A sledgehammer to crack a nut? Should there be a bar of triviality in European Arrest Warrant cases?

Introduction

There are few greater instances of the exercise of state power over the individual than that involved in extradition. The advent of the European Arrest Warrant ("EAW"), and the expedited extradition regime which it introduced, has resulted in an increase in extradition requests for relatively minor offences. This raises the question of whether extradition is an appropriate procedure in cases involving low-level offending.

In the recent case of Tomasz Zak v. Regional Court of Bydgoszcz (Poland), Maurice Kay LJ and Walker J questioned whether the issue of an EAW for an offence of receiving a stolen mobile telephone was to use a sledgehammer to crack a nut. Maurice Kay LJ remarked that:

"one is becoming used to European extradition cases for less serious offences than used to come before the courts for extradition, but in my reasonable experience of cases under the 2003 Act I have never seen one quite as low down the calendar as this".1

On the 1st January 2004 Part 1 of the Extradition Act 2003 ("the 2003 Act") came into force, implementing a new system of extradition between signatories to the European Council Framework Decision on the European Arrest Warrant ("the Framework Decision").2 The system is designed to expedite the transfer, between judicial authorities within the European Union, of suspected and convicted persons whose extradition is requested by means of an EAW.

Between the 1st January 2004 and the 22nd February 2006 the United Kingdom received 5,732 European Arrest Warrants, resulting in the arrest of 175 persons and the surrender of a further 88 persons.3 The use of the EAW is ever increasing and the warrants are issued for a wide variety of offences, from terrorism and murder to far less serious offences, such as the offence in the case of Zak.

In considering whether the EAW is an appropriate vehicle for less serious offences, this article will consider the provisions of Part 1 of the 2003 Act; the aims of the European Framework Decision upon which it is based; the triviality provisions under previous legislation; and the context of wider European co-operation.

I will conclude that the use of the EAW for less serious offences does amount to using a sledgehammer to crack a nut, but that its use is necessary. There are real and compelling reasons for enforcing criminal justice across Europe. Membership of the European Union confers considerable rights, but also brings responsibilities. It is in the interests of all that those responsibilities are enforced, even in respect of less serious offences. At present the only alternative to extradition in respect of those offences would be to allow offenders to evade prosecution or sentence. Under those circumstances it will be submitted the re-introduction of the bar of triviality is not an appropriate solution to the problem, but instead that the answer lies in the mutual enforcement of financial and non-custodial penalties.

Part 1 of the Extradition Act 2003 and the European Arrest Warrant

Under Part 1 of the 2003 Act extradition is effected between designated judicial authorities within states which have signed the Framework Decision.

Recital 5 of the Framework Decision sets out the objectives to be achieved by the European Arrest Warrant as follows:

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area...

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