Opt-in, opt-out, shake it all about: the future of the European Arrest Warrant

Joanna Buckley & Anita Davies

The High Court’s decision on 2 November that Julian Assange should be extradited to Sweden to face rape allegations has rekindled debate on the use and implementation of the European Arrest Warrant (“EAW)”. Critics of the system contend that EAWs do not include sufficient safeguards. Proponents argue that the EAWs are a necessary tool to fight cross-border crime.

UK extradition policy has undergone several reviews in the last year, highlighting divergent opinions on the future of the EAW. In September 2010, the government appointed an inquiry under Sir Scott Baker (“the Extradition Review”), which released its findings on 18 October 2011 (a useful summary can be found on the UK Human Rights Blog). The report concluded that, “apart from the problem of proportionality, we believe that the European arrest warrant scheme has worked reasonably well”. Prior to this, the Joint Human Rights Committee (“JHRC”) released a report on 22 June 2011. In contrast to the Extradition Review, the JHRC called for a future renegotiation of the 2002 Framework Decision on the EAW, given domestic effect by the Extradition Act 2003. A Westminster Hall debate on extradition is scheduled for 24 November.

These reviews highlight disagreement on key areas – whether there should be a requirement for prima facie evidence, the application of the principle of double criminality and the sufficiency of the human rights bar to extradition contained in ss21 and 87 of the Extradition Act 2003, amongst others. But they have also thrown up much larger issues of the theoretical underpinnings of the relationship between the EU and its member states (as previously discussed here on EUtopia).

At the heart of the EAW scheme is the principle of mutual recognition. Mutual recognition has been the cornerstone of European integration on criminal matters, put forward (perhaps ironically) by the UK during its presidency of the European Council in 1998. Supported theoretically by the architects of EU legislation, its implementation has been far more difficult.

Mutual recognition requires that “member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other’s judicial institutions” (per Lord Bingham in Dabas v High Court of Justice in Madrid, Spain  [2007] UKHL 6). Judges have been reluctant to grant non-surrender in extradition cases on human rights grounds. To accede to arguments predicated on a lack of trust in the authorities requesting extradition would defeat the assumptions underpinning the EAW.

But the frequency with which challenges are brought on human rights grounds show that concerns remain over the lack of parity between the judicial standards of member states. The European Council itself has noted that “despite the fact that law and criminal procedures of all member states are subject to the standards of the European Court of Human Rights, there are often doubts about standards being similar across the EU”. The EU is committed to mutual recognition but implicitly recognises that mutual trust is lacking. Given that such trust is a “necessary precondition” to recognition, this is a serious problem.

The other question mark hanging over the EAW is the current lack of a proportionality test. In a recent report by the European Commission (“Commission”) on the EAW it was noted that confidence in the EAW was being undermined by the “systematic use of EAWs for the surrender of persons sought in respect of often very minor offences”.

The problems surrounding mutual recognition and proportionality are easy to pinpoint. But, as always with the EU, there are the practical difficulties in bringing about changes to remedy them. It is hard to imagine how the issue of proportionality could be resolved without legislative amendment at the EU level. But the government has not so far supported the calls of the JHRC and others for renegotiation. Instead, the UK government and other member states have sought to develop best practice and introduce targeted measures through the Justice and Home Affairs (“JHA”) Council and with the Commission.

Some practical measures have already been taken by the EU. In 2009 the Council adopted a “Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings”. The Roadmap invited the Commission to bring forward proposals designed to implement a single standard of procedural rights across the EU, such as access to translators, legal aid and legal advice and safeguards for vulnerable persons. So far only access to a translator has been adopted.

So why not go all the way and engage in renegotiation?

Some of the reasons are purely pragmatic. Following the implementation of the Lisbon Treaty, amendments to Framework Decisions will be subject to the “ordinary legislative measures” of qualified-majority voting (“QVM”) and co-decision, as opposed to the inter-governmental procedures adopted under the old JHA measures. One can already imagine the groans that would emanate from EU diplomats at the thought of hashing out a new agreement in this manner.

Politically of more concern is that amended legislation will become subject to infringement proceedings by the Commission and the full jurisdiction of the CJEU (see article 10, Protocol No 36). In reality such concerns may be somewhat overstated. These changes will occur in the field of police and judicial cooperation in any event by December 2014, though the UK has negotiated an opt-out.

There remains the possibility, however, that under QVM amendments may be accepted with which the UK does not agree. In this case, the UK also has the option of not exercising its opt-in (see Protocol No 21). The question would then arise whether the UK could keep operating under the EAW scheme without signing up to amendments made to the Framework Decision. If the Council considers that this would render the EAW system “inoperable” for other member states, it can decide that the original measure should no longer apply to the UK.

It may well be that this scenario is highly unlikely. Yet the alternative is for the UK to exercise its opt-in. For a government that is already battling the Euro-sceptics in its rank – not least by the newly-formed self-titled “81 group” – handing out more powers to the EU would hardly be its political endgame.

And here might lie the real problem behind discussion on the European Arrest Warrant: negotiations will always be driven by political agendas, not legal ones. Given the current political climate, the UK may well find itself torn between exercising its opt-in or opt-out.

3 thoughts on “Opt-in, opt-out, shake it all about: the future of the European Arrest Warrant

  1. It’s an interesting point as to whether the relative difficulty in challenging EAWs on human rights grounds is because “To accede to arguments predicated on a lack of trust in the authorities requesting extradition would defeat the assumptions underpinning the EAW.”
    It’s only a slightly different angle, but R (Jan Rot) v Poland seemed to almost make this a question of statutory interpretation and the role of the judiciary – “Category 1 States can be taken to have accepted between themselves that conditions of detention and the adequacy of fairness of criminal justice systems in such states will not be required to be examined by other states when considering extradition applications by them.”

    I’m not sure it necessarily follows on logically that “the frequency with which challenges are brought on human rights grounds show that concerns remain over the lack of parity between the judicial standards of member states.” This makes huge assumptions about the reasons for bringing, and frequency of, human rights challenges . . . one only has to look at the effect of the Human Rights Act 1998 on the frequency of “traditional” JR applications. (Nonetheless, there are criticisms of standards across the EU, but I just don’t think the number of human rights claims is necessarily evidence of it.)

    Lastly, I disagree that QVM and co-decision are likely to be more of a barrier to legislative change than the previous intergovernmental process for JHA measures – which effectively allow member state vetos. The desire to extend QVM has been to increase ‘efficiency’ and speed decision-making.

    You are right that the machinations behind the development of the EAW are largely political (although I am not sure we can seperate legal and political quite that easily), with eurosceptics sent into overdrive at the merest mention of it – see for example, the vitriol reserved for Graham Watson MEP, a member of the ALDE, who is credited a part in the creation of the scheme.

    • Well, opinion is free and all that, but that’s nnosense. The UK has an extradition agreement with the US whereby they make demands and we just agree, whereas Sweden doesn’t. If the US wanted Assange, they would have tried to extradite him from the UK where we have a just-hand-em-over agreement, not Sweden, where they don’t.

  2. Hi Sugenk, thanks for your comment, could you just clarify which part you think is nonsense? Neither the post or comment refer to Assange’s possible extradition to the US, but focus on the extradition arrangements between european states.

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