Challenging the European Arrest Warrant


The Framework Decision on the European Arrest Warrant initiated a radical change to extradition proceedings within the EU, accelerating the process considerably and removing a number of bars to extradition, most notably the bar of dual criminality for 32 specified categories of offences.1 As a result, the number of extradition requests made to the UK has expanded enormously: according to the Serious Organised Crime Agency and the Crown Office and Procurator Fiscal Service, surrenders under the European Arrest Warrant rose from 24 in 2004 to 332 in 2007 and 515 in 2008.2 Earlier this year, it was reported that the Polish authorities request so many individuals from the UK that they charter a flight every fortnight from Biggin Hill airport to return them.3 For this reason, the remaining grounds for challenging the warrant are of considerable significance. Although many attempts have been made to challenge the warrant on procedural grounds, these are beyond the scope of this paper, which instead focuses solely on substantive means of challenging the warrant. After a brief overview of the extradition procedure for the European Arrest Warrant in the UK, it focuses on three grounds for challenging the warrant, namely the passage of time, Article 8 of the European Convention on Human Rights ('ECHR'), and triviality. I The European Arrest Warrant in the UK

The Framework Decision was implemented in the UK by the Extradition Act 2003 ('EA 2003'). This draws a distinction between category 1 territories, which are the Member States of the EU, and category 2 territories, which are any other territories in the world with which the UK has extradition arrangements. Category 1 territories are dealt with by Part I EA 2003. The fundamental principle of the European Arrest Warrant is that Member States should trust one another's criminal justice systems to the extent that judicial decisions made in one Member State should be recognised by the judicial authorities of other Member States. Broadly speaking, an arrest warrant issued in one Member State should, therefore, be equally valid as a domestic arrest warrant in another Member State. For this reason, Part I EA 2003 limits the discretion of the court and central authority. Procedure

There are three main stages to the process of extradition from the UK to other territories: arrest, extradition hearing and appeal. An initial hearing is held before the District Judge. This will be used to ascertain the identity of the arrested person and whether he/she consents to extradition, together with certain procedural matters such as bail and the setting of the date for the substantive hearing. At the substantive hearing, the court will examine compliance with EA 2003 and consider objections before making a decision as to whether to order their extradition or to discharge him/her. Where the person has been convicted in the requesting state, several additional issues will require judicial determination. It is possible for the decision to be appealed to the High Court and, with permission and provided that there is deemed to be a point of law of general public importance at stake, the Supreme Court. An appeal can be made both by the person subject to an extradition order and by the requesting state. Bars to extradition

At the hearing, the court must decide certain questions and consider certain factors which can act as a bar to extradition. These include: Whether the alleged offence is an 'extradition offence' (section 10(2)). Under Part I, an extradition offence is one where the alleged conduct has occurred in a category 1 territory; and the alleged conduct constitutes one of the 32 offences specified by the EU Framework Decision; and the alleged conduct is punishable by at least three years' imprisonment in the requesting state.4 An extradition offence also includes offences which, although not on the list of offences, passes the test of 'dual criminality', that is, conduct which is a criminal offence in both countries, and which is punishably by up to 12 months' imprisonment in the category 1 territory.5 The rule against double jeopardy which prevents the extradition of someone who has already been convicted or acquitted of the same offence or an offence substantially relating to the same facts (section 12). Whether the arrested person might be prosecuted or prejudiced at trial by virtue of their race, religion, nationality, gender, sexual orientation or political opinions (section 13). Whether extradition would be unjust or oppressive because of the passage of time (section 14). Whether the person is below the age of criminal responsibility in the UK (section 15).6 Hostage-taking considerations (section 16). The consideration of speciality (section 17). Although there are a number of exceptions, the principle states that a person who has been extradited cannot then be prosecuted in the requesting state for offences other than those stated in the warrant or other extradition offences disclosed by the same facts. This is a protection lost by anyone who consents to extradition. Earlier extradition to the UK from another category 1 territory (section 18); Earlier extradition to the UK from a non-category 1 territory (section 19). Whether the physical or mental condition of the arrested person is such that it would be unjust or oppressive to order extradition (section 25). Finally, however, section 21 requires the District Judge at the extradition hearing to decide whether the person's extradition would be compatible with their rights under ECHR, within the meaning of the Human Rights Act 1998, and, if it would not be, to order the person's discharge. II Passage of time

As stated above, section 14 EA 2003 allows an extradition request to be refused if it would be unjust or oppressive not to do so because of the passage of time. The leading authority is the joined cases of Gomes v Trinidad and Tobago and Goodyer v Trinidad and Tobago.7 This judgment approved Lord Diplock's approach in Kakis v Cyprus, which made clear that there are two limbs to the bar: the passage of time may render extradition unjust or oppressive. This distinction between the two limbs has not always been made so clear in the subsequent case law.8 'Unjust', for Lord Diplock, means 'directed primarily to the risk of prejudice to the accused in the conduct of the trial itself'9 The evidence used to raise this limb may also support an argument that there would be a violation of Article 6 ECHR if extradition took place, although a different test will apply.10 'Oppressive', conversely, refers to 'hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration'. The evidence used to raise this bar may also support an argument that there would be a violation of Article 8 ECHR if extradition took place, but a different test applies which is discussed later. Lord Diplock further stated in Kakis that a delay caused by the accused fleeing the country could not be unjust, and that for delays not brought about by his actions, the issue was 'the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude'.11 After some uncertainty, Gomes clarified that any delay in the commencement of extradition proceedings which was brought about by the accused fleeing the country or evading arrest could not be relied upon as a ground for holding it to be either unjust or oppressive to return him. Only a deliberate decision communicated to the accused by the requesting state not to pursue him, or some other circumstance instilling a similar sense of security, could properly allow an accused to assert that the effects of further delay were not 'of his own choice and making' within the meaning of Lord Diplock's speech in Kakis. The concept of injustice requires one to ascertain whether a fair trial is possible. Showing that a fair trial is not possible cannot be easily satisfied even in relation to countries where extradition arrangements were more 'ad hoc'. The presumption should be that justice would be done despite the passage of time and that the burden should be on the accused to establish the contrary. The court will also consider what protections are available in the requesting state to prevent injustice. The threshold for 'oppressive' under section 14 would appear to be higher than that for Article 8. In Szubryt v Poland, the appellant's counsel conceded that the threshold for an appeal on the grounds of oppression under section 14 is higher than that for Article 8, and that therefore if the appeal did not meet the Article 8 threshold, it would also fail the section 14 threshold, which it duly did.12 In Kakis, Lord Diplock cited as circumstances which would make the extradition oppressive the fact that Mr Kakis had uprooted his family and moved to England with the help of the Cyprus Government, who had given him reason to believe that they had no intention to prosecute the alleged offence, and that his family had now been settled in England for three and a quarter years before he learned of the request made for his extradition. In Wiejak v Poland, the appellant had entered the United Kingdom in 1999, shortly after having been accused of burglary and theft of a car in Poland.13 At his appeal, he submitted that nine years had elapsed since the burglary and eight since the theft, and that allowing the extradition would therefore be oppressive. An arrest warrant had been issued in December 2006. The appeal was dismissed, Nelson J stating that although these were 'old offences', the appellant 'did leave the jurisdiction knowing fully of the events which resulted in the proceedings' and that his knowledge that proceedings might be brought against him was rightfully considered by the District Judge. It was noted that no unusual circumstances which would meet the threshold for...

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