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Another one bites the dust

After the continuing saga in relation to Gary McKinnon, (and also Mr Norris) and what this has shown about the extradition arrangements in respect of extradition to the United States, another recent application has shed light on the situation regarding your up and the European arrest warrant.

The latest episode relates to the football fan Garry Mann, who recently lost his Portuguese extradition battle despite the court considering that he had suffered "serious injustice" in the proceedings against him arising from events during the Euro 2004 football tournament in Portugal.

In order to begin to understand the position something about the European arrest warrant has to be understood. First of all it is worth considering the case of In Re Hilali (Respondent) [2008] UKHL 3 (application for a writ of Habeas Corpus). The words of Baroness Hale in that case were particularly apposite. She stated: " I would comment only that a European Arrest Warrant may be executed in any of the Member States. The issuing judicial authority will not always know where the person concerned will be found. It cannot tailor the warrant to any particular or idiosyncratic requirements of another Member State. So, while I agree that every issuing State should do its best to comply with the requirements of the Framework Decision, it seems equally important that every requested State should approach the matter on the basis that this has been done: in other words, in a spirit of mutual trust and respect and not in a spirit of suspicion and disrespect. For better or worse, we have committed ourselves to this system and it is up to us to make it work.". The courts are as this indicates committed to complying with the European arrest warrant scheme. That effectively includes allowing the country issuing a warrant to decide whether that is the proper thing to do. For example in that particular case, it was held that it was not for the courts here to look at the evidence relied on in Spain and conclude it was inadmissible.

This also means that the various normal protections are removed. The remedy of habeas corpus is, after the statutory process in Part 1 of the 2003 Act has been exhausted, severely circumscribed to say the least. The Council of the European Union Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (OJ L 190/1, 18 July 2002), known as the Council Framework Decision, sets out the basis of the European arrest warrant. Lord Hope giving the principal judgement of the court in Hilali stated as follows: "An understanding of the principles underlying the Framework Decision scheme helps to explain the statutory appeal process which is contained in Part 1 of the 2003 Act.

13. The House has had the opportunity of considering the Framework Decision on two previous occasions: see Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1; Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31. It is unnecessary to repeat the detailed analysis that was undertaken in those cases. But it is worth quoting a passage from the speech of Lord Scott of Foscote in the Cando Armas case........... In para 50 he said that there were two particular features of the Framework Decision that deserved mention. The first was that, as the requirement of double criminality had been removed in the case of offences falling within the framework list, it was no longer necessary to show in relation to those offences that the conduct of the accused for which he was to be prosecuted in the requesting state would have been conduct for which he could have been prosecuted in this country.
14. As to the second, Lord Scott said this:
"51 Secondly, the Framework Decision was intended to make it unnecessary, whether in relation to framework list offences or any other offences, for the requesting state to have to show that the individual had a case to answer under the law of that state. The merits of the extradition request were to be taken on trust and not investigated by the member state from which extradition was sought. Article 1(2) says that: 'Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.' And recital (5) of the Framework Decision speaks of 'abolishing extradition between member states and replacing it by a system of surrender between judicial authorities.'
52 The principle underlying these changes is that each member state is expected to accord due respect and recognition to the judicial decisions of other member states. Any inquiry by a member state into the merits of a proposed prosecution in another member state or into the soundness of a conviction in another member state becomes, therefore, inappropriate and unwarranted. It would be inconsistent with the principle of mutual respect and recognition of the judicial decisions in that member state." The references to "judicial decisions" in para 52 must be read together with article 1(1) of the Framework Decision which states that the European arrest warrant is a judicial decision issued by a member state."

In other words, you no longer have to show that the conduct would have been criminal if committed in this country, and you can no longer effectively question the decision to prosecute or the basis for the prosecution in the other country. Therefore in connection with judicial workings elsewhere, the state has issued a blank cheque. As Lady Hale so succinctly put it, what the courts here have to do for better or worse is get on with it. We shall start to examine next week what that can mean in practice for people subject to such a warrant.

Michael J. Booth QC