Samizdata

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.