrorism; trafficking in human beings, and corruption) which required both the country requesting extradition and the country responsible for arresting and returning the alleged criminal to recognise and accept that what the suspect was alleged to have done was a crime;
(ii) the option of political intervention by the Secretary of State (who could previously veto extradition on political or other grounds); and arguably
(iii) the “hallmark safeguard”– the requirement on the part of the requesting country to put forward a prima facie case.
The absence of these safeguards means that there is little room for judicial discretion to deny surrender. While a number of legal bars to surrender still remain (see box) in practice it is only in very limited circumstances that any of these bars will apply. Essentially what the EAW scheme has created is a “no questions asked” procedure. While the premise of mutual trust between member states in each other’s justice systems is laudable, in reality the procedure is open to abuse and the disparities in the criminal justice systems of countries operating the EAW are a real cause for concern.
The London based charity Fair Trials International has reported what it describes as ”routine misuse” of the system. It cites examples of warrants being issued many years after an alleged offence was committed; warrants being used to send people to another EU member state to serve a prison sentence resulting from an unfair trial; warrants being used to force a person to face trial when the charges are based on evidence obtained by police brutality; people being prosecuted for very minor offences such as theft of two car tyres and possession of 0.45 grams of cannabis (a particular problem with countries such as Poland where compulsory prosecution exists); and surrendered persons spending months or even years in detention before they have appeared in court (see www.fairtrials.net)
The issue that has most struck a chord about Mr Assange’s case, however, is the fact that the warrant for his arrest was issued by the Swedish authorities despite the fact that proceedings appear to remain at the investigation stage and Assange is yet to be charged. He is wanted for further questioning in connection with allegations of sexual assault made by two women.
Article 1 of the Framework states that the EAW is “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”. Warrants for the purpose of conducting a criminal trial are commonly known as ”accusation warrants”, those for the purpose of executing a custodial sentence or detention order, ”conviction warrants”.
If an EAW has been issued by a requesting state as an accusation warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of s 2(2) and (3) of the Framework. Accordingly, Pt 1 of the Act will not apply to it (see the Armas case, para 28 per Lord Hope, and para 54 per Lord Scott).
As to how the court should decide whether a EAW is a warrant that requests the surrender of an ”accused” person for the ”purposes of being prosecuted” (in the language of s 2(3)(a) and (b)), case law has established that this requires an intense focus on the facts in each case (see Re Ismail [1999] 1 AC 320; Armas and BalzasAsztaslos v The Szekszard City Court, Hungary [2010] EWCH 237 (Admin)).
This is usually limited, however, to analysis of the wording of the particular warrant.
Furthermore, it has been stressed by the courts that the terms themselves should not be treated as terms of art, given that warrants are often directed to more than one member state and it may not be easy to provide a form of words that meets the requirements of each recipient state’s national legislation.
Confining consideration to the face of the warrant reinforces the “no questions asked” principle of mutual trust and provides little in the way of protection for the accused. This is illustrated in Harvey v Judicial Authority of Portugal-Tribunal Judicial de Albufeira [2007] EWHC 3282 (Admin) which concerned a warrant requesting that Mr Harvey be detained and committed “to the judicial authorities for purposes of legal proceedings” in relation to an issue of a cheque without funds. Despite the lack of specificity in the terminology used, Maurice Kay LJ concluded that the Polish authorities clearly sought his return for the purpose of prosecuting him rather than further investigation, a decision based solely on the aforementioned wording.
Subsequently in Paul Johnson v State Prosecutor at the Tribunal de Grande Instance de Lille and Martin Christopher Joseph Stevens v Judicial Authority of the Government of France [2009] EWHC 2830 (Admin) Scott Baker LJ stated that ”where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning”.
Where the wording of the warrant is ambiguous it is possible to call extraneous evidence, as was done in the case of Vey v The Office of the Public Prosecutor of the County Court of Montluçon [2006] EWHC 760 (Admin). Nonetheless, as confirmed in Robert Thompson v Public Prosecutor of Buulognesurmer [2008] EWHC 2787, this should only be done as a “last resort” and in general should be discouraged. Lord Justice Aikens spelled out the position : “[The court] must not be put in the position where the court may have to consider detailed evidence about criminal procedures in other European countries for the purpose of the deciding whether or not the statutory requirements in section 2(3)(b) of the Act are fulfilled.”
It seems that the UK courts are less willing to scrutinise too closely the actions of the requesting state and more willing to accept at face value that what is being requested is both legitimate and human rights compliant. This is particularly concerning given the increased rate at which EAWs are being sought. The number of EAWs issued has increased from approximately 3,000 in 2004 to 15,000 in 2009. EAW detentions in Britain have risen 43-fold since 2004, with 699 people being extradited from the UK in 2009, according Serious Organised Crime Agency figures.
The Government is aware that the system has attracted controversy, however, and in September 2010 the Home Secretary announced a review of five key areas of extradition including the operation of the EAW. An independent panel is expected to report in late summer 2011. We shall see what comes of it. Where it leaves Julian Assange is a different matter. He appears to have a long battle ahead.
Sarah Lewis is a practising barrister at 18 Red Lion Court. An edited version of this article has appeared in Solicitors Journal.
Extradition Act 2003
The legal bars to surrender are set out in the Extradition Act 2003 and are based on the grounds for refusal contained in Arts 3 and 4 of the Framework Directive, and include:
(I) the arrested person has already been convicted or acquitted of the same offence or an offence relating to the same facts as those described in the eaw; (II) (extraneous considerations (eg a risk that the person will be prosecuted or prejudiced at trial due to race, religion or political opinions);
(III) passage of time (extradition would be unjust or oppressive given the time elapsed);
(IV) the person’s age is below the legal age of criminal responsibility; or
(V) the physical or mental condition of the person makes it unjust or oppressive to extradite.
If one of these legal bars applies, the judge must discharge the arrested person. if none of these legal bars apply, the judge must order the extradition of the arrested person.
In the wake of Julian Assange’s ongoing struggle against extradition, Sarah Lewis questions the UK’s willingness to accept European arrest warrant procedures at face value
The case of Julian Assange has put the European Arrest Warrant (EAW) under the spotlight. As a mechanism by which wanted individuals can be extradited from one EU member state to another, the EAW has been hailed as a valuable and successful instrument, cutting the delays and red tape associated with traditional extradition methods that have, in certain circumstances, enabled criminals and those suspected of committing crimes to remain beyond the reach of the law.
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