‘Surrendering’ the Fugitive—The European Arrest Warrant and the United Kingdom
| Published date | 01 August 2007 |
| Date | 01 August 2007 |
| DOI | http://doi.org/10.1350/jcla.2007.71.4.362 |
| Subject Matter | Article |
The European Arrest Warrant
and the United Kingdom
Mark Mackarel*
Abstract
This article explains how the European Arrest Warrant forms
part of the response to the modern needs of the European Union in
dealing with transnational crime and considers the experience of the UK
in implementing and using the warrant. The warrant is the first manifesta-
tion of the EU policy of mutual recognition in relation to cooperation in
criminal matters and in questioning how effectively the UK has put the
warrant into operation under the Extradition Act 2003, the article com-
pares the analyses of the European Commission, Eurojust and the House
of Lords. Finally, the approach to interpretation taken by the courts to
cases coming before them concerning the warrant under the 2003 Act is
examined.
The Framework Decision for the creation of the European Arrest
Warrant (EAW) was concluded by the European Union’s Council of
Ministers in June 2002.1 The EAW represented a fundamental change to
the nature of extradition standards and procedure in the European
Union (EU) and was the first manifestation of the policy to make mutual
recognition the basis of measures to develop cooperation throughout
the EU in criminal law and criminal procedure.2 The EAW has already
become well known for its part in the successful return of Hussain
Osman, alleged to have been involved in the London bombings of July
2005, and for the issuing of politically controversial warrants by Italian
and German prosecutors for US CIA agents based in Europe for their
alleged involvement in illegal rendition operations.3
The EAW came into force on 1 January 2004 on a limited basis and all
of the EU’s Member States had taken steps to implement the EAW into
domestic law by April 2005.4 The EAW has now also been implemented
by the most recent members of the EU—Romania and Bulgaria. The UK
was one of the Member States which entrenched the Framework
Decision into domestic law before its coming into force, by means of the
Extradition Act 2003. At the end of 2006, the EAW had been in practical
operation in the UK for three years. This article begins by placing the
EAW in the context of the development of European cooperation in
criminal matters, explaining the substance of the EAW and assessing its
implementation throughout the EU. It then focuses on the approach of
* Lecturer, School of Law, University of Dundee; e-mail: m.mackarel@dundee.ac.uk.
1 Council Framework Decision of 13 June 2002 on the European arrest warrant and
the surrender procedures between Member States (OJ L190, 18 July 2002, 1).
2 Tampere European Council Presidency Conclusions, 15/16 October 1999.
3 ‘Germany issues arrest warrants for suspected CIA agents’, Guardian, 31 January
2007, available at: www.guardian.co.uk/germany/article/0,,2002970,00.html, accessed
21 May 2007.
4 The EAW was transposed into Italian law on 22 April 2005.
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‘Surrendering’ the Fugitive—The European Arrest Warrant and the United Kingdom
the UK in implementing the EAW into domestic law and considers the
practical experiences of operating the EAW in the UK and challenges of
interpretation that have come before the UK courts. It is argued here
that whilst the UK’s legislative approach to entrenching the EAW in
domestic law was proactive, it was flawed.
The need for change in extradition standards in the EU
Even before the establishment of the EU, Member States had begun
initiatives for improved cooperation in criminal matters, particularly in
the field of policing.5 Since 1992, the EU has slowly constructed a
framework for improved cooperation between states in the field of
criminal investigations and criminal prosecutions. Some aspects in this
field had previously been addressed throughout the greater Europe by a
series of Conventions and programmes established by the Council of
Europe stretching back to the 1950s,6 also under more local Benelux and
Nordic Accords7 and again more lately by some more radical measures
under the Schengen Convention applied to a limited number of coun-
tries.8 However, the development of the EU bringing with it the free
movement of people and trade through the relaxation of border controls
also brought the associated problem of a allowing for ease of movement
for transnational crime. The EU began to establish its own ‘tailor-made’
measures for tackling the problems and additionally reforming existing
Council of Europe measures. Amongst the best known of these initial
projects were the establishment of a European police agency, Europol,9
and the conclusion of two treaties in 1995 and 1996 for improved
extradition.10
Whilst progress was made in this field, individual Member States
proved reluctant to relax sovereignty or cede entrenched principles of
domestic criminal law and procedure. At times this would create specific
problems that were a substantial barrier to improved cooperation—the
political offence exception and the non-extradition of nationals being
but two examples.11 Furthermore, the record of Member States in
5 J. Benyon et al., Police Co-operation in Europe (Centre for the Study of Public Order:
Leicester, 1993).
6 For example, European Convention on Extradition 1957, ETS 24; European
Convention on Mutual Assistance in Criminal Matters 195, ETS 30.
7 The Benelux Convention on Extradition and Judicial Assistance in Penal Matters,
27 June 1962; the Nordic Treaty for Extradition, 1960. Now superseded by the
Nordic Arrest Warrant, signed on 15 December 2005 by Denmark, Finland,
Iceland, Sweden and Norway.
8 Convention of 19 June 1990, applying the Schengen Agreement of 14 June 1985
between the Governments of the States of the Benelux Economic Union, the
Federal Republic of Germany and the French Republic, on the Gradual Abolition
of Checks at their Common Borders.
9 Convention based on Article K3 of the Treaty on European Union on the
Establishment of a European Police Office (OJ C316, 27 November 1995).
10 Convention on Simplified Extradition Procedure between Member States of the
European Union, adopted 10 March 1995 (1995) OJ C78/1; Convention Relating
to Extradition between the Member States of the European Union, adopted 27
September 1996 (1996) OJ C313/11.
11 M. Mackarel and S. Nash, ‘Extradition and the European Union’ (1997) 46 ICLQ
948 at 955–6.
363
The Journal of Criminal Law
ratifying the Conventions has been very poor. For example, neither of
the 1995 and 1996 EU Extradition Conventions came into force due to
an insufficient number of ratifications. The poor record of implementing
these Conventions has given rise to the unhappy situation that, whilst
there was a requirement on the acceding states that became members of
the EU in 2004 to implement them as a condition of membership,
thereby placing further pressure on stretched resources and legislative
time, founder members of the EC and EU had still not implemented the
Conventions despite the fact that the Conventions have practically been
superseded by the EAW.
This was not a problem restricted to extradition. For example, the EU
Convention on Mutual Legal Assistance in Criminal Matters, which was
concluded in 2000 and contained some fundamental changes to the
nature and extent of mutual assistance,12 did not enter into force until
August 2005, only shortly before the new Framework Decision for the
European Evidence Warrant is due to update some of these
measures.13
Thus, by the end of the 1990s, a combination of slow progress in
implementing agreed measures and a realisation among Member States
that the growth in cross-border crime and the expansion of the member-
ship of the EU (and therefore, an increase in the diversity in criminal law
and procedure throughout the EU) required a fresh examination of the
strategy for improving cooperation in criminal matters.
In October 1999, the European Council met at Tampere in Finland to
discuss the implementation of the Area of Freedom, Security and Justice
and agreed the Tampere Conclusions. It was recognised that the creation
of an ‘area of freedom, security and justice’ is a fundamental aim of the
EU, with the justification for a ‘European Judicial Area’ being the right
of the European citizen to expect the EU to address the threat to their
legal rights posed by serious and cross-border crime.14 The Tampere
Conclusions maintained that enhanced mutual recognition of judicial
decisions accompanied by the improved approximation of criminal law
and procedure would lead to improved cooperation and protection of
individual rights. Indeed, the Tampere Conclusions called for the prin-
ciple of mutual recognition to be the ‘cornerstone’ of judicial coopera-
tion in both civil and criminal matters,15 and a programme of measures
setting out plans for implementing the principle of mutual recognition
into criminal matters was agreed in 2001.16 This strategy has been
12 Convention on Mutual Assistance in Criminal Matters between the Member States
of the European Union, OJ C197/3, 12 July 2000.
13 At the time of writing the latest draft was: Proposal for a Council Framework
Decision on the European Evidence Warrant (EEW) for obtaining objects,
documents and data for use in proceedings in criminal matters, Brussels, 10 July
2006, COM 11235/06 COPEN 74.
14 Tampere European Council Presidency Conclusions, above n. 2, see, e.g., paras 5,
6 and 40.
15 Ibid. at para. 33.
16 Programme of measures to implement the principle of mutual recognition of
decisions in criminal matters, OJ C12/10, 15 January 2001.
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