It is an astonishing turn of affairs. The European Council has agreed a framework decision (2009/299/JHA) that has amended the European Arrest Warrant (EAW), recognising that there is a major flaw in the system.
Back in 2002, the EU came up with the agreement that any government could extradite a suspect from another EU country by filling in a form. As with so many EU plans, what seems sensible in the abstract came to grief in the fine print.
There was, for instance, the matter of prima facie proof that would stand up to scrutiny in the suspect’s own courts. There was the question of doing time for a crime which wasn’t a crime in your own country. There was the matter of being handed over despite obviously being the wrong man fingered. There was the issue of being incarcerated abroad for months at a time while waiting for mistakes to be fixed, and so on. None of this mattered on British soil: if the paperwork was filled in correctly, off you went to a foreign prison.
There was also the shocking possibility that the Law would turn up on your doorstep with orders to deport you for a crime which you didn’t know you were supposed to have committed, after a trial which you didn’t know had taken place, by a judge and jury to whom you had had no way of explaining the details of your actions or innocence, and sentenced to a punishment you had never heard about seeking to appeal. No wonder human rights activists and lawyers have been so worried. Now that’s a surprise doorstep situation to spoil your episode of Coronation Street.
Under this Council Decision, however, a new clause is added to the EAW paperwork.
Annex (d) now requires the extraditing state to tick a box indicating whether the person named appeared at the trial resulting in the warrant; and if he didn’t, to tick another box to indicate if he was told the trial was taking place, or if instead he will be informed of his statutory rights for a retrial.
Seven years after the Arrest Warrant was created, and five after they started being issued in numbers, judges in the UK are now being told whether or not the individual in question has been tried in absentia.
But even this is being sold in the Recitals of the Decision as a positive: a mechanism to help judges decide when to honour a warrant because the accused chose not to appear at the court, and not the reverse, as a defence in that his right was never given in the first place.
If this is European justice, seven years on and under cover of a falsehood, then it truly is blind.