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Wednesday, March 21, 2012

Coalition rope pulling - the European Arrest Warrant

Yesterday's news that a British man has been served with a European Arrest Warrant (EAW) in a high profile case he was cleared of by a Portuguese court in 1995 has again raised the issue of the malfunctioning European Arrest Warrant (EAW).

The problems with the EAW are well documented and mostly flow from the flawed assumption that all European justice systems are broadly of the same quality and tradition - the reality is that they differ - as well as an absence of civil liberties checks and a proportionality principle, some hand down better justice than others.

That being the case, there is a need for stronger safeguards before the UK hands over its own citizens to other countries. Reform has been spoken of for years (the need for it even admitted by the European Commission) so why the muted British response? As with much of the Government's programme it comes down to internal Coalition horse-trading. Here is how the parties stack up:

  • As a backbench MP, David Cameron described the EAW "highly objectionable":
"I find the European arrest warrant highly objectionable because of the problem of dual criminality... let us be clear about what it means. One of our constituents goes to Spain on holiday, commits an alleged offence, and returns home. All that is necessary for him or her to return is that the warrant is correctly filled out… and that a district judge in the UK sees the warrant and judges that the offence falls into one of the 32 categories. At no time is it asked whether the offence is a crime in this country."
  • 102 Conservative MPs backed the conclusions of Open Europe's recent report which argued for the block repatriation of EU powers on crime and policing, with the option of opting back in to selected measures.
  • Conservative MPs and MEPs have long campaigned for reform of the EAW. Conservative MPs, including David Cameron, voted against the EAW in the House of Commons and made EAW-reform a part of their last European Parliament Election Campaign saying “Conservative MEPs will uphold civil rights, and will work to avoid a repeat of the lack of safeguards in the European Arrest Warrant.”
Liberal Democrats:

The issue of the EAW cuts across two Liberal Democrat core beliefs; a commitment to European co-operation and Civil Liberties.
  • Nick Clegg recently defended the EAW as "indispensable" though also admitting that it needed reform.
  • Liberal Democrat MEPs helped to shape the EAW in the European Parliament; Sir Graham Watson MEP was the Parliament's rapporteur (Nich Clegg and Chris Huhne were both MEPs at the time)
  • Ed Davey, now a Business Minister (then Lid Dem Europe's spokesman) was keen on the EAW at the time of the Lisbon Treaty debates, arguing the Conservatives wished to create a “Costa del Crime”.
  • Curiously Nick Clegg has also championed reform of other extradition arrangements, such as the US/UK extradition treaty calling it "lopsided and unfair".
  • In fairness, Lib Dems have also called for reform of the EAW, with MEP Baroness Ludford highlightingd the EAW's problems (she is also a patron of Fair Trials International).

So what will happen when a decision is forced on the Coalition in 2014?

As we have highlighted in a recent report, under the Lisbon Treaty, the UK will have to decide by 2014 whether to accept the jurisdiction of the European Court of Justice (ECJ) over the EAW and 130 other EU Crime and Policing measures. At this point (or preferably before) the Coalition will have to decide whether it wants the ECJ to have permanent jurisdiction over an unreformed EAW or leave the EAW altogether.

The Conservatives and Liberal Democrats have long held opposing views on the EAW that will be difficult to climb down from and make the collective decision very tough. In the end it is likely the loudest voice will prevail - and this could well turn into a loud and noise debate.

But perhaps there is another way forwards. There is a growing consensus that the EAW and extradition laws generally need to be reformed, something the Liberal Democrats recognise with regards to the UK/US extradition treaty when the wider issue of Europe is not at stake. It should therefore be possible to find a middle ground. This would be for the Coalition to opt out of ECJ jurisdiction over the unreformed EAW and argue for reform in order to make it possible to rejoin it later. For this to happen it would be best to make the decision now in order that the substantive negotiation is completed in time for 2014.

Internal coalition disagreements aside, surely this is an area where all sides stand to gain from EU reform?


Denis Cooper said...

Nope, don't shilly-shally, just reject the whole idea as it should have been rejected from the start, and as part of that disapply any measures which have already agreed.

Idris Francis said...

Your summary does not begin to portray the true horrors of the EAW and "justice" in most Continental countries. Off the cuff -

The EAW is a direct breach of habeas corpus, ours for many centuries and vital to any half-decent, half reasonable system.

Habeas corpus is virtually unknown on the Continent - in many countries it is so routine to lock up suspects and only then start investigating the crime - if one was actually committed - and keep people in jail without charge or trial for a year or more that few in those countries who experience it think it odd or unacceptable - let alone dare to complain when finally they are released without even being charged let alone tried in court.

There is no jury system that we would recognise as such - not least with total independence to make up their own minds, free of instructions from judges, and indeed to acquit in defiance of the facts and the law if they believe the law to be wrong (Principle of Jury Nullification)

Juries in those countries that do have them have judges present during their deliberations, to help them decide.

Investigating Magistrates in some countries not only control the investigation but also determine charges and then preside at trials - wholly unacceptable, surely.

Prosecutors are career employees of the State who only ever prosecute, with their progress up their career ladders influencing their methods.

Chris Lees, a former LD Councillor, had become an estate agent in Spain when he was required to go to the police station because illegal drugs were found in a home for which he was the letting agent. At the police station he was taken politely down a corridor, into a room and then savagely beaten up to force him to admit guilt. He was also warned that if he did not he would stay in jail for a year or more awaiting trial, but if he pleaded guilty he would be there only two months or so. Brave man that he was, he refused and after a year or so was released without charge.

THESE are the legal systems that we are shipping people to on an almost daily basis - and IT HAS TO STOP

On a lighter note (I think) a friend who has lived in Rome for 35 years or more told me about 10 years ago of a report in a mainstream Italian newspaper of a very senior Italian Judge who, on learning that the daughter of a colleague had failed her "judge" examination (in her 20s!) advised her to apply for re-assessment - and then she, the seniorJudge, broke into the store room of the examination organisation to add amend and add to the failed examination papers. She was caught because as she left the documents in the file she realised that she had no copies and used the office copying machine to produce some, keying in her own Government code.

Unfortunately for her she failed to realise that when the machine stopped printing it had done so because it was out of paper, not out of pages to be printed. When staff arrived the following morning, saw that more paper was needed and added it, the copier started working, pushing out more documents from its memory!

I am confident that (in the highly unlikely event of such a thing happening) here, the Judge would have been fired immediately, or resigned in disgrace. So what happened in Italy to this Judge? Everyone who read the report roared with laughter, thinking it a huge joke, and little if anything was done about it.


Idris Francis said...

Further to my comment yesterday, here is the response I received from a friend in Italy;

If this had happened in Italy your file would have been not 1" but 1 yard thick! And no legal aid available, nor possible to argue your own case in person. So you have to pay a lawyer. And a civil court case here takes (official figure) on average 10 years to be concluded.

If we stay in the EU we will end up more or less like them. Not only criminal justice, but civil justice too.

Today's news item: 60 judges arrested in Afghanistan for corruption. AND (separately) 16 tax judges arrested in Naples for corruption and involvement with the "Camorra" (the Neapolitan Mafia). Tax judges sit on special courts that adjudicate disputes between tax-payers and the tax authorities.

What part of "simply not acceptable" do so many people still not understand?

Alex Macfie said...

In your post, you admit that Liberal Democrat MEPs (in particular, but not only, Sarah Ludford) have called for reform of the European Arrest Warrant, and so has Nick Clegg in his recent statement. So why do you still imply further down that the Liberal Democrats do not support reform? Is it because you wish to paint the party as uncritically supportive of anything that any EU institution does, when their record shows that they are not? Lib Dems support the principle of a Europe-wide arrest warrant. This does NOT translate to slavish support for the system as it currently stands, as the pronouncements of our MEPs has shown. It is the same as supporting the principle of UK-wide policing and justice systems does not mean uncritical support for everything the UK police and justice services do. Why do people so often miss this fundamental point? Even when pro-EU people clearly state they support reform of EU institutions, this is wilfully ignored or twisted to suit the preferred narrative that it's only possible to be either anti-EU or uncritically pro-everything-the-EU-does.

Open Europe blog team said...

Thanks for your comments cgcenet.

The point we're making in this post is not to state the Lib Dems’ slavish support for the EAW (or any other EU policy). We would also agree that all too often the EU debate is presented in simplistic and polarised terms, something we continually try to counter, for instance in our recent piece on Lib Dem voice looking precisely at how an alternative model of EU-UK co-operation could work:


However, there is a clear difference within the Coalition over how to approach crime and policing at the EU level in order to achieve the necessary reform, namely whether or not to activate the block opt-out in 2014 and then opt back in to individual laws, with the hope they can be reformed before opting back in (the mainstream Tory position), or whether to remain bound by these laws and try to reform from within (the Lib Dem position).

However, unlike in other policy areas, there is no middle way - the Coalition will have to decide one way or the other.

Rik said...

Typical EU we allow our own people to be send to countries (obo a demand by some apparently dodgy country)while we are not allowed to send illegal immigrants (of which we want to get rid)to some EU countries. It simply doesnot go together.

@Idris Francis
Some countries in the EU are in the process to throw the ne bis in idem (one trial) priciple out of the window btw.

Ben said...

Without a European Arrest Warrant, criminals would be able to escape justice simply by crossing the border into the next EU country. With 27 countries it is much more efficient to have one common system of extradition rather than 351 bilateral extradition agreements (27 member states = 351 unique pairs).
Of course we can reform the rules but if one country pulls out it undermines the whole system.

Rik said...

The problem here like with many other pieces of European legislation you bring things togethere that are incompatible.
Example. Greece has wellknown and decided by several courts a lousy judicial system (and lousy prison system as well). Logically there are 2 solutions to deal properly with it:
- Keep Greece out and only make the group between civilised countries (and add some extra.
- Wait till all countries are ready.
For political reasons however the choice is made to get the semi 3rd world in and subsequently the problems start (in most cases).
In the EZ with countries with huge structural problems and a disfunctional apparatus.
In Schengen with countries that 'supply' a lot of cheap labor (without proper housing); a lot of prostitutes (often heavily related to organised crimes) other forma of organised crimes.
They should have learnt their lessons, but eg with Schengen all but 1 country wants Bulgaria and Rumania in the Schengen area. A current discussion.

Idris Francis said...

I first started going to all 3 main Conferences in 1998 to try to call attention to Corpus Juris, the EU plan for a single legals system. I have been to more Lib Dem fringe meetings than the vast majority of LibDems (more than once, Chris Huhne said he was thinking of sharing transport with me - glad I didn't!) and I can assure you that the vast majority of LibDem MPs and MEPs - Huhne, Clegg, Campbell, Watson (author of the EAW) Duff - all of whom I have heckled and spoken to - and rank and file members ARE slavishly, uncritically enthusiastic about the EU and all its works.

One very elderly man said to me as the meeting started "I conceded that your criticisms might well be right, butjust think how wonderful it will be in 50 years' time"!

There really is no reasoning with them, its blind faith more akin to religion