Why the UK must not ditch the European Arrest Warrant

Jeremy Forrest was extradited in weeks with a European Arrest Warrant. Gareth Fuller/PA

The UK government is currently deciding whether it should continue to opt in to the European Arrest Warrant – an agreement that allows European countries to extradite criminal suspects between member states with relative ease. A number of alarmists are pushing for the UK to opt out. But this would be a mistake.

The European Arrest Warrant has operated in the UK since 2004. It is without doubt the most high-profile and controversial of the EU’s criminal justice measures. In essence, it provides a simple and speedy procedure designed to surrender people between EU states for criminal prosecution or custody. It works on the basis of mutual recognition, so the authorities in each member state arrest and surrender the wanted individual more or less automatically when a warrant is issued.

This way of co-operating – which is based on trusting the integrity of another state’s criminal justice system – was chosen, and indeed advocated, by the UK government of the time precisely because it entailed the least amount of EU intrusion into domestic systems. The UK knows that the decisions made by its criminal courts must be accepted and enforced in any another member state and vice-versa.

It is widely recognised that the European Arrest Warrant has created a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition in Europe compared to its predecessor, the 1957 European Convention on Extradition.

The average time taken to extradite a suspect in cases with consent of the suspect is just 17 days and in non-consensual cases it is has fallen from around a year to 48 days. The number of wanted persons surrendered to the UK in 2013 was 127, compared to just 19 in 2004 and the number returned to the UK from other EU states was 1,126 in 2013 compared to 24 in 2004.

According to the home secretary, Theresa May, the arrest warrant has been used to extradite 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspects for child sex offences, 27 for rape and 44 for murder were extradited back to the UK to face charges. A number of these suspects would probably have not been extradited back to the UK without the arrest warrant.

The case of Hussain Osman is an example of the successful application of the arrest warrant. Osman was wanted in connection with an attempted bombing on July 21 2005 in London. He was extradited from Italy and sentenced to a minimum 40 years in prison. More recently, Jeremy Forrest, the teacher who was sentenced in June 2013 for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest.

Tweak it, don’t trash it

The European Arrest Warrant is not beyond criticism. It has resulted in a number of British suspects being surrendered to countries that make it difficult for foreign nationals to get bail. As a result, they face excessive periods in prison before trial. That’s unacceptable and it certainly fuels the critics who push for the UK’s withdrawal.

But that doesn’t mean a full exit is the only option. The rules could be amended to permit states to postpone the execution of the warrant until the issuing state is ready to proceed with a trial.

Another route is to implement an EU measure which specifically tackles this problem. The so called European Supervision Order, adopted in 2009, enables a suspect or defendant who has been granted bail in another member state to be supervised in their home country until their trial. For sensible reasons, the UK government is seeking to opt back into this measure. And a longer-term solution could of course be to force those member states whose criminal justice systems are deficient in these respects to improve them.

The second serious criticism of the European Arrest Warrant is its excessive scope, which enables it to be used in some cases that are trivial, or stale, or both. This causes a headache for UK law enforcement authorities who have to spend time and money following up all warrants, including those for minor offences.

This instrument was designed with serious crimes and organised criminality in mind and the absence of a proportionality requirement undermines this. But it’s a problem that could be solved by amending legislation to include a proportionality requirement.

Unpalatable alternatives

The UK Government is choosing to opt back into the European Arrest Warrant because the relevant UK authorities – such as the Association of Police Chief Officers – are convinced that it is, on balance, a good thing.

Without it, extradition between the UK and other EU member states would essentially fall back on traditional procedures agreed in 1957. Such procedures are discretion-based and are subject to the ultimate control of the executive. As such, extradition becomes a political rather than a legal matter. The process would be slow, costly and uncertain, potentially undermining public safety.

It has sometimes been suggested that the UK could replace the European Arrest Warrant with an extradition deal with the entire EU, or with bilateral deals with individual member states.

While the EU has negotiated an extradition treaty with Norway and Iceland, this took years to negotiate and has not yet entered into force, eight years after it was signed. This treaty is nearly identical to the European Arrest Warrant so in following the precedent, the UK risks starting an inefficient process that could result in very little change.

And having less stringent extradition laws in the UK than the rest of the EU would risk turning the UK into a sort of Costa del Crime, since criminals might be attracted to come here in light of the relative ease of not being extradited. Conversely, the rest of the EU would become a more attractive bolt-hole for anyone committing crimes in the UK.

The European Arrest Warrant is by no means perfect and reflection, review and reform should never be off the agenda. On balance, though, it is a positive force and, as such, it is preferable to be in it, with a chance to shape it, than out of it. Much the same goes for the European Union itself.