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The shambles of the European Arrest Warrant system

Damien Phillips, a friend of mine, has an excellent article on why Theresa May’s “Brexit-in-name-only” stance is so bad. One reason, he states, is that it keeps the UK within the odious embrace of the European Arrest Warrant system. So far, the EAW hasn’t been the kind of issue to get most people, even most Brexiteers, exercised. But in many ways it represents some of the worst features of what the EU now is.

As the Daily Telegraph is behind a paywall, here are a few choice paragraphs:

The Prime Minister and the British establishment are simply unwilling to recognise the risks that ‘close cooperation’ on security with the European Union poses for the United Kingdom. Such is the desperate desire to maintain close ties, they are blind to the gathering storm in key parts of Continental Europe.

Due Process, a cross-party campaign group launched by, amongst others, the Chairman of the 1922 Committee Graham Brady MP in late 2017, has been fighting an uphill battle to highlight the serious abuses and injustices being perpetrated by EU member states against both their own citizens and ours. Their latest report explodes the presumption, alarmingly pervasive amongst the British judiciary, that EU member states will comply with their obligations under the EU Charter of Fundamental Rights and the European Court of Human Rights.

This idea underpins the entire EU project and in particular the European Arrest Warrant (EAW) system of extradition, based on the ludicrous proposition that all EU member states have legal systems of equivalent probity and repute.

These damning findings are echoed by Fair Trials International, whose recent review of the operation of the EAW uncovers a Kafka-esque nightmare for ordinary citizens. Reviewing over 220 extradition case files and interviewing more than 250 legal experts, they find the EAW being used disproportionately to force people into lengthy pre-trial detention away from home, exposing them to appalling prison conditions, leading to job losses and separation from their families, and putting them at the manifest risk of having an unfair trial.

Both reports should be alarming for anyone who can see the security implications of a collapse of basic legal standards in countries that Britain is sharing intelligence, security and law enforcement information with. States without effective legal institutions are highly vulnerable to corruption, making them prime targets for Russian infiltration and destabilisation. Combine this with the EAW which allows any British citizen or resident to be directly targeted by any EU state they draw the ire of and you have a recipe for “lawfare” on a grand scale. Once a legal system resembles that of the Russian Federation, there is nothing to stop authoritarian politicians or rapacious intelligence services operating with impunity and exploiting the judiciary for their own wicked ends.

It is in light of this crisis that the Irish High Court recently issued a landmark judgement to halt all extraditions to Poland because they can no longer trust the Polish judiciary to deliver a fair trial. Likewise, German courts have blocked politically motivated attempts to extradite the Catalan leader, and even Costa Rica and Serbia have granted political ‘refugee status’ to what are now recognised as being Romanian dissidents.

In the face of the mounting evidence, our Prime Minister continues with her reckless desire to keep our membership of the EAW intact and to cooperate unconditionally with states whose judicial and state machinery are plumbing the depths of Russia, Romania and Turkey.

Instead, the PM should proactively shun the EU’s one-size-fits-all security and legal architecture. She should name and shame those EU member states that don’t fulfil the high standards required for a security partnership with the UK, while calling out the European Commission for its total failure to ensure respect for the rule of law and human rights across the EU. She should reject any form of jurisdiction by the European Court of Justice which has done a parlous job of preventing abuse of an increasingly toxic and politicised EAW system.

In this new age of lawfare, the PM must implement an immediate review of Britain’s extradition treaties, where necessary imposing interim measures to halt all extraditions to those countries that are so clearly falling short of the basics of due process and human rights. The government should enable a “prima facie” evidence test on those governments suspected of foul play or with potentially corrupt legal institutions. Under such a system the burden of proof would be placed on the prosecuting authority and a case would have to be proved to have sufficient evidence to justify a trial – standard practice under English common law.

This new system would have the granular flexibility not just to treat all other states on the basis of equality and reciprocity. It would avoid the wishful, fantasy land thinking of Brussels, and instead rely on the hard-headed reality and principles that have evolved through English common law over many centuries.

12 comments to The shambles of the European Arrest Warrant system

  • Snorri Godhi

    Not that i am in favor of the EAW, but given the news that i read, i find it hard to believe that any EU country has a justice system more dodgy than the UK. See the previous post as an example, but i can think of even more egregious examples, such as schoolchildren being arrested for speech crimes; not to mention Rotherham etc.

  • bobby b

    Perhaps May is simply being cagey because she recognizes that, without the EAW, soon no country will be willing to extradite people back to the UK?

    The test of extradition in a just country has always been “will this person be treated justly if we send him back?” This is usually decided by examining the quality of justice inherent in the requesting country. Does its government operate a system of justice that truly delivers justice?

    Any government willing to suspend the freedom to speak about important issues from sixty-five million people simply to keep that information away from twelve specific people in one location is going to appear to be lacking in that regard. Any government that empowers a personally-aggrieved judge to accuse, convict and sentence a person to more than a year in prison within five hours of his speaking bad things might not pass the smell test.

    And any such government that works towards binding other countries, in advance and without argument, to commit to sending back its victims when they escape ought to be shunned.

    Perhaps the UK government’s descent away from being “just” is simply May’s cagey plan to foster Brexit by causing the EU to decide on its own that the UK ought not belong to the civilized world?

  • Mary Contrary

    A “prima facie” test should be applied to all applications for extradition, not just those from countries we consider particularly dodgy.

  • Pat

    I suspect May, in this as other matters, is simply following the advice of her civil servants. She appears incapable of mastering them.

  • Derek Buxton

    Pat, they are her favourite people, telling her what she would like to know, agreeing to every money wasting scheme she suggests, throwing money round like confetti, whats not to like????

  • CaptDMO

    IMHO- (US- precious little skin in the game.)
    “…why Theresa May’s “Brexit-in-name-only” stance is so bad.”
    “The People” have spoken.
    There is DO, or do NOT. There is no TRY. (Yoda)
    Anything else is Calvinball, with Humpty Dumpty reporting for ESPN.

  • Not that I am in favour of the EAW, but given the news that I read, I find it hard to believe that any EU country has a justice system more dodgy than the UK. (Snorri Godhi, August 3, 2018 at 4:18 pm

    I, by contrast, find it very easy to believe this – without, I fear, disagreeing greatly with Snorri about the faults in today’s UK.

  • Paul Marks

    Good post.

    As for Mrs May – the “Maybot” just goes on-and-on like a machine. The supporters of Mrs May hold this to be a strength – however there is a vital difference between a machine and a person, THOUGHT. The reason Mrs May just follows the establishment line is that the lady does not really THINK, at least not about the PRINCIPLES upon which policy should be based.

    A programmed robot (or a Golem) may indeed by very “hard working” and “never stop” – but that does not make such a thing fit to be Prime Minister.

    Of course Mrs May is NOT really a robot or a golem – she is in fact a human being, quite capable of thinking about the principles upon which policy should be based. The tragedy is that Mrs May, like so many people, at some point made a CHOICE not to think about principles – to, instead, just go with the establishment line. Such a choice (and it is a choice) is a form of intellectual, and spiritual, suicide.

  • Nicholas (Unlicensed Joker) Gray

    I heard a radio program about why your typical Russian Oligarch favours London as a destination- because the British courts are less likely to extradite him and his ill-gotten gains back to Russia. Is this true?

  • Paul Marks

    Nicholas – whatever the corruption of “Russian Oligarchs” may be they pale compared to the crimes of Mr Putin himself, and the idea that any opponent of Mr Putin could get a fair trial in Russia is absurd.

    So, to answer your question for myself, I would NOT send back to Russia a foe of Mr Putin – “Russian Oligarch” or not. And I would not strip them of their money either – as the biggest thief is Mr Putin himself who has stolen whole industries.

    By the way orthodox Marxists pretend that Mr Putin is a servant of the “Oligarchs” – the very people he robs (and sometimes murders). This is because Marxism has to pretend that every ruler serves an “economic class” and Mr Putin is held to represent the “capitalist oligarchs” rather than “the workers”.

    The TRUTH. that Mr Putin is a dictator who represents HIMSELF (not a particular economic “class”) is something that Marxism can not admit – or the whole theory of Marxism would fall apart.

  • Nicholas (Unlicensed Joker) Gray

    Thanks, Paul. I was also wondering- are European courts more pliant, and liable to send the Russians back to Russia? Does anyone know about that? Another plus for Brexit- more Russian immigrants?

  • Paul Marks

    Nicholas – I suspect the Germans are more “pliant”.

    The Russians have Germany by the throat in terms of energy supplies – although, as President Trump found out, one is not supposed to notice this.

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