This warrant removes the presumption of innocence before guilt and leaves our nationals vulnerable to being extradited without the production of any prima facie evidence at all.
Nigel Farage, leader of the UK Independence Party, speaking about the European Arrest Warrant on May 17.
It is unlikely someone would be extradited without evidence under a European Arrest Warrant (EAW) as they cannot be used for merely investigative purposes. EAWs are issued to arrest somebody where evidence received by investigators leads to reasonable suspicion the named person has committed an offence. The particular offence must exist in both the country issuing the warrant and the country receiving it.
The EAW is a quick, economic and effective method of extradition between EU member states that replaces separate extradition agreements that had previously existed between them. EAWs are not what eurosceptics would have us believe: another piece of “foreign” criminal procedure imposed on the UK – they were a UK initiative.
In 1998, the UK proposed the EAW on the assumption that by promoting mutual recognition of judicial decisions, further intervention from EU institutions in the area of criminal procedure could be avoided. Through the EU Framework Decision 2002/548/JHA, the EAW was included into UK law via the Extradition Act 2003.
A EAW relates to serious crime and terrorism-related offences. It judges who scrutinise the grounds for the request, not politicians. A suspect will not be returned to the country issuing the EAW if they have been tried for the same offence abroad. The person named in the warrant can appeal to the court in the state they are in against this form of extradition. Where this occurs it takes an average of 48 days before a person is extradited.
An example of this is the case of WikiLeaks founder Julian Assange, who appealed through the UK courts against his extradition to Sweden to face allegations of sexual offences. His protracted court procedure failed and he is currently in the Ecuadorian embassy in London after claiming political asylum.
If there is likely to be a lengthy pre-trial procedure, a European Supervisory Order can be obtained, allowing for the suspect to be transferred to their home state until the trial begins.
The UK frequently applies for EAWs. In 2015 the UK requested 228 EAWs leading to the arrest of 150 people; 121 surrendered due to the EAW. In 2015-16, the UK received 14,279 EAW requests where 2,152 were arrested and 1,271 of those surrendered.
More than 90% of those arrested in the UK in 2015 under an EAW were non-UK citizens. Important cases where the EAW was key to bringing offenders to justice included the teacher Jeremy Forrest who fled to France in 2012 with a schoolgirl in 2012, the fugitive terrorist Hussain Osman who in 2009 fled to Italy, and in 2012 Jason McKay who committed murder and fled to Poland.
Nigel Farage’s claim that the EAW means UK nationals would be vulnerable to being extradited without the production of any evidence is inaccurate.
It’s also important to look beyond the political soundbites and consider the facts about the effectiveness of these warrants. If the UK pulls out of the EAW it will have to revert to expensive and lengthy procedures laid out in the 1957 European Convention on Extradition. These will be based on political decisions, not judicial ones, especially if the UK cannot agree to bilateral extradition agreements with member states. The UK policing agencies benefit from being part of the EAW system.
Steve Peers, professor of law, University of Essex
The central point of this analysis is correct: Farage’s statement is wrong on two counts.
First of all, it confuses the “presumption of innocence” with extradition procedures, which are not covered by that presumption because they are not criminal trials. Fugitives subject to extradition either benefited from the presumption of innocence when they were convicted, or will benefit from it when they face a future criminal trial.
Second, the European Arrest Warrant did not abolish the “prima facie evidence” rule – meaning that a case has enough evidence to proceed. The UK parliament had previously abolished that rule for European (not just EU) countries in the Extradition Act 1989, long before there were any EU laws on the subject. As the Baker review of extradition law noted in 2011, the rule was abolished because (according to a 1986 white paper) the rule “did not offer a necessary safeguard for the [fugitive] … but was a formidable impediment to entirely proper and legitimate extradition requests”.
Ultimately, the Baker review recommended that there was “no good reason to re-introduce the prima facie case requirement” where it had been abolished, and concluded that: “No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence.”