Rory Broomfield is Director of The Freedom Association, where he is Director of the Better Off Out campaign.
Most of us would have heard of cases of misjustice such as the extradition of Andrew Symeou – cases which show how the UK’s membership of the European Arrest Warrant (EAW) renders the UK courts helpless in stopping inappropriate extradition requests to the continent.
Parliament will debate today a number of EU justice and home affairs opt-outs, including the European Arrest Warrant, and could start the process of allowing the UK to have its own arrest warrant.
There are many issues of concern with the European Arrest Warrant as it stands. Here are three:
Firstly, under the current rules of the EAW those arrested will not have the UK courts assess them under prima facie evidence because other EAW countries are deemed “democratic states and trusted extradition partners”. However, the cases of Andrew Symeou, Garry Mann and others indicate that a working and credible justice system which matches the standards of UK justice does not necessarily follow. The inability of UK judges to access the evidence has therefore led to Brits serving long stretches in foreign prisons after trials that would never have been brought to court under the British justice system.
Indeed, many alleged offenders would not have been found guilty under the British justice system either. This is because of the lack of dual criminality safeguards under the EAW. Despite many people, including David Cameron, finding the European Arrest Warrant “highly objectionable” because of the lack of safeguards, there still remain 32 different areas that can lead to an extradition without a British judge being asked if it is a crime in the UK. It means that despite the UK not recognising an alleged offence in law, an extradition can still be enacted to a country that does.
Beyond the human costs, the monetary cost to the UK taxpayer of the EAW is also daunting. Since 2009 there have been nearly 7,000 surrenders by the UK using the EAW. With each EAW extradition case costing approximately £20,000, the cost of processing EAW surrenders has been over £135 million to the taxpayer in the past 5 years. Some claim that the costs of extradition would remain even if the UK opted out of the EAW, however, as detailed in Iain Murray’s and my Brexit Prize entry, under a new system the costs could be transferred on to the other party state, thereby reducing the burden on the British taxpayer.
Indeed, what would a new arrest warrant with the EU look like? Jonathan Lindsell’s work on this suggests that because many of the standards placed on signatories of the EAW are already met through standards in our national law, not much would need to be negotiated to obtain a satisfactory resolution. By reverting back to the European Convention on Extradition that applied to the UK before the European Union established the EAW, the UK could indeed have much more scope to protect its own nationals.
The Convention has signatories that include Switzerland, Norway and Iceland, as well as other countries such as Israel, South Africa and South Korea. However, there are other options such as adopting either the Australian or American extradition agreements with the EU, which provide these nations with far more flexibility to protect their citizens and deny spurious extradition claims. For example, Australia’s Extradition Act of 1988 requires an Australian judge to determine whether an extradition is valid using criteria that include prima facie evidence. As a result there is a higher threshold to justify extradition, along with the ability to refuse on the basis of not meeting national standards.
We should remember that it was once official Conservative Party policy to oppose the introduction of the European Arrest Warrant. David Cameron – then a backbench MP – even urged the House of Commons to vote down the Extradition Act, which passed the EAW into law. With the chance to opt out of this system and adopt another system that would be more appropriate and available, the question has to be asked: why opt back in?