I was a signatory to a letter published in the Daily Telegraph last week on the European Arrest Warrant.

Why did I sign it? Because I agree, along with very many experienced lawyers, judges, police officers etc etc, that the Government is in grave danger of throwing away an important tool in international policing and criminal justice. The letter argued strongly for the EAW. If we withdraw, other member states would find it less easy to extradite suspects to this country, and we would risk becoming a safe haven for fugitives from justice. The EAW may need some improvements (and already recent statutory changes should successfully prevent the EAW being used for trivial offences, one of the more significant problems). I am shocked that the Government does not seem to want to be a leader in the reformation of EU criminal justice co-operation, from inside. We’ve worked hard to get where we are now. Let’s not lose all this international co-operation: criminals do not respect borders! There is no credible alternative to the EAW.

The letter was written in anticipation of the Government’s promised debate on the EAW, which was expected yesterday (before the Rochester and Strood by-election, but more importantly before the 1 December ‘opt in date’). Protocol 36 of the Treaty of Lisbon allowed the Government to decide, by 31 May 2014, whether or not the UK should continue to be bound by approximately 130 police and criminal justice measures, which will all become subject to the jurisdiction of the Court of Justice of the European Union and the European Commission’s enforcement powers, from 1 December 2014. Sadly, the Government chose the ‘opt out’ option, but unsurprisingly wished to opt back into 35 of them. Yesterday was about the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014. Parliament faced the motion:

‘That the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, which were laid before this House on 3 November, be approved.’

But this statutory instrument refers to just 11 of the 35 measures to which the Government was opting in. It does not mention the European Arrest Warrant (or indeed other important EU agencies such as Europol and Eurojust). Last night’s motion dealt only with those measures for which a statutory instrument was necessary. The Government clearly thought they could “get away with” the debate on these 11 less important matters, and call it their European Arrest Warrant debate.

I recommend the website of Fair Trials and Professor Steve Peers’ contributions on the eulawanalysis website. Of course we need safeguards in UK law against unfair extradition. But doesn’t it make sense to reform from within? The European Parliament is on the case. With the exception of the UK, EU countries are now signing up to new EU directives that will protect basic procedural rights so that, when people are extradited, they get a fair trial. Crucially, courts across the EU are starting to wake up to the fact that they cannot naively trust other member states to respect basic rights in all cases all of the time, and are starting to refuse extradition under the Arrest Warrant.

This is a problem of the Government’s own making. By choosing a complex (and costly?) method of opting out, in order to opt back in, the Government has made a mess not only of its own credibility in Parliament but sadly proved itself to be a weak link in Europe.

Nicola Padfield

About Nicola Padfield

Nicola Padfield MA, Dip Crim, DES became Master of Fitzwilliam College in October 2013. She is a Reader in Criminal and Penal Justice at the Law Faculty, University of Cambridge, and has been a Fellow of Fitzwilliam College since 1991.

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