Monday, 17 August 2009

European Arrest Warrant

Much has been written by those of us against the interference of the European Union in what amounts to how we are governed - and more importantly, by whom we are governed - but one of the most insidious laws must be the introduction of the European Arrest Warrant.

To underline - and in an attempt to bring home to those who may not have considered the implications of the gravity of this odious 'law' - one which we, the electorate, have had no control over its implementation - and the effect it can have on the lives of 'ordinary' people, I reproduce an article, written by someone I know, and which is posted on the Ukip Witney website.

"A computer geek is threatened with 60 years in a US prison as a terrorist and extradited under alopsided extradition agreement. Ministers refuse to prosecute him in the United Kingdom.
A 20-year old British student is sent to Greece for a murder with "evidence" allegedly obtained by Greek police beating up his friends in search of a suspect. The House of Lords refuses to hear his appeal against extradition. The only politician to offer help is Gerard Batten of UKIP.

A 45-year old woman on holiday in Spain is arrested for an offence that allegedly happened in France twenty years ago. Thrown into a Spanish jail, she is strip-searched and then attacked by other inmates. Back in Britain, most politicians fail to respond to her requests for help.
Extradition has been much in the news lately.

Gary McKinnon, the computer geek, may any day now be extradited to the United States and Andrew Symeou, the student, was extradited to Greece just three weeks ago. There has been much media comment and discussion in Parliament about the case of Gary McKinnon, not least because the Daily Mail took the case up as a campaigning cause. There has been much less interest in the Symeou case. This article looks at British extradition law and asks who, these days, it is intended to help.

The 2003 Extradition Treaty:

The law on extradition is enshrined in the Extradition Act 2003. This Act categorises countries into two groups - category 1 territories and category 2 territories.

In category 1 are all the other 26 members of the European Union (and no other countries) as part 1 of the Act brings the European Arrest Warrant into law. In category 2 are over a hundred other countries falling into different subgroups. Importantly, the United States is a category 2 country.

The European Arrest Warrant:

The European Council which met in Tampere in 1999 announced in its conclusions that extradition procedures between EU member states should be abolished. The Council of Ministers, working in the Justice and "Home" Affairs group (their home, not ours) duly came up with decision 2002/584 in which the previous barriers to extradition were dropped and, notoriously, the "double criminality" rule was abandoned - you could now be extradited for a "crime" that was not even a crime in your own country. The preamble to the Council decision brings in that Orwellian-sounding phrase, an area of "freedom, security and justice" but some of the cases in which a European Arrest Warrant has been used sound anything but that to British ears.

For the European Arrest Warrant category 1 countries, the old rule that prima facie evidence must be presented by the requesting country no longer applies (this evidence approximately corresponded to the evidence that would be required to arrest someone in a non-extradition case). Instead, all that is required is : a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person.

The European Arrest Warrant applies to two categories of crimes : any crime which would attract a maximum prison sentence of at least one year, and a specific list of 32 offences, providing that the offence would bring a maximum prison sentence of at least three years.
Crucially, in an unprecedented departure from normal practice, for the list of 32 specific offences, the offence does not have to be an offence in the country from which someone is sought. The legislation is also retrospective and can now apply even to trials conducted in absentia.

One intended effect of the European Arrest Warrant is to remove politicians from the decision-making process, turning the system into a conveyor belt operated entirely as an administrative affair by the judiciary, with no political input. That's why, presumably, Andrew Symeou, the student extradited to Greece, was left to swing and why Deborah Dark, the woman arrested in Spain, met a wall of silence when she appealed for help.

There was much talk at the time about the fight against terrorism but it is clear from the list of offences that terrorism was far from the only target. Indeed, a Council of Ministers working group on cooperation in criminal matters found that the Arrest Warrant was being applied in cases for which it was never intended. Though intended for serious crimes, the working group found that it had been applied for cases of possession of 0.45 grams of cannabis, possession of three ecstasy tablets, the stealing of two car tyres, and the theft of a piglet.

But it seems that this will get worse. It has recently been reported that the number of British subjects extradited under a European Arrest Warrant is likely to triple next year, many for minor offences, when new use of the Schengen Information System comes into play. In 2008-2009, the Serious Organised Crime Agency received 3526 requests for extradition using a European Arrest Warrant. Michael Caplan, a QC expert on extradition law, said : We're subject to an information-based approach rather than a prima facie evidence test, Extradition has also become easier and more straightforward, with inevitable casualties.

Category 2 Countries and the US-UK Extradition Treaty:

For category 2 countries, the default is that prima facie evidence must be supplied before a judge will allow an extradition. However, there is a subcategory of countries where the rules are different. In 2007, these countries were : Albania, Andorra, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Georgia, Iceland, Israel, Lichtenstein, Macedonia, Moldova, Montenegro, New Zealand, Norway, the Russian Federation, Serbia, South Africa, Switzerland, Turkey, Ukraine, the United States.

Of these countries, all but Australia, Canada, New Zealand and the United States are signatories of the Council of Europe Convention on Extradition (Council of Europe, not European Union). Signatories to this Convention also do not need to provide prima facie evidence. Australia, Canada and New Zealand are Commonwealth countries and, as such, also are not required to provide prima facie evidence. That leaves the United States and, in this case, a lack of balance in the proof required (or not required) for extradition has led to the intense publicity of the McKinnon case, with many saying that the current US-UK Extradition Treaty, brought into law by the 2003 Extradition Act, is unfairly stacked against the UK (though there are occasional protests that the Treaty is balanced).

The United Kingdom does not require prima facie evidence from the United States if the latter wishes to extradite a Briton, only a statement of the facts of the case. But, if Britain wishes to extradite someone from the United States, it must show "probable cause" i.e a reasonable argument that the person concerned did commit the offence.

The old (1972) US/UK Extradition Treaty said, in Article IX :
Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party or to prove that he is the identical person convicted by the courts of the requesting Party.

The new (2003) US/UK Extradition Treaty says that, for both states, a "a statement of the facts of the offense(s)" must be provided but, crucially, there is an extra qualification in the case of the UK : for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested. Extraditable offences in the old treaty came under two categories - a list of specific offences and any offence that was punishable in both countries by imprisonment for more than one year or by the death penalty.

In the new Treaty the specific list of offences has been dropped but the blanket statement on offences attracting imprisonment for more than one year, remains. The old Treaty was retrospective as regards the specific list of offences but not the twelve month rule. The new Treaty is fully retrospective.

Who Is Extradition For ?

Back in 1847, a naturalised Briton, Don Pacifico, had his house ransacked by a mob in Athens. Don Pacifico appealed for help to the British government and the latter sought compensation from the Greek government. After three years of refusal from the Greeks, Lord Palmeston sent the Royal Navy to put on a show of force. Palmerston said, in the House of Commons :

As the Roman, in days of old, held himself free from indignity, when he could say Civis Romanus sum; so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England, will protect him against injustice and wrong.


Gary McKinnon :
Andrew Symeou :

Gerard Batten on the Symeou Case :

Deborah Dark :

The 2003 Extradition Treaty :

The European Arrest Warrant :

Retrospective Nature :

Trials In Absentia :

Extradition Request for Stealing a Piglet :

Extraditions To Triple :

Inevitable Casualties :
The 2003 US-UK Extradition Treaty :

The 1972 US-UK Extradition Treaty :

Statewatch on the UK-US Treaties :

The Treaty is Balanced ;

House of Commons Library Note :

Signatories of the Council of Europe Convention on Extradition :

List Of Offences Under the European Arrest Warrant:

- 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.

List Of Offences Under the Old US/UK Extradition Treaty :

-murder; attempt to murder, including assault with intent to murder.-manslaughter.-maliciously wounding or inflicting grievous bodily harm.-unlawful throwing or application of any corrosive or injurious substance upon the person of another.-rape; unlawful sexual intercourse with a female; indecent assault.-gross indecency or unlawful sexual acts with a child under the age of fourteen years.-procuring a woman or young person for immoral purposes; living on the earnings of prostitution.-unlawfully administering drugs or using instruments with intent to procure the miscarriage of a woman.-bigamy.-kidnapping, abduction, false imprisonment.-neglecting, ill-treating, abandoning, exposing or stealing a child.-an offense against the law relating to narcotic drugs, cannabis sativa L, hallucinogenic drugs, cocaine and its derivatives, and other dangerous drugs.-theft; larceny; embezzlement.-robbery; assault with intent to rob.-burglary or housebreaking or shopbreaking.-receiving or otherwise handling any goods, money, valuable securities or other property, knowing the same to have been stolen or unlawfully obtained.-obtaining property, money or valuable securities by false pretenses or other form of deception.-blackmail or extortion.-false accounting.-fraud or false statements by company directors and other officers.-an offense against the bankruptcy laws.-an offense relating to counterfeiting or forgery.-bribery, including soliciting, offering or accepting bribes.-perjury; subornation of perjury.-arson.-malicious damage to property.-any malicious act done with intent to endanger the safety of persons travelling or being upon a railway.-piracy, involving ships or aircraft, according to international law.-unlawful seizure of an aircraft.

Comment:This article is even more pertinent when this newspaper report, and this, is considered.

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