Do you support the European Arrest Warrant? Watch

Poll: Should the UK opt-in to the European Arrest Warrant?
Yes - The back benches are just being nutty (8)
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No - Should seek extradition Treaty (9)
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Rakas21
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Each year the Lisbon Treaty allows us to opt out and in of 130 police and justice policies for that year. This year, Tory back benches (and Ukip i believe) want us to remain out of the European Arrest Warrant, partly because there may be genuine merit to an extradition treaty (greater choice as to whether you comply) but also because of symbolism. The Home Secretary (a noted Euro-skeptic) and the Prime Minister are privately believed to support an opt-in.

Personally i think the European Arrest Warrant is a brilliant idea and since EU nations have civilised courts it's likely that they will be given a fair trial.

So here's the poll, what do you think?
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Ace123
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I don't support it just more power to the EU, we have international crime organisations e.g. interpol, shared criminal resources already and we have extradition treaties with most of the world. There are also some concerns that it will be misused by other countries whose legal systems are more corrupt than ares and also the ability to call people to another country on the basis of very little evidence. The fact that the EAW was also used on Ashya King's parents for taking their own son for medical treatment abroad is also evidence it is open to misuse by governments. The entire EAW is also unnecessary is anyone really suggesting that non EU nations like USA, Canada, Aus, NZ etc are not able to extradite criminals to and from EU nations
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Observatory
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No. It's the repeal of Magna Carta and the beginning of the end for the common law. I don't believe the hyperbole about terrorism, but even if it is true, such things would be worth dying for.
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nulli tertius
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(Original post by Ace123)
The fact that the EAW was also used on Ashya King's parents for taking their own son for medical treatment abroad is also evidence it is open to misuse by governments.
Think about what you are saying. If that couple had moved to Ashby de la Zouche or Hunslet they would have been arrested by the the British police. If they had been spotted at Heathrow or Dover they would have been arrested by the British police. However, you are saying the EAW is wrong because they moved to Spain and were arrested there at the request of the British police.
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nulli tertius
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(Original post by Observatory)
No. It's the repeal of Magna Carta and the beginning of the end for the common law.
Why is arresting South London gangsters on the Costa del Crime and sending them back to Britain contrary to Magna Carta?

Why is arresting Polish jailbirds in Lincolnshire and sending back to Polish prisons contrary to Magna Carta?
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Observatory
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(Original post by nulli tertius)
Why is arresting South London gangsters on the Costa del Crime and sending back to Britain contrary to Magna Carta?
It isn't.

Why is arresting Polish jailbirds in Lincolnshire and sending back to Polish prisons contrary to Magna Carta?
Because those Poles will be tried without a jury.

Perhaps one can dispute that Magna Carta was intended to apply to foreign citizens, a concept which did not exist at the time in the same form. However, an EU warrant may also be issued against a British citizen in Britain.
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nulli tertius
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(Original post by Observatory)
It isn't.


Because those Poles will be tried without a jury.
Mostly in the case of the Poles they won't be tried at all because they have already been tried and convicted.

One of the major problems with the EAW arises from the Polish system of deferred sentences. If you are convicted of an offence in Poland you won't usually be sent to prison immediately. but will be called up a very long time afterwards to serve your sentence. It is unreasonable for convicted persons, often for minor sentences, to put their lives on hold. Whilst some Polish prisoners undoubtedly go abroad to avoid justice, others simply move abroad for work in the same way as Poles who have not committed a crime. The Polish government recalls these people by means of an EAW to serve their sentence, resulting in an extradition battle at the expense of a foreign government. The UK goes further than most, in that we are daft enough to house these folk in our gaols pending extradition. Polish deferred sentence prisoners have become a blight all over Europe and special provision needed to be made for them.

Perhaps one can dispute that Magna Carta was intended to apply to foreign citizens, a concept which did not exist at the time in the same form. However, an EU warrant may also be issued against a British citizen in Britain.
The objection you make is not an objection to the EAW as such but to the whole system of extradition or at the very least extradition of UK nationals.

We would become the haven of criminals from the world if we said that we would never extradite. No common law country declines to extradite. Very few countries in the world decline to extradite nationals of the requesting state or third country nationals. Virtually all common law states extradite their own nationals. Most South American countries won't extradite their own nationals nor will ex-French colonies. The EAW represents a reversal of most previous European practice which was to preclude extradition of own nationals. In that sense the EAW is a "win" for Britain and Ireland.
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Observatory
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(Original post by nulli tertius)
Mostly in the case of the Poles they won't be tried at all because they have already been tried and convicted.

One of the major problems with the EAW arises from the Polish system of deferred sentences. If you are convicted of an offence in Poland you won't usually be sent to prison immediately. but will be called up a very long time afterwards to serve your sentence. It is unreasonable for convicted persons, often for minor sentences, to put their lives on hold. Whilst some Polish prisoners undoubtedly go abroad to avoid justice, others simply move abroad for work in the same way as Poles who have not committed a crime. The Polish government recalls these people by means of an EAW to serve their sentence, resulting in an extradition battle at the expense of a foreign government. The UK goes further than most, in that we are daft enough to house these folk in our gaols pending extradition. Polish deferred sentence prisoners have become a blight all over Europe and special provision needed to be made for them.
I understand what you are doing here but I do not think it is a very honest approach. Clearly it is possible for a suspect law to be used appropriately but the test is that it is never possible for the law to be used inappropriately. The EAW permits widespread breaches of Magna Carta - in principle its entire deferment along with the entire English criminal justice system - it does not really matter that it could also be used in a manner consistent with Magna Carta, and the other ancient freedoms of this country.

The objection you make is not an objection to the EAW as such but to the whole system of extradition or at the very least extradition of UK nationals.
This is to some extent true and I do not necessarily defend the principle of extraditing British subjects to any country that does not provide a trial by jury, exercise habeas corpus, and so forth. I object much more strongly to the extradition of a Briton to face a juryless trial in, for instance, Sweden, than the extradition of a Briton to face the death penalty in New Hampshire. I accept this is a point on which I am at odds with many people.

Nonetheless there is a qualitative difference between an extradition, which is, as you phrased it, a request, which can be granted or not by the British courts, on their satisfaction that the accused will face a fair trial and that there is sufficient evidence for him to come to trial. The EAW is not a request but an order which is immediately legally binding at the issuance of a foreign official acting under the jurisdiction of a foreign legal system.

We would become the haven of criminals from the world if we said that we would never extradite.
As indeed we already are in the case of foreign terrorists whose home countries are largely not extraditable at least for the crimes of which they are accused. The sky appears to remain in place. It will remain in place with Polish shoplifters on the streets - at least until we can apply immigration restrictions on Polish criminals, which is a more satisfactory solution.
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nulli tertius
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(Original post by Observatory)
I understand what you are doing here but I do not think it is a very honest approach. Clearly it is possible for a suspect law to be used appropriately but the test is that it is never possible for the law to be used inappropriately. The EAW permits widespread breaches of Magna Carta - in principle its entire deferment along with the entire English criminal justice system - it does not really matter that it could also be used in a manner consistent with Magna Carta, and the other ancient freedoms of this country.


This is to some extent true and I do not necessarily defend the principle of extraditing British subjects to any country that does not provide a trial by jury, exercise habeas corpus, and so forth. I object much more strongly to the extradition of a Briton to face a juryless trial in, for instance, Sweden, than the extradition of a Briton to face the death penalty in New Hampshire. I accept this is a point on which I am at odds with many people.

Nonetheless there is a qualitative difference between an extradition, which is, as you phrased it, a request, which can be granted or not by the British courts, on their satisfaction that the accused will face a fair trial and that there is sufficient evidence for him to come to trial. The EAW is not a request but an order which is immediately legally binding at the issuance of a foreign official acting under the jurisdiction of a foreign legal system.


As indeed we already are in the case of foreign terrorists whose home countries are largely not extraditable at least for the crimes of which they are accused. The sky appears to remain in place. It will remain in place with Polish shoplifters on the streets - at least until we can apply immigration restrictions on Polish criminals, which is a more satisfactory solution.
You make a number of points that almost seem irrelevant to someone such as myself who is not a criminal lawyer but does some public law work.

Anybody arrested under a EAW will have a meaningful day in an English courtroom on whether or not they should be extradited under it. I've sat in court and heard one of these challenges, which was succesful. The real problem with the old extradition procedure was that anyone with money (and to a lesser degree access to legal aid) was able to delay extradition almost indefinately because the procedure was developed before modern judicial review and had too many stages all of which were separately suscepible to judicial review.

I am not aware of anyone who was extradited from the UK wrongly.

I believe there are three major flaws with the extradition system.

The first is the obligations for reciprocal legal aid. The obligation on the requesting state is to give the same legal assistance as would be given to a local. Where the person extradited is not a resident of the requesting state, that is an obligation of no value. In many parts of the world adequate criminal defence is not usually provided at the expense of the state nor at the expense of the defendant. Family, political or other networks find the money to pay for lawyers or provide the reason for lawyers to provide free assistance and foreigners simply cannot access these resources. It would be far better if the consular authorities of the sending state had to pay for legal represenattion.

Secondly, it is wrong to treat foreigners like locals in respect of bail and detention. The US often detains extraditees as a flight risk simply because they have overseas connections (even if they have not fled) and refuses bail. US immigration will not give green cards to persons released on bail. France and some other countries will leave foreigners dangling under investigation for years with a prohibition on leaving the country.

Thirdly there is the problem of extra-territorial offences. Inevitably crime crosses borders and it is unreasonable to expect UK authorities to have the same interest in prosecuting a fraud committed from the UK where all the victims, witnesses and evidence lie abroad. The same is true for hacking offences and low level involvement in terrorism amongst others. However, extradition appears oppressive where the likely sentence for the offence abroad is far higher than that routinely given out in the UK for that offence.

You mention habeas corpus. As a practical remedy, it is a dead letter. I have got people unlawfully detained out of gaol but have not used HC to do so.If it disappeared tomorrow, not a soul would notice.

The criminal trial of the kind you and many others revere is only about 250 years old and in many respects less than 120 years old. It certainly does not date from Magna Carta. In 1833 it was estimated that the length of the average Old Bailey trial was 81/2 minutes.

Spain is still living with the legacy of its "difficult" attitude to extradition in the 1970s and 1980s. That is the reason why professional criminals endered up on the Costas and not in the Algarve or Greek islands.
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Arran82
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we should have nothing to do with it. if a foreign nation wants a UK citizen they should supply the evidence and it be on a case by case basis. it's better than the one way street we have with the USA though.
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nulli tertius
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(Original post by Arran82)
we should have nothing to do with it. if a foreign nation wants a UK citizen they should supply the evidence and it be on a case by case basis. it's better than the one way street we have with the USA though.
Really. In order to extradite someone from the USA the UK has to show "probable cause". In order to extradite someone from Britain, the US government must show "reasonable suspicion". In not more than 200 words, please explain the difference between these two standards.
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gladders
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Relevant: Judges support the EAW
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Aj12
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Its going to be a pain if we ever have to extradite someone from Europe. I believe it has sped up the arrests and handing over of a number of terror suspects
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Observatory
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Apologies for the lateness of the reply - but it was a long one and I wanted to give it some consideration.

(Original post by nulli tertius)
You make a number of points that almost seem irrelevant to someone such as myself who is not a criminal lawyer but does some public law work.
That may be; I doubt Magna Carta is cited often, nor the Bill of Rights, and indeed both have mostly been repealed (as far as I am aware). Yet they embody a tradition that lives on in much other more banal precedent and legislation and which, with some mostly recent and lamentable reverses, has generally expanded within and ennobled our national life as time as progressed. The EU, with measures such as these, threatens to snuff it out.

Anybody arrested under a EAW will have a meaningful day in an English courtroom on whether or not they should be extradited under it. I've sat in court and heard one of these challenges, which was succesful.
My understanding has been that this is simply untrue; the EAW is an arrest warrant not an extradition request and its enforcement is a requirement that can only be appealed to the issuing court (or some other to which it is subject). There are some exceptions mostly related to avoiding the possibility of someone being tried in two countries at once for the same crime. Even these are mostly optional. If you dispute this I would like to see evidence.

The real problem with the old extradition procedure was that anyone with money (and to a lesser degree access to legal aid) was able to delay extradition almost indefinately because the procedure was developed before modern judicial review and had too many stages all of which were separately suscepible to judicial review.
Then why is all the comment surrounding this focused on street crime, murderers and so forth? If it's an equity issue then that's the first I've heard of it.

I am not aware of anyone who was extradited from the UK wrongly.
What do you mean by wrongly? People being extradited to countries like Bulgaria where they are held in squalid conditions for years before being found not guilty by a judicial system that is still recovering from Stalinism is not, in law, wrong. It is morally wrong.

I believe there are three major flaws with the extradition system.

The first is the obligations for reciprocal legal aid. The obligation on the requesting state is to give the same legal assistance as would be given to a local. Where the person extradited is not a resident of the requesting state, that is an obligation of no value. In many parts of the world adequate criminal defence is not usually provided at the expense of the state nor at the expense of the defendant. Family, political or other networks find the money to pay for lawyers or provide the reason for lawyers to provide free assistance and foreigners simply cannot access these resources. It would be far better if the consular authorities of the sending state had to pay for legal represenattion.

Secondly, it is wrong to treat foreigners like locals in respect of bail and detention. The US often detains extraditees as a flight risk simply because they have overseas connections (even if they have not fled) and refuses bail. US immigration will not give green cards to persons released on bail. France and some other countries will leave foreigners dangling under investigation for years with a prohibition on leaving the country.

Thirdly there is the problem of extra-territorial offences. Inevitably crime crosses borders and it is unreasonable to expect UK authorities to have the same interest in prosecuting a fraud committed from the UK where all the victims, witnesses and evidence lie abroad. The same is true for hacking offences and low level involvement in terrorism amongst others. However, extradition appears oppressive where the likely sentence for the offence abroad is far higher than that routinely given out in the UK for that offence.
Fair enough.

You mention habeas corpus. As a practical remedy, it is a dead letter. I have got people unlawfully detained out of gaol but have not used HC to do so.If it disappeared tomorrow, not a soul would notice.
Whether you use that particular writ is not the important question. The question is whether whatever mechanism you use - that was formulated by people brought up in the tradition of HC and minded to preserve its protections - would be applicable in the same circumstances in Bulgaria.

The criminal trial of the kind you and many others revere is only about 250 years old and in many respects less than 120 years old. It certainly does not date from Magna Carta. In 1833 it was estimated that the length of the average Old Bailey trial was 81/2 minutes.
It does not and indeed England was no utopia in 1215; aside from short trials it also retained the feudal system. I question the wisdom of reverting to a lower standard of rights than existed then.

Spain is still living with the legacy of its "difficult" attitude to extradition in the 1970s and 1980s. That is the reason why professional criminals endered up on the Costas and not in the Algarve or Greek islands.
Spain had an interest then; it was a third world country and these people were a source of money. Britain lives with the Russian gangsters it has imported to London. Britain has no such interest shielding general EU criminals and I suggest that the difference between standard extradition and the EAW will not have any noticeable negative consequences for our society.
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nulli tertius
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(Original post by Observatory)


My understanding has been that this is simply untrue; the EAW is an arrest warrant not an extradition request and its enforcement is a requirement that can only be appealed to the issuing court (or some other to which it is subject). There are some exceptions mostly related to avoiding the possibility of someone being tried in two countries at once for the same crime. Even these are mostly optional. If you dispute this I would like to see evidence.
This sets out the procedure in both EAW and other cases. You will see that both have a meaningful day in court.

https://www.gov.uk/extradition-processes-and-review

One of the things which Theresa May is trying to bring back into the EAW is dual criminality. That is a double edged sword and I am not sure whether she will achieve a satisfactory result. For a small minority of cases, it is very significant. It leads to people potentially being extradited for things that are not crimes here.

However, it is often used as a technicality to fight extradition. Countries that didn't originally take their law from us have different boundaries to different offences. That can mean that there isn't technically dual criminality even though the matter is criminal in both countries. For example, theft in England requires the prosecution to prove that the defendant intended to permanently deprive the victim or property. We have other offences which deal with criminal temporary deprivation. However another country may choose to define theft as including temporary deprivation. That means that there may not be double criminality as the prosecution in that country does not have to prove permanent deprivation to secure a conviction even though on the facts of that particular case there is no suggestion that the deprivation is temporary.


Then why is all the comment surrounding this focused on street crime, murderers and so forth? If it's an equity issue then that's the first I've heard of it.
Britain used to get a torrid time internationally for being extremely poor, slow and difficult on extradition and there was little doubt that the position deteriorated through the 1980s and 1990s. Every time we went to moan about some other country's failure to take action against some international criminal problem or other its justice minister would sit there with a list of extraditions dismissed for some triviality or mired in red tape. The nadir was the Osman case. It took 7 years to extradite a man to a British colony! http://www.asiasentinel.com/society/...y-figure-dies/

Even under the new US/UK treaty, we have more than once refused extradition. The USA never has. That is in part because extradition is part of its DNA. Every day of the week New Jersey is extraditing criminals to New York and vice versa (and this is an extradition process not a simple backing of warrant as exists between England and Scotland, NI or ROI).).


What do you mean by wrongly? People being extradited to countries like Bulgaria where they are held in squalid conditions for years before being found not guilty by a judicial system that is still recovering from Stalinism is not, in law, wrong. It is morally wrong.
Can you find any evidence that any British citizen has ever been extradited to Bulgaria for anything, rightly or wrongly?

The two stats that it seems almost impossible to find for extradition cases is the number of UK nationals extradited and the number of people extradited to countries which were not previously their former residence. Nevertheless there is reason to believe that the numbers are trivial. The key reason is that the same two or three cases are repeatedly trotted out and each of these cases has key facts omitted from their standard accounts,

Your comment however falls squarely within the threefold criticism of the extradition system that I posted. Non-residents (as opposed to residents who have fled) are different from locals and it is willful blindness on the part of governments to apply the same rules to them as to locals. In most discrimination law the world (though perhaps not TSR) has got beyond saying that treating identically, people who are different from one another, is the same as not discriminating against them. For obvious reasons, non-residents are always a minority in every country's legal system and fairly commonly they are an oppressed minority.
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Kendrick Lamar
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(Original post by nulli tertius)
Really. In order to extradite someone from the USA the UK has to show "probable cause". In order to extradite someone from Britain, the US government must show "reasonable suspicion". In not more than 200 words, please explain the difference between these two standards.
If I walk into a bank and see a convicted bank robber acting shiftily, I - the layman - have reasonable suspicion that the person in question is planning to rob the bank. I don't have probable cause however until I discover that the person is carrying a weapon.
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nulli tertius
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(Original post by Kendrick Lamar)
If I walk into a bank and see a convicted bank robber acting shiftily, I - the layman - have reasonable suspicion that the person in question is planning to rob the bank. I don't have probable cause however until I discover that the person is carrying a weapon.
I am sorry but I set you an impossible challenge. When asked to review the distinction, retired judge Sir Scott Baker, David Perry QC and human rights solicitor Anand Doobay concluded that is respect of the US definition of probable cause and the British definition of reasonable suspicion:

In our opinion, there is no significant difference between the probable cause test and the reasonable suspicion test.
See

https://www.gov.uk/government/upload...ion-review.pdf

Para 7.42
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Arbolus
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(Original post by Observatory)
No. It's the repeal of Magna Carta and the beginning of the end for the common law. I don't believe the hyperbole about terrorism, but even if it is true, such things would be worth dying for.
What does the Magna Carta have to do with anything? Most of it was repealed in the 19th century. Of the three clauses that remain, only one is relevant to the justice system, and that makes a point of not interfering with any punishments or procedures that the law of the land might prescribe.
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