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The European Arrest Warrant

Published online by Cambridge University Press:  27 October 2017

John R Spencer
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In broad terms, there are two approaches to returning suspects and convicted persons to the other countries where they are wanted, and would prefer for obvious reasons not to go.

One is what is called in the common law world ‘the backing of warrants’. Here, the authorities of the jurisdiction where the person is wanted issue their normal warrant of arrest, which is sent directly to the authorities of the jurisdiction where he is, who endorse it if it appears to be in order, and give it to their policemen to execute it as if it were their own. The suspect is then ‘lifted’, and handed over to the authorities of the country where he is wanted with the minimum of fuss—the unspoken premise being that the authorities of the requesting jurisdiction normally act lawfully and reasonably, and their arrest warrants can be taken at face value and acted upon unless a strong reason to the contrary can be given.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 6 , 2004 , pp. 201 - 217
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2004

References

1 Backing of Warrants (Republic of Ireland) Act 1965.

2 Home Office Press Notice No 303/2002 (14 November 2002) quoted by Broadbridge, n 20 below, p 19–20.

3 By the European Extradition Regulations 2002, SI 2002/419, made (while they lasted!) under delegated powers conferred by s 111 of the Anti-terrorism, Crime and Security Act 2001; see p 207 below.

4 An example given to Parliament by the Minister, Mr John Denham, on the Second Reading of the Extradition Bill in the Commons: HC 396 col 396 (9 December 2002).

5 Above n 2.

6 Spencer, JR, ‘The Corpus Juris Project—Has it a Future?’ (1999) 2 C Yearbook of European Law, 355, 357–8CrossRefGoogle Scholar.

7 Statement by Kate Hoey MP (26 May 1999).

8 Conclusions, paras 33 and 35.

9 2002/584/JHA, [2002] OJ L190/1.

10 For the legal proceedings, see Ex p Pinochet Ugarte [2000] 1 AC 61; Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119; Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147. For the Home Office Communiqué of 12 September 2000 announcing the end of the affair, see http://www.homeof-fice.gov.uk/docs/pinochet.html.

11 Article 5(7); this also allows the requested state to refuse where the offence was committed outside the requesting state, and the requested state does not allow prosecutions for the offence when committed extra-territorially.

12 Part II of the Act reconstructs the law on extradition towards other parts of the world.

13 Section 179.

14 Section 208.

15 At the time of writing, the countries designated are Austria, Belgium, Cyprus, Denmark, Finland, France, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovenia, Spain and Sweden: Extradition Act 2003 (Designation of Part 1 Territories) Order 2003; Extradition Act 2003 (Amendment to Designations) Order 2004.

16 Section 2(9). The Extradition Act 2003 (Designated Authorities) Order 2003 designates the National Criminal Intelligence Service; for Scotland the Crown Agent, who heads the prosecution service, is also designated.

17 Section 4; by Section 67, this means, in Scotland, the Sheriff of Lothian and the Borders, in Northern Ireland a county court judge or resident magistrate nominated by the Lord Chancellor, and in England and Wales, a District Judge (Magistrates’ Courts)—née ‘stipe’— also nominated by the Lord Chancellor.

18 Section 9f.

19 Section 26f.

20 For a full account of the public debate up to the end of 2002 see Broadbridge, S The Extradition Bill, House of Commons Research Paper 02/79 (6 December 2002).

21 Jeremy Titford MEP (UKIP), writing in the Herts Mercury (21 January 2003).

22 HC 396 col 396, col 57 (9 December 2002).

23 If only because the continental systems all subscribe to the European Convention on Human Rights, Art 6(2) of which provides that ‘Every person charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ See further Spencer, JR and Delmas-Marty, M European Criminal Procedures (Cambridge, University Press 2003) 21–3, and 596–600Google Scholar.

24 The Scottish police have had the power since the Criminal Justice (Scotland) Act 1980.

25 Liberty’s response to the Draft Extradition Bill, October 2002, available at http://www.liberty-human-rights.org.uk/resources/policy-papers/policy-papers-2002/index.shtml/.

26 See the article by Jeremy Summers, Times, (8 April 2003) (who also fortified his argument by saying that in continental systems, the presumption of innocence is reversed).

27 The Extradition Act 1989 abolished the prima facie case requirement for extraditions towards Europe, and the political exception was abolished by the European Extradition Regulations 2002, giving effect to Article 5 of the European Extradition Convention of 1996 (see above).

28 R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 (Admin).

29 Liberty, n 25 above, para 9; JUSTICE briefing on the Extradition Bill 2002 for the Second Reading in the House of Lords, April 2003, paragraph 13.

30 Extradition Act 2003 s 11 (1) (a); cf art 3(2) et 4(3) of the Framework Decision.

31 Extradition Act 2003 s 11 (1) (b); cf preamble to the Framework Decision, para 12.

32 Extradition Act 2003 s 11 (1) (c); cf art 4(4) of the Framework Decision.

33 Extradition Act 2003 s 11 (1) (d); cf art 3(3) of the Framework Decision.

34 Extradition Act 2003 s 11 (1) (e).

35 Extradition Act 2003 s 11 (1) (f); cf art 27 of the Framework Decision.

36 Extradition Act 2003 s 11(1)(g) and (h).

37 Extradition Act 2003 s 1; cf preamble to the Framework Decision, para 13.

38 Extradition Act 2003 s 20; Framework Decision, Art 5(1).

39 Extradition Act 2003 s 25.

40 Extradition Act 2003 s 21.

41 See inter alia Soering v United Kingdom (1989) 11 EHRR 439; R (Ullah) v Special Adjudicator [2004] 3 WLR 23, per Lord Binghan at p 36.

42 For an account, see Allegre, S ‘EU Fair Trial Rights—Added Value or No Value?’ (2004) 154 New Law Journal 758 Google Scholar.