2 The opt-in protocol and revisions
to existing mutual recognition instruments |
39. The European Council has requested the European
Commission to set a timetable for transforming third pillar instruments
to a new legal basis following the entry into force of the Treaty
of Lisbon. We have
considered the challenges that may be encountered during this
process, particularly in the light of the "look before you
legislate" approach that the Government has adopted to future
The European arrest warrant
40. The European arrest warrant aims to facilitate
the rapid execution of decisions by judicial authorities of member
states to require the arrest and return of a person for trial
or to serve a sentence, when they have fled to, or are resident
in, other member states. It is the best known instrument which
encompasses the principle of mutual recognition of judicial decisions.
It has been in operation in the UK since 1 January 2004 and has
been used extensively across the EU.
41. The effects of the European arrest warrant
on the UK are well documented. They are illustrated by increases
in the volume of extraditions to, and from, the UK and significant
reductions in the time taken to effect these transfers.
Mr Mike Kennedy of the Crown Prosecution Service, and founding
president of Eurojust, told us that the warrant had been the "most
effective mutual recognition tool introduced" and its impact
was "greatly simplifying and speeding up extradition within
the EU since its introduction in January 2004".
The Ministry of Justice wrote that the European arrest warrant
- transformed extradition arrangements
between EU member states
- played an important role in
the UK's fight against international and trans-national criminality
- prevented countries from refusing
to surrender fugitives
- reduced the time taken to surrender
fugitives from an average of 18 months under previous extradition
arrangements to around 50 days, and
- enabled the UK to extradite
over 1000 fugitives to other EU member states (since introduction)
and, in 2008, nearly 100 wanted persons were surrendered back
to the UK to face criminal proceedings.
42. Nevertheless, Mr Faull pointed out that developing
the mutual trust necessary to enable and allow such trans-national
legal instruments to work, and to be improved, is no easy task:
mutual recognition requires mutual confidence, which
is not always a given".
Mutual trust may be undermined if, for example, the threshold
for the use of an instrument has been set, or interpreted as,
too low given its expense and administrative burden. The European
arrest warrant has exposed some of the difficulties of adopting
common procedures within very different systems and highlighted
limitations in taking a mutual recognition approach to legislation
in this area. We heard from Fair Trials International in particular,
that there are a number of difficulties with the instrument, which
were described to us as "significant".
Mr Jago Russell, the Director of Fair Trials International, explained:
"it seems to me that if you are going to recognise, in a
"no questions asked" way, decisions of other courts
you also have to have confidence that those courts in those countries
are indeed respecting basic rights."
Some of the difficulties that have arisen with regards respect
for individual rights are illustrated in case studies in box 2.
|Box 2Fair Trials International case studies
In 2007, while Mr Symeou, a university student, was on holiday with friends in Zante, Greece, another young Briton was assaulted and fell off an unguarded stage in a night-club, tragically dying two days later from his head injury. Andrew insists he was not even in the club at the time and many witnesses have since confirmed this. He was not sought for questioning, and knew nothing about the incident when he flew home at the end of his holiday. A year later, he was served with a European arrest warrant seeking his extradition to Greece to stand trial for murder. During the course of his legal challenge it emerged that the warrant is based on flawed evidence, much of it extracted through the brutal mistreatment of two witnesses who have since retracted their (word-for-word identical) statements. In addition to being concerned about Mr Symeou's fate FTI considers that if the Greek authorities had acted legally and diligently, the true assailant could be brought to justice.
At the age of 18, Mr Mendy went on holiday to Spain with two friends. While there, all three were arrested in connection with counterfeit euros. Mr Mendy himself had no counterfeit currency on him or in his belongings when arrested and has no idea how the notes came to be on his two friends and in their rented apartmentin total, the police found 100 euros in two notes of 50. The boys were held three nights, then appeared in court and had a hearing lasting less than an hour, at the end of which they were told they were free to leave but might receive a letter from the authorities later. They returned to the UK and heard no more about it until 4 years later when, as Mr Mendy was studying in his room at university, officers from the Serious Organised Crime Agency arrested him on a European arrest warrant. He was extradited to Spain and held on remand in a maximum security prison in Madrid. Other inmates told him he might be in prison for up to two years waiting for a trial. Under immense pressure and fearing for his future, he decided to plead guilty, even though several grounds of defence were available and he would have preferred to fight the case on home ground, on bail, and with a good lawyer he could communicate with in English. None of this was possible, and he ended up spending 9 weeks in prison before coming home to commence his university career, his future blighted by a criminal record. This is an example of how warrants can be issued in a disproportionate way, wasteful of costs and having an unduly harsh effect on individuals' personal lives.
In 1997 the Human Rights Committee of the United Nations reported that brothers Michael and Brian Hill had been denied a fair trial in Spain, following their arrest in 1985, and were entitled to a remedy "entailing compensation" as a result. Spain failed to comply with this ruling and subsequently issued a European arrest warrant seeking the brothers' extradition to Spain. In October 2005, Michael Hill was arrested in Portugal and extradited to Spain where he served 7 months for breach of parole conditions. The brothers had already served three years in prison in Spain. Fair Trials International considers that this is a clear abuse of process and suggests that courts of executing states should be empowered to refuse extradition in such cases, rather than perpetuating the injustice of the original trial.
In 1989, British citizen Ms X (anonymity requested) was arrested in France on suspicion of drug-related offences and held in custody. Her trial took place later in 1989. The court acquitted her of all charges, finding she had been set up by her then partner. She returned to the UK but, unbeknown to her, the case was appealed by the French prosecution. She was not notified and the appeal went ahead without her knowledge in 1990. No lawyer represented her and the Appeal Court overturned the original verdict and sentenced her to 7 years' imprisonment. She was not informed. In April 2005, a European arrest warrant was issued by the French authorities for Ms X to be returned to serve her sentence. Unaware of this, in 2008 she travelled to Spain where she was arrested and taken into custody pending extradition to France. Ms X refused to consent and spent a month in custody waiting for an extradition hearing. Eventually the Spanish court refused to extradite her, given that nineteen years had passed since the alleged offences. Ms X was released and flew home to the UKonly to be re-arrested on the same warrant by the British police at Gatwick airport. The City of Westminster Magistrates' Court refused the extradition in April 2009 given the passage of time. This could happen again and again, until France removes Ms X's warrant from the EU-wide system. Ms X is virtually a prisoner in her own country, as any trip abroad could result in her arrest. She wishes to visit her sick and elderly father in Spain but cannot risk it for the sake of her family.
43. The use of European arrest warrants for minor offences,
which would be seen within the UK legal system as a disproportionate
measure, raises the problems Mr Russell described for the UK (and
other member states) both on human rights grounds and in terms
of the costs to their legal systems.
In many member states, including for example Poland, the prosecutor
is constitutionally obliged, under the applicable codes of criminal
procedure, to take action when there is an allegation that an
offence has been committed. There is no equivalent to the prosecutor
test which, in the UK, ensures that the case is in the public
interest and that there is a realistic prospect of conviction.
We heard several examples of cases where inter-country surrender
of persons had been requested for offences that would be considered
minor in the UK, for example, stealing ten chickens, a mobile
phone or even a bowl of cherries.
The Ministry of Justice was unable to provide us with an estimate
of the cost to the UK of administering European arrest warrants
but, according to Mr Russell, an Irish judge has estimated the
average cost per case in Ireland to be 25,500 Euro.
44. The Government acknowledged that there were difficulties
with the administration of the European arrest warrant, particularly
related to proportionality, and supported the view that the use
of the European arrest warrant should be restricted to serious
cases. It drew our
attention to a report in 2008 on a review of the operation of
the instrument which made recommendations to individual member
states and to the preparatory bodies of the Council
that were adopted by the Council in June 2009 (discussed further
45. We heard that the Government had not conducted a formal
review of the Extradition Act 2003 but believed that the provisions
work well. Some less
formal scrutiny took place during the consideration of the Policing
and Crime Act 2009, which made provision for the UK to begin
sending and receiving data, including alerts which request the
arrest of a person for extradition purposes, via the Schengen
Information System II [SIS 2] and to defer extradition in particular
instances. The use of the European arrest warrant has increased
year on year, 
but, as we noted above, the Government was unable to provide us
with indicative costs for their enforcement, citing the many factors
involved in making the decision and the various parts of the criminal
justice system engaged in the process.
We heard that Government did not foresee any increase in demand
for European arrest warrants
but we have since been told that there is likely to be a 250%
rise in cases as a result of the UK's connection to SIS 2 from
April 2011. We understand
that the Home Office is responsible for preparations to deal with
this rise but there will be undoubtedly considerable implications
for the Crown Prosecution Service, which approves applications
for warrants; Westminster magistrates court, which administers
European arrest warrants; and the National Offender Management
Service, which is responsible for detaining suspects prior to
46. We would welcome clarification
from the Ministry of Justice on the action it is taking to deal
with the predicted 250% rise in arrests pursuant to European arrest
warrants in terms of the implications for the Crown Prosecution
Service, Her Majesty's Courts Service and the National Offender
Management Service and how it plans to meet the costs to the Department
as a whole.
REVISING THE EUROPEAN ARREST WARRANT
47. The Law Society considered there to be an
urgent need for the introduction of a proportionality test for
the issuance of European arrest warrants.
The Council has agreed that the issue of proportionality should
be prioritised and there is general agreement amongst member states
on the most appropriate means of doing so. The follow up to the
evaluation report, discussed above, stated that "legislative
action is undoubtedly the most binding manner to obtain a change
in the way the European arrest warrant functions and therefore,
at least in some cases, probably also the most effective course
of action. There are, however, also potential drawbacks to legislative
] [and it] should be followed only if it is unavoidable
in order to remedy important problems".
Mr Faull drew similar conclusions.
48. The Government shared the view that renegotiation
of the Framework decision on the European arrest warrant
should not be the default solution to problems with its implementation.
It is thus seeking to deal with these issues proactively by developing
a shared understanding of best practice through the Justice and
Home Affairs Council and with the Commission.
While legislation was an option considered with other member states
in the June 2009 Justice and Home Affairs Council, most member
states accepted that there were other solutions that could be
used, such as bilateral discussions, with the aim of developing
a shared understanding of when it is appropriate to use the instrument.
49. Mr Russell explained why there may be resistance
to resorting to legislation: "there is major concern in many
EU member states, including the UK, and the Commission, on the
question of re-opening the framework decision on the European
arrest warrant [
] [that] the whole thing will unravel [
I can see from a political point of view that there could be problems".
For example, if there is a review of the European arrest warrant
the new rules on the European Court of Justice's jurisdiction
would apply with immediate effect. On the other hand, Mrs Mole
pointed out that the issue of proportionality is compounded by
the Government's decision not to opt in to the jurisdiction of
the Court of Justice because it denies the Westminster magistrates
court the ability to raise questions about the execution of warrants
in any cases.
50. It is unfortunate that the
successful use of the European arrest warrant, and the reduced
time taken to process intra-EU extraditions, has been overshadowed
by perceived injustices in individual cases. We welcome the conclusions
of the evaluation of the warrant, adopted by the Council in June
2009, and the subsequent progress that has been made. However,
we believe that the time it takes to review and reform such instruments
undermines the mutual trust approach. Legislation should be used
only as a last resort to resolving the issues over proportionality
and we hope that the current approach bears fruit before the predicted
growth in demand for European arrest warrants takes place.
THE THRESHOLD FOR INOPERABILITY
51. While the Commission and member states may
be reluctant to amend the framework decision as a means of resolving
the proportionality issue, it may become necessary if other measures
fail. Professor Mitsilegas, of Queen Mary University of London,
believed that the UK opt-in would fuel momentum to re-open debates
on aspects of law and policy either when framework decisions are
be translated into regulations and directives, which may result
in amendment to existing agreements, or when new accompanying
measures are agreed.
He raised questions, for example, about whether the UK could continue
to participate in the European arrest warrant if it did not opt-in
to a new directive on defence rights which underpins the principles
of mutual recognition in the warrant.
52. As we have noted, the application of the
opt-in protocol extends to processes by which amendments to existing
measures are negotiated. If the UK decides not to participate
in an amending measure and the Council decides that this lack
of involvement renders the measure inoperable for other member
states it can "eject" the UK from the original measure.
Professor Peers illustrated his interpretation of the level of
this threshold using the analogy of a car:
would you say your car was inoperable just because
there is an odd noise which you cannot explain, there is something
awkward about it, or would you say it is only inoperable if it
gets to the point where it is judged unroadworthy or, indeed,
it just does not function at all because you cannot get it to
start and there are no brakes or steering or something really
essential that you need for a car to work?
He therefore supported the conclusions of the House
of Lords EU Committee in its report, The Treaty of Lisbon:
an impact assessment, that this threshold was a high one,
related to technical inoperability. The Government also considered
that the threshold was high.
We heard that this works in its favour as long as it wishes to
remain participating in existing measures. However, Professor
Peers pointed out that the European Commission, European Parliament,
some member states and/or a different UK government may have different
views as to the level of the threshold.
53. If it can be demonstrated that member states
suffer financial loss stemming directly from the UK's failure
to participate (and the consequent inoperability of the measure),
the UK could potentially bear financial consequences, a scenario
that Mr Edwin Kilby, head of European policy at the Ministry of
Justice, considered highly unlikely.
Professor Peers explained that there is already significant divergence
in the implementation of aspects of existing measures which has
not lead to a breakdown in their operation.
However, Mrs Mole believed that it is "not out of the question"
that a state may take another state to the Court of Justice, for
example, if there was a very serious breakdown of the function
of cross-border criminal justice mechanisms.
54. We are encouraged that neither
the Minister, nor any of our witnesses, were able to provide a
convincing example of a situation in which an existing measure
would be rendered inoperable as a result of the UK's decision
not to participate. Nevertheless, we are concerned that the term
"inoperable" is not defined in the protocol and that
guidance is not available on its interpretation.
The European evidence warrant
55. The European evidence warrant, adopted as
a Council framework decision in December 2008, is intended to
replace mutual legal assistance procedures and further improve
judicial co-operation by applying the principle of mutual recognition
to a judicial decision for the purpose of obtaining objects, documents
and data for use in criminal legal proceedings in different member
states. Provisions to give effect to the UK's obligations to implement
the framework decision are included in the Policing and Crime
Act 2009. Until the European evidence warrant is fully implementedand
this process is expected to take up to two yearsthe new
measure will run in parallel with the mutual legal assistance
procedures under the 1959 Council of Europe Convention and the
2000 EU Convention on mutual legal assistance.
56. This instrument took some time to negotiate,
being first introduced in November 2003, and the legislation that
was finally adopted contained many exceptions to general principles,
resulting in concern that it may not operate effectively. Mr Kennedy
told us that he did not believe that the arrangements under the
framework decision are as powerful as agreements for mutual legal
assistance under the Conventions described above, although he
also felt that these were too ad hoc.
Practitioners have suggested to the European Commission that the
system under the framework decision is cumbersome and difficult
and not conducive to the best possible administration of justice
(i.e. ensuring that it is relatively easy to obtain evidence located
in one country where it is needed for a particular case).
57. Reflecting these concerns, the Stockholm
programme provides for the European evidence warrant to be revised
and a new measure adopted. Mr Kennedy could see benefits in standardising
the process for gathering evidence, but believed that it would
be difficult to develop a comprehensive European evidence warrant,
citing differences in the rules of admissibility of evidence across
Changes to rules on the admissibility of evidence could potentially
give rise to more interference with the UK system.
58. In principle, the Government is supportive
of further attempts to improve judicial cooperation amongst member
states but thought that this must be done through an instrument
that will "demonstrably add real value" to mutual legal
has suggested to the Commission that a more effective system should:
require executing authorities to set out a timeframe within which
a request will be executed (but avoid a 'one size fits all' approach
being taken to deadlines that could actually hamper wider judicial
co-operation); make proper provision for central authorities;
include proportionality as a ground of refusal; and make the instrument
available to the defence.
We discussed the need for proportionality to be considered in
adopting such a measure. Mr Faull agreed that it might be necessary
to include this on the face of legislation and pointed out that
the issue of proportionality arises at two levels: first, legislation
must be in proportion to the objective it sets out to achieve
and, secondly, there must be proportionality in how it is applied
59. Nevertheless, there are currently two parallel
initiatives which may provide the basis for a new measure.
The first, a green paper on the gathering and admission of evidence,
was issued by the European Commission in 2009 to enable consultation
and detailed investigation before new legislation is proposed.
In addition, it is anticipated that a member state initiative,
led by Belgium, will propose the introduction of a "European
60. While the Government may
wish the EU to adopt a "look before you legislate" approach,
the ability of member states to present their own initiatives
may pre-empt more considered approaches by the European Commission.
We agree with the Government that, if the European evidence warrant
is revised or replaced, lessons should be learned from the operation
of the European arrest warrant by incorporating safeguards into
the legislation to minimise the potential for disproportionate
68 Council of the European Union, The Stockholm
programme: an open and secure Europe serving and protecting the
citizens, December 2009, para 1.2.10 Back
HC (Session 2006-07) 76-I; Q 14 [Lord Bach] Back
Ev 55 Back
Ev 90 Back
Q 88 [Mr Faull] Back
Ev 59 Back
Q 161 Back
Ev 60ff Back
Q 161 [Mr Russell] Back
Qq 163-165 Back
Qq 162,165 Back
Ev 103 Back
Q 161 [Mr Russell] Back
Q 16 Back
Preparatory work for the Council is carried out by several bodies,
each of which holds a specific rank in the order of importance:
Coreper is at the top, and at the bottom are the numerous working
parties; in the middle are the committees with responsibility
for specific areas. Back
Qq 16-17 [Lord Bach, Ms Gibbons] Back
Q 256 [Lord Bach] Back
Q 88 [Mr Faull]; Ev 103 Back
Q 258 [Ms Gibbons]; Ev 103 Back
Q 265 [Ms Gibbons] Back
Ev 106 Back
Ev 83 Back
Council of the European Union, Follow-up to the final report
on the fourth round of mutual evaluations: the practical application
of the European arrest warrant and corresponding surrender procedures
between member states, 7 December 2009 Back
Q 93 Back
Q 260 [Ms Gibbons] Back
Qq 259-262 [Ms Gibbons]. For example, see Q 181[Mr Kennedy] Eurojust,
despite having no formal role beyond advice in difficult cases,
organised a useful bilateral meeting between justice departments
in Poland and the UK on these issues. Back
Q 162 Back
Q 165 Back
Ev 107 Back
Ibid, para 7. Back
Q 62 Back
Ev 106; Q 236 [Mr Kilby] Back
Q 63 Back
Q 234; see also Ev 106 Back
Q 63 Back
Q 134 Back
Q 182 Back
Q 94 [Mr Faull] Back
Qq 182, 185 Back
Ministry of Justice, UK written comments on the European Commission's
Communication on the Stockholm programme, September 2009 Back
Q 100 Back
Q 65 [Professor Peers] Back
Q 97 [Ms Hahn, Mr Faull] Back
Q 267 [Ms Gibbons] Once such an initiative is launched UK Parliament
has 8 weeks to decide whether the UK Government should opt-in
and if the Government decides not to opt-in immediately it has
3 months to do so. Back