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European Arrest Warrant limps into force

28 March 2012

On 1 January 2004 the European Arrest Warrant (EAW) enters into force between eight of the 15 EU member states. These are:

Belgium
Denmark
Finland
Ireland
Portugal
Spain
Sweden
UK

The other seven member states have failed to meet the implementation deadline of 31 December 2003 laid down in Article 34(1) of the Framework Decision on the EAW. This was formally adopted on 13 June 2002 after being "politically agreed" in December 2001.

Application of the EAW in the UK

The "simplified procedure" in the UK Extradition Act 2003 gives force to the EAW (UK: Extradition Act). A Statutory Instrument laid before Parliament on the 15 December 2003 designates the UK's EAW partners as "schedule 1 countries" under this Act (UK: Statutory Instrument) and a guide to the UK's operation of the EAW rules has been produced for the other EU member states (Council document 15585/03). Those member states that are not yet applying the EAW will continue to use existing EU extradition rules.

The UK is among 12 of the 15 member states to allow for retrospective application of the EAW. These countries will accept and act upon EAWs received after 1 January 2004 even in the alleged offence took place before that date. France, Austria and Italy will continue to use existing extradition rules for offences allegedly committed before 1 January 2004.

Arrest warrants must contain the following information:

- issuing judicial authority
- statement of accusation and intention to prosecute
- particulars of the persons identity
- details of any other warrants issued
- details of the alleged offence(s) including time, place and the laws broken
- possible sentence

There is an Arrest Warrant form in the annex of the Framework Decision (Full-text of:: EAW Framework Decision).

All requests must be in English or accompanied by an English translation and sent to the National Criminal Intelligence Service (NCIS), or the Crown Office where the request concerns Scotland. While international arrest warrants have always been transmitted through police channels, full extradition requests have been made through diplomatic channels. This political "supervision" of extradition requests is abolished for EAW countries. EAWs will be held and transmitted via the Schengen Information System under the existing Article 95 (persons wanted for arrest). The UK and Ireland are not yet participating in the SIS but technical and legislative provisions for their incorporation are being developed.

The legal process

Following the provisional arrest of a suspect under an EAW an initial hearing takes place before a judge within 48 hours. This hearing only considers whether the person named in the warrant is actually the person who has been arrested (habeus corpus) and whether the arrest warrant has been filled in correctly. Additional information from the state that issued the arrest warrant may be requested. The judge also decides on whether the suspect will be bailed and offers him or her the possibility to consent to their extradition.

If the suspect does not consent, a "main hearing" takes place within 21 days. As with existing UK extradition law, the judge may extend this period if the "interests of justice" so require. The major difference between extradition and arrest warrant procedures is that the "hearing" in the latter process does not consider the allegations against the defendant or examine evidence. Instead, the hearing is to satisfy the court that none of the "legal bars to surrender" apply. Under UK law, these are:

(a) If the alleged offence does not constitute an offence for which surrender is possible… [i.e. does not meet the dual criminality or is not among the 32 offences covered by the Framework Decision (see below)];

(b) If the rule of double jeopardy applies;

(c) If the request has been made for the purpose of prosecuting or persecuting the person on the grounds of his or her race, religion, nationality, political opinions, gender or sexual orientation or if the person will be prejudiced at his or her trial for any of these reasons; (*)

(d) If the length of time that has elapsed since the offence was committed or the person became unlawfully at large would make surrender unjust or oppressive;

(e) If the person would have been below the age of criminal responsibility (normally 10) if the person had committed the alleged offence in the United Kingdom [emphasis added];

(f) If the person would be prejudiced at his or her trial because of the lack of consular assistance under the terms of the International Convention against the Taking of Hostages opened for signature at New York on 18 December 1979;

(g) If there are no speciality arrangements in place with the requesting country - though this should never arise in respect of another EU Member State;

(h) If the person had come to the United Kingdom via extradition or surrender from a country whose consent is required for further surrender and that consent is not forthcoming;

(i) In the case of a person who has been convicted in his or her absence and who did not deliberately absent him or herself, if there is no guarantee of a retrial or a review amount to a retrial;

(j) If surrender would not be compatible with the person's rights under the European Convention on Human Rights; (*)

(k) if the person's medical or physical condition would make it unjust or oppressive to extradite him or her

(*) a report from an EU seminar on the EAW suggests that some member states may not consider these as "reasons for non-execution" (see 16374/03, 23.12.03)

If none of the barriers to surrender apply, the judge must order the person's extradition (should any barriers apply, the person must be discharged). Either side has seven days to appeal the decision. As in existing UK extradition procedures, the requesting state is represented by the Crown Prosecution Service (or equivalent body in Scotland and Northern Ireland). If there is no appeal the suspect should normally be extradited within 10 days.

Appeals

Appeals are heard by the High Court in the first instance and must begin within 40 days (though again this may be extended in the interests of justice). The High Court will either uphold or overturn the judge's decision. There is the possibility of one further appeal for the person facing extradition to the House of Lords - but "only if a point of law of general public interest has been raised".

Offences covered by the European Arrest Warrant

Article 2 of the Framework Decision on the EAW abolishes dual criminality for the following offences:

- participation in a criminal organisation,
- terrorism,
- trafficking in human beings,
- sexual exploitation of children and child pornography,
- illicit trafficking in narcotic drugs and psychotropic substances,
- illicit trafficking in weapons, munitions and explosives,
- corruption,
- fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,
- laundering of the proceeds of crime,
- counterfeiting currency, including of the euro,
- computer-related crime,
- environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
- facilitation of unauthorised entry and residence,
- murder, grievous bodily injury,
- illicit trade in human organs and tissue,
- kidnapping, illegal restraint and hostage-taking,
- racism and xenophobia,
- organised or armed robbery,
- illicit trafficking in cultural goods, including antiques and works of art,
- swindling,
- racketeering and extortion,
- counterfeiting and piracy of products,
- forgery of administrative documents and trafficking therein,
- forgery of means of payment,
- illicit trafficking in hormonal substances and other growth promoters,
- illicit trafficking in nuclear or radioactive materials,
- trafficking in stolen vehicles,
- rape,
- arson,
- crimes within the jurisdiction of the International Criminal Court,
- unlawful seizure of aircraft/ships,
- sabotage

Arrest Warrants may be issues for other offences, but their enforcement will be subject to the requirements of the requested state. In the UK this means "dual criminality" and a potential custodial sentence of at least one year.

Documentation

1. Full-text of: the : European Arrest Warrant Framework Decision

2. Statewatch analysis of the European Arrest Warrant Critique

3. UK: Extradition Act

4. UK: Statutory Instrument

5. Guide to the UK's operation of the EAW rules has been produced for the other EU member states: Council document 15585/03