Extradition and the European Arrest Warrant: UK Practice and the

Challenges

Arvinder Sambei and Martin Polaine

London Centre of International Law Practice

(LCILP) Consultant Publications, 001/2015

Date: 12/01/2015

This paper is downloadable at: http://www.lcilp.org/lcilp-consultant-publications/ © Arvinder Sambei & Martin Polaine. All LCILP publications are for non-commercial research use only. Distribution of publications from our website for material interest, profit-making and or commercial gain is strictly forbidden.

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Extradition and the European Arrest Warrant: UK Practice and the

Challenges

Arvinder Sambei and Martin Polaine1

The inherent delay in extradition proceedings was one of the main drivers that led to the adoption in the European Union of the European Arrest Warrant (EAW) under the Council Framework Decision of 13 June 2002 (Framework Decision).2

Until the coming into force of the EAW, extradition requests within the Council of Europe members fell to be considered under the European Convention on Extradition (ECE) 1957, and of course, the implementation and enforcement of the Convention fell to national laws.

In the UK, until the new Extradition Act came into force, the Extradition Act 1989 governed the proceedings, and a request for extradition was seen as both an exercise of the executive and judicial branches. The Act also placed onerous requirements of authentication and certification which, in themselves, were grounds of challenge by the defence. In addition, the Act also contained „restrictions on return‟ which are familiar to most extradition practitioners, and are not therefore, rehearsed. The „restriction on return‟ provided for separate grounds for challenge at both the executive and judicial stages of the process. Of course, the grounds for restriction were quite apart from the right to apply for the remedy of habeas corpus, which included three separate additional grounds, namely:

1. Trivial nature of the offence; 2. Passage of time since the commission of the offence or conviction/sentence; 3. Bad faith

1 Arvinder Sambei and Martin Polaine are Joint Heads of International Human Rights and Criminal Justice at the London Centre of International Law Practice (LCILP). 2 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision. (hereinafter Framework Decision).

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One can, therefore, immediately see the reasons for the delay in acceding to requests in the UK. It must be remembered that the UK had in place even more onerous requirements under other extradition treaties and arrangements; the most important of which was the requirement on the part of the requesting State to submit a prima facie case. The ECE was seen, at the time, as a major development in the extradition process as it removed the need for Council of Europe members to adduce a prima facie case; however, that too proved to be insufficient!

In an attempt to simplify and expedite a usually complex and lengthy process, a recent innovation through the Council of the European Union has been the adoption of the European Arrest Warrant (EAW)3. This was one of the conclusions of the Tampere European Council of 15 and 16 October 1999 and was adopted through the Council Framework Decision of 13 June 2002. It has had the effect of replacing extradition proceedings between Member States and is based on mutual recognition by Member States of criminal decisions, being designed to have a uniform effect throughout the European Union.

The European Arrest Warrant relies on mutual recognition and surrender and is a judicial decision issued by a Member State. It has gone some way to remove some of the cumbersome requirements, for example, authentication and certification. The main aim of the EAW therefore is to ensure a swift surrender and avoid the delay usually associated with extradition requests and remove the requirement of involving the executive in extradition matters.

The adoption of the EAW in the UK was not without its own difficulties. Grave concern was raised by various human rights bodies that the adoption of the EAW had led to the removal of a number of bars to extradition, in particular, the safeguards contained in the Human Rights Act 1998. After much debate, the EAW was given effect in UK domestic law through the then new Extradition Act 2003. 4

Unlike its predecessor, the Extradition Act 2003 sought to tighten the procedural time-limits and restrict the avenues and grounds for appeal. One of the most significant changes brought about by the 2003 Act is the removal of the role of the Secretary of State for the purposes of the EAW. This has had the effect of removing the prospect of any proceedings for judicial review at the initial stages and making the surrender process within the EU a judicial function in line with the Framework Decision.

3 The EAW has been given effect in the UK by the Extradition Act 2003. 4 The Extradition Act 2003 (Designation of Prosecutors) (England and Wales and Northern Ireland) Order 2013.

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The 2003 Act sets out bars to extradition which go beyond the three mandatory grounds for non-execution contained in Article 3 of the Framework Decision. Broadly speaking, the following bars to extradition exist under the Extradition Act 2003 for category 1 territories (EAW States):

a) Double jeopardy (sections 12); b) Extraneous considerations (sections 13); c) The passage of time (sections 14); d) Age (section 15) e) Hostage-taking considerations (sections 16); f) Speciality (sections 17). g) Earlier extradition to the UK from another category 1 territory (section 18); h) Earlier extradition to the UK from a non-category 1 territory (section 19) i) Earlier transfer to the UK by the ICC (section 19A) j) Forum (section 19B)

Following the „bars to extradition‟, the Act contains a „catch all‟ provision under section 21 which makes an explicit reference to human rights and is unequivocal in providing that a person‟s discharge must follow in the event that a judge decides that the person‟s extradition would not be compatible with the Convention (ECHR) rights „within the meaning of the Human Rights Act‟.5

The grounds for refusal, therefore, in relation to the EAW contained in the Extradition Act 2003 are, by and large, similar to those contained in the 1989 Act, save for the removal of the triviality of the offence and perhaps bad faith! It is the former that has been raised in recent cases before the UK courts and I will turn to those cases shortly.

It might, perhaps, assist to look at two of the main challenges that have been raised in the UK since the implementation of the EAW.

During the early stages, one of the key concerns was the removal of the „verification of the double criminality of the act‟ in relation to specific offences contained in Article 2 of the Framework Decision.

At the heart of any extradition request lays the notion of an „extradition crime‟, which is predicated on the rule of double criminality, itself long been regarded as one of the key safeguards in extradition, in that, if conduct did not amount to an extradition crime then no extradition could lie.

The EAW has two distinct categories of extradition offence:

5 Ibid., Ch. 4, s. 21(1).

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(i) offences punishable with 12 months or more imprisonment; (ii) offences contained in the Framework list punishable with imprisonment of 3

years or more and as “defined by the law of the issuing Member state, shall under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant”6 [emphasis added]

The Council Framework Decision of 13 June 2002 identifies a list of 32 offences which member states regard as serious offences and common to all member States e.g. corruption, terrorism, laundering of proceeds of crime etc. Consequently the Framework Decision seeks to remove the need for the transposition of conduct in order to satisfy the double criminality rule. This perceived removal of the double criminality rule raised a huge concern amongst practitioners as it was thought that extradition would be granted for offences which are not offences under English law. The House of Lords in Dabas7, a request from Spain for offences of „terrorism‟, observed

“These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures. They were to be replaced by a much simpler system of surrender between judicial authorities. This system was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down. But care had to be taken not to make them unnecessarily elaborate. Complexity and delay are inimical to its objectives.

The scope of the European arrest warrant is described in article 2. It may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months: article 2.1. Verification of the double criminality of the act is dispensed with in the case of a European arrest warrant which is issued for any one or more of the 32 offences listed in article 2.2, provided that the act is punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years. Acts which constitute offences other than those on the list may be subject to the condition that they constitute an offence under the law of the executing Member

6 Framework Decision (n.1), Art.2 (2). 7 Dabas –v- High Court of Justice, Madrid [2007] UKHL 6.

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8 Ibid., paras. 18-19. 9 Office of King‟s Prosecutor, Brussels v Cando Armas and another [2004] EWHC 2019 (Admin).

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State - that is, subject to verification of their double criminality: article 2.4.”8 – Lord Hope

Another aspect in determining an extradition crime is consideration of where the conduct occurred, and includes any extra-territorial elements to the conduct. Therefore, where the conduct spreads over a number of countries the transposition exercise still remains the same in order to determine if there is an extradition crime. Generally speaking treaties and domestic law refer to conduct which occurs within the „territory‟ of the State Party. However, courts have always read „territory‟ to mean „jurisdiction‟ in order to capture conduct in both the Requesting State and elsewhere; this is now of particular relevance given that crime is no longer local in commission or effect.

In dealing with this aspect of double criminality under an EAW, the Divisional Court in Brussels v Cando Armas9, Mr Justice Stanley Burnton analysed the approach to be taken where conduct occurs other than in the requesting State as follows:

“The object of the Framework Decision was to facilitate extradition between Member States of the European Union: we refer to the recitals and to Article 1.2. The list of framework offences includes offences of the most serious kind. Many of them are by their nature often committed by conduct occurring in the territory of more than one Member State: terrorism, trafficking in human beings, illicit trafficking in narcotic drugs and weapons, illicit trafficking in endangered species and in cultural goods are some examples. We are reminded of the speech of Lord Slynn in Re Al-Fawwaz [2001] UKHL 69, [2002] 1 AC 556 at [37], when giving reasons for not regarding the jurisdiction of a state seeking extradition as being limited to its territory:

„... It should not because in present conditions it would make it impossible to extradite for some of the most serious crimes now committed globally or at any rate across frontiers. Drug smuggling, money laundering, the abduction of children, acts of terrorism, would to a considerable extent be excluded from the extradition process. It is essential that that process should be available to them. To ignore modem methods of communication and travel as aids to criminal activities is unreal.‟

It is not coincidence that all of the offences to which Lord Slynn referred are now framework offences. We also refer to Lord Bridge of Harwich in R v Governor of

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10 Ibid., paras. 24-25.

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Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947, cited by Lord Hutton in Re Al-Fawwaz at [64]:

„I also take the judgment in that case [In re Arton (No 2) [1896] 1 QB 509, 517] as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would „hinder the working and narrow the operation of most salutary international arrangements.‟

It would be highly regrettable if trans-national offences were not extraditable offences simply because a (possibly minor) criminal act in the totality of criminal conduct occurred in this country. For example, if the decision of the District Judge is correct, a person involved in drug trafficking, importing drugs into Belgium, who in the course of his criminal conspiracy came for a day to London and made a telephone call to Belgium to arrange a collection of drugs imported into Belgium by his co-conspirators cannot be extradited under section 64(2), because a part of his criminal conduct occurred in the United Kingdom. His offence is not within subsection (3), because not all his conduct occurred in Belgium; subsection (4) does not apply, because some of the conduct occurred within Belgium; subsection (5) in inapplicable, because the conduct occurred within the category 1 territory and part of it occurred within the United Kingdom; subsection (6) similarly is inapplicable; and so is subsection (7). It may be that the offender could be prosecuted in this country; but if the principal criminal activities and consequences occurred in a category 1 territory, it will normally be appropriate for him to be tried there, and particularly so if his co- conspirators are to be tried there. This result is so absurd that we would strain not to interpret the Act as producing it.”10

Turning to the second main challenge to the EAW, it relates to the removal of one of the grounds for habeas corpus, namely the triviality of the offence. There have been recent media reports and public perception that the EAW is being used in circumstances where the offence is so trivial that it would, under any other extradition regime, not warrant an application for extradition on the basis the request would be seen to be a disproportionate measure and to that extent it is a violation of Article 8 of ECHR. It might help to illustrate this by means of a recent request from Romania.

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13 Ibid., paras. 10-12.

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In Sandru v Romania11 it was alleged that S had stolen and killed ten chickens from a neighbour for which he was sentenced in his absence, to three years‟ imprisonment.

Elias LJ observed:

“The essential issue raised in this appeal is directed at proportionality, namely that it is said that it is disproportionate to extradite the appellant given the interference with his private life. There is plenty of authority demonstrating how difficult it is for such an argument to succeed.”12

I do not accept that triviality of the offence or length of sentence can, certainly in circumstances of this case, begin to bring this case within Article 8. No doubt the length of sentence is relevant to the degree of interference in private and family life, but it does not of course affect the principle that extradition treaties should be honoured.

Equally, the circumstances of the offence and the gravity of the sentence do not seem to me, at least in most surmisable circumstances, to be a material matter for the courts to consider when determining Article 8 issues. In a conviction appeal of this kind, the sentence must have been at least four months before extradition can be justified: see section 65(3)(c) of the Extradition Act. Once that and the other material considerations are satisfied, the extradition must be ordered.

In my judgment, it is not open to the courts of this country to say that, in the circumstances, the offence is so trivial or that the sentence so disproportionate to the offence that extradition would be inappropriate. By contrast, triviality was a ground for refusing extradition under the Extradition Act 1989.”13

He went on to say that refusing extradition on the grounds of proportionality, save for where there are 'striking and unusual facts', would

“…(R)isk undermining the principle of mutual respect which underpins Part 1 of the Extradition Act. Insofar as it is requiring our courts to question or review the appropriateness of the sentence passed by a foreign court, it is asking these courts to exercise a function they are ill-equipped to carry out. The appropriate sentence is, in part, a function of culture, and in any event the courts here have limited information about the factors leading a foreign court to impose the sentence it did.

11 Sandru v Romania [2009] EWHC 2879 (Admin). 12 Ibid., para. 6.

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It may be, for example, that in this case the Romanian courts treat theft of livestock and its subsequent destruction far more seriously than English courts would typically do. If the sentence is thought to be too high, the answer is to challenge it in Romania, which indeed is precisely what the appellant apparently is doing in this case.14

This case is one in a series of cases where defence has sought to re-introduce the „triviality of the offence‟ as a ground for refusal it having been explicitly removed from the Extradition Act 2003. The thrust of the defence challenge, in a nutshell, is that where an offence seems to be trivial in nature, then the decision to surrender or extradite an individual would appear to be a disproportionate measure and capable of breaching Article 8 of the ECHR.

The Supreme Court in Norris (Appellant) v Government of United States of America15 considered the application of Article 8 in extradition proceedings, as distinct from deportation. The question of public importance before the court was:

„Is the public interest in honouring extradition treaties such as to require, in any extradition case, that an appellant must show „striking and unusual facts‟ or reach „a high threshold‟ if his article 8 claim is to succeed?‟16

The Supreme Court decided that in conducting the proportionality test, it is the consequence of interference with Article 8 rights which must be exceptionally serious before it can outweigh the importance of extradition (although what is „exceptionally serious‟ is not susceptible to an all encompassing definition) :

The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves…I can see no reason why the District Judge should not, when considering a challenge to extradition founded on article 8, explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition. „Exceptional circumstances‟ is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A

14 Ibid., paras. 14-15. 15 The Supreme Court in Norris (Appellant) v Government of United States of America (Respondent) [2010] UKSC 9. 16 Ibid., para. 19.

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judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.”17

On the issue of the nature of the offence, the Supreme Court rejected the argument advanced on behalf of the Requesting State that the gravity of an offence can never be relevant factor in conducting proportionality, and Lord Phillips observed:

“The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence. This obvious fact has been recognised at Strasbourg.”18

The Supreme Court has now confirmed that the gravity of the offence is capable of amounting, in conjunction with other features, to a consideration when conducting proportionality within the context of extradition and the engagement of an Article 8 right.

In 2013, in Criminal Proceedings against Radu19, the European Court of Justice (ECJ) gave a preliminary ruling on the question of whether the reading of the Framework Decision, in the light of the Article 47 and Article 48 of the Charter of Fundamental Rights of the European Union20 and Article 6 of the European Convention on Human Rights21, allows for refusal to execute the EAW on the grounds that the prosecuted person did not have a hearing in front of the issuing judicial authorities prior to the issuance of the warrant.

The answer to this question was “no”. The ECJ held that

“…as is apparent in particular from article I(I)(2) of Framework Decision 2002/584 and from recitals (5) and (7) in the Preamble thereto, the purpose of that Decision is to replace the multilateral system of extradition between member states with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of conducting

17 Ibid., para. 56. 18 Ibid., para. 63. 19 Case C-396/11 Ciprian Vasile Radu (29 January 2013, Grand Chamber). 20 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02. 21 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

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26 Ibid., para. 39.

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prosecutions, that system of surrender being based on the principle of mutual recognition…”22

“Framework Decision 2002/584 thus seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial co-operation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice by basing itself on the high degree of confidence which should exist between the member states…”23

“Under the article I(2) of Framework Decision 2002/584, the member states are in principle obliged to act upon a European arrest warrant.”24

The ECJ also stated the conditions under which authorities of the Member States can refuse issuing the EAW:

“…according to the provisions of Framework Decision 2002/584, the member states may refuse to execute such a warrant only in the cases of mandatory non- execution provided for in article 3 thereof and in the cases of optional non- execution listed in articles 4 and 4a…”25

“…the observance of articles 47 and 48 of the Charter does not require that a judicial authority of a member state should be able to refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard by the issuing judicial authorities before that arrest warrant was issued.”26

It can be concluded that the Court embraced a purposive approach in its reasoning as its main argument revolved around the fact that the objective of the EAW is to simplify the extradition procedure. The ECJ stated that

“…an obligation for the issuing judicial authorities to hear the requested person before such a European arrest warrant is issued would inevitably lead to the failure of the very system of surrender provided for Framework Decision 2002/584 and, consequently, prevent the achievement of the area of freedom, security and justice, in so far as such an arrest warrant must have a certain

22 Ibid., para. 33. 23 Ibid., para. 34. 24 Ibid., para. 35. 25 Ibid., para. 36.

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27 Ibid., para. 40.

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element of surprise, in particular in order to stop the person concerned from taking flight.”27