On Wednesday during PM’s Question Time, David Cameron was asked by one of his own backbenchers about the European Arrest Warrant. The backbencher in question disapproved of the EAW.
Mr Cameron responded along the lines that, the Government had (regarding EU police and criminal justice measures) ‘just achieved the greatest ever return of powers to the UK’ and had reformed the EAW by ensuring that someone ‘cannot now be extradited for something that is not a crime in the UK’. Either Mr Cameron does not understand the issue or he was deliberately misrepresenting the truth of the matter. Let me explain.
At the end of May the Government had the option (under the Lisbon Treaty) of opting out of 135 European Union police and criminal justice measures. What they did was to opt out of 100 measures but to opt in to 35. The 100 opt outs were not a return of powers. They are 100 unimportant ‘non-powers’. They consist of measures that have already been superseded or replaced with other measures; duplicated with national legislation that remains in place; measures that were never implemented in the UK anyway; and measures that were purely rhetorical, or otherwise unenforced.
The 35 measures that Government opted into are of a different order altogether. They are the most important and the most dangerous. They are part of a longterm plan to supersede the English legal system with an EU system of criminal law. The European Arrest Warrant is the most pernicious of these measures so far.
The average person would assume that before a British citizen can be extradited to a foreign country that a British court would have the power to consider the prima facie evidence against them and make a decision, based on that evidence, that their extradition is justified or not. That is not the case with the European Arrest Warrant (nor indeed under our extradition treaty with the USA – but that is another story).
Under the EAW all that is required to send a suspect off to a foreign judicial system is that a form is correctly completed. No prima facie evidence is required, and indeed the British court has no power to consider any evidence, or refuse extradition.
Extradition is now merely a bureaucratic formality. Indeed, it is no longer called ‘extradition’ at all but rather ‘judicial surrender’. It is based on the doctrine of ‘mutual recognition’ which is that all EU member states police, judicial, and penal systems are of equal standing. This presumes that any Eastern European ex-communist judge in a place run by the local mafia is equal to the judges of the Old Bailey. This is arrant nonsense. But it conforms to the EU’s view of itself as one borderless political state, where sending a criminal suspect from London to Bucharest is the same as sending him or her from Birmingham to London.
I personally am quite happy to see criminal suspects extradited to foreign countries where there is sufficient evidence to justify it; but we must have robust protections in place, bearing in mind that many continental and foreign legal systems operate to a much lower standard than the English legal system.
Our centuries-old protection of habeas corpus has been ruled not to apply in European Arrest Warrant cases by the Appeal Court. I have been involved in a number of EAW cases where it is obvious that grave injustices are being done, but where the British court is powerless to protect British citizens.
David Cameron proudly boasted yesterday in the Commons that no one can be extradited for something that is not a crime in the UK. But he obviously has not studied the EAW properly. It cites 32 categories of crime, – and these are merely descriptive, e.g. murder, arson, kidnapping etc. Other categories of alleged crime are even more vague, e.g. swindling and fraud.
Now some might take the view that both Houses of Parliament are full of swindling fraudsters, but under English law they have to be charged with a specific offence. Not so with an EAW, all that is required is a box to be ticked with a vague accusation, no evidence has to be provided.
Mr Cameron’ great concession is only cosmetic. It applies only to crimes which were committed in part in the UK. If it is not a crime in the UK the accused cannot be judicially surrendered to an EU country – but the accused can still be judicially surrendered under a vague accusation, e.g. fraud, for something which might be crime in an EU state, but which is not a crime in the UK. So what he said is untrue.
Few people realise the fundamental difference between the English legal system and many continental legal systems. Before the British police can request the extradition of someone from an EU state, they must be ‘case ready’ and have all the evidence needed to charge. Not so, on the Continent. In many European countries investigative magistrates may remand people in custody while the case is investigated. The accused may languish in prison for many months, or years, a process that may not even result in a trial.
The English legal system evolved to protect the innocent as much as convict the guilty. Conservative, Labour, and the Coalition Government have happily surrendered our most precious protections under our law in order to conform to the EU’s developing legal system. If you don’t like it you’d better resist now, or you may find yourself in the position of the accused that I have witnessed, where they stand stunned in an English court when they discover their own courts have no power to protect them from injustice.
An electronic copy of Gerard Batten’s report: European Union Police and Criminal Justice Measures – the UK’s 2014 ‘Opt-in’ Decision, can be obtained on request by emailing email@example.com